                        UNITED STATES, Appellee

                                     v.

                      Kenji M. MAPES, Specialist
                         U.S. Army, Appellant


                               No. 03-0025


                         Crim. App. No. 9900592



       United States Court of Appeals for the Armed Forces

                           Argued May 12, 2003

                       Decided September 8, 2003

GIERKE, J., delivered the opinion of the Court, in which EFFRON,
   BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a
                  separate dissenting opinion.

                                  Counsel
For Appellant: Frank J. Spinner (argued); Captain Mary E. Card
   and Captain Craig Harbaugh (on brief); Colonel Robert D.
   Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and Major
   Imogene M. Jamison.

For Appellee: Major Jennifer H. McGee (argued); Colonel Lauren
   B. Leeker, Lieutenant Colonel Margaret B. Baines, and Major
   Mark L. Johnson (on brief).

Military Judges:     Richard J. Hough and Keith H. Hodges

  This opinion is subject to editorial correction before final publication.
United States v. Mapes, No. 03-0025/AR


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted Appellant, pursuant to his conditional guilty pleas, of

involuntary manslaughter, conspiracy to obstruct justice, false

official statement, two specifications of wrongful use of heroin,

wrongful distribution of heroin, and wrongful introduction and

distribution of heroin on a military installation, in violation

of Articles 81, 107, 112a, and 119, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 907, 912a, 919

(2000).   The military judge sentenced him to a dishonorable

discharge, confinement for nine years, forfeiture of all pay and

allowances, and reduction to Private E1.       Pursuant to a pretrial

agreement, the convening authority reduced the confinement to

seven years but otherwise approved the sentence.       The Court of

Criminal Appeals affirmed.       United States v. Mapes, 57 M.J. 569

(A. Ct. Crim. App. 2002).       This Court granted review of the

following issue:

            WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELF-
            INCRIMINATION WAS DENIED WHEN THE MILITARY JUDGE RULED
            THAT APPELLANT’S GRANT OF IMMUNITY WAS NOT VIOLATED BY
            THE GOVERNMENT’S USE OF HIS IMMUNIZED STATEMENTS TO
            SUCCESSFULLY PROSECUTE AN ACCOMPLICE WHOSE STATEMENTS
            WERE THEN USED TO PROSECUTE APPELLANT.

For the reasons set out below, we reverse.

                               FACTUAL BACKGROUND

    Initial Investigation into Specialist (SPC) Coffin’s Death

      On the evening of April 4, 1998, Specialist (SPC) Coffin

picked up Appellant, who was returning from leave in New York

City, from the Colorado Springs Airport.       They returned to

Appellant’s room in the Fort Carson barracks, and Private (PVT)



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United States v. Mapes, No. 03-0025/AR


Ronald Smoyer later joined them there.        That night, Appellant

delivered 14 or 15 “dime bags” of heroin to PVT Smoyer who paid

Appellant for the drugs.

      PVT Smoyer divided a single “dime bag” three ways, and each

of the soldiers snorted a line of heroin.        Shortly thereafter,

PVT Smoyer “cooked up” more heroin and injected himself and SPC

Coffin.    Eventually Appellant and PVT Smoyer helped SPC Coffin

back to his barracks room and left him there.

      At about 8:00 the next morning, Appellant went to wake up

SPC Coffin and found him unconscious.        Appellant sought the

assistance of PVT Smoyer to revive SPC Coffin but PVT Smoyer

refused to help.     PVT Smoyer then attempted to sanitize

Appellant’s barracks room and fled with the drugs and drug

paraphernalia.     Appellant sought the assistance of duty personnel

and administered CPR to SPC Coffin until emergency personnel

arrived.    When questioned, Appellant did not reveal to medical

personnel any knowledge of SPC Coffin’s heroin use the night

before and suggested that SPC Coffin may have been suffering from

food poisoning.     Attempts to revive SPC Coffin were unsuccessful.

      The initial investigation into SPC Coffin’s death began

immediately.    In Appellant’s initial statements to Criminal

Investigation Command (CID), he denied any knowledge of SPC

Coffin’s drug use during the early morning of April 5.        Appellant

did reveal that SPC Coffin had been in Appellant’s barracks room.

Interviews of other servicemembers placed both Appellant and PVT

Smoyer with SPC Coffin in Appellant’s room.        A consensual search

of Appellant’s room revealed SPC Coffin’s shirt with a syringe in

the pocket.


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United States v. Mapes, No. 03-0025/AR


      On April 7th, CID received an anonymous unsubstantiated tip

that Appellant “had brought drugs back with him off of leave,

back to the post, and that could be a possible cause” of SPC

Coffin’s death.     The autopsy revealed that SPC Coffin had died of

a massive heroin overdose; however, the medical examiner noted

that SPC Coffin’s organs did not reflect chronic heroin abuse.

      Investigators interviewed SPC Coffin’s friends to explore

his prior drug use and his relationship with Appellant and PVT

Smoyer.   These interviews produced information of drug

involvement by both Appellant and PVT Smoyer unrelated to SPC

Coffin’s death, and only circumstantial evidence of their

involvement in his death including the following:           Several

soldiers identified Appellant as a supplier of heroin, and it was

rumored that he would bring back drugs from New York City the

night of SPC Coffin’s death.        PVT Smoyer purchased syringes on

the afternoon of April 4.       Later that day, PVT Smoyer left a

party in the mountains, telling other soldiers that he was

returning to the barracks to get drugs that Appellant had brought

back from New York City.       Several soldiers stopped by Appellant’s

room that night and thought that Appellant, PVT Smoyer, and SPC

Coffin looked “high.”      PFC Marc Wilson admitted that on a

previous occasion Appellant had supplied heroin to PVT Smoyer who

had, in turn, injected PFC Wilson.           A physical examination of

Appellant and PVT Smoyer revealed puncture wounds in their arms,

but a urinalysis of each revealed no drug use.           A laboratory

examination of the syringe revealed no evidence of drugs or DNA

evidence.    PVT Smoyer denied any knowledge of or involvement in




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United States v. Mapes, No. 03-0025/AR


drug abuse related to SPC Coffin’s death but implicated Appellant

in other drug offenses.

      At this point, the suspicion of investigators focused on

Appellant as the supplier of heroin and PVT Smoyer as possibly

the person who injected SPC Coffin; however, investigators could

not directly connect them to SPC Coffin’s death.       The

investigation continued but with little progress.

                     The Decision to Grant Immunity and
             Use of Information Obtained Through the Immunity

      The Government decided to grant testimonial immunity to

Appellant and PVT Smoyer to gain their cooperation in the

investigation.     In his written recommendation to grant immunity

to Appellant, the staff judge advocate (SJA), Colonel (COL)

Joseph Graves, Jr., stated that immunity for Appellant was

“needed to establish the charges of distribution and involuntary

manslaughter.”     COL Graves reaffirmed this position later stating

that “one of the charges that we wanted to pursue was

manslaughter, and we didn’t think we were going to get there

without grants of immunity to both accused[s].”       Because of the
investigative impasse, both Appellant and PVT Smoyer were given

testimonial immunity on July 8.

      Realizing the delicate nature of bilateral grants of

immunity, the Government attempted to construct a “Chinese wall”

to prevent cross-contamination between the prosecutions of

Appellant and the co-accused.        The “Chinese wall” was created in

an attempt to provide two separate and independent teams, one

designated to investigate and prosecute Appellant and another to

prosecute PVT Smoyer.      Although there were two separate


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United States v. Mapes, No. 03-0025/AR


prosecution teams, both investigative teams were supervised by

CID Special Agent (SA) Douglas Hill.

      Despite the grant of immunity, PVT Smoyer was hesitant to

cooperate with the investigation.            In his first interview

following the immunity grant, on July 15, PVT Smoyer stated that

he did not see any drugs and expressly denied that he had

injected SPC Coffin.      Investigators felt that PVT Smoyer “was not

being completely truthful” with them when describing the events

of April 5.

      However, on July 22, there was a significant breakthrough in

the case.    Appellant made an immunized statement admitting that

he brought back 15 “dime bags” of heroin when he returned from

leave on April 4, and that he gave the drugs to PVT Smoyer,

receiving $150 in return.       Further, Appellant admitted that he

used heroin with PVT Smoyer on five or six occasions between

October and December 1997.       Finally, Appellant admitted that, on

April 4, he, PVT Smoyer, and SPC Coffin each snorted a line of

heroin (approximately 1/3 of a “dime bag” each) and PVT Smoyer

injected himself and SPC Coffin with heroin.            Appellant also

commented that he was concerned about SPC Coffin when he returned

to his room early that morning.

      On August 7, investigators then interviewed PVT Smoyer a

second time, and he again denied culpability in SPC Coffin’s

death.   He also denied he had any recollection that Appellant had

brought drugs back from New York City.            The CID team continually

questioned the veracity of PVT Smoyer’s statements.

      On September 2, initial charges that did not include

involuntary manslaughter were preferred against PVT Smoyer.


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United States v. Mapes, No. 03-0025/AR


Following notification of the charges, PVT Smoyer spoke to his

father, Dr. Ronald Smoyer, several times in the first week of

September and admitted his culpability in the death of SPC

Coffin.   Dr. Smoyer was concerned about whether his son would be

honest and incriminate Appellant, so he urged PVT Smoyer to tell

the truth.    However, PVT Smoyer did not confide in his legal

counsel, and he did not admit his culpability to the Government.

      On September 11, PVT Smoyer’s defense team received a list

of witnesses for his hearing pursuant to Article 32, UCMJ, 10

U.S.C. § 832 (2000).      Appellant was listed as a witness to

testify against PVT Smoyer.       On September 15, the Government

added a charge of involuntary manslaughter against PVT Smoyer.

      On September 28, one day prior to his Article 32 hearing,

PVT Smoyer contacted his counsel to indicate a willingness to

cooperate and finally admit culpability.         PVT Smoyer’s counsel

did not make any record of his admission.

      At PVT Smoyer’s Article 32 hearing, on September 29,

Appellant testified that he provided the heroin that PVT Smoyer

injected into SPC Coffin on April 4.         The following day, PVT

Smoyer provided an immunized statement to CID.         Contrary to his

previous statements, PVT Smoyer admitted for the first time that

he injected the heroin into the arm of SPC Coffin, that Appellant

had provided the heroin, and that PVT Smoyer knew beforehand that

Appellant was bringing heroin back from New York City.         PVT

Smoyer also implicated Appellant in other drug offenses.

      PVT Smoyer signed a plea agreement on October 2.        However,

the prosecution team was not certain that he would carry through

with his guilty plea and, therefore, investigative efforts


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United States v. Mapes, No. 03-0025/AR


continued.    On November 9, PVT Smoyer pleaded guilty under the

pretrial agreement limiting his confinement to seven years.

                        Pretrial Developments Relating
                       to the Prosecution of Appellant

      All the present charges including the manslaughter offense

were preferred against Appellant on December 3.          On December 10,

the Article 32 investigating officer (IO) informed Appellant that

PVT Smoyer would be a witness.           When the investigation convened

on January 19, 1999, PVT Smoyer was again identified as a

scheduled witness.      However, CID SA Michael Martinez was the only

witness called at the Article 32 hearing.          In this testimony, SA

Martinez made repeated reference to statements of PVT Smoyer

implicating Appellant in all the offenses.          He acknowledged that

he was relying on the statement of PVT Smoyer.          PVT Smoyer never

testified at the investigation because of possible future

prosecution for perjury.

      On June 3, Appellant entered into a pretrial agreement.

Paragraph three of this agreement states, “The government

expressly agrees to allow SPC Mapes to enter a conditional plea

pursuant to Rule for Courts-Martial 910(a)(2) [hereinafter

R.C.M.].    This conditional plea preserves SPC Mapes’ right to

appeal all adverse determinations resulting from pretrial

motions.”

                               Trial Developments
      Availing himself of this provision in the pretrial

agreement, Appellant, prior to entering a guilty plea, moved to

dismiss the charges or provide other appropriate relief.

Appellant asserted that the Government used evidence derived from



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United States v. Mapes, No. 03-0025/AR


Appellant’s immunized statement to prosecute him in violation of

the mandate in Kastigar v. United States, 406 U.S. 441 (1972) and

a long line of cases of this Court that apply Kastigar.
Appellant also asserted that the improper use of his immunized

testimony tainted the decision to prosecute him.        The prosecution

rejected this position and attempted to establish no use, direct

or indirect, of Appellant’s immunized statements and testimony.

It asserted compliance with Kastigar by proving there had been no

compromise of the “Chinese wall” erected between the

investigation and prosecution of Appellant and PVT Smoyer.        In an

extended evidentiary hearing, the parties developed the relevant

facts to the Kastigar issue.        For purposes of this appeal, we

need not recapitulate all this evidence.

      The cornerstone of the prosecution’s case was the testimony

of PVT Smoyer regarding his cooperation with the Government.

Appearing in court as a sworn witness against the Appellant for

the first time, PVT Smoyer asserted that Appellant’s appearance

as a witness against him had no impact on his decision to testify

against Appellant.      PVT Smoyer explained that he had made up his
mind to “come clean” prior to his Article 32 hearing and to avail

himself of the opportunity to enter into a pretrial agreement to

minimize punishment.      The defense challenged PVT Smoyer’s

assertions and alleged that Appellant’s immunized statement

implicating PVT Smoyer, and Appellant’s identification and

appearance as a witness at PVT Smoyer’s Article 32 hearing

triggered PVT Smoyer’s belated cooperation with the prosecution.

      A significant and important portion of the evidentiary

hearing focused on the prosecution’s attempt to bolster the


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United States v. Mapes, No. 03-0025/AR


credibility of PVT Smoyer.       However, PVT Smoyer responded in the

affirmative when he was asked by the trial counsel, “After you

received your grant of testimonial immunity, did you continue to

lie to CID about your involvement in Specialist Coffin’s death?”

Furthermore, PVT Smoyer again answered affirmatively when

Appellant’s counsel questioned whether he lied on July 15 and

August 7.    PVT Smoyer agreed with Appellant’s counsel that he

“lied to [his attorney], and [he] lied to the government.”      The

military judge made detailed findings of fact and conclusions of

law that are at Appendix A of this opinion.

      The military judge found that the decision to prosecute

Appellant was not tainted by his immunized testimony and that the

Government did not improperly use Appellant’s immunized testimony

in prosecuting him.      The judge found that PVT Smoyer decided to

testify against Appellant to get a more favorable pretrial

agreement.    The judge also found that PVT Smoyer had decided to

“come clean” to the CID and testify against Appellant before he

knew Appellant had implicated him in immunized statements and

prior to Appellant testifying against him at his Article 32

hearing.

      Lieutenant Colonel (LTC) Richard Hough was the original

military judge who ruled on the defense motion to dismiss.

However, almost two weeks after he denied the defense motion, the

court reconvened with a new military judge, COL Keith H. Hodges.

Appellant then pleaded guilty in accordance with the terms of his

pretrial agreement.

      A traditional providency inquiry followed.     In addressing

whether the pretrial agreement contained all the understandings


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United States v. Mapes, No. 03-0025/AR


or agreements in this case, Judge Hodges initiated a detailed

dialogue with the Appellant and both counsel regarding the

pretrial agreement condition that permitted Appellant to enter a

conditional guilty plea.       The record establishes it was the

understanding of the parties that if an appellate court

determined that the judge erroneously ruled on the motion, the

Appellant could withdraw his plea of guilty.

      Adopting the findings and reasoning of the military judge,

the lower court also held that the Government met its burden to

show no use of Appellant’s immunized testimony and that the

decision to prosecute Appellant was untainted by Appellant’s

immunized statements.

                                    DISCUSSION

      In United States v. Manuel, this Court reaffirmed the

fundamental principle that the Constitution each servicemember

swears to defend affords to every servicemember Constitutional

protections.    43 M.J. 282, 286 (C.A.A.F. 1995).    This Court

stated:

            The administration of military justice is rooted in
            inherent fair play and justice that prevail under the
            Anglo-American system of law. "[I]n defining the
            rights of military personnel, Congress was not limited
            to the minimum requirements established by the
            Constitution, and in many instances, it has provided
            safeguards unparalleled in the civilian sector."
            United States v. McGraner, 13 MJ 408, 414 (CMA 1982).
            See, e.g., Gilligan, The Bill of Rights and Service
            Members, The Army Lawyer 3 (Dec. 1987)(servicemembers'
            rights broader than constitutionally required). The
            broad constitutional rights that servicemembers enjoy
            spring from the fundamental principle that they do not
            lay aside the citizen when they assume the soldier.

                  [M]embers of the military are not shorn of their
                  constitutional rights while they remain in the
                  military service. Blackstone said: '. . . he puts
                  not off the citizen when he enters the camp; but


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United States v. Mapes, No. 03-0025/AR


                  it is because he is a citizen, and would wish to
                  continue so, that he makes himself for a while a
                  soldier.' [1 Blackstone, Commentaries (Wendell
                  ed), page 408.]

            United States v. Culp, 14 USCMA 199, 206, 33 CMR 411,
            418 (1963).

Id. at 286.

      A servicemember’s protection against compulsory self-

incrimination is unparalleled in the civilian sector.         This

fundamental right is protected by both the Fifth Amendment and

Article 31, UCMJ, 10 U.S.C. § 831 (2000), which provides

additional protection.

      The Fifth Amendment’s privilege against compulsory self-

incrimination simply states that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself

. . . .”    We have stated that servicemembers enjoy the protection

of this constitutional privilege.         United States v. Rosato, 3
C.M.A. 143, 145, 11 C.M.R. 143, 145 (1953)(“Dispelling any doubt

of its application to the military services, Congress included

the substance of the Fifth Amendment in the Uniform Code of

Military Justice, as Article 31[.]”).         More recently, this Court
reaffirmed this principle stating this general proposition:

"[T]he protections in the Bill of Rights, except those which are

expressly or by necessary implication inapplicable, are available

to members of our armed forces."          United States v. Graf, 35 M.J.

450, 460 (C.M.A. 1992)(citations omitted).

      Expanding on this fundamental constitutional protection,

Article 31 requires that,

            [b]efore an individual accused or suspected of a crime
            under the Code is interrogated by a person subject to
            the Code, the suspect must be warned of the nature of


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United States v. Mapes, No. 03-0025/AR


            the accusation, the right to remain silent and the
            consequences of foregoing that right, and the right to
            appointed counsel free of charge or civilian counsel at
            no expense to the government . . . . Miranda [v.
            Arizona, 384 U.S. 436 (1966)] does not apply until
            there is a custodial interrogation. The rights warning
            requirements in the military, however, is triggered
            earlier. When an individual is suspected of an
            offense, the warning must be given prior to
            questioning, even if the suspect is not in custody.

Francis A. Gilligan, The Bill of Rights and Servicemembers, 1987
Army Law. 3, 4 (Dec. 1987) (footnotes omitted).

      A servicemember’s right against self-incrimination, however,

is neither absolute nor inviolate.         “The power of government to

compel persons to testify in court or before grand juries and

other governmental agencies is firmly established in Anglo-

American jurisprudence.”       Kastigar, 406 U.S. at 443 (footnote
omitted).    This is an essential and necessary governmental power

reflecting the ancient legal maxim that the "public . . . has a

right to every man's evidence."          Jaffee v. Redmond, 518 U.S. 1, 9

(1996); United States v. Bryan, 339 U.S. 323, 331 (1950).         This

governmental power to compel testimony establishes a testimonial

duty for every citizen.

      The tension between the governmental power to compel
testimony and a citizen’s right to protection against self-

incrimination is reconciled in immunity statutes.         Immunity

statutes are also “part of our constitutional fabric.”         Ullmann

v. United States, 350 U.S. 422, 438 (1956).         Early immunity

statutes conferred on immunized witnesses a broad transactional

immunity.    Id.   However, in 1970, Congress enacted the current

federal immunity statutes authorizing use and derivative use

immunity to preserve the balance between the citizen’s privilege

against compulsory self-incrimination and the Government’s power


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United States v. Mapes, No. 03-0025/AR


to compel testimony.      18 U.S.C. § 6002 (2000).     In Kastigar, the

Supreme Court sanctioned this practice.

       Title 18 U.S.C. § 6002, immunity generally, states in part:

                 Whenever a witness refuses, on the basis of his
            privilege against self-incrimination, to testify or
            provide other information in a proceeding before or
            ancillary to—

                  (1)   a court or grand jury of the United States,

                  (2)   an agency of the United States, or

                  (3)   either House of Congress, a joint committee
                        of the two Houses, or a committee or a
                        subcommittee or either House.

            and the person presiding over the proceeding
            communicates to the witness an order issued under this
            title, the witness may not refuse to comply with the
            order on the basis of his privilege against self-
            incrimination; but no testimony or other information
            compelled under the order (or any information directly
            or indirectly derived from such testimony or other
            information) may be used against the witness in any
            criminal case, except a prosecution for perjury, giving
            a false statement, or otherwise failing to comply with
            the order.

(Emphasis added.)

       Consistent with this federal practice, a general court-

martial convening authority may grant a servicemember immunity
from the use of testimony, statements, or any other information

derived directly or indirectly from such immunized testimony or

statements in a subsequent court-martial.         See R.C.M. 704(a),

(c).    After receiving such immunity, an immunized servicemember

may be ordered to give a statement or to testify because the

grant of immunity removes the right to refuse to cooperate on

self-incrimination grounds.       See R.C.M. 704(d) discussion;

Military Rule of Evidence 301(c).         Neither the testimony of an

immunized soldier, nor any evidence derived from such testimony,



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United States v. Mapes, No. 03-0025/AR


may be used against the immunized soldier at a subsequent trial,

other than for perjury, false swearing, making a false official

statement, or failure to comply with an order to testify.         See
id.

      Simply stated, an immunity statute permits the Government to

compel a citizen to provide information but prevents governmental

use of the information to prosecute the citizen.         The foundation

principle in these statutes is that the scope of the grant of

immunity must be coextensive with the scope of the privilege.

Murphy v. Waterfront Comm’n, 378 U.S. 52, 54 (1964).
Essentially, this principle extracts a “quid pro quo” from the

Government for the information it compels from the citizen.

      The first aspect of this “quid pro quo” is that the

Government may not use the information in any way to prosecute

the citizen.    The second aspect is that the Government, if

challenged in court, must demonstrate that it has followed a

process to ensure it has not exploited the compelled information.

Only when both aspects are satisfied does the Government honor a

citizen’s right to protection against self-incrimination and may
use the compelled information.

      The Supreme Court and this Court have vigilantly applied

these principles.     The law relating to the use of immunized

statements is well established.          In United States v. McGeeney, 44

M.J. 418, 422-23, this Court summarized the applicable law.

                 In Kastigar v. United States, 406 U.S. 441, 92
            S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court
            held that prosecutorial authorities may not use
            testimony compelled by a grant of immunity. We have
            construed "use" to include non-evidentiary use such as
            the decision to prosecute. See United States v.
            Olivero, 39 MJ 246, 249 (CMA 1994), citing United


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United States v. Mapes, No. 03-0025/AR


            States v. Kimble, 33 MJ 284 (CMA 1991). Other federal
            appellate courts have construed Kastigar to hold that
            the Government may not "alter its investigative
            strategy" based on immunized testimony. See United
            States v. Harris, 973 F.2d 333, 336 (4th Cir.1992).
            Finally, the Government may not use the testimony of a
            witness which was influenced by the immunized
            testimony. United States v. North, 910 F.2d 843, 860
            (D.C.Cir.) [North I], modified in part, 920 F.2d 940,
            942 (1990) [North II].

                 Under Kastigar, the Government has a "heavy
            burden" to show non-use of immunized testimony. 406
            U.S. at 461, 92 S.Ct. at 1665. The Government must do
            more than negate the taint; it must affirmatively prove
            that its evidence "is derived from a legitimate source
            wholly independent of the compelled testimony." An
            appellant is "not dependent for the preservation of his
            rights upon the integrity and good faith of the
            prosecuting authorities." 406 U.S. at 460, 92 S.Ct. at
            1665. See United States v. Boyd, 27 MJ 82, 85 (CMA
            1988). Prosecution may proceed only "if the Government
            shows, by a preponderance of the evidence, that the
            . . . decision to prosecute was untainted by" immunized
            testimony. United States v. Olivero, 39 MJ at 249,
            quoting Cunningham v. Gilevich, 36 MJ 94, 102 (CMA
            1992); see United States v. Harris, 973 F.2d at 336.

      The question of whether the Government has shown, by a

preponderance of the evidence, that it has based the accused’s

prosecution on sources independent of the immunized testimony is

a preliminary question of fact.          Id. at 423 (citing United States
v. Rivera, 1 M.J. 107, 110 (C.M.A. 1975)).         This Court will not
overturn a military judge’s resolution of that question unless it

is clearly erroneous or is unsupported by the evidence.         Id.

(citing Samples v. Vest, 38 M.J. 482, 487 (C.M.A. 1994)).

      As we have addressed this issue in many other cases, we have

detailed guidance as to the factors to be considered in deciding

whether the Government’s evidence against Appellant was obtained

from a source wholly independent of his immunized testimony.           See

United States v. England, 33 M.J. 37 (C.M.A. 1991); United States

v. Gardner, 22 M.J. 28 (C.M.A. 1986).         These factors include:


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United States v. Mapes, No. 03-0025/AR


           1. Did the accused's immunized statement reveal
      anything "which was not already known to the Government by
      virtue of [the accused's] own pretrial statement"?

           2. Was the investigation against the accused completed
      prior to the immunized statement?

           3. Had "the decision to prosecute" accused been made
      prior to the immunized statement? and,

           4. Did the trial counsel who had been exposed to the
      immunized testimony participate in the prosecution?

England, 33 M.J. at 38-39.
      Applying the foregoing principles and these factors, we hold

that the court below erred in upholding the military judge's

finding that the prosecution of Appellant was untainted.         Here

the prosecution failed to carry its “’heavy burden’ to show non-

use of immunized testimony.”        United States v. Youngman, 48 M.J.

123, 127 (C.A.A.F. 1998).

      At the outset, we note that Appellant’s immunized statement

revealed important new information which was not already known to

the Government.     The critical question in the investigation was

the degree of culpability of Appellant and PVT Smoyer.       The

prosecution did not know who, if anyone, provided the heroin and
who, if anyone, injected SPC Coffin with it.       Appellant’s

immunized testimony resolved the issue as Appellant implicated

himself in providing the heroin and PVT Smoyer in injecting

heroin into SPC Coffin.

      The investigation against Appellant was not completed prior

to his immunized statement.       To the contrary, the chronology of

events reveals that the investigation had reached an impasse, and

command officials concluded the only way to make progress was to

immunize both Appellant and PVT Smoyer.       Although the military



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United States v. Mapes, No. 03-0025/AR


officials asserted that the “decision to prosecute” Appellant was

made prior to his immunized statement, charges against Appellant

were neither preferred nor referred until months after both

Appellant and PVT Smoyer were granted immunity and provided

statements implicating themselves in all of the charged offenses.

      The record demonstrates that the prosecution needed the

immunized testimony of Appellant to obtain evidence to prove

several of the charged offenses and the manslaughter offense in

particular.    While the Government desired to prosecute Appellant,

they did not have the proof to go forward until they successfully

used Appellant’s immunized statement to prosecute PVT Smoyer and

thereby obtained PVT Smoyer’s immunized statement implicating

Appellant.    COL Graves, the SJA, confirmed this in both his

written recommendation to grant immunity and his conversations

with the convening authority about granting immunity.       In the

former, he stated that immunity was needed to establish the

charges of distribution and involuntary manslaughter.       As to the

latter, he testified that in July 1998 he informed the convening

authority, “one of the charges we wanted to pursue was

manslaughter, and we didn’t think we were going to get there

without grants of immunity.”        His testimony belies any assertion

by the prosecution that they could have or would have prosecuted

either Appellant or PVT Smoyer for manslaughter without the use

of Appellant’s immunized testimony or independent of Appellant’s

cooperation.    As in Rivera, we continue to give great weight to

the statements of the SJA as to the necessity and purpose in

seeking the grant of immunity.




                                     18
United States v. Mapes, No. 03-0025/AR


      We acknowledge that the Government made an attempt to avoid

taint by constructing a “Chinese wall” between the two separate

teams prosecuting Appellant and PVT Smoyer, thereby protecting

the prosecutor of Appellant from direct exposure to his immunized

testimony.    However, the convening authority, the SJA, and the

principal CID investigator were tainted by knowledge of the dual

investigations.     Attempts to establish a “Chinese wall” were

ineffective to protect against compromise of the immunized

testimony of both Appellant and PVT Smoyer.

      Both the convening authority and SJA had access to

Appellant’s immunized testimony when they reviewed and acted upon

PVT Smoyer’s case.      In addition, Appellant’s immunized

information was relied upon during a briefing related to PVT

Smoyer’s case in which there was discussion of the

recommendations of the IO.       Therefore, both the convening

authority and the SJA were privy to Appellant’s immunized

statement when the decision was later made to prosecute him.

Furthermore, SA Hill supervised both investigations.       Knowing

that Appellant had confessed, SA Hill ordered another special

agent interviewing PVT Smoyer to “be aggressive.”       These

circumstances demonstrate that the “Chinese wall” was ineffective

in protecting Appellant’s immunized testimony from being

exploited by the command in resolving Appellant’s case.

      This Court has previously warned that “[p]recautions such as

‘cataloguing’ or ‘freezing’ the evidence known to the Government

before taking the immunized testimony will help the Government

carry its burden in a subsequent trial of the immunized witness;

and before immunized testimony is given, all reasonable efforts


                                     19
United States v. Mapes, No. 03-0025/AR


should be made by prosecution officials to memorialize what

evidence is in their possession and what prosecutorial decisions

have already been made.”       Gardner, 22 M.J. at 32.     See e.g.,
Boyd, 27 M.J. at 85; Richard J. Link, Annotation, Effect of

Defendant’s Immunized Statements on Testimony by Prosecution

Witness – Post-Kastigar Cases, 122 A.L.R. Fed. 429, 439-40

(1994).   In the instant case, while Government witnesses

testified that they believed there was an intent to prosecute

Appellant, the Government made no attempt throughout the course

of investigation to memorialize or record in writing the charges

as they developed under the evidence of the case.          The evidence

to support the preferred charges was not properly preserved or

memorialized.     This deficiency weakened the foundation of the

prosecution’s “Chinese wall” argument.

      The foregoing analysis leads to the most important aspect of

this case: whether the prosecution influenced PVT Smoyer’s

decision to testify against Appellant by its improper use of

Appellant’s immunized testimony.          Our concern is whether the

prosecution induced an immunized Appellant to testify against PVT

Smoyer, exploited this evidence to induce PVT Smoyer to provide

immunized information implicating Appellant, and finally used PVT

Smoyer’s statement to prosecute Appellant.          We explicitly

condemned this exploitation of immunized testimony in Rivera, 1
M.J. at 110-11.     Revisiting Rivera is instructive as the facts

and legal issues are similar.

      In Rivera, three men attempted a robbery of a sleeping

victim in his barracks.       One of the men shot the victim and the

group fled.    Rivera and several others were apprehended for the


                                     20
United States v. Mapes, No. 03-0025/AR


crimes.    The SJA recommended that the accused be granted

testimonial immunity in an attempt to identify the perpetrator

and the other people involved.           After being granted this

immunity, Rivera made an inculpatory statement implicating three

friends, including PVT Eddie Solis, in the shooting.           Rivera

testified at the pretrial investigation of PVT Solis.           Later, PVT

Solis was a witness against Rivera at both the pretrial

investigation and trial.       This Court expressly rejected this

tactic of inducing each witness to testify against the other.

Id.    In addition, this Court rejected the trial judge’s reliance

on the statements of trial counsel that the Government did not

make derivative use of the accused’s immunized testimony.            Id. at

110.

       In the present case, the trial judge overlooked and the

lower court misapplied this authority.          Regarding Kastigar

issues, we have held “[t]he military judge’s use of incorrect

legal principles . . . constitute[s] an abuse of discretion.”

See Youngman, 48 M.J. at 128.
       PVT Smoyer did not testify at Appellant’s Article 32
hearing.    However, the physical absence of PVT Smoyer as a

witness is of no consequence since SA Martinez was the sole

prosecution witness at the Article 32 hearing, and he expressly

relied on PVT Smoyer’s immunized statement as the factual basis

for much of his testimony.       The prosecution may not indirectly do

what it may not do directly.        In other words, if PVT Smoyer’s

testimony in person would have violated the Kastigar prohibition,

then SA Martinez’s reliance on PVT Smoyer’s testimony during his




                                     21
United States v. Mapes, No. 03-0025/AR


own testimony is an indirect use that is equally objectionable

under the rule announced in Kastigar.

      Piercing through the prosecution’s indirect use of PVT

Smoyer’s testimony, we focus on the key issue in this case: Did

the prosecution carry the heavy burden to establish that

Appellant’s immunized testimony did not trigger PVT Smoyer’s

immunized disclosures?

      This Court has reasoned that the “state of mind and

motivation for coming forward and making a statement against

[A]ppellant were ‘directly relevant’ to determining whether those

statements were ‘directly or indirectly derived’ from immunized

testimony.”    Boyd, 27 M.J. at 86 (citing United States v. Kurzer,
534 F.2d 511, 517 (2d Cir. 1976), on remand, 422 F.Supp. 487, 489

(S.D.N.Y. 1976)).     Furthermore, in Rivera, we rejected that the

prosecution can satisfy its Kastigar burden with “mere

representations on the part of the Government.”    1 M.J. at 110.

Where an immunized witness appears as a Government witness, the

holding of Rivera requires more than the witness’s
representations of his state of mind and motives in making
disclosures.    The court must scrutinize the testimony of an

immunized witness and be circumspect in accepting explanations

for motives and state of mind in cooperation.    See id.

      Both the military judge and the lower court failed to

adequately scrutinize the testimony of PVT Smoyer.    Their failure

to weigh PVT Smoyer’s testimony against his conflicting

statements resulted in their improperly assessing his explanation

regarding the reason for his cooperation -- a desire to “come




                                     22
United States v. Mapes, No. 03-0025/AR


clean” and to obtain a favorable pretrial agreement against the

other evidence that the prosecution was tainted.

      The Government claims that PVT Smoyer’s immunized

statements against Appellant on September 30 were a product of

his own desire for a better sentence for himself and were

unaffected by Appellant’s July 22 immunized statement or

immunized testimony at PVT Smoyer’s Article 32 hearing.            The

military judge found as fact that PVT Smoyer provided an

immunized statement against Appellant on September 30 to get the

best sentencing deal for himself.           We hold that this finding of

fact is clearly erroneous as it is not supported by a

preponderance of the evidence.           See United States v. Hampton, 775

F.2d 1479 (11th Cir. 1985).

      PVT Smoyer’s conflicting and untruthful statements

undermined his credibility.       He admitted that prior to being

granted immunity he had repeatedly lied about his involvement.

After being granted immunity, he continued to lie.           Although PVT

Smoyer claimed he decided “finally to come clean” because of the

pretrial agreement, he made inconsistent statements under that
agreement.    In a November 1998 interview, investigators believed

that PVT Smoyer, after listening to Appellant’s testimony during

his Article 32 hearing, “started to confuse . . . what he

overheard in the [hearing]” when recounting the facts for

counsel.    Finally, we observe that PVT Smoyer refused to testify

at Appellant’s court-martial and did so only after he was given

transactional immunity.       PVT Smoyer’s repeated failure to

cooperate with investigators contradicts PVT Smoyer’s asserted

motivation for cooperating.


                                     23
United States v. Mapes, No. 03-0025/AR


      PVT Smoyer’s explanation for cooperation, a desire to “come

clean,” is not supported by the factual record.        Prior to

Appellant’s immunized testimony at the Article 32 hearing, PVT

Smoyer had neither entered into a pretrial agreement relating to

his culpability nor made a statement implicating himself or

Appellant.    While PVT Smoyer asserted that he had decided the

night before the Article 32 hearing to make a statement and to

work out a plea bargain, he had done neither.

      The chronology of events contradicts PVT Smoyer’s

explanation.    There is little evidence that PVT Smoyer came to

his conclusion to cooperate before the notice to him on September

11 that Appellant would be an immunized witness at his Article 32

hearing.    PVT Smoyer had not accepted the SJA’s open offer to

make a deal from the time it was proposed in July until mid-

September.    As PVT Smoyer’s conversation with his father occurred

before he was charged with the most serious offense of

involuntary manslaughter, his stated intention to cooperate is

unsupported by this evidence.        We note that Dr. Smoyer disclosed

that PVT Smoyer had a history of lying, “a trait that was

cultivated almost to an art form!”        Furthermore, PVT Smoyer’s

defense counsel admitted that he had not told her the truth until




                                     24
United States v. Mapes, No. 03-0025/AR


September 28.1    Finally, PVT Smoyer did not have a pretrial

agreement.    If future satisfactory pretrial agreement terms could

not be negotiated, PVT Smoyer was not committed to cooperation.

In these circumstances, PVT Smoyer’s desire for a deal was

equivocal and uncertain.

      The timing of PVT Smoyer’s first statement implicating

Appellant in SPC Coffin’s death strongly supports Appellant’s

argument that his statement was induced by Appellant’s testimony.

PVT Smoyer implicated Appellant immediately after Appellant

testified against him at the Article 32 hearing.        The next day,

after hearing Appellant’s testimony against him, PVT Smoyer did

not hesitate or delay in implicating Appellant.

      As the prosecution was built on PVT Smoyer’s assertion of a

desire to “come clean,” it is also appropriate to consider other

possible motives to explain the reason for his cooperation in the

prosecution of Appellant.       Boyd, 27 M.J. at 85.   First, it is
clear that PVT Smoyer was betrayed by Appellant’s testimony that

PVT Smoyer had injected SPC Coffin with heroin.        PVT Smoyer and


1
 After receiving transactional immunity, PVT Smoyer testified
during Appellant’s motion pursuant to Kastigar v. United States,
406 U.S. 441 (1972), stating that he told his defense counsel,
CPT Bleam, the truth about his role in the death of SPC Coffin
before his hearing pursuant to Article 32, Uniform Code of
Military Justice, 10 U.S.C. § 832 (2000), and that “she wrote
down everything [he] said.” Appellant’s counsel then requested
access to CPT Bleam’s notes of PVT Smoyer’s account. The
military judge ruled that PVT Smoyer’s testimony waived his
attorney-client privilege and called a recess so trial counsel
could procure CPT Bleam’s notes. After discovering that there
were no notes, Appellant’s counsel called CPT Bleam as a witness.
Initially, CPT Bleam invoked attorney-client privilege and
refused to answer defense counsel’s questions. However, after
the military judge informed CPT Bleam that by testifying PVT
Smoyer waived his right to confidentiality, she testified.



                                     25
United States v. Mapes, No. 03-0025/AR


Appellant had agreed not to implicate each other, and PVT Smoyer

had repeatedly lied to adhere to this agreement.           Confronted with

Appellant’s testimony implicating him, PVT Smoyer was now free to

implicate Appellant.      Second, PVT Smoyer’s culpability in SPC

Coffin’s death may have been a burden on his conscience.             Not

only did PVT Smoyer inject SPC Coffin with heroin, but PVT Smoyer

also refused to render aid to a dying friend.           We note that PVT

Smoyer was specially trained as a certified combat lifesaver to

provide emergency assistance.        PVT Smoyer’s cooperation in the

prosecution of Appellant transferred some accountability for SPC

Coffin’s death to Appellant.        Each of these other motives

rendered PVT Smoyer’s testimony suspect and invited careful

scrutiny of it, because of the Government’s heavy burden to

demonstrate that PVT Smoyer’s testimony was not “shaped, altered,

or affected” by Appellant’s immunized testimony.           See North II,

920 F.2d at 943; North I, 910 F.2d at 861.

      The Government failed to carry its heavy burden to show that

it did not make use of Appellant’s compelled statement and failed

to affirmatively prove that its evidence was “derived from a
legitimate source wholly independent of the compelled testimony.”

See Kastigar, 406 U.S. at 460.           We also conclude that the

decision to prosecute appellant was tainted.

      Most importantly, the statements of the SJA regarding the

reasons for granting immunity and the chronology of events of the

investigation and prosecution reveal that the Government used

Appellant’s July 22 immunized statement to determine what charges

should be lodged against each of the co-accused.          Prior to that

time, the Government had no direct evidence of the events on the


                                     26
United States v. Mapes, No. 03-0025/AR


early morning of April 5, and it had not decided what crimes to

charge against each suspect.        This immunized information clearly

impacted the Government’s prosecutorial strategy, i.e., Appellant

was the heroin provider and PVT Smoyer was the heroin injector.

See Olivero, 39 M.J. at 249-50.

                                   REMEDY

      The final question is the sanction for this Kastigar

violation.    As the Government has not carried the heavy burden to

show it did not exploit Appellant’s immunized testimony to induce

PVT Smoyer’s cooperation and incriminating disclosures, the

impact of both Appellant’s and PVT Smoyer’s immunized testimony

must be neutralized.

      This requires the dismissal of any charges where the

decision to prosecute was tainted by this evidence.       For the

reasons stated above, we hold that the decision to prosecute

Appellant tainted all charged offenses related to the heroin

overdose death of SPC Coffin on the early morning of April 5.

Accordingly, Appellant’s convictions of involuntary manslaughter,

conspiracy, false official statement, and three drug offenses on

April 5 (wrongful introduction, wrongful distribution, and heroin

use) must be set aside and these charges and specifications

dismissed.

      Similarly the Government may not prosecute Appellant for

drug offenses with PVT Smoyer relating to wrongful heroin use and

distribution between 15 August 1996 and 31 March 1998 that are

derivative of the immunized testimony.       However we need not

dismiss specifications (4) and (5) of Charge IV at this time, as

the evidence related to these offenses may not be tainted.         The


                                     27
United States v. Mapes, No. 03-0025/AR


investigation into Appellant’s drug abuse and offenses prior to

the decision to grant both Appellant and PVT Smoyer immunity

revealed evidence that may have been sufficient to sustain a

prosecution untainted by the later immunized testimony.       For

example, PVT Wilson implicated Appellant in these offenses prior

to both Appellant and PVT Smoyer being granted immunity.

      While these are serious offenses, the record reflects that

the “immunized statements caused or played a substantial role in

referral of the remaining offenses against [Appellant] to a

general court-martial.”       Youngman, 48 M.J. at 128.   We therefore

conclude that the appropriate remedy is the submission of the

evidence relating to these two offenses to a new convening

authority.    We will accomplish this result by setting aside the

Appellant’s guilty plea to specifications (4) and (5) under

Charge IV.    This is the relief authorized by R.C.M. 910(a)(2)(“if

the accused prevails on further review or appeal, the accused

shall be allowed to withdraw the plea of guilty.”)2

2
  As noted above, the Appellant entered a conditional plea,
preserving the right to litigate the Kastigar issue on appeal.
Regarding confessional stipulations, we have observed,

      In Federal civilian practice it is inappropriate for a
      conditional guilty plea to be entered and accepted when the
      issue reserved for appeal will not be dispositive of an
      accused’s case. See United States v. Wong Ching Hing, [867
      F.2d 754, 758 (2nd Cir. 1989)]. See generally 18 USC (Rule
      11(a)(2)) Federal Rule of Criminal Procedure, Notes of
      Advisory Committee on 1983 Amendment.

United States v. Maio, 34 M.J. 215, 219 n.3 (C.M.A. 1992).

R.C.M. 910(A)(2) does not similarly limit military practice, but
the Analysis of the Military Rules of Evidence advises cautious
use of the conditional plea when the decision on appeal will not
dispose of the case. See Manual for Courts-Martial, United
States (2002 ed.), Analysis of the Military Rules of Evidence
A21-58-59. Drafters Analysis, MCM at A51-59. Where a


                                     28
United States v. Mapes, No. 03-0025/AR


                                  DECISION

      The decision of the United States Army Court of Criminal

Appeals is reversed.      The findings of guilty to Charges I, II,

III, and their specifications; and specifications (1), (2), and

(3) of Charge IV are dismissed.          The sentence is set aside.   The

record of trial is returned to the Judge Advocate General of the

Army for submission to a new convening authority for further

action consistent with this opinion only with regard to

specifications (4) and (5) of Charge IV.




conditional guilty plea is not case dispositive as to either the
issue preserved for appeal or as to all of the charges in a case,
the military judge should address as part of the providency
inquiry the understanding of the accused and the parties as to
the result of the accused prevailing on appeal.

     In the present case, Judge Hodges appropriately initiated a
discussion of this matter, but the record is inadequate. We need
not address issues that could arise from this dialogue as we have
dismissed several of the charges and set aside Appellant’s guilty
plea as to the remaining offenses.



                                     29
United States v. Mapes, No. 03-0025/AR


                                 Appendix A

   MJ:   Concerning the defense request for relief as set
forth in their 9 April 1999 motion to dismiss, the court
makes the following findings of fact and conclusions on the
law as set forth below. The court notes that in determining
these facts and rulings, the court has carefully considered
the evidence presented during the motion hearing, critically
scrutinized the testimony, demeanor, and sincerity of the
witnesses who testified during this hearing, and
painstakingly reviewed the positions of the parties and the
cases argued by them in support of their positions.

      The court adopts as fact all but the last sentence of
the paragraph titled "STATEMENT OF THE CASE" from the
prosecution's brief.
                         [STATEMENT OF THE CASE
         On or about 5 April 1998, Specialist John Coffin died of
      a heroin overdose in his barracks room on Fort Carson. The
      accused and PVT Ronald Smoyer eventually became suspects in
      SPC Coffin's death, and each received a grant of testimonial
      immunity from MG Riggs on or about 15 July 1998. Charges
      were preferred against PVT Smoyer on 2 September 1998. The
      Article 32 hearing in Smoyer's ease took place on 29
      September - I October. The accused testified in that
      hearing. On 2 October 1998, PVT Smoyer submitted an offer
      to plead guilty that was approved by MG Riggs the same day.
      The Article 32 report was completed, signed, and submitted
      by the Investigating Officer on 7 October. MG Riggs
      referred PVT Smoyer's case to a General Court-Martial on 14
      October 1998, 12 days after having accepted Smoyer's offer
      to plead guilty. PVT Smoyer's guilty plea occurred on 9
      November 1998. He is currently incarcerated at the United
      States Disciplinary Barracks.

         Charges were preferred against the accused on 3 December
      1998. The Article 32 hearing took place on 19 January 1999.
      The Article 32 report was completed, signed, and submitted
      by the Investigating Officer on 3 February 1999. MG Riggs
      referred the accused's case to a General Court-Martial on 11
      February 1999.]

      The court finds by a preponderance of the evidence
that the following facts are true:

      1. The decision to prosecute Specialist Mapes and
Specialist [sic] Smoyer for offenses, including involuntary
manslaughter, was made prior to the grants of immunity and
creation of the Chinese wall.

      2. No member of the prosecution team has seen any
immunized statement made by Specialist Mapes.


                                     30
United States v. Mapes, No. 03-0025/AR



      3. No member of the CID team investigating Specialist
Mapes has seen or heard any details about any immunized
statement made by Specialist Mapes or any other evidence
derived from any immunized statements made by Specialist
Mapes.

      4. The prosecution did not use Specialist Mapes, Article
32 testimony or any other immunized statement made by him in
their decision to prosecute him, nor are they attempting to
use any of his immunized statements or testimony against him
at his trial.

      5. Specialist Smoyer's immunized statements were not
derived from Specialist Mapes' immunized testimony or
statements. They were wholly independent both as to content
and purpose from Specialist Mapes' compelled immunized
testimony.

      6. The decision to prosecute Specialist Mapes was not in
any manner based upon evidence derived from Specialist Mapes'
compelled immunized testimony or statements.

      7. When the staff judge advocate briefed the convening
authority regarding Specialist Smoyer's offer to plead guilty
and the referral of Specialist Smoyer's case to trial, he did
not know what Specialist Mapes may have said in his immunized
statements. The staff judge advocate did not read the
documents supporting the referral, nor did the convening
authority. The staff judge advocate did not advise the
convening authority about any of Specialist Mapes' immunized
statements.

      8. The Chinese wall was not breached. The plan for
creation of separate investigations was well-conceived and
carefully planned. The investigators and prosecutors for
both teams were thoroughly briefed about the special
requirements of their separate investigations. They
understood that they could not share or request information
from the other team, and they scrupulously adhered to that
limitation. The files were kept separately and not
available to members of the other investigation or
prosection [sic] team. Neither team disclosed information
to members of the other team, and neither team obtained
information from the other team. More specifically, the
team investigating Specialist Mapes did not receive any
information about Specialist Mapes' immunized statements or
any other evidence that may have been derived from that
evidence. Special Agent Hill made comments in the various
investigative reports and the running logs in the
investigation. Specialist [sic] Hill's comments were purely
administrative in nature and did not disclose to either team
evidence found by the other team. Moreover, the
investigators understood that Special Agent Hill's comments
were purely administrative and that his only role was to


                                     31
United States v. Mapes, No. 03-0025/AR


ensure that the investigations were conducted in a timely
manner and to ensure that operational requirements were
achieved.

      The court makes the following additionally -- makes the
additional following specific findings:

      1. The decision to prosecute. This court finds by a
preponderance of the evidence that prior to the offer of
immunity and the creation of the Chinese wall, the
prosecution had probable cause to and fully intended to
charge and prosecute Specialist Mapes for offenses,
including involuntary manslaughter, prior to the offer of
immunity. In other words, they had decided to charge
Specialist Mapes with offenses, to include involuntary
manslaughter.

      The court also finds in this regard although the
evidence known to the prosecution before immunity was
neither formally cataloged or sealed, the evidence known as
a result of the investigation to that point was maintained
by CID in an original investigative file, Appellate Exhibit
VI.

      No charges were preferred against either Specialist
Mapes or specialist Smoyer, nor were there any formal
charging documents made, prior to the creation of the
Chinese wall and prior to the grants of immunity.
Nonetheless, it is clear by the independent evidence then
known to the prosecution that Specialist Mapes and
Specialist Smoyer were the primary suspects in the death of
Specialist Coffin. It is also clear that based on what the
prosecution had learned, that they had sufficient evidence
to believe that Specialist Mapes had supplied the heroin and
that Specialist Smoyer had injected the lethal dose of
heroin into Specialist Coffin. It was also clear from what
they knew that Specialist Coffin had died from a massive
dose of heroin; that Specialist Coffin was seen in
Specialist Mapes' room shortly before his death; that at the
time, Specialist Coffin was wheezing and looked bad; that
there was compelling evidence that both Specialist Smoyer
and Specialist Mapes were in Mapes' room with Specialist
Coffin shortly before Specialist Coffin's death; that
Specialist Smoyer had obtained syringes shortly before
Specialist Coffin's death; and that Specialist Mapes had
brought back heroin from New Orle--from New York earlier in
the evening before Specialist Coffin's death. It was also
known that Specialist Mapes and Specialist Smoyer had used
drugs together, including heroin, previously and with other
soldiers. On one of those occasions, Private First Class
Wilson used heroin supplied by the accused in the accused's
room and was injected by Smoyer.

      It was also clear that the prosecution had decided to
prosecute Specialist Mapes as is evidenced by the decision


                                     32
United States v. Mapes, No. 03-0025/AR


to grant simultaneous immunity to Specialist Mapes and
Specialist Smoyer, the deliberate and carefully planned
steps taken by the prosecution to erect the Chinese wall to
ensure that both Specialist Mapes and Smoyer could be
prosecuted, the care and detail with which all parties were
briefed regarding the unusual nature of the investigation
and the special requirements with which they were to conduct
the separate investigations, the precision with which each
investigation was conducted, and in particular the absolute
requirement that in no instance could information be shared
with anyone outside of their separate investigative team.
Other indicators that the prosecution had decided to
prosecute Specialist Mapes include the opinion rendered to
CID that probable cause existed to title Specialist Mapes
for offenses, including manslaughter--involuntary
manslaughter--and the government decision to extend
Specialist Mapes on active duty so that they could
prosecute--so that he could be prosecuted. This court is
convinced that regardless of whatever evidence was
subsequently discovered by the separate investigations, the
decision had been made to prosecute Specialist Mapes for
offenses, including involuntary manslaughter.

      2. Statements of Specialist Smoyer. This court finds
by a preponderance of the evidence that Specialist Smoyer's
immunized statement and any other subsequent statements were
not derived from Specialist Mapes' immunized testimony or
other immunized statements. The court also finds by a
preponderance o£ the evidence that given the state of the
evidence, Specialist Mapes' immunized statements played no
role in Specialist Smoyer's decision to provide statements.
Specialist Smoyer's statements were wholly independent, both
as to content and purpose, from Specialist Mapes' compelled
immunized testimony. Specialist Smoyer's sole purpose in
coming clean with his attorney, in directing her to contact
CID so that he could make a statement to CID, and for
providing a statement incriminating himself and Specialist
Mapes was to cut his losses by obtaining a favorable
pretrial agreement.

      In reaching this conclusion, the court carefully
considered the testimony and demeanor of Specialist Smoyers
[sic] as well as the other witnesses who testified on this
issue and finds the following evidence persuasive as to
Specialist Smoyer's motivation in presenting his statement
to CID when he did. Specialist Smoyer testified that his
reason for cooperating with CID; that is, coming--I'm sorry.
His reason for cooperating with CID, for coming clean with
his father, for telling the truth to his lawyer and
directing her to arrange a meeting with CID so that he could
provide CID a statement, and for giving the statement
incriminating himself and Specialist Mapes was his desire to
cut his losses by obtaining a favorable pretrial agreement.
He thought he--he knew that he had to admit his involvement
in the incident and tell CID the whole truth in order to get


                                     33
United States v. Mapes, No. 03-0025/AR


the favorable agreement. His decision to come clean with
CID was made before the Article 32 investigation, as is
evidenced by his discussions with his father, his lawyer--
and his lawyer. The decision was not made in anticipation
of Specialist Mapes' testimony but, rather, to secure the
favorable pretrial agreement. In his statement, Specialist
Mapes unequivocally--I'm sorry; Specialist Smoyer
unequivocally and clearly admitted that he was the one who
injected the lethal dose of heroin into Coffin, which is
clearly a more culpable role in the death of Coffin than
providing heroin.

      The court also finds that under the circumstances of
this case, the contents of the statement provided by
Specialist Smoyer, although very similar to the details
provided by Specialist Mapes, were not derived from
Specialist Mapes' Article 32 testimony. The court finds by
a preponderance of the evidence that the details provided by
Specialist Smoyer in his statement were facts he remembered
because of his presence and active involvement in the death
of Specialist Coffin in Specialist Mapes' room. His memory
of these facts was independent of and in no way influenced
by the details provided by Specialist Mapes in the Article
32 investigation and completely independent of Specialist
Mapes' Article 32 testimony. His statement is totally
supported and corroborated by the independent evidence known
to the prosecution prior to the extension of immunity and
the creation of the Chinese wall. Again, it should be noted
that Specialist Smoyer admitted to being the injector,
which, in the court's view, is a more culpable role in the
death of Specialist Coffin.

      Specialist Smoyer's statement is independently
supported by the other evidence presented on the issue.
Specialist Smoyer and Specialist Mapes were close friends.
Prior to the grants of immunity and the creation of the
Chinese wall, they agreed that when questioned by law
enforcement investigators, they would deny involvement and
that they would protect themselves and each other by not
providing statements against each other. Both knew the
extent of the other's involvement in the death and that at
anytime, either one could incriminate the other. This is
evidenced by their statements prior to immunity denying
involvement. Specialist Smoyer's false statements to CID
after the grant of immunity are completely consistent with
this agreement.

      Shortly after Specialist Smoyer learned that charges
had been preferred against him, he participated in at least
three telephone calls with his father. In those phone
calls, he told his father about the offenses, advised him
about his fear of the possibility of lengthy confinement,
and discussed the pretrial agreement with his father,
ultimately telling his father that he wanted to take the
pretrial agreement.


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United States v. Mapes, No. 03-0025/AR



      On Friday, the 11th of September, Specialist Smoyer
received notice of his Article 32 investigation and a list
of witnesses, including Specialist Mapes. The first
opportunity for Smoyer to talk with Captain Bleam about the
pretrial agreement was not until Monday, the 28th of
September, which was the day before the Article 32. Captain
Bleam was out of the office TDY, out of the area and
unavailable to Specialist Smoyer, until Monday, the 28th of
September, which was the day before the Article 32
investigation. Specialist Smoyer was not aware of whether
Specialist Mapes had been incriminating--had made
incriminating statements against him before he received the
Article 32 investigation notice. Even after having received
the Article 32 investigation notice, he still did not know
for sure whether Specialist Mapes would actually testify
against him at the investigation or, if he did, whether he
would incriminate him.




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United States v. Mapes, No. 03-0025/AR


     CRAWFORD, Chief Judge (dissenting):

     There are two very basic reasons to affirm in this case.

First, there was substantial independent evidence to establish

probable cause for the preferral of charges against Appellant

before immunity was ever granted.   Second, Private (PVT)

Smoyer’s decision to testify was made of his own free will, thus

attenuating any connection with Appellant’s immunized statement.

In essence, the majority overlooks the independent evidence

establishing probable cause to apprehend both PVT Smoyer and

Appellant, and holds that false statements made pursuant to a

grant of immunity taint truthful, voluntary testimony.

                              FACTS

     Appellant entered a conditional plea of guilty to

involuntary manslaughter involving the heroin overdose of a

fellow soldier, Specialist (SPC) Coffin.    Prior to his pleas,

Appellant moved to dismiss the charges on the grounds that the

Government violated his Fifth Amendment right against self-

incrimination by using his pretrial immunized statement,

implicating himself and PVT Smoyer to induce PVT Smoyer to

provide immunized testimony implicating Appellant.

     On the morning of April 5, 1998, SPC Coffin was pronounced

dead from a massive overdose of heroin.    Immediately after his

death, the Criminal Investigation Command (CID) began

investigating the cause of death.   CID special agents conducted
United States v. Mapes, No. 03-0025/AR


canvas interviews of the soldiers in the barracks, and uncovered

circumstantial evidence pointing to the involvement of Appellant

and PVT Smoyer.    However, Appellant and PVT Smoyer agreed not to

reveal any relevant facts to investigators in hopes of avoiding

prosecution.    Both Appellant and PVT Smoyer denied any

involvement or knowledge of SPC Coffin’s death.

     The special agents learned from PVT Wilson on April 8 that

Appellant was returning home from leave in New York City and

had planned to bring drugs back with him.      PVT Wilson admitted

that he had previously used heroin with Appellant and PVT Smoyer

in November 1997.    On that occasion, Appellant provided the

heroin and PVT Smoyer injected PVT Wilson.      PVT Wilson told CID

that he suspected that SPC Coffin had been killed by overdosing

on heroin supplied by Appellant and injected by PVT Smoyer.

Later, a physical examination of Appellant revealed he had

several puncture wounds in both arms consistent with hypodermic

needle marks.

     PVT Wilson also told the investigators that Appellant used

heroin regularly, and that SPC Coffin picked up Appellant at the

airport on the day of his death.       PVT Wilson stated that he had

seen SPC Coffin in Appellant’s room appearing high.      Moreover,

on the same date, CID interviewed PVT Smoyer, and he admitted

using heroin with Appellant and PVT Wilson on several occasions.




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United States v. Mapes, No. 03-0025/AR


     PVT Wilson’s information was corroborated on April 9 by PVT

Aaron Carter, who told investigators that he saw SPC Coffin,

Appellant, and PVT Smoyer in Appellant’s room on April 5, and

that he believed Appellant supplied SPC Coffin with heroin.

PVT Carter also admitted that he knew PVT Smoyer had purchased

hypodermic needles on the evening of April 4.     After SPC

Coffin’s death, PVT Carter asked Appellant if SPC Coffin used

heroin, and Appellant answered that he did not know, but that if

he did use heroin, “it was only a little bit.”     Based on this

information, the Government decided to pursue charges against

both Appellant and PVT Smoyer.

                             Discussion

     The Supreme Court first applied the exclusionary rule to

derivative evidence in Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920).    In extending the exclusionary rule to

derivative evidence, the Court stated that if knowledge of facts

or evidence is “gained from an independent source they may be

proved like any others.”    Id. at 392.   Nevertheless, it is not

enough to show a causal connection between the original evidence

and the derivative evidence, because as “a matter of good sense

. . . such connection may have become so attenuated as to

dissipate the taint.”    Nardone v. United States, 308 U.S. 338,

341 (1939).




                                  3
United States v. Mapes, No. 03-0025/AR


     Both the independent source and attenuation doctrines apply

to this case.   There was independent evidence yielding probable

cause for the preferral of Appellant’s charges.    Moreover, PVT

Smoyer’s testimony was sufficiently attenuated to permit its use

against Appellant.

     A.   Independent Source of Probable Cause for Preferral.

     Preferral of charges occurs when a commander swears that he

either investigated or has personal knowledge of the facts set

forth in the charges, “and that they are true in fact to the

best of that person’s knowledge and belief.”    Rule for Courts-

Martial 307(b)(2).   Although neither the Manual for Courts-

Martial, United States (2002 ed.) nor Article 30, Uniform Code

of Military Justice, 10 U.S.C. § 830 (2000), specifically

provides that the standard for preferral is probable cause, this

Court has held that probable cause is required when an

individual swears the charges are true to the best of his

knowledge and belief.   See, e.g., United States v. Miller, 33

M.J. 235, 237 (C.M.A. 1991).

     An application of hornbook law establishes that there was

probable cause to prefer charges against Appellant.    The facts

here are similar to the following factual scenario in the

Restatement of Torts, 2d section 119, illustration 2 (1965):

Officer A sees B and C bending over a dead man, D; B and C each

accuses the other of murdering D.    Although A is not sure that


                                 4
United States v. Mapes, No. 03-0025/AR


either B or C killed D, he has reasonable grounds to believe

that one of them is the killer.    Thus, Officer A is permitted to

arrest either.    In this vein, this Court has held that the

furnishing of a drug which causes an overdose places the

responsibility on the supplier -- in this case, Appellant.

United States v. Henderson, 23 M.J. 77 (C.M.A. 1986); United

States v. Mazur, 8 M.J. 513 (A.C.M.R. 1979), aff’d 13 M.J. 143

(C.M.A. 1982).

     Applying this law to the case at hand, there is probable

cause to believe that the heroin supplier -– Appellant -- was

responsible for the death.    Thus, setting aside the voluntary

decision of PVT Smoyer to testify pursuant to a grant of

immunity -– a decision made long after Appellant’s false

statement -- the evidence known at the time of preferral

furnished an independent basis for the charges in this case.

Officers were permitted to arrest either Appellant or PVT

Smoyer, both of whom were in the room at the time of SPC

Coffin’s death.

     Moreover, independent evidence was obtained as a result of

a police investigation.    A witness was not discovered after

Appellant’s immunized statement, like in United States v.

Ceccolini, 435 U.S. 268 (1978).    To the contrary, PVT Smoyer’s

identity, his role, and Appellant’s role were known well before

PVT Smoyer’s immunized testimony.     When such identity is known,


                                  5
United States v. Mapes, No. 03-0025/AR


a court should be reluctant to hold the witness’s testimony

tainted by the accused’s prior immunized statement, given the

fact that witnesses, unlike tangible evidence, can make

themselves known to the police.    PVT Smoyer made a voluntary

decision to testify based on what he knew were the facts, his

interaction with his father, and personal reflection.     There was

no exploitation of an illegality.      His voluntary plea, pursuant

to a pretrial agreement, was enough to sever any taint from

Appellant’s immunized statement.

     B.   Sufficiently Attenuated Testimony.

     In addition to the independent evidence available to

establish probable cause to prefer the charges, PVT Smoyer’s

testimony was “sufficiently attenuated” to permit its use

against Appellant.   United States v. Leon, 468 U.S. 897, 911

(1984).   As to the attenuation rules, we should examine Supreme

Court practice, which is reflected in Military Rule of Evidence

301(b)(1) and 304(e)(3).   Applying the Court’s mandate in

Nardone, 308 U.S. at 341, PVT Smoyer’s testimony was admissible

if it had “become so attenuated as to dissipate the taint” from

Appellant’s immunized statement.

     The correct test is “whether, granting establishment of the

[immunized statement], the evidence to which [the] instant

objection is made has been come at by exploitation of that

[immunized statement] or instead by means sufficiently


                                   6
United States v. Mapes, No. 03-0025/AR


distinguishable to be purged of the [immunized statement].”

Wong Sun v. United States, 371 U.S. 471, 488 (1963)(citation

omitted).   See also New York v. Harris, 495 U.S. 14, 17

(1990)(“‘[W]e have declined to adopt a “per se or ‘but for’

rule” that would make inadmissible any evidence, whether

tangible or live-witness testimony, which somehow came to light

through a chain of causation that began with [the granting of

immunity].’”)(quoting Ceccolini, 435 U.S. at 276).        In Leon, 468

U.S. at 911, the Court stated: “We also have held that a

witness’ testimony may be admitted even when his identity was

discovered in an unconstitutional search.”         The Court recognized

that the evidence may be “sufficiently attenuated to permit the

use of that evidence at trial . . . .”       Id.

     Moreover, there is no bright line rule to determine if

evidence is sufficiently attenuated to be admissible.        The Court

examines several factors that either support or negate

attenuation: temporal proximity, length of the causal chain,

acts of free will, flagrancy of a violation, and the nature of

the derivative evidence.   Brown v. Illinois, 422 U.S. 590

(1975).

     In Appellant’s case, there are key dates and facts which,

taken together, show PVT Smoyer’s plea was not the result of

Appellant’s immunized statement.       PVT Smoyer’s decision to

testify was not made immediately after Appellant’s immunized


                                   7
United States v. Mapes, No. 03-0025/AR


statement, and the judge found that there was a break between

the immunized statement and his decision, which was an act of

free will.   Furthermore, there is no argument as to intentional

or reckless misconduct by governmental officers in obtaining the

immunized testimony.

     As of April 9, the Government had enough information to

convict both PVT Smoyer and Appellant.   If one looks at the

guilty plea and the stipulation in this case, both signed prior

to the motion to dismiss, all the evidence obtained as part of

the guilty plea and the providence inquiry was known by the

police by April 9, and the preferral of charges against PVT

Smoyer and his decision to testify against Appellant were not

related to Appellant’s immunized statement.   When all the

factors in Brown are considered, this Court should find that

there was sufficient attenuation in this case to allow

Appellant’s plea to stand.

     Lastly, and most importantly, the nature of the derivative

evidence -- testimony by a willing witness -- severs any

connection with Appellant’s immunized statement.

     For all of these reasons, I respectfully dissent.




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