United States v. Morrissette
2012 CAAF LEXIS 78
| C.A.A.F. | 2012Background
- Appellant Morrissette faced trial for gang initiation, ecstasy use, obstruction, and indecent acts after a gang death in Germany.
- Immunity agreements were granted to Morrissette and coconspirator PVT Charris to obtain testimony; immunity barred use of that testimony in later prosecutions.
- A Kastigar hearing found no impermissible use of immunized testimony in the first prosecution, but the convening authority later dismissed charges “in abundance of caution.”
- A new prosecution team later reviewed a redacted record; full immunized statements were not available, but some materials referenced immunized testimony.
- The second Kastigar proceeding concluded the government did not directly or indirectly use immunized statements; England factors guided the analysis but the ultimate question was whether immunized content was used.
- The Army Court of Criminal Appeals affirmed most convictions, reversed on a few Count III specifications, and remanded for reassessment of sentence and possible rehearing under Fosler
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immunized testimony violated Morrissette’s Fifth Amendment rights | Morrissette argues immunized statements were used to prosecute him | USA argues no direct/indirect use of immunized testimony occurred | No reversible error; government proved no direct/indirect use of immunized statements |
| Whether the Article 134 specifications fail to allege terminal elements | Morrissette contends the clauses lack explicit terminal elements per controlling precedents | USA contends the specifications are sufficient under law | Affirmed in part; remanded for reconsideration consistent with Fosler |
Key Cases Cited
- Kastigar v. United States, 406 U.S. 441 (1972) (government may prosecute immunized witness if no direct/indirect use of immunized testimony)
- United States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003) (defines use of immunized testimony in Kastigar context)
- United States v. Hubbell, 530 U.S. 27 (2000) (highlights protection against prosecutions based on immunized knowledge)
- Olivero v. United States, 39 M.J. 246 (C.M.A. 1994) (discusses scope of use and burden in Kastigar framework)
- United States v. Montoya, 45 F.3d 1286 (9th Cir. 1995) (second prosecution exposure to non-immunized materials cannot taint if not containing immunized content)
- McGeeney v. United States, 44 M.J. 418 (C.A.A.F. 1996) (best practices regarding wall between pre- and post-immunity teams; taint considerations)