                         UNITED STATES, Appellee

                                         v.

                        Joshua R. MCKEEL, Seaman
                          U.S. Navy, Appellant

                                  No. 05-0363
                        Crim. App. No. 200202328

       United States Court of Appeals for the Armed Forces

                         Argued December 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.


                                     Counsel


For Appellant: John B. Wells, Esq. (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.



Military Judge:    John A. Maksym




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McKeel, No. 05-0363/NA


    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. § 120

(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 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Appeals affirmed in an unpublished opinion.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. NMCCA 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.




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United States v. McKeel, No. 05-0363/NA


                             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 contest his

separation from the military at an administrative discharge

board.    The motion was denied.    The present appeal concerns 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


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United States v. McKeel, No. 05-0363/NA


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.

     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 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, 71 (1960);

see R.C.M. 704(c) Discussion; Manual for Courts-Martial, United




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United States v. McKeel, No. 05-0363/NA


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 Article

15, UCMJ.   See United States v. Joseph, 11 M.J. 333, 334-35


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United States v. McKeel, No. 05-0363/NA


(C.M.A. 1981).   If a 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).



        II.   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


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United States v. McKeel, No. 05-0363/NA


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

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.


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United States v. McKeel, No. 05-0363/NA


                         III.   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.

     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


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United States v. McKeel, No. 05-0363/NA


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 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 Appellant by the CPO.   Under

these circumstances, we conclude that the Government has shown

that the decision to prosecute was untainted by the Article 15


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United States v. McKeel, No. 05-0363/NA

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.




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United States v. McKeel, No. 05-0363/NA


     ERDMANN, Judge (dissenting):

     The majority concludes that 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 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
United States v. McKeel, No. 05-0363/NA


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 (UCMJ), 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 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.1   At the general


1
  The military judge did not make any specific findings regarding
McKeel or his stepfather. It was apparent from the record that

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United States v. McKeel, No. 05-0363/NA


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.

     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 (1961), were decided under para. 148e of



since he believed that only the general court-martial convening
authority (GCMCA) could grant immunity, that line of testimony
was not relevant.


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United States v. McKeel, No. 05-0363/NA


the Manual for Courts-Martial, United States (1951 ed.).2    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.3   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.

     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).4    In


2
  That provision dealt with the interest or bias of a witness and
authorized a GCMCA to grant testimonial immunity.
3
  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.
4
  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,

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United States v. McKeel, No. 05-0363/NA


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 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. at 342.    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.    Id. at 343.

        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.     Id. 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.    Id. 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.




Chief Judge Everett concurred and Judge Cook dissented.
Paragraph 68h authorized a GCMCA to grant transactional
immunity.

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United States v. McKeel, No. 05-0363/NA


     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 a GCMCA.5     The 1984 MCM, 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. 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.”   Id. 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.

     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

5
  Only minor changes, none pertinent to this discussion, have
been made to Rule for Courts-Martial 704 since the adoption of
the 1984 MCM.

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United States v. McKeel, No. 05-0363/NA


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.6    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.

     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).7    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.

     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


6
  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 (C.M.A. 1992).
7
  Only a GCMCA authority may grant immunity, and may do so only
in accordance with this rule.

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United States v. McKeel, No. 05-0363/NA


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 is 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 (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 101-02 (unlawful inducements and influences in

obtaining statements may nonetheless give rise to Article 31,

UCMJ, 10 U.S.C. § 831 (2000), issues).

     I 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


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United States v. McKeel, No. 05-0363/NA


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.   This condition came

from Shepardson v. Roberts, which held that a convening


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United States v. McKeel, No. 05-0363/NA

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.8   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.




8
 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.

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United States v. McKeel, No. 05-0363/NA

     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 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 and 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 right hand has




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United States v. McKeel, No. 05-0363/NA

properly granted.9   I would therefore reverse the findings and

sentence and dismiss the charges.




9
  “I join Judge Fletcher in concluding that the Government cannot
improve its legal position because its left hand did not know
what its right hand was doing.” Cooke v. Orser, 12 M.J. 335,
354 (C.M.A. 1982) (Everett, C.J., concurring).

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