                        UNITED STATES, Appellee
                                  v.

                    Bobby D. MORRISSETTE, Private
                         U.S. Army, Appellant

                              No. 11-0282

                       Crim. App. No. 20090166

       United States Court of Appeals for the Armed Forces

                       Argued October 12, 2011

                       Decided January 24, 2012

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.

                                 Counsel

For Appellant: Captain Barbara A. Snow-Martone (argued);
Lieutenant Colonel Imogene M. Jamison (on brief); Lieutenant
Colonel Jonathan F. Potter.

For Appellee: Captain Kenneth W. Borgnino (argued); Major Sara
M. Root and Major Amber J. Williams (on brief); Major Katherine
S. Gowel.



Military Judge:   Timothy Grammel



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Morrissette, No. 11-0282/AR


     Chief Judge BAKER delivered the opinion of the Court.

     A military judge, sitting as a general court-martial,

convicted Appellant, contrary to his pleas, of disobeying a

commissioned officer, participating in a gang initiation (two

specifications), wrongful use of a controlled substance,

obstructing justice (two specifications), and indecent acts in

violation of Articles 90, 112a, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 890, 912a, 934 (2006),

respectively.   The approved sentence provides for a bad-conduct

discharge and forty-two months of confinement.   The United

States Army Court of Criminal Appeals set aside the charge of

wrongful use of a controlled substance and reduced Appellant’s

sentence by one month but affirmed the remaining findings of

guilty.   United States v. Morrissette, No. ARMY 20090166, 2010

CCA LEXIS 453 at *19-*20, 2010 WL 5677920, at *7 (A. Ct. Crim.

App. Dec 22, 2010).

     This Court granted review of the following issues:

     WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELF-
     INCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR
     OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.

     WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT
     FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
     STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN
     UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED
     STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER,
     AND JONES.




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United States v. Morrissette, No. 11-0282/AR


                               SUMMARY

       This case arose from the death of a soldier after a violent

gang initiation ritual in Kaiserslautern, Germany, in July 2005.

The Government became aware that a number of soldiers were

present at the initiation, but Criminal Investigation Division

(CID) agents were not able to confirm the identity of the

soldiers, nor obtain inculpatory statements.    Eventually, the

Commanding General of the 21st Theater Support Command (21st

TSC) granted testimonial immunity to Appellant and Private (PVT)

Florentino Charris to obtain their testimony.    At his first

trial Appellant alleged that the Government was using his

immunized testimony.    Following a Kastigar1 hearing, the military

judge denied Appellant’s motion to dismiss the charges finding

that there was no impermissible use of his immunized testimony.

However, the military judge disqualified the 21st TSC from

prosecuting the case out of “an abundance of caution.”    Shortly

thereafter, the Commanding General of the 21st TSC withdrew and

dismissed all the charges against Appellant.

       Appellant’s case was subsequently transferred to a new

command, prosecution, and investigative team; however, not all

of the cautions set forth in Kastigar were followed.     For

example, the Government did not erect a formal “wall” between

the pre-immunity and post-immunity investigative materials.     In

1
    Kastigar v. United States, 406 U.S. 441 (1972).

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United States v. Morrissette, No. 11-0282/AR


addition, although the second prosecution team received a

redacted record from the first trial, Appellant argues that it

nonetheless contained information derived from immunized

testimony.

       Moreover, the second trial counsel contacted the redacting

officer regarding how certain charges might be drafted in

Appellant’s case.    At his subsequent trial, Appellant asserted

that the Government had used, and was using, his immunized

testimony directly and indirectly to facilitate his prosecution.

Following another Kastigar hearing the second military judge

determined that “the prosecution met its heavy burden to show

that there was no direct or indirect use of the immunized

statements.”

       We now affirm.   Appellant has not demonstrated that the

military judge’s findings of fact are clearly erroneous or that

he misapprehended or misapplied the law.    To the contrary, the

military judge’s ruling is comprehensive and well reasoned.

       The law in this area is settled and sound.   Applying the

England2 factors, we conclude that the military judge did not

abuse his discretion in determining that the Government has

demonstrated that it did not make direct use of Appellant’s

testimony.    While some of the England factors cut in favor of

Appellant, the ultimate question presented in this case is not

2
    United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991).

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United States v. Morrissette, No. 11-0282/AR


whether the Government followed best practices (it did not) or

whether the decision to prosecute occurred prior to the

immunized testimony (it did not), but whether the Government

made direct use of the content of Appellant’s immunized

statements.   The Government has met its burden in this regard.

Further, although presenting a closer question, the military

judge did not abuse his discretion in determining that the

Government demonstrated that it did not make indirect use of

Appellant’s immunized testimony.

                               FACTS

     Appellant was a member of the Gangster Disciples.      To

others on base, Appellant and Sergeant (SGT) Juwan Johnson

seemed to be best friends.

     On the night of July 3, 2005, SGT Johnson and about ten

other people drove to a remote location to initiate SGT Johnson

into the Gangster Disciples.   The Gangster Disciples, also known

as the Brothers of the Struggle, BOS, or Growth and Development,

is a gang that was originally formed in Chicago.   The gang uses

propaganda about its organization to draw young people into the

group.   The symbol associated with the gang is a six-point star.

To be a part of the gang, a nonmember must gain basic knowledge

of the gang, associate with other members, and be asked by the

group to be initiated.   Generally, sects of the Gangster

Disciples initiate members differently, but new members are


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United States v. Morrissette, No. 11-0282/AR


commonly “jumped-in.”   In a jump-in, members beat the initiate

continuously and simultaneously for a certain amount of time.3

      In this case, nine men lined up and circled around SGT

Johnson and repeatedly and simultaneously punched and kicked him

for roughly six minutes.   During the six-minute period,

Appellant personally punched SGT Johnson no less than twenty

times.   Following the beating, SGT Johnson was carried to a

vehicle and driven to his barracks, where he died hours later on

the morning of July 4, 2005.   PVT Charris found and reported the

body.4   The Charge of Quarters (CQ) called an ambulance; however,

it was too late.   An autopsy concluded that blunt force trauma

resulting in brain hemorrhaging and cardiac contusion ultimately

caused SGT Johnson’s death.

A.   The Pre-Immunity Investigation

      As a result of SGT Johnson’s death, CID initiated an

investigation on July 4, 2005.   On the same day, CID interviewed

PVT Charris about SGT Johnson’s death.   PVT Charris made two

separate sworn statements.    In the first statement, PVT Charris


3
  An expert on gangs testified at trial that he had encountered
Gangster Disciple jump-ins with many variations. For example,
he stated that typically the jump-in includes three to six
members, however he has seen them with only one gang member. In
addition, a jump-in may generally last for thirty seconds or
sixty seconds.
4
  PVT Charris was a specialist (E-4) when he made the July and
August 2005 statements. However, by January 2006 he had been
reduced to private (E-1).

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United States v. Morrissette, No. 11-0282/AR


denied having any specific knowledge of SGT Johnson’s death.

PVT Charris did not implicate Appellant or anyone else in SGT

Johnson’s death.

     PVT Charris was interviewed again later that day after a

source told CID that SGT Johnson’s death was the result of a

gang initiation ritual.   Thereafter, at approximately 10:45

p.m., Special Agent (SA) William Hughes informed PVT Charris

that he was suspected of involuntary manslaughter and making a

false official statement.   After waiving his rights, PVT Charris

made a second sworn statement that SGT Johnson had been in a

fight downtown.    PVT Charris denied any involvement in the

Gangster Disciples, but admitted that he had heard of them.

When asked whether he was a member of the Gangster Disciples or

any other gang, PVT Charris stated that he knew Appellant but

did not know whether Appellant was a member of the gang.

     The next day, SA Hughes told Appellant that he was

suspected of involuntary manslaughter.   Appellant waived his

rights and denied any knowledge of the Gangster Disciples or

what happened to SGT Johnson on the night of July 3, 2005.

     On August 10, 2005, SA Jason Waters informed Appellant that

he was suspected of manslaughter, aggravated assault, making a

false official statement, and conspiracy.   Appellant was then

informed of his rights, which he waived.    Appellant subsequently

gave another sworn statement to CID, stating that he had made


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United States v. Morrissette, No. 11-0282/AR


plans to go to the club with SGT Johnson on July 3, 2005.

Appellant changed his original story, saying that SGT Johnson

called him around midnight on the night of July 3, 2005, saying

that he was hurt.   Appellant traveled to SGT Johnson’s barracks,

found him in the passenger seat of SGT Johnson’s car with the

seat reclined all the way back.   With the help of PVT Charris

and other individuals in the area, Appellant carried SGT Johnson

to his room.   Appellant also stated that SGT Johnson had

defecated on himself and that he urged SGT Johnson to go to a

doctor, but that SGT Johnson said that he was okay.    Appellant

said that he got SGT Johnson a bottle of water and told SGT

Johnson to call him if he needed anything.

     SA Charles Sanchez talked to PVT Charris on August 10,

2005, again.   PVT Charris provided new incriminating information

about Appellant and several other people.    PVT Charris admitted

that he was aware of SGT Johnson’s jumping-in on July 3, 2005.

PVT Charris also stated that Appellant was a Gangster Disciple

and that he was likely present at Johnson’s jumping-in.     Despite

being a Gangster Disciple for three months, PVT Charris stated

that he was not at SGT Johnson’s jumping-in.   Again, PVT Charris

discussed how SGT Johnson was moved to his barracks room and

talked about his physical condition, including that SGT Johnson

was wearing “shorts, no shirt and Timberland boots.”   On August

19, 2005, Private First Class (PFC) Latisha “Nikki” Ellis


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United States v. Morrissette, No. 11-0282/AR


confirmed to CID that PVT Charris was a member of the Gangster

Disciples.    PFC Ellis was not a member of the Gangster

Disciples, but was friends with many of the members and had

started to attend the gang’s meetings in June 2005.    PFC Ellis

witnessed SGT Johnson’s jumping-in.    Additionally, SA Sanchez

interviewed Specialist (SPC) Towanna Thomas on November 28,

2005.    SPC Thomas said that she had seen SGT Johnson on the

evening of July 3, 2005, at an ATM and he was not wearing the

type of clothes someone would wear to the club.

        This portion of the investigation was neither catalogued

nor walled off from the post-immunity investigation and all

investigators and the first prosecution team had access to all

aspects of the investigation.    This included all of the post-

immunity statements made by Appellant and PVT Charris.

B.   The Post-Immunity Investigation

        On December 13, 2005, PVT Charris was granted testimonial

immunity.5    On December 16, 2005, Appellant was granted

testimonial immunity.    Specifically, the commander’s immunity

5
  A grant of testimonial immunity provides “immunity from the use
of testimony, statements, and any information directly or
indirectly derived from such testimony or statements by that
person in a later court-martial.” Rules for Courts-Martial
(R.C.M.) 704(a)(2). It is “the minimum grant of immunity
adequate to overcome the privilege” against self-incrimination
provided by the Fifth Amendment to the Constitution and Article
31, UCMJ, 10 U.S.C. § 831 (2006). “[N]either the testimony of
the witness nor any evidence obtained from that testimony may be
used against the witness at any subsequent trial . . . .”
Military Rule of Evidence 301(c)(1).

                                   9
United States v. Morrissette, No. 11-0282/AR

order to Appellant stated:

     I order you to fully cooperate with and provide
     truthful and complete information to law
     enforcement officers and attorneys during the
     investigation and to testify at any Article 32,
     Uniform Code of Military Justice (UCMJ) hearing
     and court-martial, if any, pertaining to the
     death of SGT Juwan L. Johnson. Any information
     given by you pursuant to this order, or any
     information directly or indirectly derived from
     such testimony or other information, shall not be
     used against you in a trial by court-martial or
     proceedings under Article 15, UCMJ, except
     prosecution for perjury, false swearing, giving a
     false statement, or otherwise failing to comply
     with this order.

On December 21, 2005, Appellant provided an immunized, sworn

statement to SA Sanchez.   Appellant said that everything in his

last statement was true and he again denied having any knowledge

of how SGT Johnson died.   Again, Appellant stated that he helped

SGT Johnson out of his car on the night of July 3, 2005, and

that SGT Johnson was wearing Timberlands and a t-shirt.

Appellant thought that SGT Johnson may have been drunk and had

some beers without him that night.

     In early January 2006, the defense counsel for PVT Charris

informed PVT Charris that another suspect had also been given

immunity.   Defense counsel did not know what, if any,

information Appellant had provided, but defense counsel advised

PVT Charris to cooperate fully and truthfully.6   Over the next


6
  Appellant does not argue on appeal that PVT Charris’s
statements made after Appellant’s grant of immunity were

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United States v. Morrissette, No. 11-0282/AR

few months, PVT Charris provided four sworn statements to CID.

In one statement, PVT Charris stated that Appellant was present

at SGT Johnson’s jumping-in.

     During 2006, Appellant made three more statements to CID.

On March 31, 2006, Appellant provided an oral statement to SA

Kim Jones, denying any knowledge of SGT Johnson’s death.   On

October 18, 2006, the 21st TSC preferred charges against

Appellant, including involuntary manslaughter.   The preferral

packet included Appellant’s immunized statements and a

prosecution memo written by lead trial counsel Captain (CPT)

Jocelyn Stewart stating that “despite the grant of immunity, SPC

Morrissette refused to cooperate.”

     On October 20, 2006, during an investigation into unrelated

allegations that Appellant engaged in sexual relations with a

14-year-old German girl in front of two other soldiers, SA Louis

Garcia asked Appellant to make a written statement.   SA Garcia

reported that Appellant then responded that he was “getting to

his breaking point, due to other law enforcement investigations

he [was] involved in, and [was] ready to hurt somebody at the

slightest provocation.”   Appellant also commented on the types

of cars that SA Garcia drove, said that he had seen SA Garcia’s


derivative evidence of immunity given to Appellant. The
military judge at Appellant’s court-martial concluded that
“[k]nowledge by a co-accused of a grant of immunity by itself
with no impermissible use of the immunized statements does not
trigger the Kastigar protections.”

                                11
United States v. Morrissette, No. 11-0282/AR

wife and knew where she parked and where they met for lunch, and

that he had dreams about SA Garcia.    SA Garcia, a second

lieutenant, was assigned to be the lead investigator of SGT

Johnson’s death for the 5th MP Battalion, CID, in March 2006.

     Finally, on December 4, 2006, SA Dennis Whitfield attempted

to interview Appellant about SGT Johnson’s death.    While waiting

for defense counsel to arrive, Appellant spontaneously stated

“that he had nothing to do with SGT Johnson’s death; that CID

was trying to prosecute him for something he did not do; that

before he’d go to jail he would kill himself; and that he would

either walk out of court a free man or inside of a body bag.”

     The investigation into Appellant’s involvement in SGT

Johnson’s death was not completed until February 2007, when the

Government interviewed PFC Ellis.     On February 12, 2007, PFC

Ellis provided a sworn statement to CID that she was at the

jump-in and that Appellant was present and held SGT Johnson up

while others beat him.

     On February 14, 2007, the 21st TSC referred charges against

Appellant and on March 22, 2007, withdrew Appellant’s grant of

immunity.    The defense filed a motion to dismiss all charges on

the basis that the charges violated the terms of the immunity

agreement.   As required by Kastigar, the military judge held a

hearing to determine whether the Government had used any

immunized testimony.   The military judge denied the motion to


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United States v. Morrissette, No. 11-0282/AR

dismiss the charges, because he found that the Government had

made no impermissible use of Appellant’s immunized testimony.

However, the military judge disqualified the convening authority

and the Office of the Staff Judge Advocate of the 21st TSC,

which included CPT Stewart.    The military judge did so out of

“an abundance of caution.”    On June 14, 2007, before any

evidence was presented on the merits, the commander of the 21st

TSC dismissed the charges, without prejudice.   During this time,

Appellant’s unit was redesignated and transferred to the command

and jurisdiction of the 7th Army Joint Multinational Training

Command (7th JMTC).

C.   Redaction of Immunized Materials and Current Prosecution

      In the fall of 2007, the 21st TSC forwarded the fourteen-

volume record of trial to the Office of the Judge Advocate,

United States Army Europe.    Colonel (COL) Michael Mulligan, the

Deputy Judge Advocate for United States Army Europe, reviewed

the entire record in order to redact Appellant’s immunized

statements, statements made by PVT Charris after Appellant was

immunized, the transcript of the Kastigar hearing, and certain

other evidence.   This took COL Mulligan several months and he

completed the process in the spring of 2008.    The redacted

record provided to the new prosecution team contained the

following items now at issue in Appellant’s case:   (1) CPT

Stewart’s prosecution memo; (2) the 21st TSC’s witness list;


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United States v. Morrissette, No. 11-0282/AR

(3) the 21st TSC charge sheet; (4) the Article 32, UCMJ, 10

U.S.C. § 832 (2006), investigation report, as redacted; and (5)

CID agent summaries of Appellant’s statements in October and

December 2006.

     At some point in late 2007, CPT Derrick Grace was detailed

as trial counsel for the 7th JMTC.    CPT Grace reviewed the

redacted record, which included the documents listed above.     CPT

Grace talked to CID but the conversation was limited and CPT

Grace did not review the investigative file.   CPT Grace’s

interaction with the 21st TSC was also limited; however, Grace

did attend a trial of one of the coactors in the jumping-in.

Neither Appellant nor PVT Charris testified at the trial and

none of their statements were mentioned.   The military judge

noted that CPT Grace “unwisely observed the trial” but that CPT

Grace ultimately was not exposed to immunized statements or

derivative evidence.

     In May 2008, CPT Grace corresponded by e-mail with COL

Mulligan, for whom he had previously worked, and informed COL

Mulligan that they would prefer charges against Appellant within

the next week.   CPT Grace also told COL Mulligan that their

investigators had evidence of Appellant’s involvement in at

least two other jump-ins and that he was trying to decide how to

charge the conduct.    COL Mulligan advised CPT Grace that he had

charged similar behavior under Article 134, UCMJ, and told CPT


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United States v. Morrissette, No. 11-0282/AR

Grace to “look at [United States] v. Billings and a general 134

offense.”   After CPT Grace thanked COL Mulligan for the

suggestion, COL Mulligan responded that he was not certain that

the Article 134, UCMJ, “Billing[s] offense [was] the answer,

[because he] charged that as being a member of a criminal street

gang” and CPT Grace did not have those particular facts.

     On June 24, 2008, charges were preferred against Appellant.

The military judge noted that “many [of the] charges cover the

same alleged misconduct covered by charges in the prior

prosecution, the charging strategy is significantly different.”

In response to Appellant’s motion, the military judge concluded

that “[t]he immunized statements played no role in the decision

to prosecute” and that the Government did not directly or

indirectly use Appellant’s immunized statements.   The instant

charges were referred on October 7, 2008.   Appellant was

arraigned on October 27, 2008, and a second Kastigar hearing was

held on November 24 and 25, 2008.

     The military judge acquitted Appellant of the most serious

charges relating to SGT Johnson’s death, but convicted Appellant

of violating the no-contact order, wrongful use of ecstasy, an

indecent act, participating in a gang initiation (two

specifications), and obstruction of justice (two

specifications).




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United States v. Morrissette, No. 11-0282/AR

      On appeal, Appellant argues that the conviction violates

his Fifth Amendment privilege against self-incrimination.

Specifically, Appellant argues that this prosecution was tainted

because investigators and prosecutors were exposed to his

immunized statements and improperly used his testimony

indirectly in order to prosecute him.    In affirming Appellant’s

convictions, the Court of Criminal Appeals dismissed Appellant’s

immunity claim without discussion of the Kastigar issues raised.

Morrissette, 2010 CCA LEXIS 453, at *2, 2010 WL 5677920, at *1.

                            DISCUSSION

A.   Kastigar Immunity

      The Fifth Amendment’s privilege against self-incrimination

provides that “‘[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.’”    United States

v. Mapes, 59 M.J. 60, 65 (C.A.A.F. 2003) (alteration in

original).   However, the privilege against self-incrimination is

neither “absolute nor inviolate.”    Id. at 66.   In Kastigar, 406

U.S. 441, 444-46 (1972), the United States Supreme Court held

that the government may compel a witness to testify under a

grant of use or derivative-use immunity contrary to the witness

Fifth Amendment privilege against self incrimination.

“[I]mmunity from the use of the compelled testimony and evidence

derived therefrom is coextensive with the scope of the




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United States v. Morrissette, No. 11-0282/AR

privilege” and “is sufficient to compel testimony over a claim

of the privilege.”   Id.   at 452-53.   See also R.C.M. 704 (a)(2).

     Because the purpose of the Fifth Amendment privilege is to

“afford protection against being ‘forced to give testimony

leading to the infliction of penalties affixed to . . . criminal

acts,’” testimonial immunity only applies to compelled testimony

and not all statements made by an accused.    Kastigar, 406 U.S.

at 443 (quoting Ullman v. United States, 350 U.S. 422, 438-39,

453 (1956) (quotation marks omitted).    Further, for a

communication to be considered testimonial, it must “explicitly

or implicitly, relate a factual assertion or disclose

information.”   Doe v. United States, 487 U.S. 201, 210 (1988).

     Both the Supreme Court and this Court in the military

context have interpreted “use” to include evidentiary and

nonevidentiary uses, including the indirect use of testimony to

alter the investigative strategy or to inform the decision to

prosecute.   See Mapes, 59 M.J. at 67; see also United States v.

Hubbell, 530 U.S. 27, 39 (2000) (noting that in Kastigar, the

Supreme Court “emphasized the critical importance of protection

against a future prosecution based on knowledge and sources of

information obtained from the compelled testimony” (quoting

Kastigar, 406 U.S. at 454) (quotation marks omitted)); United

States v. Olivero, 39 M.J. 246, 249 (C.M.A. 1994) (citing United

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


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United States v. Morrissette, No. 11-0282/AR

     However, in contrast to transactional immunity, testimonial

immunity does not impose a per se bar to prosecution of the

witness for the offenses about which the testimony or

information is given under grant of immunity.   See R.C.M. 704.

The government may prosecute an immunized witness where it can

demonstrate that it has made neither direct nor indirect use of

the testimony.   Because an accused has been compelled to

relinquish his right against self-incrimination, the government

bears the burden to prove that its evidence is not tainted by

immunized testimony.   Kastigar, 406 U.S. at 461-62; United

States v. Youngman, 48 M.J. 123, 127 (C.A.A.F. 1998).     The

government must affirmatively prove by a preponderance of the

evidence that its evidence “is derived from a legitimate source

wholly independent of the compelled testimony.”   Kastigar, 406

U.S. at 460; Olivero, 39 M.J. at 249; see also United States v.

Boyd, 27 M.J. 82, 85 (concluding that an appellant is “‘not

dependent for the preservation of his rights upon the integrity

and good faith of the prosecuting authorities’” (quoting

Kastigar, 406 U.S. at 460)).

     A grant of immunity must leave the witness and the

government in “‘substantially the same position as if the

witness had claimed his privilege in the absence of a state

grant of immunity.’”   Kastigar, 406 U.S. at 457 (quoting Murphy

v. Waterfront Comm’n, 378 U.S. 52, 79 (1964)); Olivero, 39 M.J.


                                18
United States v. Morrissette, No. 11-0282/AR

at 249-50.   While there is no per se rule requiring a prosecutor

who has been exposed to immunized statements to withdraw from

the case, see United States v. McGeeney, 44 M.J. 418, 422-23

(C.A.A.F. 1996) (failing to adopt rule that exposure to

immunized testimony is prima facie use), separating pre-immunity

from post-immunity evidence is considered a best practice.

England, 33 M.J. at 39.   Further, while this Court has not

required that a wall be set up to separate the pre-immunity and

post-immunity investigative and prosecution teams; it is also

considered a best practice, because a well constructed wall is

demonstrative evidence that the prosecution did not make direct

or indirect use of immunized testimony.   If prosecutors are

exposed to immunized testimony, the burden remains the same --

the government must demonstrate that the immunized testimony was

not used or derivatively used against an accused and was

obtained from wholly independent and legitimate sources.

     In this case, the best practices were not followed, leaving

the military judge to determine whether the Government has met

its burden to prove that the decision to prosecute Appellant as

well as the evidence used against him were developed independent

of Appellant’s immunized statements.   Whether the Government has

shown, by a preponderance of the evidence, that it has based the

Appellant’s prosecution on sources independent of the immunized

statements is a preliminary question of fact.   Mapes, 59 M.J. at


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United States v. Morrissette, No. 11-0282/AR

67.   “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)).

B.    The Statements at Issue

       A necessary first step is to identify those statements that

were compelled from Appellant and thus subject to Kastigar

review.   This determination is complicated in this case because

Appellant made six statements, four of which occurred after he

was immunized, and one of which was in the context of a

different investigation.

       Appellant argues that all four of his statements made to

CID after he received immunity were covered by the grant of

immunity.   The military judge disagreed.   On the one hand, the

military judge concluded that Appellant’s “compelled testimony”

reached beyond his actual testimony to include “all information

provided to law enforcement officers and attorneys during the

investigation pertaining to the death of SGT Juwan L. Johnson.”

On the other hand, the military judge concluded that only

Appellant’s statements on December 21, 2005, and March 31, 2006,

were addressed to the investigation of SGT Johnson’s death, and

thus covered by the grant of immunity, whereas the other

statements were not covered by the grant of immunity.




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United States v. Morrissette, No. 11-0282/AR

       We agree with the military judge’s conclusion and conclude

that he did not abuse his discretion by making this

determination.   First, on October 20, 2006, Appellant made a

voluntary statement during an interview unrelated to the

investigation into SGT Johnson’s death.   This was not compelled

testimony and it was not covered by the grant of testimonial

immunity.   Second, on December 4, 2006, Appellant made another

statement that was outside of the grant of immunity.   On this

date, SA Whitfield was going to attempt to interview Appellant

about SGT Johnson’s death.   After Appellant invoked his Article

31, UCMJ, right to counsel, he waited for counsel to arrive.     In

the meantime, SA Whitfield decided not to interview Appellant.

Without being asked a question, Appellant made spontaneous

statements to investigators.

       These statements were not compelled, since Appellant

voluntarily provided this information.    See Doe, 487 U.S. at

210.   Therefore, the military judge correctly concluded that the

information compelled from Appellant, pursuant to the grant of

immunity and order to cooperate with investigators and to

testify, consisted of Appellant’s statements on December 21,

2005, and March 31, 2006.

C.   Direct Use of Immunized Testimony

       Having first determined which of Appellant’s statements are

at issue, we must now determine whether the military judge erred


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United States v. Morrissette, No. 11-0282/AR

in determining that the Government demonstrated that it did not

make direct or indirect use of Appellant’s statements.    The

England factors guide our analysis.     These factors include:

     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” [the] 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?

33 M.J. at 38-39.

However, the England factors are not necessarily determinative

as to whether the Government has or has not met its burden.

That is because the ultimate question is whether the Government

has made any direct or derivative use of immunized evidence, not

whether it adhered to a particular timeline or process.

Applying the foregoing principles and these factors, we conclude

that the Government carried its burden.

     The first England factor is whether the appellant’s

immunized statement revealed new information not previously

known to the Government.   Id. at 38.    Here, the Government

argues that Appellant’s immunized statements did not reveal any

information not previously known to the Government.     Appellant


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United States v. Morrissette, No. 11-0282/AR

argues that while his statements did not provide significant

detail, they did provide details divergent from the statements

of others and thus indicated to the Government that Appellant

was not fully cooperating.   On this factor, the Government has

the better argument.   The December 21, 2005, statement provided

no new information regarding the death of SGT Johnson.   First,

Appellant stated that he was truthful in his pre-immunity

statement and that he did not know any more details of SGT

Johnson’s death.   Second, while the statement included the

detail that SGT Johnson had been wearing Timberland boots and

not wearing “clubbing clothes,” the Government already knew this

information from the testimony of other witnesses.

     The Government knew that SGT Johnson had been wearing

Timberlands because PVT Charris had mentioned this in his August

10, 2005, sworn statement, and it knew that SGT Johnson’s

clothes were not “clubbing clothes” from a prior interview with

SPC Thomas.   On March 21, 2006, Appellant provided no additional

information in his second immunized statement.   Appellant simply

denied any additional knowledge of SGT Johnson’s death and

membership in the Gangster Disciples.

     In England, this Court held that information is not

revealed in an immunized interview when “nothing [is] learned in

the interview which might incriminate appellant or otherwise be




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United States v. Morrissette, No. 11-0282/AR

used to his disadvantage.”   33 M.J. 37, 39.7   As a result, this

Court concluded that the government’s interview with the

appellant was a “non-event” because he provided no information

and because nothing happened as a consequence of the interview.

Id. at 39.   This case is similar.

     In this case, the military judge concluded that the

statements “did not produce any leads, alter the investigation

strategy, or influence any aspect of the investigation.”    Based

on the foregoing analysis the military judge did not err.

     The second England factor is whether the 7th JMTC completed

its investigation before granting testimonial immunity to

Appellant.   The military judge found that a significant portion

of the investigation occurred after the Government had granted

immunity to Appellant.   The facts clearly support this finding,

which cuts in Appellant’s favor.     The grant of immunity occurred

on December 16, 2005, and the investigation of Appellant’s

conduct was not concluded for at least another year, as

evidenced by his four statements after this date.


7
  In that case, the appellant was investigated for cocaine use in
conjunction with the drug-overdose death of his roommate. 33
M.J. at 38. The appellant was interviewed and admitted to using
cocaine. Id. Later, pursuant to a grant of immunity, the
appellant was asked whether he could provide any information
about the roommate’s drug use but the appellant denied any
knowledge. Id. The appellant was later charged with cocaine
use. Id. The appellant was unsuccessful in his attempt to
dismiss the case for taint because the military judge found that
nothing was learned from the interview. Id. at 39.

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United States v. Morrissette, No. 11-0282/AR

     The third England factor asks whether “the decision to

prosecute” Appellant was made prior to the immunized statement.

The military judge found that the decision to prosecute was not

made prior to the first immunized statement.   The facts clearly

support this finding.   The Government decided to prosecute

Appellant after granting him immunity.   However, the second

prosecution team only had access to the redacted case file

before filing the current charges and never had access to the

full CID file, which contained Appellant’s immunized statements.

Nonetheless, this factor favors Appellant.

     Finally, the fourth England factor is whether the trial

counsel who were exposed to immunized testimony participated in

the prosecution.   No trial counsel who was exposed to the

immunized testimony participated in the prosecution.    However,

members of the second prosecution team were exposed to some

materials from the original prosecution.   Specifically, CPT

Grace had access to the 21st TSC’s witness list, the redacted

original Article 32, UCMJ, investigation report, the prosecution

memorandum, and the 21st TSC charge sheet.   However, critically,

the materials did not contain the content of Appellant’s

immunized statements with the exception of the earlier discussed

references to Timberland boots and clubbing clothes.8   Therefore,


8
  First, the witness list includes the names of all potential
thirty-seven Government witnesses, only two of whom were exposed

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United States v. Morrissette, No. 11-0282/AR

the second prosecution did not and could not have directly used

Appellant’s immunized testimony.

        Appellant’s direct-use argument therefore hinges on the

second prosecution team’s access to the original prosecution

memo.    This memo states that “despite the grant of immunity,

[Appellant] refused to cooperate.”     The situation is similar to

one presented in United States v. Montoya, 45 F.3d 1286 (9th

Cir. 1995).    In that case, a second prosecution team was also

exposed to statements regarding the appellant’s prior lack of

cooperation with the investigation.    Id. at 1290, 1295.

Ultimately, the United States Court of Appeals for the Ninth

Circuit found that descriptions of how the appellant was not

being truthful did not involve improper use of immunized

testimony because the second prosecution team did not actually

have access to the immunized statements.    Id. at 1297.    We agree

with the Ninth Circuit’s approach.     Without access to the

content of the statements themselves, Appellant’s immunized



to Appellant’s testimony. But, the document does not contain
descriptions of potential testimony. It simply lists the name
of each witness and a brief description of his or her
involvement with the investigation. Second, the charge sheet
lists all original charges against Appellant, but did not
include any immunized testimony. Third, the prosecution
memorandum is a three-page document that includes the charges,
key evidence to be introduced at trial, and sentencing
considerations. Fourth, the Article 32, UCMJ, investigation
report is an ten-page document that includes all of the original
charges with details about each specification. Portions
involving PVT Charris are redacted.

                                  26
United States v. Morrissette, No. 11-0282/AR

testimony, could not have directly tainted his trial.     Moreover,

the grant of immunity appears to have contemplated this exact

scenario, stating that testimonial immunity does not bar later

prosecutions for failure to comply with the grant.     R.C.M. §

704(b)(2).   Because the documents that the second prosecution

team was exposed to did not contain the actual statements that

Appellant made, the only potential effect on the current

prosecution would be indirect and thus the military judge did

not abuse his discretion in concluding that the Government met

its burden on the direct use of Appellant’s immunized testimony.

D.   Indirect Use of Testimony

      Additionally, the prosecution was not indirectly tainted by

Appellant’s immunized testimony.      Appellant argues that the

prosecution was indirectly tainted in two ways.     First,

Appellant alleges that the deputy judge advocate in charge of

redacting the immunized materials gave “case-specific” advice

via e-mail to the current trial counsel on how to charge

Appellant.   This Court concluded in a similar case that a new

prosecutor was insulated from the original prosecution team when

the two attorneys did not have discussions about the evidence or

the facts of the case.   McGeeney, 44 M.J. at 423.     Here, the

current prosecutor, CPT Grace, had a discussion via e-mail with

COL Mulligan but they never discussed evidence or the facts in

the case.


                                 27
United States v. Morrissette, No. 11-0282/AR

     The military judge pointed this out as a potential conduit

for taint because the relationship between COL Mulligan and CPT

Grace created a “pipeline from a person who was probably

overexposed to the immunized statements to the trial counsel.”

However, the military judge’s finding that Appellant’s immunized

statements had no impact or influence on what COL Mulligan

communicated to CPT Grace is not clearly erroneous.   The

military judge’s finding is supported by the plain text of the

e-mail exchange.   Because Appellant did not reveal any new

information in his immunized statements, the communication

between COL Mulligan and CPT Grace would have been the same had

Appellant invoked his Fifth Amendment right against self-

incrimination.   While COL Mulligan and CPT Grace should not have

been discussing the case via e-mail because of the potential for

taint, the fact remains that Appellant did not reveal any new

information about the case in his immunized testimony.

     Additionally, Appellant argues that the current prosecution

team was indirectly motivated in its decision to prosecute him

because the team had access to particular documents that

indicated he had not cooperated with the first investigation.

However, the evidence suggests that the current prosecution team

had an independent basis for knowing that Appellant did not

cooperate with the investigation.    Appellant’s pre-immunity

statement implied that he was not cooperating.   Even though he


                                28
United States v. Morrissette, No. 11-0282/AR

claimed that he did not know how SGT Johnson had died and denied

all knowledge of the Gangster Disciples, other witnesses placed

Appellant at the scene of the crime and as a member of the gang,

including PFC Ellis and SSG Themitrios Saroglou.     Moreover, the

terms of the testimonial immunity rule and Appellant’s immunity

agreement itself make clear that the Government may later

prosecute a witness for his failure to duly cooperate with the

order to testify.   R.C.M. 704(b)(1).     Therefore, we agree with

the military judge’s finding that the prosecution was not

indirectly tainted by Appellant’s immunized testimony.     Thus, we

hold that the military judge did not abuse his discretion in

applying the law and that his findings of fact were not clearly

erroneous.

                             CONCLUSION

     We conclude that the military judge did not abuse his

discretion in deciding that the Government met its burden under

Kastigar.    The decision of the United States Army Court of

Criminal Appeals is affirmed except with regard to the findings

of guilty to Charge III, Specifications 4, 5, and 6, and the

sentence.    The decision of the lower court is vacated as to

those specifications and the record is returned to the Judge

Advocate General of the Army for remand to the United States

Army Court of Criminal Appeals for further consideration of

those offenses in light of United States v. Fosler, 70 M.J. 225


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United States v. Morrissette, No. 11-0282/AR

(C.A.A.F. 2011), and for reassessment of the sentence, or if it

determines appropriate, for the ordering of a rehearing on

sentence.




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