The Appellant in United States v. Vela, 71 M.J. 283, No. 12-0194/AR (C.A.A.F., 2012), was part of an Army sniper team assigned to provide over watch security in Jurf As-Sakhr, Iraq, in May 2007. During the assignment, a local farmer came upon the team, and was apprehended. The farmer was then murdered by being shot in the head by the Appellant, and an AK-47 was placed on the man’s body by the Appellant’s accomplice and team leader, Staff Sergeant Hensley. The Appellant and Hensley both gave false statements to criminal investigators regarding the incident.
Eventually, the Appellant made numerous confessions, which were corroborated by the statements of others. The Appellant, Hensley, and Specialist Sandoval (another team member) were all charged, and the Appellant was granted immunity and ordered to testify during the Hensley and Sandoval trials, which he did on September 27 and November 6, 2007. Subsequently, the Appellant was brought to trial, and a motion to dismiss due to government use of his immunized statements was raised and denied. He was convicted contrary to his pleas, by members with enlisted representation, of making a false official statement, unpremeditated murder, and wrongfully placing a weapon with the remains of an Iraqi national, in violation of Articles 107, 118, and 134, and sentenced to reduction to E-1, confinement for ten years, total forfeitures, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence, except for the forfeitures (finding intent by the convening authority to waive them for the Appellant’s spouse).
CAAF granted review to determine:
(I) Whether the military judge erred in denying the defense’s motion to dismiss or disqualify under United States v. Kastigar.
(II) Whether the evidence was legally insufficient to support the findings of guilty to Charge III.
The court decided both issues adversely to the Appellant, ruling unanimously that the military judge did not err in denying the motion to dismiss, and ruling 3-2 on the mater of legal sufficiency. Chief Judge Baker wrote for the majority, and Judge Erdmann, joined by Judge Ryan, concurred in part and dissented in part.
The court resolved the immunity issue by analyzing the trial military judge’s consideration of the four “Mapes factors,” (slip op. at 14), and concluded that none of the findings were clearly erroneous. CAAF considered a Kasitgar issue earlier in the term, in United States v. Morrissette, 70 M.J. 431, No. 11-0282/AR, and denied relief in that case on the same grounds. But in Morrissette (authored by Chief Judge Baker), they were the “England factors,” and in Vela (also authored by Chief Judge Baker) they suddenly become the “Mapes factors.” It’s almost as if this were the last case of the term…
The four factors are:
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” 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?
United States v. Mapes, 59 M.J. 60, 67 (C.A.A.F. 2003) (quoting United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991). Now, England cited United States v. Gardner, 22 M.J. 28, 31 (C.M.A. 1986) for the factors, but no military appellate court (so far as I can discover) has ever called them the “Gardner factors.” And why would they? Only one appellate court (same disclaimer) has every used the term “England factors,” or for that matter “Mapes factors” – CAAF, in Morrissette and Vela. In the same term. It’s not quite as forehead-slapping as last term’s mobius strip of citation, but it’s close. Perhaps I need to create an award…
Fun and games aside, there’s some real sink-your-teeth-into-it law in Vela. For this I turn to a fellow (and wiser) jarhead, LtCol Devin Winklosky, who wrote on 31(b)log: