CAAFlog » September 2011 Term » United States v. Morrissette

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.

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CAAF has issued its opinion in United States v. Morrisette.



Baker writing for a unanimous court finds:

1.  No abuse of discretion as to use of allegedly 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 England 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 [United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991)] factors cut in favor of Appellant, the ultimate question presented in this case is not 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.

2.  Remanded for additional review in light of Fosler.

Three quick thoughts:

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.

And so the prosecution nearly lost a case through failure to exercise care.

A caution for defense counsel about trusting the government when the government seeks to immunize and use the client before his own trial is complete.

And the “preponderance” of evidence standard is too lenient in favor of the prosecution in this critical area of compelled self-incrimination.  Why not HBRD?

CAAF today granted review on this 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.”  United States v. Morrissette, __ M.J. __, No. 11-0282/AR (C.A.A.F. Apr. 14, 2011).  ACCA’s unpublished decision in the case is available here. United States v. Morrissette, No. ARMY 20090166 (A. Ct. Crim. App. Dec. 22, 2010).

CAAF also granted review of a Fosler trailer, see United States v. Fosler, __ M.J. ___, No. 11-0149/MC (C.A.A.F. Feb. 9, 2011), but ordered that no briefs be filed.  Here’s the granted issue:  “WETHER 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.”  United States v. Lirley, __ M.J. __, No. 11-0303/MC (C.A.A.F. Apr. 14, 2011).  NMCCA’s unpublished decision in the case is available hereUnited States v. Lirley, No. NMCCA 201000502 (N-M. Ct. Crim. App. Jan. 27, 2011) (per curiam).