

   
   
   
   U.S. v. Jones



United States, Appellee
v.
Orlando C. JONES, Sergeant
U.S. Army, Appellant
 
No. 97-0723
Crim. App. No. 9501462
 
United States Court of Appeals for the Armed
Forces
Argued June 2, 1998
Decided September 29, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.

Counsel
For Appellant: Captain Patricia A. Lewis
(argued); Colonel John T. Phelps, II, Lieutenant Colonel Michael
L. Walters, and Major Leslie A. Nepper (on brief); Captain
John M. Head.
For Appellee: Captain Kelly R. Bailey
(argued); Colonel Joseph E. Ross, Major Virginia G. Beakes,
and Captain Chris A. Wendelbo (on brief); Captain Robert F. Resnick.
Military Judges: Denise K. Vowell & Linda
K. Webster
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
by officer and enlisted members of attempted larceny, conspiracy to make
a false claim (4 specifications), larceny (4 specifications), false swearing,
and soliciting another to make a false claim (5 specifications), in violation
of Articles 80, 81, 121, and 134, Uniform Code of Military Justice, 10
USC §§ 880, 881, 921, and 934, respectively. Appellant was sentenced
to a bad-conduct discharge, total forfeitures, and reduction to the lowest
enlisted grade. The convening authority approved the sentence, substituting
partial forfeitures for total forfeitures. The Court of Criminal Appeals
affirmed the findings and sentence. We granted review of the following
issues:

I



WHETHER APPELLANT WAS DEPRIVED OF MILITARY
DUE PROCESS WHEN THE STAFF JUDGE ADVOCATE
THREATENED WITNESSES WITH COURT-MARTIAL IF
THEY INVOKED THEIR ARTICLE 31, UCMJ, AND
FIFTH AMENDMENT RIGHTS TO REMAIN SILENT.



II



WHETHER THE STAFF JUDGE ADVOCATE EXERCISED
UNLAWFUL COMMAND INFLUENCE WHEN HE THREATENED
WITNESSES WITH COURT-MARTIAL IF THEY INVOKED
THEIR ARTICLE 31, UCMJ, AND FIFTH AMENDMENT
RIGHTS TO REMAIN SILENT.



We specified the following issue:



WHETHER THE STAFF JUDGE ADVOCATES ACTIONS
RESULTED IN IMPERMISSIBLE SUB ROSA
AGREEMENTS
WITH APPELLANTS CO-CONSPIRATORS AMOUNTING
TO DE FACTO GRANTS OF IMMUNITY
AND, IF SO,
WHETHER SUCH ACTIONS MATERIALLY PREJUDICED
THE
SUBSTANTIAL RIGHTS OF APPELLANT.



We hold that appellant has no standing to challenge
the further questioning of the prosecution witnesses after they invoked
their Article 31(b), UCMJ, 10 USC § 831(b), and Fifth Amendment rights
to remain silent. However, appellant does have standing to raise issues
concerning confrontation, cross-examination, and the right to present evidence.
On those issues, we hold that there was a de facto grant
of immunity to the witnesses and that there were no actions which materially
prejudiced appellants substantial rights. Art. 59(a), UCMJ, 10 USC §
859(a).

FACTS
The military judge entered extensive findings
of fact and conclusions of law. Appellate Exhibit VIII.
Appellant, a finance clerk, was charged with
soliciting servicemembers "to submit false claims to the Finance Office
and ... splitting the proceeds." During the investigation, A, B, and C,
who played small roles in the crimes, were contacted by investigators from
the Criminal Investigation Command (CID). They made statements implicating
themselves and appellant.
Later, the Deputy Staff Judge Advocate contacted
the Senior Defense Counsel for the National Capital Region for the purpose
of obtaining additional counsel to avoid a conflict of interest among the
defendants. As part of this conversation, the Deputy Staff Judge Advocate
"proposed disposition of the minor offenders" by nonjudicial punishment
plus a requirement that they make restitution and give testimony against
"the principal offenders." However, there was no agreement as to whether
there may or may not be administrative elimination after non-judicial
punishment. All of this information was given to the senior defense counsel
to allow him to assign counsel based on the workload.
There were a number of "subsequent conversations"
between the senior defense counsel and the Chief of Military Justice confirming
the earlier disposition statements made by the Deputy Staff Judge Advocate.
A and C, with the advice of defense counsel,
and B, were offered and accepted, nonjudicial punishment under Article
15, UCMJ, 10 USC § 815, in exchange for their testimony at appellants
court-martial. Defense counsel for A and C "believed formal, written grants
of immunity would be forthcoming, and each had advised their clients that
the non-judicial punishment did not bar subsequent court-martial action."
B, who chose not to be represented by counsel, initially believed that
nonjudicial punishment would bar court-martial.
After A, B, and C received nonjudicial punishment,
they were questioned by appellants defense counsel at the Article 321
investigation; each clearly understood that his agreement did not give
him absolute immunity from future court-martial. Therefore, they invoked
their right to remain silent and did not testify at the Article 32.
Following the refusal of the witnesses to testify
at appellants Article 32 investigative hearing, the Staff Judge Advocate
(SJA) telephoned the Regional Defense Counsel (RDC) and expressed concern
about the witnesses failure to cooperate. The SJA told the RDC that he
was concerned because the "agreement" that "had been struck with them and
their counsel" was that the charges against them would be disposed of at
the non-judicial level and, in exchange, A, B, and C would "cooperate with
the Government" by "testifying against" appellant. The SJA reminded the
RDC that "based on their prior association, his word was good," and told
him "that the soldiers would not be subject to further prosecution" if
they cooperated. "[B]ut ... if they failed to cooperate, court-martial
action [is] likely."
The RDC as the "rater for the defense counsel
involved" did not want to "influence his subordinates." He, instead, "explained
the concern of the SJA, asked each of the counsel to contact ... the Chief
of Military Justice, and to do what was in his or her clients best interest."
The Chief of Military Justice, in turn, "conveyed to each ... defense counsel
that" there was no grant of immunity, but A, B, and C were nevertheless
"expected to testify," and, if they did not, "they could still be court-martialed"
on the "substantive offenses for which they had already" received Article
15s.
After A and C were contacted by their respective
defense counsel, A and B decided to testify; C was not sure. As they themselves
testified, "[n]one of the witnesses have been asked to say anything that
they do not believe to be true." At trial, the defense asserted that the
actions of the SJA amounted to unlawful command influence and moved for
appropriate relief. After a hearing, this motion was denied. While the
judge thought that the Chief of Military Justices statements to defense
counsel could "constitute a de facto grant of immunity,"
she declined to make a final ruling unless A, B, and C were prosecuted.
During cross-examination by defense counsel
before the members, A, B, and C testified that they had received Article
15 non-judicial punishment but still ran the risk of going to general court-martial
depending upon their testimony. They admitted that they invoked their right
to remain silent at appellants Article 32 investigative hearing but decided
to testify under threat of court-martial. They also asserted that their
testimony at trial was consistent with what they originally told the CID.
The defense argues that in order to convict
appellant, the SJA entered into sub rosa agreements and de
facto grants of immunity with the co-conspirators A, B, and C, without
the approval -- and, apparently, without the knowledge -- of the convening
authority. Final Brief at 10-12. The defense contends that the "threats"
by the SJA violated "basic tenets of military justice." Id. at 9.
Such conduct, it believes, is outrageous and a violation of due process
which should result in a new hearing. Id. at 9-10.
In essence, the defense alleges that the SJA
violated A, B, and Cs rights under Articles 31, 37, and 98, UCMJ, 10 USC
§§ 831, 837, and 898, respectively; the Self-Incrimination Clause
and Due Process Clause of the Fifth Amendment; and appellants Sixth Amendment
rights by threatening to have A, B, and C court-martialed if they invoked
their rights and did not testify in appellants case pursuant to their
agreements. The agreements provided that in exchange for non-judicial punishment
and restitution, the individuals would testify truthfully at the court-martial
of the principal offenders, including appellant.
The Government asserts, based on the judges
findings, that there was no violation of due process and no unlawful command
influence. Answer to Final Brief at 10-11.

DISCUSSION
I. Fifth Amendment and Article 31
The granted issues concern allegations of violations
of the witnesses Article 31 and Fifth Amendment rights to remain silent,
military due process, and unlawful command influence. Implicit in these
issues is whether there was a violation of the Due Process Clause of the
Fifth Amendment, and of the Sixth Amendment rights to confrontation, to
cross-examination, and to present evidence in ones defense. The specified
issue questions whether there was an impermissible sub rosa
agreement that "materially prejudiced the substantial rights of appellant."
The Fifth Amendment to the United States Constitution
provides, in pertinent part: "No person ... shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law...." Article 31(a) of the Uniform
Code has similar language. Article 31(d) provides that statements obtained
"through the use of coercion, unlawful influence, or unlawful inducement"
are inadmissible. To ensure protection of individual rights to prevent
coerced statements from admission in violation of the Self-Incrimination
Clause of the Fifth Amendment and Article 31, the courts require rights
warnings. Miranda v. Arizona, 384 U.S. 436, 444 (1966); United
States v. Tempia, 16 USCMA 629, 635, 37 CMR 249, 255 (1967)(applying
Miranda to the military). The Sixth Amendment provides, in pertinent
part: "In all criminal prosecutions, the accused shall enjoy the right
... to be confronted with the witnesses against him...."
The combined effect of these provisions is
a "require[ment] that criminal defendants be afforded a meaningful opportunity
to present a complete defense." California v. Trombetta, 467 U.S.
479, 485 (1984).

STANDING
We must first address whether appellant has
standing to challenge his conviction based on the following: (1) alleged
violations of the witnesses Article 31 and Fifth Amendment rights to remain
silent; and (2) alleged violations of military due process, unlawful command
influence, the rights to confrontation and cross-examination, and the right
to present evidence.
Standing determines whether a party to a lawsuit
may move to suppress evidence or dismiss the charges. The requirement is
designed to allow a moving party with a "personal stake in the outcome"
to enforce his or her rights. Baker v. Carr, 369 U.S. 186, 204 (1962);
see also United States v. Padilla, 508 U.S. 77, 81-82
(1993). A motion to suppress evidence or dismiss the charges is designed
generally to deter governmental actions. See Rawlings v. Kentucky,
448 U.S. 98, 106 (1980); Alderman v. United States, 394 U.S. 165,
174-75 (1969).
Standing will also be granted to prevent a
serious risk of unreliable evidence being received at the movants trial.
See, e.g., United States v. Merkt, 764 F.2d 266, 273-75
(5th Cir. 1985); People v. Badgett, 895 P.2d 877, 884
(Cal. 1995). The deterrent value of the exclusionary rule is preserved
when standing is granted to protect a personal right of a defendant.
As Justice White, writing for the Court in
Alderman, stated:



The deterrent values of preventing the incrimination
of those whose rights the police have violated have been considered sufficient
to justify the suppression of probative evidence even though the case against
the defendant is weakened or destroyed.... But we are not convinced that
the additional benefits of extending the exclusionary rule to other defendants
would justify further encroachment upon the public interest in prosecuting
those accused of crime and having them acquitted or convicted on the basis
of all the evidence which exposes the truth.



394 U.S. at 174-75; see also United
States v. Bruton, 416 F.2d 310 (8th Cir. 1969), cert.
denied, 397 U.S. 1014 (1970); McMahon v. State, 582 S.W.2d 786
(Tex. Crim. App. 1978).

Rights to Remain Silent
Standing will not be granted to one person
to challenge violations of anothers Miranda rights. State v.
Burdgess, 434 So. 2d 1062 (La. 1983).
The purpose of Miranda warnings is to
mitigate the coercion inherent in custodial interrogation. Based on Miranda,
Tempia, and Article 31(b), a military suspect subject to custodial
interrogation must be apprised by the investigating officer of his or her
right to remain silent, right to counsel, and of the consequences of waiving
these rights. Mil.R.Evid. 305 (c) and (d)(1)(A), Manual for Courts-Martial,
United States (1995 ed.).2
Furthermore, Mil.R.Evid. 305(f), which also has its genesis in Miranda,
as well as Edwards v. Arizona, 451 U.S. 477 (1981), provide that
if a suspect invokes the right to remain silent, "questioning must cease
immediately," and if a suspect invokes the right to counsel, the "questioning
must cease until counsel is present."
The pertinent standing rules are set forth
in the Military Rules of Evidence. Mil.R.Evid. 301(b)(1); 311(a)(2); and
321(a)(2). Mil.R.Evid. 301(b)(1) provides: "The privilege of a witness
to refuse to respond to a question the answer to which may tend to incriminate
the witness is a personal one that the witness may exercise or waive at
the discretion of the witness."
Applying these concepts, we hold that appellant
does not have standing to object to any violation of the Article 31(b)
and Fifth Amendment rights of A, B, and C to remain silent. However, he
does have standing to object when the actions of the Government impact
upon the reliability of the evidence presented against him at trial, e.g.,
coerced confessions, unlawful command influence, interference with the
rights of confrontation or cross-examination, and interference with the
right to present evidence.

II. Confrontation, Cross-Examination,
Unlawful Command Influence, and
the Right to Present Evidence
The Supreme Court, this Court, Congress, and
the President have chosen to regulate grants of immunity, plea bargaining,
and pretrial agreements in such a way that ensures openness, and have adopted
appropriate provisions to prevent coercive tactics. For instance, the Self-Incrimination
Clause of the Fifth Amendment and Article 31 of the Code prevent an individual
from being compelled to be a witness against himself or herself. However,
a grant of immunity removes these protections and may be offered to secure
testimony.
RCM 704(a), Manual, supra, recognizes
both transactional and testimonial immunity. However, only testimonial
immunity is necessary to overcome the privileges under the Fifth Amendment
and Article 31. See Kastigar v. United States, 406 U.S. 441
(1972). Either can be part of a pretrial agreement. However, a grant of
immunity is required to be in writing and signed by the general court-martial
convening authority. RCM 704(d). A grant of immunity is a unilateral agreement
based on the action of the convening authority under RCM 704 and may be
enforced through various means.
While only a general court-martial convening
authority may grant immunity pursuant to RCM 704(e), this Court has held
that under certain circumstances, a promise by his or her SJA may result
in de facto immunity. Cooke v. Orser, 12 MJ 335 (CMA
1982). That holding has been extended to the special court-martial convening
authority, United States v. Kimble, 33 MJ 284 (CMA 1991), and his
or her representative, United States v. Churnovic, 22 MJ 401 (CMA
1986).
A de facto grant of immunity
arises when there is an after-the-fact determination based on a promise
by a person with apparent authority to make it that the individual will
not be prosecuted. De facto immunity, commonly called "equitable
immunity,"3 triggers the
remedial action of the exclusionary rule and permits enforcement of the
agreement. Cf. United States v. Olivero, 39 MJ 246, 249 (CMA
1994)(The "Government may not prosecute unless it can show, by a preponderance
of the evidence, that the prosecutorial decision was untainted by the immunized
testimony."); citing United States v. Kimble, supra; see
also In re Corrugated Container Antitrust Litigation, 662
F.2d 875, 887 n.27 (D.C. Cir. 1981). Where there is de facto
immunity, a majority of this Court has held that any evidence derived from
such de facto immunity will not be admissible unless there
is an independent source for the evidence or charges. 39 MJ at 249.
In addition to a grant of immunity under
RCM 704 and an after-the-fact determination of de facto immunity,
other jurisdictions have recognized and enforced informal or "pocket" immunity.4
Whereas de facto immunity exists when there is a judicial
determination that due process requires that the actions taken constitute
immunity, informal immunity exists when there is a voluntary agreement
between a government official and a witness not to prosecute that witness
based on his or her testimony. An informal grant of immunity may
give rise to a judicial determination that the actions taken and promises
made constitute de facto immunity. RCM 704(c), Discussion.
Here, there was an informal agreement between the SJA and the defense counsel
for A and C, as well as B, who was unrepresented by counsel.
We agree with the observation of Judge Starr
in Friedrick that "the practice of granting informal immunity historically
has not been the expected norm." Id. at 393 n.14. While we recognize
that there was an informal agreement here, we need not address the
propriety of granting informal immunity in the military justice system.
As in Friedrick the question "has not been briefed or argued by
the parties." Id. Furthermore, the question is not necessary to
the resolution of this case. Thus we neither condone nor condemn the actions
of the SJA, nor do we bless the practice of granting informal immunity
that has been used in other jurisdictions. However, there is nothing to
preclude the President from formulating a rule expressly addressing the
subject of informal immunity.
RCM 705 provides for pretrial agreements which
are negotiated by a government representative and defense counsel. RCM
705(d)(1). The "terms, conditions, and promises between the parties shall
be written." RCM 705(d)(2). Mil.R.Evid. 301(c)(2) provides for the disclosure
prior to a court-martial of a grant of "immunity or leniency in exchange
for testimony." When there is failure to comply with this rule, the "judge
may grant a continuance until notification is made, prohibit or strike
the testimony of the witness, or enter such other order as may be required."
Mil.R.Evid. 301(c)(2).
RCM 705 and Mil.R.Evid. 301 serve different
purposes. RCM 705 ensures that there is a voluntary plea with explicit
incentives that do not violate public policy. The terms of the agreement
should be understood by all parties to the agreement to permit full disclosure
at trial and to allow a full inquiry by a judge. The substance of these
agreements must be in writing. Thus, the primary goal of RCM 705 is to
preclude misunderstandings about the terms of an agreement and to prohibit
sub rosa agreements. See Drafters Analysis, Manual,
supra at A21-39.
Mil.R.Evid. 301(c)(2), on the other hand, is
designed to reinforce the Governments obligation to disclose exculpatory
evidence to the defense. See Brady v. Maryland, 373 U.S.
83, 87 (1963). Even without the Rules for Court-Martial, exculpatory material
which could be used for impeachment of government witnesses must be disclosed.
See Giglio v. United States, 405 U.S. 150, 154 (1972). The
additional writing requirement established in RCM 705(d)(2) allows full
disclosure of the terms to permit examination by both sides at trial.
Open plea bargaining is important to ensure
proper confrontation and cross-examination. As we have previously noted,
plea bargaining is a function of the convening authority through his or
her representative. United States v. Forester, 48 MJ 1, 3 (1998).
The convening authority is in the best position to decide whether to enter
into a pretrial agreement, whether to grant immunity in exchange for testimony,
what type of immunity is appropriate, and whether there should be any limitations
on the findings and the sentence in an individuals case. Mutual advantages
flow from pretrial agreements.
While we decline either to approve or reject
the practice of granting informal immunity, we note that, as in other jurisdictions,
it has been enforced by this Court through judicial findings of de
facto immunity. United States v. Olivero, supra; Cunningham
v. Gilevich, 36 MJ 94 (CMA 1992). We also note that there are incentives
for the Government to grant formal immunity - thus, the wisdom of following
the Manual rules. Under informal immunity, the individual may not be prosecuted
for refusal to testify, State ex rel. Munn v. McKelvey, supra,
leaving the Government in a lurch at the time of trial and delaying the
trial to obtain a formal immunity under the rule. Formal immunity
allows the Government to compel the witness to testify or suffer
the alternative consequences. Additionally, formal immunity will eliminate
post-trial issues over the scope and extent of immunity, i.e., transactional
versus testimonial immunity, plus the terms as to future administrative
actions. Thus, formal immunity assists in building public confidence because
it may eliminate miscommunication.
The informal agreement in this case benefited
A, B, and C because it resulted in de facto transactional
immunity versus testimonial immunity. Additional protection would be furnished
by our cases on the subject of a later finding of de facto
immunity. See, e.g., United States v. Olivero, supra.
The initial conversations in this case were
between the Deputy Staff Judge Advocate and the senior defense counsel.
Later, the conversations were between the senior defense counsel and the
Chief of Military Justice. The level of communication reflects the reality
that Article 15s would be imposed by the company or battalion commander,
two or three levels below the convening authority. In many instances, the
convening authority of a large command cannot be involved with informal
discussions concerning non-judicial punishment.
When the informal agreements fell apart, the
SJA decided to call the regional defense counsel - that is one level above
the senior defense counsel and two levels above counsel for A and C. As
to A, B, and C, they received maximum protection under this informal agreement.
The SJAs conversation with the regional defense counsel was not to pressure
A or C, and implicitly B, or any of the defense counsel, but to set forth
practically what would happen if A, B, and C did not testify. Certainly,
had they elected not to testify, pleas and statements they made at the
Article 15 proceedings could not be admitted at subsequent proceedings
against A, B, or C under de facto immunity principles. Thus,
they would be afforded Article 31 and Fifth Amendment protection. However,
they would not be protected against prosecution under their prior voluntary
agreements. These voluntary agreements effectively constitute a waiver
of Article 31 and Fifth Amendment protections.
In this case, there is no dispute that there
was a de facto pretrial agreement between the three prosecution
witnesses involved in this appeal and the representative of the convening
authority. As the judge found, the agreements provided that A, B, and C
would have their charges disposed of at the "non-judicial level, probably
by field grade Article 15" in exchange for making restitution and testifying
truthfully at the trials of the "principal offenders."
If the parties had followed the Manual rules
set forth in RCM 704 and 705 and Mil. R. Evid. 301(c)(1), all parties would
have known the scope and extent of the immunity, thus eliminating many
of the issues we have before us now. Additionally, putting the immunity
and Article 15 agreements in writing eliminates impermissible terms, and
such an open document will build public confidence in the military criminal
justice system.
As discussed in greater detail below, we find
no evidence that these actions had an adverse impact on either the reliability
of the evidence presented against appellant or appellants ability to present
his defense.

III. Unlawful Command Influence
Were the SJAs threats to prosecute A, B, and
C if they invoked their rights to remain silent at appellants trial unlawful
command influence? Article 37(a), USMJ, 10 USC § 837(a), prohibits
unlawful command influence. It provides that a person subject to the Code
may not "by any unauthorized means" try to "influence the action of a court-martial
... in reaching the findings or sentence in any case...." To ensure a fundamentally
fair trial, this Court carefully scrutinizes claims of unlawful command
influence. See, e.g., United States v. Thomas, 22
MJ 388 (CMA 1986), cert. denied, 479 U.S. 1085 (1987).
Here, there was de facto immunity.
No one disputes that the agreements existed or that A, B, and C initially
invoked their right to remain silent at the Article 32 investigation.
In some cases, Article 15(f) permits the court-martial
of individuals for the same offense for which they received nonjudicial
punishment. However, it circumscribes court-martial punishment by requiring
consideration of the nonjudicial punishment. RCM 907(b)(2)(D)(iv), on the
other hand, recognizes that "[p]rior punishment under" Article 15 for "minor"
offenses will bar prosecution. Paragraph 1e, Part V, Manual, supra,
provides:



Whether an offense is minor depends on
several factors: the nature of the offense
and the circumstances surrounding its
commission; the offenders age, rank,
duty assignment, record and experience;
and the maximum sentence imposable for the
offense if tried by general court-martial.
Ordinarily, a minor offense is an offense
which the maximum sentence imposable would
not include a dishonorable discharge or
confinement for longer than 1 year if tried
by general court-martial. The decision
whether an offense is "minor" is a matter
of discretion for the commander imposing
nonjudicial punishment, but nonjudicial
punishment for an offense other than a
minor offense (even though thought by the
commander to be minor) is not a bar to trial
by court-martial for the same offense. See
R.C.M. 907(b)(2)(D)(iv). However, the accused
may show at trial that nonjudicial punishment
was imposed, and if the accused does so, this
fact must be considered in determining an
appropriate sentence. See Article 15(f);
R.C.M. 1001(c)(1)(B).



Under this definition, larceny, filing false claims,
and conspiracy would not be considered minor offenses. Without the benefit
of the pretrial agreements, A, B, and C would have been subject to prosecution
for all three of these non-minor offenses.
Pretrial agreements normally set forth (1)
what charges will be dismissed, (2) limitations on the sentence, and (3)
a "truthful testimony" provision stating that if the individual does not
present truthful testimony, the prosecution is not bound by the agreement.
United States v. Spriggs, 996 F.2d 320, 323-24 (D.C. Cir.)(Three
circuits have adopted the view that the prosecution "may not introduce
aspects of the cooperation agreement that could bolster the witnesss credibility
unless or until the defense attacks his or her credibility," but at least
seven circuits "permit[] the prosecution on direct examination to introduce
the witnesss cooperation agreement in its entirety."), cert. denied,
510 U.S. 938 (1993).
The SJA, in speaking with the RDC, reminded
counsel of the voluntary agreement for A and C to testify. He did not order
them to testify or seek a contempt citation. He merely spelled out already
existing possible alternatives if A and C did not testify pursuant to the
voluntary de facto pretrial agreement.
In a similar case, Bordenkircher v. Hayes,
434 U.S. 357, 363-64 (1978), the Supreme Court concluded that it was proper
for the prosecutor to present openly to a defendant the unpleasant alternatives
of going to trial or entering into a pretrial agreement. While such conduct
may impact a witness testimony, it is an "attribute of any legitimate
system" of justice. Id. at 364, quoting Chaffin v. Stynchcombe,
412 U.S. 17, 31 (1973). In Hayes, the Court held that the prosecutor
could carry out his "threat" to indict the defendant as a habitual offender,
which would carry a mandatory life sentence, if the defendant did not plead
guilty to the existing charge of uttering a forged instrument punishable
by 2 terms of 10 years each. 434 U.S. at 358, 362.
Certainly, this Court closely examines the
reliability of evidence presented at trial in such circumstances. We recognize
that the convening authority, or his or her delegee, should have the option
of entering into a pretrial agreement. By the same token, the convening
authority should retain the right, as part of plea-bargaining leverage,
to court-martial a servicemember who does not comply with the permissible
terms of an agreement.
Clearly the better course here would have been
for the Government and the witnesses to reduce their pretrial agreements
to writing. In cases such as these, an agreement with the SJA regarding
the obligation of the witnesses may be hard to prove. Typically, the accused
promises to testify against another and, unless there is a written proffer,
the Government determines whether the witness has cooperated fully and
told the truth. We recognize that written proffers often appear inappropriate
because they seem to require certain testimony. On the other hand, when
there is a dispute as to whether the truth is being told and there is no
proffer, a factual issue arises concerning the agreements. From a practical
point of view, the SJA would not attract future cooperating witnesses if
he or she did not live up to his or her end of the bargain and proved untrustworthy.
Thus, there is some impact on the marketplace of agreements.
Although these agreements should be in writing
for the reasons stated above, a threat to prosecute for failure to comply
with the pretrial agreement does not constitute an improper withdrawal
from the agreement. Rather, it is a statement of intent supported by the
rights of the Government in the agreement. The Government did not improperly
coerce the testimony of A, B, and C, but merely set forth the rights and
obligations of the parties pursuant to the de facto agreement.
A, B, and C were certainly free to refuse to testify and face the risk
of trial.
Mil.R.Evid. 301(c)(2) requires disclosure of
the agreement. Here, there was clearly disclosure of the three agreements.
In the presence of the members, there was very
effective cross-examination concerning the nonjudicial punishment A, B,
and C received. The defense brought out, for example, that A, B, and C
were allowed to leave the installation. Further, A, B, and C admitted that
they had invoked their right to remain silent at appellants Article 32
investigative hearing and were testifying at trial as a result of communications
between the Government and their defense counsel. While the Government
rehabilitated them by establishing that their testimony was consistent
with what they originally told the CID, the Government did not try to bolster
their testimony with any truthfulness provision implicit in the agreement
with the SJA. In addition, the military judge gave a curative instruction
to the members regarding how witness credibility could be affected by such
an agreement. Finally, the RDC took extensive steps to ensure that while
the defense counsel were aware of the SJAs concerns, they did not feel
compelled to act in any particular way because of those concerns. The RDCs
actions went a long way not only to dispel any possible unlawful influence,
but also to dispel its appearance.
Appellant has the burden to show prejudice.
When asked to state what other information or what prejudice there was
in this case, the defense replied only that it "smells bad." This does
not constitute the requisite showing of prejudice.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 UCMJ, 10 USC §
832.
2
All Manual provisions are cited to the version applicable at trial. The
1998 version is unchanged, unless otherwise indicated.
3
State ex rel. Munn v. McKelvey, 733 S.W.2d 765, 770 (Mo. 1987);
see also United States v. Ford, 99 U.S. 594, 603 (1879).
4
United States v. Friedrick, 842 F.2d 382, 393 n.14 (D.C. Cir. 1988)
(Informal immunities have been "uniformly approved" by a number of Federal
courts.).
 
 
SULLIVAN, Judge (concurring in the result):
RCM 704(c), Manual for Courts-Martial, United
States (1995 edition), states that "[o]nly a general court-martial
convening authority may grant immunity." (Emphasis added.) RCM 704(d) further
says that any such grant "shall" be in writing. (Emphasis added.)
Both provisions of law were clearly violated here. Thus, the Staff Judge
Advocate (SJA) was wrong, clear and simple, on these points. The majority
opinion does no service to the formulation of clear case law for the armed
forces by hedging its rulings on the propriety of the SJAs actions in
this case. As T. S. Eliot said in Murder in the Cathedral, part
1 (1935):



The last temptation is the greatest treason:
To do the right deed for the wrong reason.



The majority opinions in-depth discussion of
"informal" immunity might suggest to some that the SJA might have some
power to grant immunity in other cases. In this regard, I note Lord Justice
Bowens words of long ago:



[L]ike my Brothers who sit with me, I am
extremely reluctant to decide anything except what is necessary for the
special case, because I believe by long experience that judgments come
with far more weight and gravity when they come upon points which the Judges
are bound to decide, and I believe that obiter dicta, like the proverbial
chickens of destiny, come home to roost sooner or later in a very uncomfortable
way to the Judges who have uttered them, and are a great source of embarrassment
in future cases. Therefore I abstain from putting a construction on more
than it is necessary to do for this particular case.



Cooke v. New River Company, L.R. 38 C.D.
56, 70-71 (1888).
In any event, under the circumstances of this
case, I agree with the majority that there was no prejudice in this case.
Accordingly, I vote to affirm the decision below.

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