Phil Cave briefly covered CAAF’s January opinion in United States v. Morrissette, No. 11-0282/AR, 70 M.J. 431 (C.A.A.F. Jan. 24, 2012) (CAAFlog case page) (link to slip op.). The case involves an Army Private who participated in a gang initiation ceremony for another soldier in Germany in 2005. The initiate died from wounds sustained in the initiation. An investigation ensued, and the appellant refused to participate, was granted immunity, persisted in his refusal, and was eventually prosecuted for his involvement.
At trial, the appellant argued that the government was using his immunized statements. The trial military judge conducted a hearing pursuant to Kastigar v. United States, 406 U.S. 441 (1972), and determined that there was no impermissible use of immunized testimony. However, the trial military judge, out of “an abundance of caution,” disqualified the command from prosecuting the case. The case was then transferred to a new convening authority, prosecution team, and investigative team.
However, the new team did not strictly follow the rule in Kastigar to protect “against a future prosecution based on knowledge and sources of information obtained from the compelled testimony.” Kastigar, 406 U.S. at 454. There was some spillover of pre-immunity investigative materials to the post-immunity phase, the second prosecution team received a redacted copy of the record from the first prosecution that included some work product, and the second trial counsel discussed proposed charges with the officer who redacted (and had extensive familiarity with) the record of the first prosecution.
At the beginning of the second prosecution the defense again objected, claiming that the appellant’s immunized statements were being used against him. The military judge denied the objection, concluding 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 appellant was then tried by a military judge sitting as a general court-martial, acquitted of the most-serious charges, convicted of various offenses including “participating in a gang initiation” and obstructing justice, and sentenced to a bad-conduct discharge and confinement for 42 months.
CAAF’s review was of the following granted issue:
Whether appellant’s fifth amendment right against self-incrimination was violated when he was prosecuted for offenses about which he had provided immunized statements.
Writing for a unanimous court, Chief Judge Baker began by defining the government’s burden (to show by a preponderance of the evidence that the prosecution is based on sources independent from the immunized statements) as a preliminary question of fact that will be overturned only if clearly erroneous or unsupported by the evidence. Then, the court analyzed the facts of the pre-trial process for both direct and indirect use of the appellant’s immunized statements. The direct-use analysis began with the four factors from United States v. England, 33 M.J. 37 (C.M.A. 1991), and the court found that:
1. The immunized statements (largely denials of participation in the initiation) did not produce any leads or alter or influence the investigation. This factor favors the government’s argument.
2. The investigation was not complete until at least a year after the immunized statements were made. This factor favors the appellant’s argument.
3. The decision to prosecute was not made until after the immunized statements were made. This factor favors the appellant’s argument.
4. Members of the second prosecution team were exposed to materials from the first prosecution, however no trial counsel who was exposed to the immunized testimony participated in the prosecution. This factor narrowly favors the government’s argument.
Concluding that the trial judge was not clearly in error to find that there was no direct use of the immunized statements, the court found that: “Without access to the content of the statements themselves, Appellant’s immunized testimony, could not have directly tainted his trial.” Slip op. at 26-27.
Analyzing for indirect use, the court finds that “[b]ecause Appellant did not reveal any new information in his immunized statements, the communications between [the redacting officer and the trial counsel] would have been the same had Appellant invoked his Fifth Amendment right against self-incrimination.” Slip op. at 28. Since no new information was revealed, it was not clearly erroneous to find no indirect use.