Petition for Writ of Certiorari — McKeel v. United States (No. 06-58)

Supreme Court, U.S.

FILE A

06-58 JUL13 2006

NO.

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JOSHUA R. MCKEEL

Petitioner

V.

THE UNITED STATES

Respondent

On Petition for Writ of Certiorari

To The United States Court of Appeals for the Armed Forces

FOR WRIT OF CERTIORARI

JOHN B. WELLS

LAW OFFICE OF JOHN B. WELLS

317 PORTSMOUTH DRIVE

= ce SLIDELL, LA 70460-8429

C2 985-641-1855

¢ ofD

S Par 985-649-1536 (fax)

— mon

Sort

“ SEs RICHARD H. MCWILLIAMS

p> = LIEUTENANT, JAG Corps,

oS ram UNITED STATES NAVAL RESERVE

~ APPELLATE DEFENSE COUNSEL

’-€ :

202-685-7295

II

QUESTIONS PRESENTED FOR REVIEW

Whether the Convening Authority and the Military

Judge Violated the Vicinage Provisions of the Sixth

Amendment to the United States Constitution in

Allowing the Court-Martial to Proceed in the

Northern District of Florida When the Alleged

Activity Occurred in the Western District of Texas

Whether the Military Judge Violated the

Due Process Clause of the Fifth Amendment to the

United States Constitution in Not Dismissing the

Charge and Specification When the Petitioner Relied

to His Detriment on.a Pre-Trial Agreement

TABLE OF CONTENTS

Questions Presented for Review ..................... i

Table of Cited Aap ie chk civic cece il}

Basis OF Supper icsiccecces Vi

Corporate Disclosure Statement .................... V1

Pertinent Constitutional Provisions, Treaties, Statutes,

Ordinances and Regulations ........:..eccceseeeeee Vil

Statement oF TG Ge ee ea vic ce cece: l

ASguirient . oo. 5 scion ew ore races 2

J The Convening Authority and the Military Judge

Violated the Vicinage Provisions of the Sixth

Amendment to the United States Constitution in

Allowing the Court-Martial

to Proceed in the Northern District of Florida When

the Alleged Activity Occurred in the Western District

Of Tees 5 eee wk rave ees 2

IT The Military Judge Violated the Due Process Clause

of the Fifth Amendment to the United States

Constitution in Not Dismissing the Charge and

Specification When the Petitioner Relied to His

Detriment on a Pre-Trial Agreement ............ 7

Conclusion ... « « o<sdaee asc cases. 17

Appendix

Decision of the United States Court of Appeals for

the Armed Forces

Decision of the United States Navy and Marine Court

of Criminal Appeals

Text of Pertinent Constitutional Provisions, Treaties,

Statutes, Ordinances and Regulations

~

TABLE OF CITED AUTHORITIES

Cases.

Arizona v. Fulminante, 499 U.S. 279 (1991) ............ 7

Brandt v. Hickel, 427 F.2d 53 (9" Cir. 1970) .......... 16

Boras v. Wilson, 346 US. UST CISSS) ccc vccvcideccss 5

Chenowith v. Van Arsdall, 46 C.M.R. 183, 22 USCMA 183

CUSTER iv cicthansevue 000000 a5 ee 2,24, 3,6

Cooke v. Orser, 12 M.J. 335 (CMA 1982) ......... 10, 14

Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976) ........ 5

Ex Parte Guivin, SUT US. CUIGE) oe ccs cc eseanvcces 4

Frvae ¥.. Seated, TIS US. GE CFG) oc vc cvewe ccvcesncey: 6

In re Cresson, 897 F.2d 156 (Sth Cir. 1990) ............ 3

Johnston v. United States, 351 U.S. 21 (1956) .......... 7

Ornelas v. United States, 517 U.S. 690 (1996) .......... 3

Platt v. Minnesota Mining & Manufacturing Co., 376 U.S.

ORE UOE) o cddase s 0ndesarcsseey ee eee ee 6

Reed Enterprises v. Clark, 278 F.Supp. 372 (D. D.C. 1968) 7

Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982) ..... 7, 8, 11

Samples v Vest, 38 M.J. 482 (C.M.A. 1994) ........... 10

Shepardson v. Roberts, 14 M.J. 354 CMA 1983) ....... 15

St. Regis Paper Co. v. United States, 368 U.S. 208 (1961) 16

United States v. Brown, 13 M.J. 253 (C.M.A. 1982) ..... 10

United States v. Churnovic, 22 M.J. 401 (C.M.A. 1986) . 13

United States v. Cores, 356 U.S. 405 (1958) ............ 4

United States v. Cryar 232 F.3d 1318 (10" Cir. 2000) .... 3

United States v. Doran, 7 M.J. 1015 (N.M.C.M.R 1979) .. 4

United States v. Duncan, 919 F.2d 981 (Sth Cir. 1990) ... 4

United States v. Ezell, 6 M.J. 307 (C.M.A. 1979) ........ 5

United States v. Graham, 56 M.J. 266 (C.A.A.F 2002) .. 13

United States v. Jones 52 M.J. 60 (C.A.A.F 1999) ...... 1]

United States v. Joseph, 11 M.J. 333 (C.M.A. 1981) .... 16

United States v. Kimble, 33 M.J. 284 (CMA 1991)...... 12

United States v. Liang, 224 F.3d 1057 (9" Cir. 2000) ..... 3

United States v. Liranzo, 944 F.2d 73 (2d Cir.1991) ...... 8

iil

United States v. Lowe, 56 M.J. 914 (N.M.C.C.A. 2002) .. 13

United States v. Manns, 54 M.J. 164 (C.A.A.F. 2000) ... 13

United States v. McHan 101 F.3d 1027 (4" Cir. 1996). ... 8

United States v. McKeel, 2005 WL 165397 (N.M.C.C.A.

a eee ae Go a Ph oko e 4 we hea Red wares 3

United States v. McKeel,63 M.J. 81 (C.A.A.r.

oie da ea kee esr e-nau ee Cech eek ee nk as 6, 8, Ll, 12

United States v. Miller, 111 F.3d 747 (10" Cir. 1997) .... 7

United States v. Morgan, 393 F.2d 192 (D.C. Cir. 2004) .. 3

United States v. Nadel, 48 M.J. 485 (C.A.A.F 1998) .... 13

United States v. Novak, 443 F.3d 150 (2" Cir. 2006) ..... 3

United States v. Olivero, 39 M.J. 246 (C.M.A. 1994) .... 14

United States v. Paiva, 294 F.Supp. 742 (D.D.C. 1969) ... 8

United States v. Perez, 280 F.3d 318 (3 Cir. 2002) ...... 3

United States v. Robinson, 275 F.3d 371 (4" Cir. 2001) ... 3

United States v. Scheffer, 523 U.S. 303 (1998) ....... 9, 10

United States v. Strain, 396 F.3d 689 (5" Cir. 2005)...... 3

United States v. Stratton, 649 F.2d 1066 (5" Cir. 1981) ... 7

United States v. Thompson, 11 U.S.C.M.A. 252 (1960) .. 16

United States v. Villareal, 47 M.J. 57 (N.M-€.C.A. 1997) 15

United States v. Wagner, 35 M.J. 721, 726 (A.F.C.M.R.

SE cs Suh wal ae healer wig gars sires ae a 16

United States v. Wood 364 F.3d 704 (6" Cir. 2004) ...... 3

Statutes.

Oe, eS a re wel u ware coe ss 3

Ca, a Me, SUE Es ov po vce bay suvwrwes 2&5. 7

Asucie. 6U.C.MJ.(1GU.S.C. 6 806) 2.0.0.0 cence 14

Astcie 15 UCAS. IO USL. SSIS) 2. ccc cc cwess ]

Armele 36 U.C BE CIO USL. OSS). cccccccccsinsse )

Se a SU ss eae b Ne eae ere eased eae eke vi

Rules of the Supreme Court of the United States.

No a hac a ow 6 do he ae a ee vi

Ne be te De en ee vi

iV

I I ey as gwd a eee as vi

Other Authorities.

Foul” ER” Sees ape sr OrAmy ar acmenr iri korn stp yee 7 9,11

BASIS FOR JURISDICTION

These issues are properly before the Supreme Court

of the United States pursuant to 28 U.S.C. § 1254 and Rule

10 of the Supreme Court rules which govern the review on

Certiorari. The final judgment of the United States Court of

Appeals for the Armed Forces was entered on Apnil 14, 2006.

The submission for filing is within the 90 day requirement of

Rule 13.1 of the Supreme Court Rules. This proceeding

does not question the constitutionality of any Act of

Congress or any State Legislature. Consequently, the

provisions of Rule 29.4(b) and (c) do not apply.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Armed

Forces is reported as United States v. McKeel, 63 M.J. 81

(C.A.A.F. 2006). The decision of the Navy and Marine

Corps Court of Criminal Appeals denying relief is

unreported.

v1

PERTINENT CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES AND

REGULATIONS

The following constitutional provisions treaties,

statutes, ordinances and regulations are applicable to this

proceeding:

U.S. CONST. AMND VI

Article. 6 U.C.M.J. (10 U.S.C. § 806)

Article 15 U.C.M.J. (10 U.S.C. § 815)

Article 36 U.C.M.J. (10 U.S.C. § 836)

Pertinent text of citations are set out in the appendix.

Vil

STATEMENT OF THE CASE

The right to due process is a critical element of our

system of justice. Although embodied in the military justice

system, it was sadly lacking in the trial of SN Joshua R.

McKeel. Caught in the middle of a web of deceit, not of his

making, he saw his career destroyed by a trial that trampled

the provisions of the Constitution of the United States.

The incident that gave rise to appellant's trial

occurred in San Antonio Texas, within the Western District

of Texas. He was originally convicted at Captain’s Mast for

rape and other charges.. The Mast was held at Naval

Technical Training Center Detachment, Lackland AFB, San

Antonio Texas, within the Western District of Texas. The

appellant was induced by Chief Legalman Leiker, the

command legal officer, to plead guilty at a Captain’s Mast

pursuant to Article 15 of the Uniform Code of Military

Justice (U.C.M.J.) (10 U.S.C. §815). It was the accused’s

understanding that if he plead guilty at non judicial

punishment he would be discharged administratively within

the next few weeks. Petitioner’s mother and his step-father

also talked with Chief Leiker who assured them that the pre-

trial agreement would result in McKee]’s non judicial

punishment and administrative separation.

In reliance on this pre-trial agreement, the accused ~

plead guilty at Mast before the Commanding Officer, who

was a Special Court-Martial convening authority. An

administrative separation package, which included the Mast

results, was then forwarded to the General Court-Martial

convening authority. That convening authority sua sponte

decided to prefer charges. An arraignment was held

subsequent to the referral and trial was set for 16 December

at Naval Air Station Pensacola, Florida, within the Northern

District of Florida. The accused obtained civilian counsel.

On November 4, 2002, the accused moved for a change of

venue to the Western District of Texas. The Military Judge

denied the motion to change the situs of the trial to the

Western District of Texas. The trial was held at the Naval

Air Station Pensacola in the Northen District of Florida.

This matter was tried at Naval Air Station, Pensacola,

Florida on 24 September 2002, 4 November 2002, 15

November 2002, 16 December 2002, 17 December 2002, 8

January 2003 and 6 February before a General Court-Martial

consisting of Military Judge alone appointed by Chief of

Naval Air Training. Appellant was convicted of one

specification of Indecent Assault in violation of Art. 134,

commensurate with his plea of guilty. The Navy-Marine

Corps Court of Criminal Appeals affirmed the findings and

sentence on 26 January 2005. Ina 4-1 opinion, the Court of

Appeals for the Armed Forces affirmed on April 14, 2006.

ARGUMENT

J The Convening Authority and the Military Judge

Violated the Vicinage Provisions of the Sixth

Amendment to the United States Constitution in

Allowing the Court-Martial to Proceed in the

Northern District of Florida When the Alleged

Activity Occurred in the Western District of Texas

The decision of the courts below conflicts with the

decisions of this Court and all United States Court of Appeals

that have considered the matter. The Court of Appeals for

the Armed Forces did not grant oral argument on this issue or

allow supplemental briefing. Presumably it relied upon

Chenowith v. Van Arsdall, 46 C.M.R. 183, 22 USCMA 183

(1973), as did the Navy Marine Corps Court of Appeals for

2

not granting relief on this issue. United States v. McKeel,

2005 WL 165397 (N.M.Ct.Crim.App. 2005). The doctrine

articulated in Chenowith stands alone for the proposition that

a military court-martial can be held outside the State and

district of the alleged crime. See, United States v. Novak,

443 F.3d 150, 161 (2™ Cir. 2006); United States v. Perez, 280

F.3d 318, 327 (3 Cir. 2002); United States v. Robinson, 275

F.3d 371, 378 (4" Cir. 2001); United States v. Strain, 396

F.3d 689, 692 (5" Cir. 2005); United States v. Wood 364 F.3d

704, 710 (6" Cir. 2004); United States v. Liang, 224 F.3d

1057, 1059 (9" Cir. 2000); United States v. Cryar 232 F.3d

1318, 1320 (10" Cir. 2000); United States v. Morgan, 393

F.2d 192, 195 (D.C. Cir. 2004).

Appellant’s trial was onboard the Naval Air Station

in Pensacola, Florida within the Northern District of Florida

for events that were alleged to have occurred in San Antonio

Texas. The appellant timely objected. The Military Judge

denied the defense motion and ordered that the trial be held

in Florida. A military courthouse at the Lackland Air Force

Base was available within the Western District of Texas.

Additionally federal courthouses are located within the

Western District of Texas including the federal courthouse at

San Antonio, Texas. Since this is an issue of constitutional!

law, the standard of review is de novo rather than the abuse

of discretion standard applied in the Court of Criminal

Appeals. Ornelas v. United States, 517 U.S. 690 (1996)

Since colonial times, Americans have resisted

government attempts to pack a defendant off to an

inconvenient location to hold his trial. In the Declaration of

Independence, the Founding Fathers included this complaint

against King George as one of the reasons for the severance

of ties with the motherland. /n re Cresson, 897 F.2d 156,

158 (Sth Cir. 1990). By Article III of the Constitution, the

federal government was required to try a person in the State

where the crime was committed. /d. This requirement was

strengthened by the adoption of the Sixth Amendment which

provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defense.

(Emphasis added).

It is well settled that a general court-martial is a

criminal proceeding. United States v. Doran, 7 M.J. 1015,

1017 (N.M.C.M.R 1979). Consequently, the Sixth

Amendment attaches. It is also well settled that the Sixth

Amendment requires that criminal trials be held in the district

or State in which the alleged crime occurs. United States v.

_Duncan, 919 F.2d 981 (Sth Cir. 1990); United States v.

Cores, 356 U.S. 405, 407 (1958). The Navy-Marine Corps

Court of Criminal Appeals erroneously relied upon Ex Parte

Quirin, 317 U.S. 1, 39 (1942) which is inapplicable, to find

that Article III and the Sixth Amendment did not attach

Quirin applies only to military tribunals and not to courts-

martial. .

Thirty years ago, the Court of Military Appeals

addressed this issue in the military context. Chenowith v.

Van Arsdall, supra. Chenowith is not consistent with the

precedents of this Court which has held that absent military

necessity the protections of the Bill of Rights apply to

military members. Burns v. Wilson, 346 U.S. 137 (1953).

Military courts subsequent to Chenowith have addressed the

issue of the Bill of Rights application to the members of the

military service and have held that the Bill of Rights applies

to persons in the military. Courtney v. Williams, | M.J. 267,

270 (C.M.A. 1976). When the rights of such persons must be

conditioned to meet certain overriding demands of discipline

and duty, the burden of showing that military conditions

require a different rule than that prevailing in the civilian

community is on the party arguing for different rule. See,

also, United States v. Ezell, 6 M.J. 307, 313 (C.M.A. 1979).

Id. Thus Chenowith must be limited to its facts.

Chenowith involved sabotage onboard the aircraft

carrier Ranger. At the time of the court-martial, the ship was

deployed to a combat zone off the coast of Vietnam. The

government requested a change of venue to the Philippines to

be near the situs of the crime and the witnesses. Here the

appellant wishes to accomplish the same result as the

government in Chenowith. The situs of the alleged crimes

was in Texas. The vast majority of the witnesses and all of

the physical evidence were also located there. The

convening authority was based in Corpus Christi, Texas.

Holding the court-martial in Texas would have assisted the

defense.

In Chenowith, the actual situs of the crime was the

Ranger, not the Naval! Station San Francisco. The fact that

the Ranger moved across the Pacific Ocean was irrelevant as

to its status of a crime scene. Accordingly, moving the trial

to the Philippines near the present location of the Ranger was

consistent with the petitioner's Sixth Amendment rights.

Although the court rejected the constitutional justification for

the move, it embraced the underlying reasons for it.

As discussed above, the military courts must follow

the dictates of the Supreme Court. The Chenowith holding is

in Opposition to Supreme Court precedent and cannot be

applied to the instant case. The Supreme TW ourt has explained

that trials must be held near the scene of the crime to

"safeguard against the unfairness and hardship involved

when an accused is prosecuted in a remote place." Platt v.

Minnesota Mining & Manufacturing Co., 376 U.S. 240

(1964).

In the instant case, the trial was several hundred miles

away from the situs of the alleged offense. The government

had no operational reason for holding the trial in Florida.

Witnesses and evidence were in Texas. There were both

military and federal court rooms within the State and District

and in close proximity to the scene of the alleged crime.

Early in this century, Mr. Justice Brown emphasized

why trials need to be held close to the situs of the purported

offense. In his opinion in Hyde v. Shine, 199 U.S. 62, 78

(1905), Mr. Justice Brown noted:

To require a citizen to undertake a long

journey across the continent to face his

accusers, and to incur the expense of taking

his witnesses, and of employing counsel in a

distant city, involves a serious hardship, to

which he ought not to be subjected if the case

can be tried in a court of his own jurisdiction.

Justice Brown's analysis not only makes good sense,

it supports the principle of fundamental fairness. This is the

cornerstone of our standards of due process and it represents

the law of the land. Justice Reed, in his opinion in Johnston

v. United States, 351 U.S. 21 (1956), noted that the situs of a

trial must be fixed at the vicinage of the crime and that any

variation for the convenience of the prosecution (or the

petitioner) cannot be justified. /d. at 220-21. Reed

Enterprises v. Clark, 278 F.Supp. 372 (D. D.C. 1968). aff'd

88 S.Ct .1196 (1968).

The right to venue in the vicinage of the alleged

offense is a fundamental right in a criminal proceeding.

United States v. Miller, 111 F.3d 747, 754 (10" Cir. 1997);

United States v. Stratton, 649 F.2d 1066, 1077 (5™ Cir.

1981). Accordingly, actual prejudice need not be shown.

Arizona v. Fulminante, 499 U.S. 279, 309 (1991). Thus the

convictions for the charge and specification must be set

aside. This Court should align the military system with the

rest of the federal criminal system and require the armed

forces to implement the vicinage provisions of the Sixth

Amendment. 3

II The Military Judge Violated the Due Process Clause

of the Fifth Amendment to the United States

Constitution in Not Dismissing the Charge and

Specification When the Petitioner Relied to His

Detriment on a Pre-Trial Agreement

The decision of the court below conflicts with the

holdings of the other United States Courts of Appeal that

have addressed the standard for equitable immunity, or de

facto immunity as it is called in the military. Specifically,

the standard articulated by the Court of Appeals for the

Armed Forces is in contrast to that articulated by the

Eleventh Circuit in-Rewe. Griffin, 676 F.2d 524 (11th

Cir.1982). The Rowe court found that equitable immunity

requires enforcement of an agreement when (1) an agreement

7

was made; (2) the defendant has performed on his side; and

(3) the subsequent prosecution is directly related to offenses

in which the defendant, pursuant to the agreement, either

assisted with the investigation or testified for the

government. Rowe, 676 F.2d at 527-28. This reasoning has

been adopted by other circuits. United States v. McHan 101

F.3d 1027, 1034 (4" Cir. 1996). See also, United States v.

Liranzo, 944 F.2d 73, 77 (2d Cir.1991) and United States v.

Paiva, 294 F.Supp. 742, 747 (D.D.C.1969) which articulated

a similar standard.

In contrast, the court below adds another element,

detrimental reliance to the Rowe standard. As Judge

Erdmann wisely pointed out in his dissent, the concept of

detrimental reliance is not a proper element in a de facto

immunity analysis. United States v. McKeel, 63 M.J. 81, 85

(C.A.A.F. 2006), (Erdmann, J. dissenting). Consequently,

~ this Court must act, not only to settle this important aspect of

the law, but also to reconcile the differences between the

Circuits. Under the Rowe analysis, McKeel equitable

immunity would have required that the charges be dismissed.

Since the Court below did not articulate any uniquely

military circumstance that would give rise to the addition of

the detrimental reliance element, and no such uniquely

military concern is evident, there is no reason to treat military

members differently than other citizens. Judge Erdmann’s

dissent, which reflects the majority view among courts of

appeal that have ruled on this doctrine, is the better view and

should be adopted by this Court.

The Manual for Courts-Martial, (hereinafter MCM)

recognizes the concept of de facto or equitable immunity. In

the discussion to R.C.M.' 704(c), the drafters note the

following:

Only general court-martial convening

authorities are authorized to grant immunity.

However, in some circumstances, when a

person testifies or makes statements pursuant

to a promise of immunity, or a similar

promise, by a person with apparent authority

to make it, such testimony or statements and

evidence derived from them may be

inadmissible in a later trial. Under some

circumstances a promise of immunity by

someone other than a general court-martial

convening authority may bar prosecution

altogether. Persons not authorized to grant

immunity should exercise care when dealing

with accused or suspects to avoid

inadvertently causing statements to be

inadmissible or prosecution to be barred.

(Emphasis added).

Thus a de facto agreement arises when a person with

apparent authority to make a promise does so and the other

person performs in accordance with that promise. There is

no requirement in the R.C.M. for the additional element of

detrimental reliance. The Manual for Courts-Martial and the

Rules for Court-Martial are promulgated by the President

pursuant to Art. 36 of the U.C.M.J. (10 U.S.C. § 836). The

Court of Appeals of the Armed Forces and the other military

courts are required to enforce the provisions of the MCM as

promulgated by the President under Art. 36. United States v.

' Rule for Court-Martial

9

Scheffer, 523 U.S. 303, (1998).

Military jurisprudence also requires that when a

promise is made in the context of a pre-trial agreement it

must be kept. As an example in Cooke v. Orser, 12 M.J. 335

(CMA 1982) the courts found no right to try by court-martial

when the SJA had promised no prosecution in response to an

agreement to cooperate. Perhaps even more on point is

United States v. Brown, 13 M.J. 253 (C.M.A. 1982) in which

an informal agreement was upheld as a matter of due process,

even though there was no intentional breach of it. In that

case, the breach was made when the SJA became ill and the

purpose of his promise was frustrated. Since there was no

fault on the part of the accused, the court held the agreement

was enforceable.

The court below’s predecessor court examined the

concept of equitable immunity in Samples v Vest, 38 M.J.

482 (C.M.A. 1994). The Samples court found that “ an

accused honestly and reasonably believes that an official has

promised him transactional immunity and that official has the

lawful authority to do so, then the promise is the functional

equivalent of a grant of immunity.” Samples, 38 M.J. 486.

The question here was not whether the official has lawful

authority but whethe: the accused believes that he did. Jd.

That finding is in consonance with the other circuits but was

abandoned by the court below in McKeel.

In the instant case there is no question that an

agreement was made. The accused was told *» \ » command

Legal Officer’ that he would not be court-ma. ‘aled and that

? Prior to 1 October 2001, LT Spencer of NTTC

Corry Station was the SJA for Lackland. On | October 2001,

10

he would be administratively separated should he agree to

plead guilty at Mast. He plead guilty in based on the word of

Chief Legalman Leiker that he would not be prosecuted

criminally. The subsequent prosecution was directly related

to the same offenses - in fact they were the same offense.

Thus the transaction met the accepted three part Rowe test for

equitable immunity.

The Military Judge in his essential findings found that

the testimony of Mrs. Huff, the accused and the stipulation as

to the testimony of Mr. Gene Huff supported the fact that

Leiker had made a promise to forego court-martial if the

accused accepted Mast and waived his administrative

discharge board. He further accepted the notes made by Mr.

Huff as factual. He also stated that the appellant’s mother and

step-father believed Chief Leiker had the authority to enter

into a pre-trial agreement. Additionally, the appellant

believed that Chief Leiker had that authority. Basically, the

Military Judge accepted as true the defense version of the

facts and was critical of the means by which this agreement

was secured and its effect. McKeel, 63 M.J. at 85 (Erdmann,

J. dissenting).

The fact that Leiker did not have the authority to

enter into a pre-trial agreement is of no moment. The

- question is whether he had the apparent authority. Apparent

authority is recognized in the jurisprudence and in the

discussion to R.C.M. 704. United States v. Jones 52 M.J. 60,

65 (C.A.A.F 1999). In Jones it was the Staff Judge Advocate

however, NTTC Lackand Det stood up as its own command

and was no longer under the auspices of the Corry Station

command or its SJA. LNC Leiker, the command legal

officer began performing SJA type duties.

1]

who made the promise. Here LNC Leiker, as command Legal

Officer, was acting in the same capacity and with the same

mantle of command and apparent authority as an SJA. Judge

Erdmann noted that McKeel, as a young seaman attending

his initial training, saw the Chief as the “face of the naval

military justice system.” McKeel, 63 M.J. at 87-88,

(Erdmann, J dissenting). He found that 1t would be

unreasonable for someone in McKeel’s position to question

Chief Leiker’s authority. Jd. Without question, McKeel and

his parents believed that Chief Leiker had the authority to

negotiate the pre-trial agreement. Additionally, the

agreement was ratified by the Commanding Officer, who was

the Special Court-Martial convening authority. McKeel, 63

M.J. at 85 (Erdmann, J. dissenting).

In, United States v. Kimble, 33 M.J. 284 (CMA

1991) for example, a Special Court-Martial convening

authority promised the accused that if he participated in a

civilian treatment program he would not be court-martialed.

The Kimble court held that such a promise triggered de facto

immunity. /d. 289-90. In the instant case, the accused gave

up much more. He plead guilty at Mast, subjecting himself to

punishment. He also agreed to an administrative separation

with a less than honorable discharge in return for the promise

to not court-martial him. In making this bargain, the

appellant waived virtually all of his veterans benefits and

exposed himself to significant prejudice in civilian life. The

Commanding Officer, who was the Special Court-Martial

convening authority, held the Mast and formerly ordered the

administrative separation. She then forwarded the

administrative separation package to the general court-

martial convening authority. The appellant was as good as

his word and fulfilled his contractual responsibilities. As the

Kimble court said, it is now time for the government to

comply. /d. at 290.

Military courts have also found that apparent

authority does not have to reside in a commissioned officer.

In United States v. Churnovic, 22 M.J. 401 (C.M.A. 1986),

the Court of Military Appeals held that an inducement from

the accused’s Leading Chief Petty Officer was sufficient.

In Churnovic, a Chief Petty Officer was assigned to

investigate a note that referenced the presence of hashish on

the ship. The Chief Petty Officer believed that the accused

had some connection with hashish allegedly on the ship, but

assured him that if he turned the contraband in to authorities

he would not be prosecuted. /d at 403-04. The accused was

later interviewed by NIS (now NCIS) and admitted

culpability. The Churnovic, court found that the Chief Petty

Officer had an interest in eradicating drug use and that he

was in contact with the command structure. /d at 405. The

Churnovic court also properly found that the matter was

binding.

While the charges in the instant case were more

serious \than those in Churnovic, the seriousness of tne

charges, in themselves, should not be a determining factor in

ascertaining whether or not de facto immunity applied.

McKee! was charged and convicted of indecent assault. Such

an offense is chargeable and has in fact been routinely bought

before Special Courts-Martial. See, e.g. United States v.

Graham, 56 M.J. 266 (C.A.A.F 2002); United States v. Lowe,

56 M.J. 914 (N.M.C.C.A. 2002); United States v. Manns, 54

M.J. 164 (C.A.A.F. 2000); United States v. Nadel, 48 M.J.

485 (C.A.A.F 1998).

The actions of LNC Leiker and his Commanding

Officer convinced the accused that he had entered into a pre-

trial agreement. It is presumed that the Commanding Officer

and the Legal Officer communicated with each other as

13

required by Art. 6(b) of the U.C.M.J. (10 U.S.C. § 806(b).

Certainly they have a duty to consult and communicate.

Cooke, supra, \2 M.J. at 339. The actions of the Special

Court-Martial convening authority and her Legal Officer

triggered a defacto/equitable grant of immunity from

prosecution. The actions of the Commanding Officer in

administering the Mast and later forwarding the

administrative discharge board ratified any decisi#: made by

her Legal Officer. Looking through the eyes of an

unsophisticated E-2 from Tennessee, with the benefit of a

high school education and no formal legal training, it is

readily apparent that he would believe that he had entered

into a binding agreement. LNC Leiker was under a duty to

consult with his Commanding Officer and the Staff Judge

Advocate of the General Court-Martial convening authority.

Art. 6(b). So the burden should not be on an E-2 to check

with a senior officer to ascertain whether he had consulted

with his immediate superior in the chain of command

regarding the agreement. An E-2, especially one assigned to

a training command, would make such an inquiry at his peril.

Even if the majority in McKeel was correct and the

other Circuit Courts of Appeal wrong on the issue of

detrimental reliance, the facts support the proposition that

McKeel relied to his detriment on the agreement. It is well

settled that under military law, “the Government may not

prosecute unless it can show, by a preponderance of the

evidence, that the prosecutorial decision was untainted by the

immunized testimony.” United States v. Olivero, 39 M.J.

246, 249 (C.M.A. 1994). In the instant case, the record

shows the opposite. The decision of the convening authority

to prefer and refer court-martial charges was made only upon

the testimony of the accused at Mast. Military law requires

the Military Judge to inquire as to whether the preponderance

of the evidence supports the proposition that the

14

prosecutorial decision was untainted by the immunized

testimony. Jd. No such inquiry was conducted. In reality,

based on the convening authority’s admitted reliance on the

immunized testimony, no such inquiry was required. The

Military Judge here erred by not finding based on the

existing record, that the prosecutorial decision was made

based solely on the immunized testimony.

Even if the convening authority were to claim that

they have withdrawn from the agreement, such a withdrawal

would not act to vitiate the agreement or the immunity. In

United States v. Villareal, 47 M.J. 57 (N.M.C.C.A. 1997), the

court held that an accused was not entitled to specific

performance of a PTA from which the convening authority

had timely withdrawn. The glaring exception to this.was in

the case of detrimental reliance. In the instant case, the

accused has relied to his detriment on the false assurances of

the convening authority. He plead guilty at Mast. He made

inculpatory statements. He agreed to an administrative

separation. These actions were sufficient to constitute

detrimental reliance within the scope of Shepardson v.

Roberts, 14 M.J. 354 CMA 1983).

It is incumbent upon the government to act fairly with

its citizens and especially with those who would risk their

lives in its defense. As Justice Black once said:

Our Government should not by picayunish

haggling over the scope of its promise, permit

one of its arms to do that which, by any fair

construction, the Government has given its

word that no arm will do. It is no less good

morals and good law that the Government

should turn square corners in dealing with the

people than that the people should turn square

15

corners in dealing with their government.

St. Regis Paper Co. v. United States, 368 U.S. 208, 229

(1961) (Black, J., dissenting)

Another court put it more simply:

To say to these appellants, “The joke is on

you. You shouldn't have trusted us,” is hardly

worthy of our great government

Brandt v. Hickel, 427 F.2d 53, 57 (9" Cir. 1970).

The Military Judge’s error was based on the outdated

holdings of two court decisions, United States v. Thompson,

11 U.S.C.M.A. 252 (1960) and United States v. Joseph, \1

M.J. 333 (C.M.A. 1981). Neither case represents the state of

the current law. Both of these decisions relied upon previous

versions of the Manual for Courts-Martial that did not

include the apparent authority provisions of the current

Manual. See, United States v. Wagner, 35 M.J. 721, 726

(A.F.C.M.R. 1992). Additionally, in Joseph, the court

reached their decision because the issue was not raised at

trial. 11 M.J. at 334. In addition, unlike the instant case, the

accused in Joseph did not allege that the government

breached their promise to them or that he relied on those

promises to his detriment. /d at 335. Both issues have been

fairly raised in the court below.

Here fundamental fairness and the law requires that

the agreement be enforced. Thus the conviction for the

charge and specification must be set aside.

16

CONCLUSION

For the reasons delineated herein, petition prays that a

writ of certiorari be issued to the United States Court of

Appeals for the Armed Forces.

Respectfully Submitted,

John B. Wells

Attorney for the Petitioner

LA bar #23970

317 Portsmouth Dr.

Slidell, LA 70460

(985) 641-1855

(985)-649-1536

JohnLawEsq@msn.com

Richard H. McWilliams

Lieutenant, JAG Corps,

United States Naval Reserve

Appellate Defense Counsel!

202-685-7295

17

United Cates Court of Appeals for the Phmed Forces

Washington, D.C. 20442.001

UNITED STATES, ) USCA Misc. Dkt. No. 05-0363/NA

)

Appellee ) Crim. App. Dkt. No. 200202328

V.

ORDER

JOSHUA R. MCKEEL

we ee as We We eet

Appellant

Argued Dec. 6, 2005.

Decided April 14, 2006.

EFFRON, J., delivered the opinion of the Court, in which

GIERKE, C.J., and CRAWFORD and BAKER, JJ., joined.

ERDMANN, J., filed a dissenting opinion.

For Appellant: John B. Wells (argued); Lieutenant Richard H.

McWilliams, JAGC, USNR.

For Appellee: Captain Roger E. Mattioli, USMC (argued);

Commander C.N. Purnell, JAGC, USN (on brief); Colonel

W.K. Lietzau, USMC, and Captain Glen R. Hines, USMC.

Judge EFFRON delivered the opinion of the Court.

Appellant was charged with rape, in violation of Article 120,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920

(2000). At a general court-martial composed of a military

judge sitting alone, Appellant was convicted, pursuant to his

pleas, of the lesser included offense of indecent assault, in

Appendix |

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000). The

adjudged sentence included a dishonorable discharge,

confinement for five years, forfeiture of all pay and allowances,

and reduction to the lowest enlisted grade. The convening

authority approved the sentence. Pursuant to a pretrial

agreement, the convening authority suspended all confinement

in excess of fifteen months for a period of fifteen months from

the date the sentence was adjudged. The United States

Navy-Marine Corps Court of Criminal Appeals affirmed in an

unpublished opinion. United States v. McKeel, No. NNMCCA

200202328, 2005 CCA LEXIS 16, 2005 WL 165397

(N.M.Ct.Crim.App. Jan. 26, 2005).

On Appellant's petition, we granted review of the following

issue:

WHETHER THE MILITARY JUDGE ERRED IN NOT

DISMISSING THE CHARGE AND SPECIFICATION

BECAUSE THE’ APPELLANT RELIED TO HIS

DETRIMENT ON A PRETRIAL AGREEMENT.

For the reasons discussed below, we affirm.

I. BACKGROUND

Appellant contends that he entered into a pretrial agreement

with a special court-martial convening authority (SPCMCA)

before entering into the pretrial agreement with the general

court-martial convening authority (GCMCA) in the present

case. Prior to entering his pleas, Appellant moved to dismiss

the charges on the grounds that his earlier agreement with the

SPCMCA included a grant of immunity. According to

Appellant, the SPCMCA agreed that there would be no

court-martial if Appellant: (1) agreed to accept nonjudicial

punishment under Article 15, UCMJ, 10 U.S.C. § 815 (2000),

for the charged misconduct, and (2) agreed to waive his right to

Appendix 2

contest his separation from the military at an administrative

discharge board. The motion was denied. The present appeal

concems the authority to grant immunity and related

considerations concerning the administration of nonjudicial

punishment.

A. THE AUTHORITY TO GRANT IMMUNITY

Military law recognizes two types of immunity that may be

granted to a military accused. Transactional immunity

exempts an accused “from trial by court-martial for one or more

offenses under the code.” Rule for Courts-Martial (R.C.M.)

704(a)(1). Testimonial immunity protects an accused against

“the use of testimony, statements, and any information directly

or indirectly derived from such testimony or statements by that

person in a later court-martial.” R.C.M. 704(a)(2).

Testimonial immunity-in contrast to transactional

immunity-does not bar prosecution of the person who has

received the grant of immunity. See R.C.M. 704(a)

Discussion. F

The President, in the Manual for Courts- Martial, has restricted

the authority to grant immunity. Within the armed forces, only

an officer authorized to serve as a GCMCA may grant

immunity. R.C.M. 704(c). The President has not constrained

the GCMCA from using a subordinate to convey an offer of

immunity to the designated person when the GCMCA has

approved a specific grant of immunity. The GCMCA,

however, may not delegate the authority to grant immunity.

R.C.M. 704(c)(3).

A purported grant of immunity by an official not empowered by

the President to make such a grant is not valid. At trial, the

military judge may provide relief tailored to the circumstances

Appendix 3

if; (1) a promise of immunity was made; (2) the accused

reasonably believed that a person with apparent authority to do

so made the promise; and (3) the accused relied upon the

promise to his or her detriment. See, e.g., Shepardson v.

Roberts, 14 M.J. 354, 358 (C.M.A.1983); United States v.

Caliendo, 13 C.M.A. 405, 409, 32 C.M.R. 405, 409 (1962);

United States v. Thompson, 11 C.M.A. 252, 255,29 C.M.R. 68,

711 (1960); see R.C.M. 704(c) Discussion; Manual for

Courts-Martial, United States, Analysis of the Rules for

Courts-Martial app. 21 at A21-38 (2005 ed.).

When the promise of immunity has been made by an officer

having apparent but not actual authority, the remedy addresses

the extent of detrimental reliance. See Caliendo, 13 C.M.A. at

409, 32 C.M.R. at 409; Thompson, 11 C.M.A. at 255, 29

C.M.R. at 71. Normally, detrimental reliance upon apparent

authority can be remedied by measures short of a bar to

prosecution, such as exclusion of evidence obtained directly or

indirectly from the servicemember's reliance or precluding

nonevidentiary uses of immunized statements in the decision

whether to prosecute. See, United States v. Jones, 52 M.J. 60,

65 (C.A.A.F.1999); United States v. Olivero, 39 M.J. 246, 249

(C.A.A.F.1994). If the military judge has provided an

adequate remedy at trial, no further relief is warranted on

appeal. See Shepardson, 14 M.J. at 358. In unique

circumstances, our Court has concluded that the only

appropriate remedy is to dismiss the charges. See, e.g., United

States v. Kimble, 33 M.J. 284, 289-92 (C.M.A.1991); Cooke v.

Orser, 12 M.J. 335, 342-43 (C.M.A.1982).

B. NONJUDICIAL PUNISHMENT

The UCMJ also preserves the authority of a senior commander

to ensure accountability for misconduct by limiting the effect

of nonjudicial punishment imposed by subordinates under

Appendix 4

Article 15, UCMJ. See United States v. Joseph, \1\ M.J. 333,

334-35 (C.M.A.1981). Ifa subordinate commander imposes

nonjudicial punishment for an offense that is not “minor,” see ~

Article 15(b), UCMJ, the senior commander is not precluded

from referring the matter for trial by court-martial. See Article

15(f), UCMJ; R.C.M. 907(b)(2)(D)(iv); United States v.

Fretwell, 11 C.M.A. 377, 379, 29 C.M.R. 193, 195 (1960).

When an accused receives a court-martial sentence for the same

conduct that was punished at an Article 15 proceeding, the

accused has the opportunity to request a sentence credit under -

United States v. Pierce, 27 M.J. 367 (C.M.A.1989). See

United States v. Bracey, 56 M.J. 387, 388-89 (C.A.A.F.2002);

United States v. Gammons, 51 M.J. 169, 180 (C.A.A.F.1999).

I]. DISPOSITION OF THE CHARGES AGAINST

APPELLANT

A. NONJUDICIAL PUNISHMENT

During an interview with an agent of the Air Force Office of

Special Investigations (OSI), Appellant admitted to engaging

in sexual activity, including sexual intercourse, with an

intoxicated female shipmate. Appellant also admitted that he

did not believe that the shipmate was able to consent. The OSI

agent recorded Appellant's admissions in contemporaneous,

handwritten notes and in a subsequent summary of the

interview.

The OSI investigation was forwarded to the SPCMCA in

Appellant's chain of command. The chief petty officer (CPO)

who served as the ship's senior enlisted person responsible for

military justice matters, conveyed the following offer to

Appellant and his parents: If Appellant accepted nonjudicial

punishment under Article 15 for this misconduct, and if he

Appendix 5

waived his right to an administrative discharge board, there

would be no court-martial and Appellant would be discharged

administratively from the military.

Appellant accepted the offer. The SPCMCA held a proceeding

pursuant to Article 15, UCMJ, at which Appellant pleaded

guilty to various charges, including rape. The nonjudicial

punishment ordered by the SPCMCA included forty-five days

of restriction, forty-five days of extra duty, forfeiture of

one-half pay per month for two months, and reduction in grade

from E-3 to E-2.

B. REFERRAL TO TRIAL BY GENERAL

COURT-MARTIAL

Subsequently, Appellant was processed for administrative

discharge. Consistent with the agreement, the SPCMCA

forwarded Appellant's administrative discharge packet to the

GCMCA, who also served as the administrative discharge

authority. The GCMCA, who had no previous knowledge of

the charges against Appellant, declined to approve the

discharge, and ordered an investigation into the charges under

Article 32, UCMJ, 10 U.S.C. § 832 (2000). After the

investigation was completed, the GCMCA referred a charge of

rape-for which ~*Appellant had -received nonjudicial

punishment-to trial by general court-martial.

II]. DISCUSSION

Appellant contends that he received a grant of immunity on the

rape charge as part of his agreement with the SPCMCA. He

further contends that the GCMCA erred in referring that charge

to a general court-martial, and that the military judge erred in

denying his motion at trial to dismiss the charge.

Appendix 6

As noted in Section I.A., supra, when a servicemember seeks

dismissal of charges based upon a promise of immunity, the

servicemember must demonstrate that the promise was made by

an officer authorized to grant immunity. Appellant recognized

at trial, and has acknowledged on appeal, that the claimed grant

of immunity was not issued by a general court-martial

convening authority.

For purposes of this appeal, we shall assume, without deciding,

that the CPO made the offer with the approval of a

court-martial convening authority, the SPCMCA, and that.

Appellant reasonably relied upon an offer made with apparent

authority. Because the claimed grant of immunity in the

present case is based on apparent rather than actual authority,

Appellant must demonstrate detrimental reliance and that

remedial steps were inadequate. See supra Section I.A.

We note that the military judge ruled that statements made by .

Appellant at the nonjudicial punishment proceeding could not

be admitted into evidence against him at the court-martial. The

prosecution also agreed at trial that Appellant's decision to

waive an administrative discharge board, and matters related to

his administrative separation, could not be used against him at

trial. In addition, the prosecution agreed that Appellant would

be entitled to full sentencing credit under Pierce for the

punishment received at the nonjudicial punishment proceeding.

Well before Appellant entered into discussions with the CPO,

he was interviewed by an agent of the OSI in which he set forth

the details of his misconduct. Appellant's admissions,

recounted in the OSI report, provided ample grounds for the

GCMCA to reject the proposed administrative discharge and

order a pretrial investigation under Article 32, UCMJ. Trial

counsel asserted that the Government learned nothing from

Appellant's statements during the nonjudicial punishment

Appendix 7

proceeding that it did not already know from his admissions to

the OSI agent, and an affidavit of the CPO who made the offer

to Appellant supports this assertion. Appellant has not

identified any statement made during the nonjudicial

punishment proceedings or in the administrative discharge

packet that added any matter of significance to the information

that would have been presented to the GCMCA in the course of

making the disposition decision, absent the promise

communicated to AppeHant by the CPO. Under these

circumstances, we conclude that the Government has shown

that the decision to prosecute was untainted by the Article 15

proceeding and the administrative discharge packet. See

Olivero, 39 M.J. at 249.

In summary, the record reflects that appropriate remedial

actions were taken at trial, and that Appellant. has not

demonstrated detrimental reliance. Appellant has not

identified any unique circumstances that would warrant

dismissal of the charges.

IV. DECISION

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.

ERDMANN, Judge (disser* ng): 7

The majority concludes tha. McKeel is not entitled to de facto

transactional immunity because it finds that appropriate

remedial actions have been taken and that McKeel has not

demonstrated detrimental reliance. As I conclude that the

concept of detrimental reliance is not a proper element in a de

facto immunity analysis, I would conclude that McKeel had

been granted de facto transactional immunity, that he was

entitled to enforcement of that promise, and that the

Government was barred from bringing a _ subsequent

Appendix 8

prosecution against him. I therefore respectfully dissent.

The facts in this case are straightforward. While attending an

initial training school, McKeel was suspected of the rape and

sexual assault of a female recruit. During a subsequent

interview with the Office of Special Investigations (OSI),

McKeel made a number of incriminating statements.

Sometime after the OSI interview, Chief Petty Officer (CPO)

Leiker, the chief legal officer, told McKeel and his parents that

if he accepted nonjudicial punishment under Article 15, UCMJ,

10.U.S.C. § 815 (2000), and waived an administrative discharge

board, he would not be court-martialed. McKeel accepted

nonjudicial punishment under Article 15 and waived an

administrative discharge board. McKeel was not provided the

opportunity to consult with a judge advocate prior to accepting

the offer. See Dep't of the Navy, Manual of the Judge

Advocate General § 0109a.(1). All of these actions were

approved by the special court-martial convening authority

(SPCMCA). However, when McKeel's discharge package was

received by the general court-martial convening authority

(GCMCA), that officer declined to approve the administrative

discharge and initiated steps resulting in a charge for rape being

referred to a general court-martial.

McKeel filed a motion to dismiss on the grounds that he had

received de facto immunity from CPO Leiker. Following an

Article 39(a), Uniform Code of Military Justice (UCM3J), 10

U.S.C. § 839(a) (2000), session, the military judge denied the

motion to dismiss on the ground that under Rule for

Courts-Martial (R.C.M.) 704, immunity is within the sole

discretion of the GCMCA. McKeel and his parents testified

that they believed CPO Leiker had the authority to inform

McKeel that if he accepted nonjudicial punishment under

Article 15 and waived his right to an administrative discharge

board he would not be court-martialed. That testimony is

\

Appendix 9

uncontroverted. Although the military judge stated that he was

not convinced that CPO Leiker had apparent authority, he

found that McKeel's mother believed that CPO Leiker had the

authority. FN] At the general court-martial, McKeel entered a

plea of guilty to indecent assault and was sentenced to five

years of confinement, reduction to E-1, forfeiture of all pay and

allowances and a dishonorable discharge. Pursuant to a

pretrial agreement the convening authority suspended that

portion of the sentence in excess of fifteen months for a period

of fifteen months.

FN1. The military judge did not make any specific

findings regarding McKeel or his stepfather. It was

apparent from the record that since he believed that

only the general court-martial convening authority

(GCMCA) could grant immunity, that line of testimony

was not relevant.

The majority opinion recognizes the concept of de facto

immunity and creates a test to determine when a military judge

may fashion appropriate relief for promises of immunity made

by a person without actual authority: ‘“(1) a promise of

immunity was made; (2) the accused reasonably believed that

a person with apparent authority to do so made the promise;

and (3) the accused relied upon the promise to his or her

detriment.” While the concept of detrimental reliance has

sometimes been referenced in this court's immunity

jurisprudence, I believe that the concept is misplaced in the de

facto immunity context. Consequently, a review of immunity

in military justice is warranted.

United States v. Thompson, 11 C.M.A. 252, 255,32 C.M.R. 68,

71 (1960), and United States v. Caliendo, 13 C.M.A. 405, 409,

32 C.M.R. 405, 409 (1962), were decided under para. 148e of

the Manual for Courts- Martial, United States (1951 ed.). FN2

Appendix 10

In those cases individuals who did not have general

court-martial convening authority informed suspects that no

action would be taken against them if they either returned

stolen property or testified about a theft. FN3 This court held

in both cases that there was no valid grant of immunity because

the individuals purporting to make the grant did not have the

requisite authority. In both cases, however, the court held that

if the defendants had incriminated themselves in reliance on the

defective promises, incriminating evidence or statements would

not be admissible. Thus, while recognizing de jure immunity

and enforcing the voluntariness of pretrial statements, the court

did not raise the issue of de facto immunity and made no

conclusions in that regard.

FN2. That provision dealt with the interest or bias of a

witness and authorized a GCMCA to grant testimonial

immunity.

FN3. The other case relied upon by the majority in this

analysis, Shepardson v. Roberts, 14 M.J. 354, 358

(C.M.A.1983), has nothing to do with immunity but

rather is a case in which the convening authority

withdrew from a pretrial agreement and the issue in the

case was whether the withdrawal was proper. The

court held that a convening authority was bound to the

agreement if the accused had relied on the agreement to

his detriment.

This court issued a splintered decision in Cooke v. Orser, 12

M.J. 335 (C.M.A.1982), under para. 68h of the Manual for

Courts-Martial, United States (1969 rev. ed.) (1969 MCM).

FN4 In that case the appellant argued that the staff judge

advocate to the commander of the Strategic Air Command

promised him immunity from prosecution if he provided a

statement and took a polygraph test. The lead opinion found

Appendix | 1

that the promises made by the staff judge advocate led Cooke

to believe that if he cooperated he would not be court-martialed

by military authorities. Cooke, 12 M.J. at342. Finding that an

accused “need not gamble on the integrity of prosecutorial!

authorities in the military justice system,” the lead opinion held

that Cooke's due process rights had been violated. /d. at 343.

FN4. Cooke was charged with espionage for providing

information and materials to the Soviet Union. The

three-member court produced three separate opinions.

Judge Fletcher wrote the lead opinion, Chief Judge

Everett concurred and Judge Cook dissented.

Paragraph 68h authorized a GCMCA to grant

transactional immunity.

Chief Judge Everett's concurring opinion relied upon the

immunity provisions of paragraph 68h of the 1969 MCM. He

concluded that while the staff judge advocate did not have

authority to grant immunity, the subsequent actions of the

GCMCA ratified his grant of immunity. /d. at 354 (Everett,

C.J., concurring). The dissent of Judge Cook found that only

the GCMCA had the power to grant immunity and it was not

enough that the accused may have reasonably believed that he

had been granted immunity. /d. at 365 (Cook, J., dissenting).

While the lead opinion hinted at the concept of de facto

immunity, it was not specifically raised or discussed in the

opinion.

Rule for Courts-Martial 704, Manual for Courts-Martial,

United States (1984 ed.) (1984 MCM), recognized both

transactional and testimonial immunity and provided that

immunity could only be granted by aGCMCA. FNS The 1984

MC%, in the discussion to R.C.M. 704(c), recognized for the

first time the concept of de facto immunity. Case law too

began to explicitly recognize the concept. In United States v.

Appendix 12

Churnovic, 22 M.J. 401, 402-03 (C.M.A.1986), a chief petty

officer informed a crew member that he would not be punished

if he gave information about or turned in drugs. The court

stated: “if he was promised immunity from prosecution for

possessing hashish in return for revealing its location and if he

provided the requested information, he is entitled to the benefit

of that promise.” Jd. at 407. In United States v. Kimble, 33

M.J. 284, 289-90 (C.M.A.1991), the court held that a promise

made by a SPCMCA not to prosecute if Kimble completed a

treatment program for child abusers constituted a grant of

transactional immunity. Both of these cases recognized the

concept of de facto immunity where a promise not to prosecute

was made by someone with apparent authority.

FNS. Only minor changes, none pertinent to this

discussion, have been made to Rule for Courts-Martial

704 since the adoption of the 1984 MCM.

In Cunningham v. Gilevich, 36 M.J. 94, 100-01 (C.M.A.1992),

the court recognized that it had applied some type of de facto

immunity since Cooke, but found that the petitioners in that

case had not established that the officer who offered the

immunity had done so with apparent authority. FN6 In

Samples v. Vest, 38 M.J. 482, 486-87 (C.M.A.1994) the court

again recognized the concept of de facto immunity, but held it

was not applicable where the appellant had not shown that he

had been misled.

FN6. Concluding that there was no transactional

immunity, the court went on to hold that under the

“unlawful influence” provision of Article 31(d), the

Government had the burden of establishing that any

evidence used to prosecute the petitioner was

independent of testimony derived from the immunity

offer. Cunningham v. Gilevich, 36 M.J. 94, 102

Appendix 13

(C.M.A.1992),

From these cases it is clear that de facto immunity is a

well-established principle of military law despite the clear

language of R.C.M. 704(c). FN7 What is not so clear is the

relationship to “detrimental reliance” and how de facto

immunity is applied to transactional immunity as opposed to

testimonial immunity-two very different concepts.

FN7. Only a GCMCA authority may grant immunity,

and may do so only in accordance with this rule.

Rule for Courts-Martial 704(a) recognizes two types of

immunity: transactional immunity, which bars future

prosecutions, and testimonial immunity, which allows future

prosecutions but bars the use of immunized testimony at the

trial. De facto immunity has different applications to these

different types of immunity. If there is a finding of de facto

transactional immunity, then there can be no prosecution, as the

appellant is entitled to have the promise of transactional

immunity enforced. Samples, 38 M.J. at 487. The issue of

detrimental reliance and the requirement for independent

evidence to support a subsequent prosecution do not arise

because a grant of transactional immunity means that there will

be no subsequent prosecution.

Where there 1s a finding of de facto testimonial immunity, the

Government can proceed with a prosecution but has the burden

of establishing that all evidence was obtained independently

from the immunized testimony. Kastigar v. United States, 406

U.S. 441, 461-62, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). If,

however, there is a finding that there is no de facto testimonial

immunity, the court will go on to examine whether the

statements or evidence derived from the alleged immunity

process are otherwise admissible. Cunningham, 36 M.J. at

_—

Appendix 14

101-02 (unlawful inducements and influences in obtaining

statements may nonetheless give rise to Article 31, UCMJ, 10

U.S.C. § 831 (2000), issues).

| agree with the first two criteria suggested by the majority for

determining whether de facto immunity exists: an accused

must honestly and reasonably believe that (1) a promise of

immunity was made; and (2) the promise was made by a

person with apparent authority to do so. Jones, 52 M.J. at 65;

Samples, 38 M.J. at 487. In this case there is no dispute that

CPO Leiker promised McKeel immunity if he accepted

nonjudicial punishment under Article 15 and waived his right

to an administrative discharge board-both of which he did.

McKeel was a young seaman attending his initial training.

Chief Petty Officer Leiker was the chief legal officer and was

the face of the naval military justice system to both McKeel and

his parents. The undisputed testimony discloses that CPO

Leiker held himself out to have the authority to promise that

McKeel would not be prosecuted if he undertook the required

action. A reasonable observer would conclude that a new E-2

would not question the authority of a chief petty officer who is

also the highest ranking legal officer in his unit. The military

judge erred in concluding that CPO Leiker did not have the

apparent authority to grant immunity. That finding is not

supported by the evidence, is directly contrary to the undisputed

testimony, and conflicts with other findings by the military

judge.

I disagree with the majority that detrimental reliance has any

place in the de facto immunity analysis. Detrimental reliance

in this context appears to have migrated from R.C.M.

705(d)(4)(B), which lists the conditions under which a

convening authority can withdraw from a pretrial agreement.

Among these conditions is a withdrawal before an accused

begins performance of promises contained in the agreement.

Appendix 15

This condition came from Shepardson v. Roberts, which held

that a convening authority will be bound to a pretrial agreement

if the accused has detrimentally relied on the agreement. 14

M.J. 354, 358 (C.M.A.1983).

Rule for Courts-Martial 705 is not applicable to this case, nor

will it be applicable in most cases involving a grant of de facto

immunity. There was no pretrial agreement between McKeel

and CPO Leiker or McKeel and the SPCMCA because McKeel

was not being referred for a court-martial. FN8. See R.C.M.

705(b) (concerning the nature of a pretrial agreement). There

was a promise from CPO Leiker to McKeel that he would not

be prosecuted if he accepted nonjudicial punishment under

Article 15 and waived an administrative discharge board, but

that does not rise to the level of a pretrial agreement. Rather,

upon fulfillment of the two conditions imposed by CPO

Leiker's promise, McKeel was entitled to enforcement of this de

facto transactional immunity. And where the promise

constitutes de facto transactional immunity it is not adequate

simply to ensure immunized statements are not used in a

subsequent prosecution, the very existence of which violates

the terms of the immunity.

FN8. As noted in United States v. Jones, 52 M.J. 60, 65

(C.A.A.F.1999), “A de facto grant of immunity arises

when there is an after-the-fact determination based on

a promise by a person with apparent authority to make

it that the individual will not be prosecuted.” With an

“after-the-fact” determination, rarely, if ever, will a

formal pretrial agreement be involved.

I conclude that CPO Leiker, an officer with apparent authority,

promised McKeel transactional immunity if he accepted

nonjudicial punishment under Article 15 and waived his right

to an administrative discharge board. McKeel did both and

Appendix 16

now it is time for the Government to honor its promise. The

importance in enforcing such grants of immunity was

emphasized by Chief Judge Everett in Cooke as follows:

where, as here, the stakes are high, a suspect

who has been asked for information-and his

lawyer-must know that a promise of immunity

which is given by a staff judge advocate

possessing all the indicia of apparent authority

amd is reasonably relied on by the suspect will

thereafter be judicially enforced. Otherwise,

lips will remain sealed when it is vital to

national security that they be unlocked.

Although in this case an officer who may well

have been a spy and traitor will escape military

prosecution, it still is in the national interest that

the promise of immunity be enforced.

Cooke, 12 M.J. at 358 (Everett, C.J., concurring) (footnotes

omitted).

Those involved in government understand the numerous

governmental departments and levels of authority; but to the

average citizen, the government is the government and the left

hand should not be able to take away what the night hand has

properly granted. FN9 I would therefore reverse the fincings

and sentence and dismiss the charges.

FN9Y. “I join Judge Fletcher in concluding that the

Government cannot improve its legal position because

its left hand did not know what its nght hand was

doing.” Cooke v. Orser, 12 MJ. 335, 354

(C.M.A.1982) (Everett, C.J., concurring).

U.S. Armed Forces,2006.

Appendix 17

U.S. v. McKeel

63 M.J. 81

For the Court,

/s/ William A. DeCicco

Clerk of the Court

cc: | The Judge Advocate General of the Navy

Counsel for Appellant (WELLS, Esq.)

Counsel; for Appellee (MATTIOLI)

UNITED STATES NAVY-MARINE CORPS COURT OF

CRIMINAL APPEALS

JOSHUA R. MCKEEL NMCCA No.

200202328

V.

United States

Respondents

Sentence adjudged 6 Feb. 2003.

Decided 26 Jan. 2005. —

Military Judge: J.A. Maksym. Review pursuant to Article 66(c),

UCMS, of General Court-Martial convened by Chief of Naval

Air Training, Corpus Christi, TX.

JOHN B. WELLS, Civilian Appellate Defense Counsel.

Appendix 18

Maj CHARLES R. ZELNIS, USMC, Appellate Defense

Counsel.

Capt GLEN R. HINES, USMC, Appellate Government

Counsel.

Before C.A. PRICE, E.B. HEALEY, and R.C. HARRIS.

AS AN UNPUBLISHED DECISION, THIS OPINION

DOES NOT SERVE AS PRECEDENT

HEALEY, Judge.

*1 Pursuant to his pleas, the appellant was convicted of

indecent assault, in violation of Article 134, Uniform Code of

Military Justice, 10 U.S.C. § 934. A general court-martial

consisting of a military judge sitting alone sentenced the

appellant to 5 years confinement, forfeiture of all pay and

allowances, reduction to pay grade E-1, and a dishonorable

discharge. The convening authority (CA) approved the sentence

as adjudged and, with the exception of the dishonorable

discharge, ordered it executed. Pursuant to the pretrial

agreement, the convening authority suspended all confinement

in excess of 15 months for 15 months from the date of trial.

We have carefully considered the record of trial, the appellant's

three assignments of error, FN1 the Government's response, and

the appellant's reply. We conclude that the findings and the

sentence are correct in law and fact and that no error materially

prejudicial to the substantial rights of the appellant was

committed. Arts. 59(a) and 66{c), UCMJ.

FN1. I. The Convening Authority and the Military

Judge erred in allowing the court-martial to proceed in

the Northern District of Florida.

II. The military judge erred in not dismissing the charge

Appendix 19

and specification because the appellant relied to his

detriment on a pre-trial agreement.

III. The actions of the special court-martial convening

authority and his legal officer constituted unlawful

influence in violation of Article 31.

Change of Venue

In the appellant's first assignment of error, he asserts the

military judge erred by allowing the court to proceed in a

district other than where the offense was committed. We

disagree.

The appellant's offense occurred at Lackland Air Force Base,

Texas, where the appellant and the victim were attending “A”

School. However, at the time of the trial, neither was stationed

in Texas. Many of the witnesses had been transferred from

Texas to other parts of the world. At trial, the Government

counsel stated all witnesses would be made available and the

appellant conceded he was not aware of any problems with

getting witnesses to Pensacola, Florida the site of the trial. The _

military judge, counsel, and potential members were from

Pensacola. Therefore, it was economical for the Government to

try the court-martial in Pensacola.

The appellant does not claim he was prejudiced because the

trial was held at a location other than where the offense was

committed. His sole basis for requesting a change of situs was

the Sixth Amendment to the Constitution of the United States

that says, “In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law....”

Appendix 20

As to the appellant's assertion that the Sixth Amendment to the

Constitution of the United States, requires court-martial cases

be tried in the district where the incident occurred, the Supreme

Court of the United States has held that the requirements of

Article Ill of the Constitution and similar requirements of the

Sixth Amendment are not applicable to military tnbunals. Ex

Parte Quirin, 317 U.S. 1,39 (1942). Our superior court has also

concluded that federal practice applies to courts-martial if not

incompatible with military law or with the special requirements

of the military establishment. Chenoweth, 46 C.M.R. 183, 186,

1973 WL 14477 (C.M.A.1973)(citing United States v.

Knudson, 16 C.M.R. 161, 1954 WL 2439 (C.M.A.1954));

United States v. Fisher, 15 C.M.R. 152, 1954 WL 2268

(C.M.A.1954).

Neither the Uniform Code of Military Justice nor the Manual

for Courts-Martial establish the location at which a

court-martial may, or must be conducted. Chenoweth, 46

C.M.R. at 186. Rule for Courts-Martial 504(e), Manual for

Courts-Martial, United States (2002 ed.), says, “The convening

authority shall ensure that an appropriate location and facilities

for courts-martial are provided.” “However, once he has

referred charges to a court-martial, any motion for a change of

venue, or of the situs of the trial, is properly addressed solely to

the military judge as an interlocutory matter, and his ruling

thereon ‘is final and constitutes the ruling of the court.’ ”

Chenoweth, 46 C.M.R. at 186 (quoting Art. 51(b), UCMJ 10

USC § 851(b)). The military judges' ruling on a motion for a

change of venue is reviewed for abuse of discretion. United

States v. Thomas, 43 M.J. 550, 595-96

(N.M.Ct.Crim.App.1995) (quoting Art. 51(6), UCMJ, 10 USC

§ 851(b)). Based on the circumstances in this case, where the

appellant was provided with equal access to witnesses, we do

not find an abuse of discretion in the denial of the request for a

change of venue. Therefore, we decline to grant relief.

Appendix 21

Motion to Dismiss

In the appellant's second assignment of error, he contends that

the military judge erred by not dismissing the charge and

specification because the appellant relied to his detriment on a

pretrial agreement. We disagree.

The Air Force Office of Special Investigations (OSI)

interviewed the appellant on 3 October 2001. During that

interview the appellant admitted that he digitally penetrated and

had sexual intercourse with a shipmate who he did not believe

had the ability to consent. The appellant's admissions were

recorded in notes made by the OSI agent contemporaneous to

the interview and in a summary of the interview. Appellate

Exhibit XXXI at 270-76. Sometime subsequent to the OSI

interview, the unit's legalman chief petty officer (CPO) advised

the appellant that if he accepted Article 15, UCMJ, nonjudicial

punishment (NJP) for the rape and then waived his right to an

administrative discharge board, there would be no

court-martial. Record at 204-07. On 26 April 2002, nearly eight

months after the appellant's statement to the OSI agent, the

appellant plead guilty at an NJP to rape and other charges.

Prosecution Exhibit 2. He was processed for an administrative

discharge and he waived his board. Record at 205. However,

rather than discharge the appellant, the general court-martial

convening authority (GCMCA) referred the appellant to a

general court-martial for the same rape for which he had

received NJP. Record 191-207; Charge Sheet.

At trial the appellant moved to dismiss the charge and

specification alleging he had received, “equitable immunity”

from the legalman CPO who induced him to cooperate, accept

NJP, and waive his administrative discharge in exchange for

not being sent to a courts-martial. The appellant asserts the

actions of the CPO were in essence a pretrial agreement that

Appendix 22

triggered a defacto immunity barring further prosecution.

Again, we disagree.

The appellant stated he believed that the CPO had the authority

to tell him what he told him. Record at 205. The appellant does

not aver that the CPO had received any assurances that an

administrative discharge would be approved by the officer

exercising general courts-martial (OEGCM) jurisdiction. /d. at

198. To the contrary, the GCMCA did not approve the

discharge, but had a charge of rape preferred and sent to an

Article 32, UCMJ, investigation. Investigating Officer's Report

of 12 Aug 2002. Other than accepting NJP and waiving his

administrative discharge board, the appellant does not assert

that the Government imposed any other requirements on him.

The appellant does not assert and there is no evidence that the

Government intended to use at trial any evidence obtained from

the NJP proceedings. In fact, the Government agreed the NJP

proceeding would only be used to factor in “Pierce credit,” if

convicted. Record at 215; see United States v. Pierce, 27 M.J.

367 (C.M.A.1989).

The decision to grant immunity is a matter generally within the

sole discretion of the appropriate GCMCA. R.C.M. 704(e).

Under some circumstances a promise of immunity by someone

other than a GCMCA may bar prosecution altogether. R.C.M.

704(c), Discussion. Our superior court has held a promise of a

staff judge advocate, a special court-martial convening

authority, or a representative may result in de facto immunity.

United States v. Kimble, 33 M.J. 284 (C.M.A.1991); United

States v. Churnovic, 22 M.J. 401 (C.M.A.1986); Cooke v.

Orser, 12 M.J. 335 (C.M.A.1982). “A de facto ‘grant of

immunity arises when there is an after-the-fact determination

based on a promise by a person with apparent authority to make

it that the individual will not be prosecuted.” United States v.

Jones, 52 M.J. 60, 65 (C.A.A.F.1999).

Appendix 23

A factor to be considered when de facto immunity is raised is

whether there has been detrimental reliance on the part of the

appellant. “Where an official who has either expressed or

implied authorization of the [GCMCA] promises immunity,

‘the Government must abide by an agreement on which an

accused has reasonably relied to his detriment.’ ” Kimble, 33

M.J. at 292 (quoting Churnovic, 22 M.J. at 405). “[D]etrimental

reliance may include any action taken by an accused in reliance

on a pretrial agreement which makes it significantly more

difficult for him to contest his guilt on a plea of not guilty.”

Shepardson v. Roberts, 14 M.J. 354, 358 (C.M.A.1983).

De facto immunity, commonly called “equitable immunity,”

triggers the remedial action of the exclusionary rule and permits

enforcement of the agreement. United States v. Olivero, 39

M.J. 246,249 (C.M.A.1994) (concluding the “Government may

not prosecute unless it can show, by a preponderance of the

evidence, that the prosecutorial decision was untainted by the

immunized testimony” ). Where there is de facto immunity, our

superior court has held that any evidence derived from such de

facto immunity will not be admissible unless there is an

independent source for the evidence or charges. Oliver, 39 M.J.

at 249.

The appellant seeks to avail himself of the shield of detrimental

reliance because he received NJP, waived his administrative

board rights, and made admissions during his NJP. There is

nothing to demonstrate any of these actions on the part of the

appellant made it more difficult for him to contest his guilt.

This is particularly true in view of, (1) his prior comprehensive

admissions made the day of the offense, and (2) the

Government's concession to exclude from evidence any

information from the NJP.

We also look at whether the admissions of the appellant at NJP

Appendix 24

factored into the prosecutorial decision to forward the charges

to a general courts-martial. Based upon the nature and extent of

the inculpatory admissions made by the appellant to the OSI

agent and the OSI investigation, there was ample evidence for

the GCMCA to refer a charge of rape to general courts-martial.

We are not persuaded that any admissions made by the

appellant during NJP, even if forwarded to the GCMCA, played

a part in the decision to prosecute. Appellate Exhibit XXXII.

Use of administrative alternatives, open plea bargaining, and

resolution ofappropriate cases at lower levels is importan* and

in fact, critical to ensure proper and timely disposition of

infractions in the military system. The convening authority is in

the best position to decide whether to enter into a pretrial

agreement, whether to grant immunity in exchange for

testimony, and whether there should be any limitations on the

findings and the sentence in an individual's case. Jones, 52 M.J.

at 66. As articulated by our sister service court, “[i]f immunity

were to be conferred upon this appellant, almost any statement

of nonprosecutorial intent by almost any person with an

investigators badge could bind the government's hands and

preclude a prosecution.” United States v. Zupkofska, 34 M.J.

537,540 (A.F.C.M.R.1991). We conclude the appellant did not

suffer detrimental reliance. Therefore, we decline to grant

relief. |

Unlawful Command Influence

In his third assignment of error, the appellant raises for the first

time cn appeal, unlawful command influence on the part of the

special court-martial convening authority and his legal officer.

The appellant avers that the decision to prefer charges was

defective because it was based upon statements induced by the

legal officer that violated Article 31, UCMJ.

Appendix 25

At the appellate level, the appellant “must show (1) facts which,

if true, constitute unlawful command influence; (2) that the

proceedings were unfair; and (3) that unlawful command

influence was the cause of the unfairness.” United States v.

Richter, 51 M.J. 213, 224 (C.A.A.F.1999)(citing United States

v. Biagase, 50 M.J. 143, 150 (C.A.A.F.1999)). However,

defects in preferring and forwarding charges are forfeited if not

raised at trial, unless the failure to raise the issue is itself the

result of unlawful command influence. /d. (citing United States

v. Hamilton, 41 M.J. 32, 37 (C.M.A.1994)). In this case, the

evidence surrounding the accusatorial stage of the trial was

available at trial. The appellant does not aver that the alleged

unlawful command influence prevented him from raising the

issue at trial. Therefore, we hold the issue of unlawful

command influence was forfeited, and decline to grant relief.

Absence of the Appellant at Trial and Failure to Authenticate

Although not raised as error, we note that the appellant was not

present during the 15 November 2002 session of the trial.

Record 102-07. We also note that the record for the 15

November 2002 session was not authenticated.

Sessions were held 24 September 2002, 4 ) ovember 2002, 15

November 2002, 16 November 2002, 17 December 2002, 8

January 2003, and 6 February 2003. During the 15 November

session the defense brought a motion to suppress or order

depositions. The judge granted the defense requested

depositions.

R.C.M. 804(a) says, “[T]he accused shall be present at ... every

stage of the trial,” but then sets out numerous exceptions. The

right to be present is so fundamental, and the Government's

interest in the attendance of the accused so substantial, that the

accused should be permitted to waive the right to be present

Appendix 26

only for good cause, and only after the military judge explains

to the accused the right and the consequences of foregoing it,

and secures the appellant's personal consent to proceeding

without the accused. R.C.M. 804, Discussion. In that regard, the

following brief colloquy occugs:

MJ: Okay. Now, for the purpose of this limited

hearing, has your client waived his presence?

CDC: He has, and we're also waiving Captain

Weisman's presence, and Lieutenant Wallace's

presence.

Record at 102. During the numerous sessions, both prior to and

after the 15 November session, there is neither objection nor

affirmation on the part of the appellant regarding his absence

from this session.

R.C.M. 1104 implemented Article 54, UCMJ. United States v.

Ayers, 54 M.J. 85, 92 (C.A.A.F.2000). R.C.M. 1104(a)(2)(A)

requires that a record of trial be authenticated by the military

judge who presided over that portion of the trial. The purpose

of authentication is to ensure the verity of the record. Ayers, 54

M.J. at 92 (citing United States v. Galloway, 9 C.M.R. 63, 65,

1953 WL 2606 (C.M.A.1953) and United States v. Myers, 2

M.J. 979, 980 (A.C.M.R.1976)).

We conclude, under the circumstances of this case, to include,

(1) the very limited duration of the session, (2) the absence of

objection by the appellant at subsequent sessions, (3) the ruling

favorable to the appellant during the session, and (4) the lack of

any post trial objection that the appellant suffered no prejudice

from the military judge's failure to authenticate pages or from

the appellant's absence at trial. Therefore, we decline to grant

relief. Notwithstanding our conclusion in this case, greater

Appendix 27

attention to the authentication process and MCM guidance

concerning procedures to be used in the absence of the

appellant's presence at trial, should be rendered by those

responsible for the fairness and the accuracy of the proceedings.

Conclusion

Accordingly, we affirm the findings and the sentence, as

approved by the convening authority. We further order that

Appellate Exhibits XXXVII through XL and L be sealed.

PRICE, Senior Judge, and HARRIS, Judge, concur.

T F N I L

AND REGULATIONS

U. S. Constitution, Amendment VI. Jury trials for crimes,

and procedural rights.

In all criminal prosecutions, the accused shal! enjoy the nght

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.

10 U.S.C. § 806 Article. 6 U.C.M.J. Judge advocates and

legal officers

(a) The assignment for duty of judge advocates of the Army,

Navy, Air Force, and Coast Guard shall be made upon the

recommendation of the Judge Advocate General of the armed

force of which they are members. The assignment for duty

of judge advocates of the Marine Corps shall be made by

Appendix 28

direction of the Commandant of the Marine Corps. The

Judge Advocate General or senior members of his staff shall

make frequent inspections in the field in supervision of the

administration of military justice.

(b) Convening authorities shall at all times communicate

directly with their staff judge advocates or legal officers in

matters relating to the administration of military justice; and

the staff judge advocate or legal officer of any command is

entitled to communicate directly with the staff judge

advocate or legal officer of a superior or subordinate

command, or with the Judge Advocate General.

(c) No person who has acted as member, military judge, trial

counsel, assistant trial counsel, defense counsel, assistant

defense counsel, or investigating officer in any case may later

act as a staff judge advocate or legal officer to any reviewing

authority upon the same case.

(d)(1) A judge advocate who is assigned or detailed to

perform the functions of a civil office in the Government of

the United States under section 973(b)(2)(B) of this title may

perform such duties as may be requested by the agency

concerned, including representation of the United States in

civil and criminal cases.

(2) The Secretary of Defense, and the Secretary of Homeland

Security with respect to the C »sast Guard when it is not

Operating as a service in the Navy, shall prescribe regulations

providing that reimbursement may be a condition of

assistance by judge advocates assigned or detailed under >

section 973(b)(2)(B) of this title.

10 U.S.C. § 815, Article 15 U.C.M.J. Commanding

officer's non-judicial punishment

(a) Under such regulations as the President may prescribe,

and under such additional regulations as may be prescribed

by the Secretary concerned, limitations may be placed on the

powers granted by this article with respect to the kind and

Appendix 29

amount of punishment authorized, the categories of

commanding officers and warrant officers exercising

command authorized to exercise those powers, the

applicability of this article to an accused who demands trial

by court-martial, and the kinds of courts-martidl to which the

case may be referred upon such a demand. However, except

in the case of a member attached to or embarked in a vessel,

punishment may not be imposed upon any member of the

armed forces under this article if the member has, before the

imposition of such punishment, demanded trial by

court-martial in lieu of such punishment. Under similar

regulations, rules may be prescribed with respect to the

suspension of punishments authorized hereunder. If

authorized by regulations of the Secretary concerned, a

commanding officer exercising general court-martial

jurisdiction or an officer of general or flag rank in command

may delegate his powers under this article to a principal

assistant.

(b) Subject to subsection (a), any commanding officer may,

in addition to or in lieu of admonition or reprimand, impose

one or more of the following disciplinary punishments for

minor offenses without the intervention of a court-martial--

(1) upon officers of his command--

(A) restriction to certain specified limits, with or without

suspension from duty, for not more than 30 consecutive days;

(B) if imposed by an officer exercising general court-martial

jurisdiction or an officer of general or flag rank in

command--

(i) arrest in quarters for not more than 30 consecutive days;

(ii) forfeiture of not more than one-half of one month's pay

per month for two months;

(iii) restriction to certain specified limits, with or without

suspension from duty, for not more than 60 consecutive days;

(iv) detention of not more than one-half of one month's pay

per month for three months;

Appendix 30

(2) upon other personnel of his command--

(A) if imposed upon a person attached to or embarked in a

vessel, confinement on bread and water or diminished rations

for not more than three consecutive days;

(B) correctional custody for not more than seven consecutive

days;

(C) forfeiture of not more than seven days' pay;

(D) reduction to the next inferior pay grade, if the grade from

which demoted is within the promotion authority of the

officer imposing the reduction or any officer subordinate to

the one who imposes the reduction;

(E) extra duties, including fatigue or other duties, for not

more than 14 consecutive days;

(F) restriction to certain specified limits, with or without

suspension from duty, for not more than 14 consecutive days;

(G) detention of not more than 14 days' pay;

(H) if imposed by an officer.of the grade of major or

lieutenant commander, or above--

(i) the punishment authorized under clause A;

(ii) correctional custody for not more than 30 consecutive

days;

(iii) forfeiture of not more than one-half of one month's pay

per month for two months;

(iv) reduction to the lowest or any intermediate pay grade, if

the grade from which demoted is within the promotion

authority of the officer imposing the reduction or any officer

subordinate to the one who imposes the reduction, but an

enlisted member in a pay grade above E-4 may not be

reduced more than two pay grades;

(v) extra duties, including fatigue or other duties, for not

more than 45 consecutive days;

(vi) restrictions to certain specified limits, with or without

suspension from duty, for not more than 60 consecutive days;

(vii) detention of not more than one-half of one month's pay

per month for three months. _

Appendix 31

Detention of pay shall be for a stated period of not more than

one year but if the offender's term of service expires earlier,

the detention shall terminate upon that expiration. No two or

more of the punishments of arrest in quarters, confinement on

bread and water or diminished rations, correctional custody,

extra duties, and restriction may be combined to run

consecutively in the maximum amount imposable for each.

Whenever any of those punishments are combined to run

consecutively, there must be an apportionment. In addition,

forfeiture of pay may not be combined with detention of pay

without an apportionment. For the purposes of this

subsection, "correctional custody" is the physical restraint of

a person during duty or nonduty hours and may include extra

duties, fatigue duties, or hard labor. If practicable,

correctional custody will not be served in immediate

association with persons awaiting trial or held in confinement

pursuant to trial by court-martial.

(c) An officer in charge may impose upon enlisted members

assigned to the unit of which he is in charge such of the

punishments authorized under subsection (b)(2)(A)-(G) as

the Secretary concerned may specifically prescribe by

regulation.

(d) The officer who imposes the punishment authorized in

subsection (b), or his successor in command, may, at any

time, suspend probationally any part or amount of the

unexecuted punishment imposed and may suspend

probationally a reduction in grade or a forfeiture imposed

under subsection (b), whether or not executed. In addition,

he may, at any time, remit or mitigate any part or amount of

the unexecuted punishment imposed and may set aside in

whole or in part the punishment, whether executed or

unexecuted, and restore all rights, privileges, and property

affected. He may also mitigate reduction in grade to

forfeiture or detention of pay. When mitigating--

(1) arrest in quarters to restriction; -

Appendix 32

(2) confinement on bread and water or diminished rations to

correctional custody;

(3) correctional custody or confinement on bread and water

or diminished rations to extra duties or restriction, or both;

or

(4) extra duties to restriction;

the mitigated punishment shall not be for a greater period

than the punishment mitigated. When mitigating forfeiture of

pay to detention of pay, the amount of the detention shall not

be greater than the amount of the forfeiture. When

mitigating reduction in grade to forfeiture or detention of

pay, the amount of the forfeiture or detention shall not be

greater than the amount that could have been imposed

initially under this article by the officer who imposed the

punishment mitigated.

(e) A person punished under this article who considers his

punishment unjust or disproportionate to the offense may,

through the proper channel, appeal to the next superior

authority. The appeal shall be promptly forwarded and

decided, but the person punished may in the meantime be

required to undergo the punishment adjudged. The superior

authority may exercise the same powers with respect to the

punishment imposed as may be exercised under subsection

(d) ty the officer who imposed the punishment. Before

acting on an appeal from a punishment of--

(1) arrest in quarters for more than seven days;

2) correctional custody for more than seven days;

(3) forfeiture of more than seven days’ pay;

(4) reduction of one or more pay grades from the fourth or a

higher pay grade;

(5) extra duties for more than 14 days;

(6) restriction for more than 14 days; or

(7) detention of more than 14 days’ pay;

the authority who is to act on the appeal shall refer the case

to a judge advocate or a lawyer of the Department of

Appendix 33

Homeland Security for consideration and advice, and may so

refer the case upon appeal from any a imposed

- under subsection (b).

(f) The imposition and enforcement of disciplinary

punishment under this article for any act or omission 1s not a

bar to trial by court-martial for a serious crime or offense

growing out of the same act or omission, and not properly

punishable under this article; but the fact that a disciplinary

punishment has been enforced may be shown by the accused

upon trial, and when so shown shall be considered in

determining the measure of punishment to be adjudged in the

event of a finding of guilty.

(g) The Secretary concerned may, by regulation, prescribe

the form of records to be kept of proceedings under this

article and may also prescribe that certain categories of those

proceedings shail be in writing.

10 U.S.C. § 836, Article 36 U.C.M.J. President may

prescribe rules

(a) Pretrial, trial, and post-trial procedures, including modes

of proof, for cases arising under this chapter triable in

courts-martial, military commissions and other military

tribunals, and procedures for courts of inquiry, may be

prescribed by the President by regulations which shall, so far

as he considers practicable, apply the principles of law and

the rules of evidence generally recognized in the trial of

criminal cases in the United States district courts, but which

may not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be

uniform insofar as practicable. -

Appendix 34