                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                     Carson L. ALLEN, Staff Sergeant
                       U.S. Marine Corps, Appellant

                                    No. 03-0691
                            Crim. App. No. 9800849

       United States Court of Appeals for the Armed Forces

                            Argued March 16, 2004

                             Decided May 27, 2004


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


                                       Counsel

For Appellant: Captain Rolando R. Sanchez, USMC (argued);
    Lieutenant Commander Robert D. Evans Jr., JAGC, USNR, and
    Lieutenant Commander Eric J. McDonald, JAGC, USN.


For Appellee: Lieutenant Timothy E. Curley, JAGC, USNR
    (argued); Lieutenant Frank L. Gatto, JAGC, USNR (on brief);
    Colonel M. E. Finnie, USMC.



Military Judge:     W. P. Hollerich


        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Allen, No. 03-0691/MC


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to his pleas, of

maiming and assault with intent to commit grievous bodily harm,

in violation of Articles 124 and 128, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 924 and 928 (2000).    He

was sentenced to a bad-conduct discharge, confinement for 12

months, forfeiture of all pay and allowances, and reduction to

pay grade E-1.   The convening authority approved the sentence as

adjudged, but deferred and suspended both the adjudged and

automatic forfeitures under specified conditions.   The Navy-

Marine Corps Court of Criminal Appeals determined that the

findings were multiplicious, dismissed the assault conviction,

approved the conviction for maiming, and approved the sentence.

United States v. Allen, 59 M.J. 515 (N-M. Ct. Crim. App. 2003).

     On Appellant’s petition, we granted review of the following

issues:

          I.     WHETHER THE COURT OF CRIMINAL APPEALS
                 ERRED IN AFFIRMING THE COURT-MARTIAL’S
                 DECISION ADMITTING A STATEMENT DERIVED
                 FROM OTHER STATEMENTS COVERED BY A
                 GRANT OF IMMUNITY.

          II.    WHETHER THE DECISION TO PROSECUTE WAS
                 BASED ON STATEMENTS APPELLANT MADE
                 UNDER A GRANT OF IMMUNITY.

     For the reasons discussed below, we affirm.




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United States v. Allen, No. 03-0691/MC


                           I. BACKGROUND

     At the time of the events at issue in this appeal,

Appellant was a staff sergeant (SSgt) in the Marine Corps,

stationed in Hawaii.   The findings of the court-martial were

based on injuries sustained by CJ, Appellant’s infant son.

       A.    THE INITIAL INJURY AND STATE COURT PROCEEDINGS

     In late February and early March, 1996, Appellant’s wife

and CJ traveled to Baltimore, Maryland, while Appellant remained

in Hawaii.   They returned to Hawaii on March 6.     Later that

evening, Appellant and his wife brought CJ, who was then three

months old, to Kapiolani Medical Center in Hawaii.      CJ was

transferred to Tripler Army Medical Center where he was treated

for injuries consistent with Shaken Baby Syndrome.      Medical

personnel estimated that the injury probably occurred during the

period in which Appellant’s wife and CJ were in Baltimore and

Appellant was in Hawaii.

     The Naval Criminal Investigative Service (NCIS) opened an

investigation into the incident.       Based upon the initial medical

examination, NCIS viewed Appellant’s wife as the source of the

injury, and did not maintain an active investigation of

Appellant.

     As a result of this incident, the Hawaii Department of

Human Services placed CJ in foster care and initiated civil

proceedings in Family Court under Hawaii’s Child Protective Act,


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United States v. Allen, No. 03-0691/MC


Haw. Rev. Stat. § 587-1 (2003).     The court issued an order on

April 8 limiting Appellant’s wife to supervised contact with CJ.

The order also provided that Appellant would regain custody of

CJ, subject to a number of conditions.    These conditions

included a requirement that Appellant’s wife “secure[] a

separate residence from [Appellant],” and that both Appellant

and his wife participate “in therapy services, including

parenting education, with Geraldine Wong, M.A.”

     The April 8 order also stated that “[t]he protections of

[Haw. Rev. Stat.] § 587-42(a) are invoked on behalf of Mr. and

Mrs. Allen.”   Under § 587-42(a),

          [a]ny testimony by or other evidence
          produced by a party in a child protective
          proceeding under this chapter, which would
          otherwise be unavailable, may be ordered by
          the court to be inadmissible as evidence in
          any other state civil or criminal action or
          proceeding, if the court deems such an order
          to be in the best interests of the child.

     Appellant subsequently regained custody of CJ.     Following a

hearing on May 7, the Family Court issued a further order,

attaching a service plan prepared by the Department of Human

Services and agreed to by Appellant and his wife.    The service

plan provided that Appellant’s wife would participate in

“individual/family therapy with Gerry Wong,” that Appellant

would provide for the daily care of CJ, and that Appellant would

“attend therapy with Gerry Wong, M.A. when requested by Ms.



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United States v. Allen, No. 03-0691/MC


Wong.”   The order stated that “all prior consistent orders shall

remain in full force and effect until further order,” and

directed the parties to return to court for a review hearing on

November 1, 1996.

                        B.   THE SECOND INJURY

     On August 8, CJ was hospitalized with serious injuries,

including a fractured skull and swelling of the brain.

Appellant explained to medical personnel that on the morning of

August 8, he had been carrying CJ in his arms when CJ arched his

back and fell onto the concrete floor.    At that time, CJ was

eight months old, and Appellant was the sole custodian.    The

most recent visit of Appellant’s wife to the family had been on

August 7.

     While both Appellant and his wife were at the hospital,

they were approached by an NCIS agent.    After consulting with an

attorney, they told the agent that they would not answer her

questions, but they would permit the agent to monitor their

conversations with the doctors and social workers at the

hospital.

     The hospital convened a Suspected Child Abuse and Neglect

meeting on August 14.   Appellant’s supervisor, Colonel Charles

Jackson, and NCIS Special Agent (SA) Bruce Warshawsky, attended

the meeting.   The medical personnel who treated CJ stated that

the injuries were likely the result of non-accidental trauma,


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United States v. Allen, No. 03-0691/MC


and were not consistent with Appellant’s explanation that CJ had

fallen from his arms by accident.     Appellant and his wife then

joined the meeting, and they were advised that CJ’s injuries

were consistent with Shaken Baby Syndrome.

       Following the meeting, Colonel Jackson had a further

conversation with Appellant, and told him that the medical

personnel suspected that he had injured CJ by shaking him in an

abusive manner.   As the discussion came to an end, Colonel

Jackson said to Appellant, “If your son dies, I believe they are

going to prosecute you for murder.”    According to Colonel

Jackson, Appellant was visibly upset as a result of this

conversation.

                  C.   THE INCRIMINATING STATEMENTS

       On the evening of August 15, Appellant and his wife

attended a family counseling session with Ms. Wong pursuant to

the service plan attached to the Family Court’s May 7 order.

Appellant told Ms. Wong of the following sequence of events

concerning CJ.    First, he placed CJ in bed with him, and fell

asleep.   While sleeping, he dreamed that CJ had been taken from

him.   When he awoke, he forgot that CJ was in the same bed.

Appellant went to check CJ’s crib, discovered that the crib was

empty, and panicked.    Then he heard CJ cry.   Appellant returned

to the bed, grabbed CJ, and shook him.




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United States v. Allen, No. 03-0691/MC


        Appellant’s wife became upset upon hearing Appellant’s

narrative.    Ms. Wong phoned a friend of Appellant’s wife, Carol

Ward, who came to Ms. Wong’s office and eventually drove

Appellant’s wife to the Ward residence.    Before leaving,

Appellant’s wife advised Ms. Wong to call Appellant’s friend,

SSgt Samuel Walker, to assist Appellant.

        At Ms. Wong’s request, SSgt Walker came to the office.

Appellant, who spoke privately to SSgt Walker, told SSgt Walker

that he had caused CJ’s injuries, and demonstrated how he had

shaken CJ.    Appellant told SSgt Walker that he wanted to turn

himself in to NCIS.    SSgt Walker asked Appellant if he would

prefer to wait until the following morning before turning

himself in to NCIS.    Appellant indicated that he wanted to

surrender himself that night.    Appellant and SSgt Walker then

returned to Ms. Wong’s office.

        At that point, Ms. Wong contacted an official of the Hawaii

Child Protective Services, Ms. Kathleen Reeber, and told her

that Appellant had confessed.    Ms. Reeber, who spoke with

Appellant by telephone, advised him that anything he said to her

would not be treated as confidential.    She also suggested that

he might wish to consult with an attorney before speaking with

NCIS.    While Appellant was on the phone with Ms. Reeber, SSgt

Walker pressed the mute button and told him that he should not

speak to a Child Protective Services official until he obtained


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United States v. Allen, No. 03-0691/MC


“some more advice.”   Appellant rejected SSgt Walker’s

suggestion, stating that “everything [was] all right.”       In the

course of his subsequent conversation with Ms. Reeber, Appellant

made a number of incriminating statements.

     While Appellant was speaking to Ms. Reeber, SSgt Walker

attempted to contact his chain of command.      SSgt Walker reached

his commander’s wife, who called Appellant’s commander, Colonel

Jackson.   Colonel Jackson, who was concerned that Appellant

might harm himself, proceeded to Ms. Wong’s office.      SSgt Walker

intercepted Colonel Jackson before he met with Appellant, and

informed him that Appellant wanted to surrender to NCIS.

Colonel Jackson then overheard a portion of Appellant’s

conversation with Ms. Wong.   After walking into Ms. Wong’s

office, Colonel Jackson observed that Appellant appeared to be

“shell-shocked” and “emotional.”       Appellant told Colonel Jackson

that it was all part of a bad dream.      When Colonel Jackson

commented to Appellant that he “was going to go freely and turn

himself in or I was going to call the [Military Police],”

Appellant responded, “[Y]ou don’t have to do that, I know I did

this, and that I am not trying to deny it.”

     Appellant told Colonel Jackson that he wanted to speak with

his wife before going to NCIS.   Colonel Jackson, along with SSgt

Walker, drove Appellant to meet with his wife.      During the

drive, Appellant repeated the incriminating remarks that he had


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United States v. Allen, No. 03-0691/MC


made earlier in the evening to Ms. Wong, Ms. Reeber, and SSgt

Walker.   Soon after they arrived, a chaplain also arrived, along

with the wife of SSgt Walker’s commanding officer.   Appellant

repeated his incriminating remarks to them, and demonstrated how

he had shaken CJ.

     Eventually, Colonel Jackson and SSgt Walker drove Appellant

to the NCIS office, where Colonel Jackson told SA Warshawsky

that Appellant wanted to confess.    SA Warshawsky took Appellant

into an interview room and administered a cleansing warning,

which informed Appellant that “any prior illegal admissions or

other improperly obtained evidence which incriminated [him could

not] be used against [him] in a trial by court-martial.”    SA

Warshawsky also advised Appellant of his self-incrimination

rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b)(2000), and

Miranda v. Arizona, 384 U.S. 436 (1966).    See Military Rule of

Evidence 305 [hereinafter M.R.E.].   Appellant indicated that he

understood both the cleansing warning and his right against

self-incrimination, and that he still desired to speak to NCIS.

He then made a detailed incriminating statement.

                    D.   DEVELOPMENTS AT TRIAL

     At a pretrial hearing, Appellant moved to suppress the

multiple statements that he made on the evening of August 15,

1996, citing among other protections, the privilege against

self-incrimination in the Fifth Amendment and Article 31.   He


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United States v. Allen, No. 03-0691/MC


contended that his statements to Ms. Wong did not constitute a

voluntary waiver of the privilege because he was compelled to

speak to her as a result of the order issued by the Family

Court, and that the other statements were derived from his

admissions to Ms. Wong.    The military judge determined that the

state statute referenced in the Family Court order provided

Appellant with immunity for any statements that he made to Ms.

Wong, as well as any derivative statements.   Based on that

determination, the military judge suppressed Appellant’s

statements to Ms. Wong, SSgt Walker, Ms. Reeber, Colonel

Jackson, and the chaplain, but concluded that the statement made

at the NCIS office following the cleansing warning by SA

Warshawsky was not tainted.    At trial, Appellant’s statement to

SA Warshawsky was a key aspect of the prosecution’s evidence

that resulted in Appellant’s conviction.



                           II. DISCUSSION

                              A. IMMUNITY

     The Government may not compel a person to make an

incriminating statement.   U.S. Const. amend. V; Article 31,

UCMJ; M.R.E. 301.   Through a grant of immunity coextensive with

the privilege against self-incrimination, the Government may

require a person to make a statement that would otherwise be




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United States v. Allen, No. 03-0691/MC


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

As noted in M.R.E. 301(c)(1):

          The minimum grant of immunity adequate to
          overcome the privilege is that which under
          [Rule for Courts-Martial] 704 or other
          proper authority provides that neither the
          testimony of the witness nor any evidence
          obtained from that testimony may be used
          against the witness at any subsequent trial
          other than in a prosecution for perjury,
          false swearing, the making of a false
          official statement, or failure to comply
          with an order to testify after the military
          judge has ruled that the privilege may not
          be asserted by reason of immunity.

     If a person provides information under a grant of immunity,

the Government in a subsequent criminal prosecution must

affirmatively demonstrate “that the evidence it proposes to use

is derived from a legitimate source wholly independent of the

compelled testimony.”   Kastigar, 406 U.S. at 460.   See United

States v. Boyd, 27 M.J. 82, 84 (C.M.A. 1988).   A grant of

immunity by one jurisdiction within the federal structure, such

as a State, provides equivalent protections against use of the

information by other jurisdictions, such as another State or the

Federal Government.   See Murphy v. Waterfront Comm’n of New

York, 378 U.S. 52, 79 (1964).

     The underlying principle furthered by a grant of

testimonial immunity is that the witness and the Government

should be left “in substantially the same position as if the

witness had claimed [the] privilege [against self-


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United States v. Allen, No. 03-0691/MC


incrimination].”   Id.    See Boyd, 27 M.J. at 84.   We have

recently described this principle as “extract[ing] a ‘quid pro

quo’ from the Government for the information it compels from the

citizen.”   United States v. Mapes, 59 M.J. 60, 67 (C.A.A.F.

2003).   In addition to requiring that the Government abstain

from using the compelled information in any way to prosecute the

citizen, this “quid pro quo” also requires that “the Government,

if challenged in court, demonstrate that it has followed a

process to ensure it has not exploited the compelled

information.”    Id.

     The Government may not rely upon or use immunized testimony

in making the decision to prosecute.    See United States v.

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

Kimble, 33 M.J. 284 (C.M.A. 1991).     The burden is upon the

Government in such a case to demonstrate “by a preponderance of

the evidence, that the prosecutorial decision was untainted by

the immunized testimony.”    Olivero, 39 M.J. at 249.    See Mapes,

59 M.J. at 67.

     As noted in Part I, the military judge in the present case

determined that Appellant’s statements to Ms. Wong were made

pursuant to a grant of immunity under state law.     See Haw. Rev.

Stat. § 587-42(a).     The parties in this appeal have not

identified an opinion by the Hawaii state courts that reaches a

conclusion as to whether the statute provides a grant of


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United States v. Allen, No. 03-0691/MC


immunity.   For purposes of this appeal, we shall assume without

deciding that the military judge correctly interpreted the

Family Court order and the state statute as providing a grant of

testimonial immunity to Appellant.

                    B.   THE MOTION TO SUPPRESS

     Under Kastigar, the Government must demonstrate that

Appellant’s incriminating statement to NCIS was “derived from a

legitimate source wholly independent of” his earlier inculpatory

statement to Ms. Wong.   406 U.S. at 460.   The record in the

present case demonstrates that Appellant’s statement was the

product of his own desire to confess, and was not derived by the

Government from his earlier statement to Ms. Wong.

     The idea of confessing to NCIS on August 15 originated with

Appellant, and he steadfastly resisted the advice of others who

urged him to defer making a statement to NCIS.    SSgt Walker, who

heard Appellant’s confession shortly after he arrived at Ms.

Wong’s office, asked Appellant if he would not rather wait to

speak with NCIS until the following morning, but Appellant

insisted that he do so that evening.   Ms. Reeber, the Child

Protective Services official who spoke to Appellant that night,

told Appellant that he should consult with his attorney before

speaking to NCIS.   Appellant did not take her advice.   SSgt

Walker, upon learning that Appellant was speaking with a Child

Protective Services official, interrupted Appellant’s


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United States v. Allen, No. 03-0691/MC


conversation to advise him to remain silent.   Again, he rejected

that advice.

     The record further demonstrates that Colonel Jackson, who

came to Ms. Wong’s office to protect Appellant from harming

himself, was told upon arrival by Appellant’s friend, SSgt

Walker, that Appellant wanted to make a statement to NCIS.

Appellant expressed no reluctance to Colonel Jackson about

turning himself in to NCIS.    When Colonel Jackson remarked that

he would call the police if Appellant did not go freely,

Appellant said “[Y]ou don’t have to do that, I know I did this,

and that I am not trying to deny it.”    Under other

circumstances, a statement similar to Colonel Jackson’s remarks

might be problematic in terms of assessing the derivative nature

of any subsequent statement.   In the present case, however,

there is no evidence of record that Colonel Jackson’s remarks

prompted Appellant to make a statement that he otherwise did not

want to make or that it was used to overcome any reluctance

manifested by Appellant.   On the contrary, Appellant repeatedly

insisted to both friends and officials that he wanted to make a

statement to NCIS that night, even when they cautioned him about

doing so.

     Against this backdrop, SA Warshawsky administered a

cleansing warning to Appellant, informing him that “any prior

illegal admissions or other improperly obtained evidence which


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United States v. Allen, No. 03-0691/MC


incriminated [him could not] be used against [him] in a trial by

court-martial.”   SA Warshawsky also advised Appellant of his

Article 31(b) and Miranda rights.      Appellant indicated that he

understood these rights and that he desired to waive them.       Only

at that point did SA Warshawsky allow Appellant to make a

statement.

     In summary, the evidence shows that Appellant wanted to

make a statement to NCIS, that he was determined to confess that

evening, that he did not waver from that course, and that his

confession to NCIS was knowingly and voluntarily made.     His

decision to confess did not result from Government exploitation

of his immunized testimony.    Under these circumstances, the

Government has met its burden of affirmatively demonstrating

that his statement was derived from a legitimate source wholly

independent of the compelled testimony.

                    C.   THE DECISION TO PROSECUTE

     Although Appellant moved to suppress the testimonial use of

his confession to NCIS, he did not move to dismiss the charges

or otherwise allege at trial that the Government improperly used

immunized testimony in the course of making the decision to

prosecute.    Under Rule for Courts-Martial 907(b)(2)(D)(ii), an

allegation of improper use of immunized testimony in the

prosecutorial decision constitutes a waivable basis for a motion

to dismiss.   In that context, we conduct a plain error review;


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United States v. Allen, No. 03-0691/MC


that is, we assess (1) whether there was an error; (2) if so,

whether the error was plain or obvious; and (3) if the error was

plain or obvious error, whether it was prejudicial.   See United

States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998).

     Although the investigation initially focused on Ms. Allen

because of the estimated time of the abuse that resulted in CJ’s

hospitalization on March 6, 1996, Appellant became a suspect

following the events of August 8 at which time CJ was in his

sole custody.   At the hospital team meeting on August 14 the

focus shifted sharply to Appellant, a day before he made his

statements to Ms. Wong and the others.   Moreover, his statement

to NCIS, which we have determined to be otherwise admissible,

provided an independent basis for making the decision to

prosecute.   Under these circumstances, the preponderance of the

evidence demonstrates that the prosecutorial decision was

untainted by Appellant’s statement to Ms. Wong.   Olivero, 39

M.J. at 249; see also Mapes, 59 M.J. at 67.   There was no error,

much less plain error, in not dismissing the charges.



                          III. CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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