                       UNITED STATES, Appellee

                                    V.

                       Gerald P. IVEY, Sergeant
                         U.S. Army, Appellant


                              No. 00-0702


                        Crim. App. No. 9700810



       United States Court of Appeals for the Armed Forces

                          Argued May 22, 2001

                        Decided July 30, 2001

     GIERKE, J., delivered the opinion of the Court, in which
  CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.

                                 Counsel
For Appellant: Captain Stephanie L. Haines (argued); Colonel
   Adele H. Odegard, Lieutenant Colonel David A. Mayfield, and
   Major Mary M. McCord (on brief).

For Appellee: Captain Susana E. Watkins (argued); Colonel David
   L. Hayden, Lieutenant Colonel Edith M. Rob, and Captain
   Daniel G. Brookhart (on brief).

Military Judge:   Richard J. Hough


    This opinion is subject to editorial correction before publication.
United States v. Ivey, No. 00-0702/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial convicted appellant, contrary to his

pleas, of conspiracy to wrongfully possess a controlled substance

with intent to distribute it (2 specifications), violation of a

regulation by possessing an unregistered firearm, and possession

of a controlled substance with intent to distribute it (3

specifications), in violation of Articles 81, 92, and 112a,

Uniform Code of Military Justice, 10 USC §§ 881, 892, and 912a,

respectively.     He was also convicted, contrary to his pleas, of

transferring a firearm with knowledge that it would be used in a

drug trafficking crime, in violation of 18 USC § 924(h) (4

specifications); knowingly making false and fictitious statements

in connection with the acquisition of a firearm, in violation of

18 USC § 922(a)(6) (3 specifications); and knowingly transferring

a firearm to a non-resident of the state, in violation of 18 USC

§ 922(a)(5) (2 specifications).             The violations of Title 18 of

the United States Code were assimilated under clause 3 of Article

134, UCMJ, 10 USC § 934 (“Crimes and offenses not capital”).

      The court-martial sentenced appellant to a dishonorable

discharge, confinement for 15 years, total forfeitures, and

reduction to the lowest enlisted grade.             The convening authority

approved the sentence and gave appellant administrative credit

for 185 days of pretrial confinement.             The Court of Criminal

Appeals set aside the conviction of one violation of 18 USC §

922(a)(6) (making a false and fictitious statement in connection

with the purchase of a firearm).             The court affirmed the

remaining findings of guilty, and it reassessed and affirmed the

sentence.    53 MJ 685, 702 (2000).


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United States v. Ivey, No. 00-0702/AR


      This Court granted review of the following issue:

      WHETHER THE GOVERNMENT FAILED TO PROCESS APPELLANT’S
      REQUESTS FOR IMMUNITY FOR CERTAIN CIVILIAN WITNESSES, IN
      VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS AND RIGHT TO
      PRESENT A DEFENSE UNDER THE FIFTH AND SIXTH AMENDMENTS TO
      THE CONSTITUTION OF THE UNITED STATES.

For the reasons set out below, we affirm.

                            Factual Background

      Appellant and his brother, James Ivey, grew up in Gary,

Indiana.    Three of appellant’s boyhood friends, Douglas Parrett

and two brothers, Frank and Deon McFadden, were members of the

Gangster Disciples, a nationwide gang that originated in the

Chicago, Illinois, area.       Appellant was stationed at Fort Carson,

near Colorado Springs, Colorado.            He and a local friend, Darryl

Washington, were members of a Gangster Disciples chapter in

Colorado Springs.     Appellant did not know that Darryl Washington

was an informant for the Bureau of Alcohol, Tobacco, and

Firearms, Department of the Treasury (ATF).

      In early 1996, appellant and Darryl Washington met with

Douglas Parrett and the McFadden brothers in Gary, Indiana.           At

the meeting, appellant told them that another Fort Carson

soldier, Private (PVT) Alfonso Murray, had bragged about his

ability to obtain large quantities of marijuana in El Paso,

Texas, where Murray and appellant previously had been stationed.

Two drug-buying trips to El Paso ensued, resulting in purchases

of 40 pounds of marijuana in February 1996 and 50 pounds of

marijuana and 1 kilo of cocaine in April 1996.           Between the first

and second trips, PVT Murray was arrested on drug charges, and he

became an informant for ATF.




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United States v. Ivey, No. 00-0702/AR


      Appellant was charged with two conspiracies and numerous

firearms offenses related to the conspiracies.       His alleged co-

conspirators were PVT Murray, James Ivey, Douglas Parrett, and

Deon McFadden.     The facts surrounding the formation of the

conspiracies and the acts in furtherance of the conspiracies are

set out in detail in the opinion below.       53 MJ at 687-88.

      On May 9, 1997, defense counsel gave trial counsel a request

that the convening authority grant immunity to four civilian

witnesses: James Ivey, Deon McFadden, Frank McFadden, and Douglas

Parrett.    On the same day, the defense filed a motion requesting

the military judge to abate the proceedings and requested a

continuance.    The request for a continuance recited numerous

grounds, including the pending request for immunity.

      The immunity request stated that all four civilian witnesses

were awaiting sentencing and would invoke their privilege against

self-incrimination if called to testify.       The request for

immunity and the request for abatement both recited that, if the

four witnesses received immunity, they would provide exculpatory

testimony.    James Ivey would testify “that [appellant] was not

part of a conspiracy as alleged in Specifications 1 and 2 of

Charge I.”    Deon McFadden’s attorney told appellant’s civilian

attorney that he “had favorable information about [appellant’s]

involvement” but could not be more specific because of the

attorney-client privilege.       Appellant’s defense counsel stated

that Frank McFadden had refused to talk to them but that “from

other sources, the defense expects he will also testify that

[appellant] was not part of the conspiracy, and that Mr. Frank

McFadden was the owner of the Calico rifle described in


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United States v. Ivey, No. 00-0702/AR


Specification 3 of Charge II.”          Douglas Parrett also refused to

talk to defense counsel but “[f]rom other sources, the defense

expects he will testify that [appellant] was not part of the

conspiracy,” and that the gun shop owner “was not deceived

regarding who were the true purchasers of the weapons described

in Charge IV.”     Defense counsel represented at trial that Douglas

Parrett told appellant’s mother that appellant was not involved

in the charged conspiracies.

      The court-martial convened three days later, on May 12,

1997, to consider several matters, including appellant’s motion

for abatement.     As of that date, appellant’s immunity request had

not been presented to the convening authority.         Furthermore, the

request for immunity had not been forwarded to the Judge Advocate

General for transmittal to the United States Attorney General.

Trial counsel informed the military judge that the four witnesses

“all pled guilty to various offenses” but were awaiting

sentencing.    Trial counsel informed the military judge that a

member of the Staff Judge Advocate’s Office contacted the

Assistant U.S. Attorney who prosecuted the four witnesses, and he

stated that “they do not intend to grant them immunity.”

Finally, trial counsel informed the military judge that PVT

Murray had been granted immunity.

      The military judge made the following findings of fact

regarding the request for immunity:

            1. The aforementioned witnesses [James Ivey, Deon
            McFadden, Frank McFadden, and Douglas Parrett] were
            targeted for prosecution and are awaiting sentence
            after being found guilty of offenses similar to those
            which the accused is facing.




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United States v. Ivey, No. 00-0702/AR


            2. The aforementioned witnesses are alleged as co-
            conspirators with [appellant] in criminal offenses;
            that is, Specifications 1 and 2 of Charge I alleging
            violations of Article 81 of the Uniform Code of
            Military Justice.

            3. The aforementioned witnesses will invoke their
            rights against self-incrimination if called to testify
            without immunity.

            4. The defense has asserted that Mr. James Ivey who is
            the brother of [appellant] will testify that
            [appellant] is not involved in either conspiracy
            charged in Specifications 1 and 2 of Charge I.

            5. The defense has not been able to talk with any of
            the remaining three witnesses.

            6. The defense has asserted that Mr. Doug Parrett has
            talked with the mother of [appellant] and that
            [appellant’s] mother will say that Mr. Parrett told her
            that [appellant] was not involved in the conspiracies.

            7. The court does not find under the circumstances of
            this case that the government has engaged in
            discriminatory use of immunity to obtain a tactical
            advantage; nor, intended to disrupt the judicial fact-
            finding process; nor, that the government through
            overreaching has forced these witnesses to invoke their
            privilege against self-incrimination.

Based on these findings, the military judge denied the motion to

abate the proceedings.

      The trial on the merits commenced on May 14, 1997.      The

prosecution case consisted of seized drugs, firearms, and

documents; videotaped gun transactions; tape-recorded

conversations; the testimony of a gun shop owner and one of his

employees; the testimony of numerous law enforcement agents; the

testimony of PVT Kim Rush, who drove appellant’s vehicle during

the first drug-buying trip; and the testimony of Darryl

Washington and PVT Murray, government informants.

      The only government witness who testified with a grant of

immunity was PVT Murray.       PVT Murray was not a helpful witness



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United States v. Ivey, No. 00-0702/AR


for the prosecution.      On cross-examination, he testified

repeatedly that appellant was not part of the two charged

conspiracies.

      The defense case consisted of the testimony of appellant’s

mother and Damond McCready, the “governor” of the Colorado

Springs chapter of the Gangster Disciples.           Both witnesses

presented testimony intended to show that appellant was not a

member of the Gangster Disciples.

      After the trial but before the convening authority’s action,

appellant again requested that James Ivey, Douglas McFadden, and

Douglas Parrett be granted immunity.           The Staff Judge Advocate

informed the convening authority that the Assistant U.S. Attorney

would not support a request for immunity.           By this time, Deon

McFadden, Frank McFadden, James Ivey, and Douglas Parrett had

been sentenced to confinement for 60 months, 13 months, 30

months, and 60 months, respectively.           In accordance with his

Staff Judge Advocate’s recommendation, the convening authority

denied the request for immunity.            The request was never forwarded

to the United States Attorney General.

      The Court of Criminal Appeals found that it could not be

determined from the evidence of record “whether the convening

authority was ever asked, prior to trial, to deny or forward the

defense immunity request.”       53 MJ at 692.      The court also found

that “the parties to the trial treated the request as denied.”

Id.   Finally, the court below noted that the defense made no
objection to the military judge ruling on the immunity request

without action by the convening authority.           Id.




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United States v. Ivey, No. 00-0702/AR


                                 Discussion

      Appellant now contends that the Government violated RCM 704,

Manual for Courts-Martial, United States (2000 ed.),1 and Army

regulations by not forwarding the immunity request to the United

States Attorney General.       He further contends that the military

judge abused his discretion by refusing to grant a continuance

until the convening authority ruled on the request for immunity

and by refusing to abate the proceedings.           He asserts that the

military judge’s abuse of discretion violated his right under the

Sixth Amendment to present a defense.           He also asserts that it

was likely the Attorney General would have granted the immunity

request, since prosecution of all four witnesses had been

completed.    Finally, he asserts that the four witnesses would

have provided evidence that was material and exculpatory and

would have corroborated PVT Murray’s testimony.

      The Government argues that the convening authority is not

required to forward a request for immunity to the Attorney

General if he denies it.       It also argues that the military judge

correctly denied the motion for abatement.           Finally, the

Government argues that the four witnesses’ testimony was not

clearly exculpatory, making any error in denying the motion for

abatement harmless.

      Article 46, UCMJ, 10 USC § 846, entitles the prosecution,

defense, and the court-martial to “equal opportunity to obtain

witnesses and other evidence in accordance with such regulations

as the President may prescribe.”            The President has promulgated


1All Manual provisions are identical to the ones in effect at the
time of appellant’s court-martial.


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United States v. Ivey, No. 00-0702/AR


several rules to implement Article 46, including RCM 704,

subsection (e) of which provides:

            Unless limited by superior competent authority, the
            decision to grant immunity is a matter within the sole
            discretion of the appropriate general court-martial
            convening authority. However, if a defense request to
            immunize a witness has been denied, the military judge
            may, upon motion by the defense, grant appropriate
            relief directing that either an appropriate convening
            authority grant testimonial immunity to a defense
            witness or, as to the affected charges and
            specifications, the proceedings against the accused be
            abated, upon findings that:

                 (1) The witness intends to invoke the right
            against self-incrimination to the extent permitted by
            law if called to testify; and

                 (2) The Government has engaged in discriminatory
            use of immunity to obtain a tactical advantage, or the
            Government, through its own overreaching, has forced
            the witness to invoke the privilege against self-
            incrimination; and

                 (3) The witness’ testimony is material, clearly
            exculpatory, not cumulative, not obtainable from any
            other source and does more than merely affect the
            credibility of other witnesses.
A convening authority may not delegate the authority to grant
immunity.    RCM 704(c)(3).

      A general court-martial convening authority may grant
immunity to civilians not subject to the UCMJ “only when

specifically authorized to do so by the Attorney General of the

United States or other authority designated under 18 USC § 6004.”

RCM 704(c)(2).     The Manual for Courts-Martial provides the

following guidance:

            When testimony or a statement for which a person
            subject to the code may be granted immunity may relate
            to an offense for which that person could be prosecuted
            in a United States District Court, immunity should not
            be granted without prior coordination with the
            Department of Justice. Ordinarily coordination with




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United States v. Ivey, No. 00-0702/AR


            the local United States Attorney is appropriate.
            Unless the Department of Justice indicates it has no
            interest in the case, authorization for the grant of
            immunity should be sought from the Attorney General. A
            request for such authorization should be forwarded
            through the office of the Judge Advocate General
            concerned. Service regulations may provide additional
            guidance. Even if the Department of Justice expresses
            no interest in the case, authorization by the Attorney
            General for the grant of immunity may be necessary to
            compel the person to testify or make a statement if
            such testimony or statement would make the person
            liable for a Federal civilian offense.

RCM 704(c)(1) Discussion.

      The implementing Army regulation requires that when a

witness is not subject to the UCMJ, or the Department of Justice

expresses an interest in the case, the file will be forwarded to

the Judge Advocate General for coordination with the Department

of Defense and the Department of Justice, and approval by the

Attorney General.     The file must include a draft order to

testify, along with “findings that the witness is likely to

refuse to testify on Fifth Amendment grounds and that the

testimony of the witness is necessary to the public interest.”

Para. 2-4c(1), Army Regulation 27-10 (20 Sept 1999).2
      All three prongs of RCM 704(e) must be met before a military
judge may overrule the decision of the convening authority to

deny a request for immunity.        United States v. Richter, 51 MJ

213, 223 (1999).     RCM 704(e) “recognizes the view of a majority

of the federal courts that there is no right to grants of

immunity under the Fifth or Sixth Amendments.”             Id.

      A military judge’s decision not to abate the proceedings is

reviewed for abuse of discretion.            Id.   A military judge’s


2This provision is identical to the one in effect at the time of
appellant’s court-martial.


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United States v. Ivey, No. 00-0702/AR


findings of fact will not be overturned on appeal unless they are

clearly erroneous.      We review the military judge’s conclusions of

law de novo.    See United States v. Smith, 53 MJ 168, 170 (2000)

(Article 13, UCMJ, 10 USC § 813, violation); United States v.

White, 48 MJ 251, 257 (1998) (evidentiary ruling); United State

v. Wean, 45 MJ 461, 463 (1997) (adequacy of representation).

      The first question is whether a convening authority must

forward an immunity request for someone not subject to the UCMJ

to the Attorney General if he intends to deny it.        We answer this

question in the negative.       The literal language of RCM 704(c)(2)

restricts a convening authority’s power to grant such immunity:

he may grant it “only when specifically authorized to do so by

the Attorney General” or his authorized designee.        The rule does

not limit his power to deny such a request for immunity under

RCM 704(e).    The purpose of RCM 704(c)(2) is to avoid interfering

with the prosecution of civilian federal cases.        Denying a

request for immunity has no impact on civilian prosecutions.

      The Army regulation likewise contemplates that the file will

be forwarded only when the convening authority desires to grant

immunity, because it requires that the file include a draft order

to testify and a finding that the testimony is necessary.

Importantly, nothing in the record suggests that the convening

authority desired to grant immunity.         Therefore, we hold that the

convening authority was not required to forward the request to

the Attorney General.

      The second question is whether “the government failed to

process appellant’s requests for immunity.”        Because RCM




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United States v. Ivey, No. 00-0702/AR


704(c)(3) prohibits delegation of the authority to act on

requests for immunity, a trial counsel or Staff Judge Advocate

would violate the rule if he or she de facto denied a request for

immunity by withholding it from the convening authority.       The

rule contemplates that all requests for immunity, from either the

prosecution or the defense, will be submitted to the convening

authority for a decision.

      The court below found that it could not be determined from

the record whether the convening authority informally acted on

the request at any time before he formally denied it after trial.

It is clear from the record, however, that at the time of the

first Article 39(a)3 session on May 12, the convening authority
had not formally responded to defense counsel and had not

forwarded the request to the Attorney General.       The record does

not indicate whether the convening authority was informed of the

immunity request before the military judge preempted the issue by

deciding that the request was de facto denied.

      The court below found that the parties treated the request

as denied, without defense objection.        We have reservations about
this finding, because the defense specifically asked the military

judge to grant a continuance, reciting that the immunity request

was pending.    In our view, this request for a continuance was

inconsistent with agreeing that the request had been denied.

      We need not decide, however, whether the military judge

erred by treating the situation as a de facto denial, because any

error was harmless.      It is clear from the record that if the

convening authority had been pressed for a formal response, he




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United States v. Ivey, No. 00-0702/AR


most probably would have denied the request.            It is highly

unlikely that the convening authority would have forwarded the

request over the objection of the Assistant U.S. Attorney, or

that the Attorney General would have approved it despite the

objections of the Assistant U.S. Attorney.            Finally, the

convening authority’s denial of the request when the defense

renewed it after the trial is strong evidence that he did not

intend to grant it before trial.             We are satisfied that any error

in failing to present the immunity request to the convening

authority before the trial on the merits began did not have a

“substantial influence” on the findings.            See United States v.
Pablo, 53 MJ 356, 359 (2000); United States v. Pollard, 38 MJ 41,

52 (CMA 1993), quoting Kotteakos v. United States, 328 US 750,

765 (1946).

        Finally, we reject appellant’s argument that any error was

of constitutional dimension.        That position was rejected in

Richter, supra, and the cases cited therein.

        The remaining question is whether the military judge abused

his discretion by refusing to abate the proceedings.            We hold
that he did not.     The military judge correctly applied the three-

pronged legal test set out in RCM 704(e), and he found that the

second prong was not met, i.e., that there was no discriminatory

use of immunity or government overreaching.            See Richter, supra.

The military judge’s finding of fact was not clearly erroneous.

The prosecution relied primarily on the testimony of law

enforcement agents, documentary and real evidence, video and

audio tape recordings, and the testimony of coconspirators who


3   UCMJ, 10 USC § 839(a).

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United States v. Ivey, No. 00-0702/AR


did not receive immunity.       The only prosecution witness who

received immunity was PVT Murray, a government informant, who

arguably turned out to be helpful to the defense.

      The third prong also was not met because the proffered

testimony was not “clearly exculpatory.”        The vague proffers of

testimony amounted to no more than legal conclusions that

appellant was not guilty.       Furthermore, they were secondhand and

thirdhand hearsay in some instances.         The vague legal conclusions

were cumulative to the much more factually detailed testimony of

PVT Murray, but they contained virtually no specific facts that

would corroborate PVT Murray’s testimony.        Finally, even though

the civilian witnesses had been tried and sentenced when the

convening authority acted on appellant’s case, appellant did not

offer the convening authority, the court below, or this Court

more specific offers of expected testimony after the civilian

prosecutions were completed.

                                  Decision
      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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