*1 STATES, Appellee, UNITED Seaman, McKEEL, R.
Joshua Navy, Appellant.
U.S. 05-0363.
No.
Crim.App. No. 200202328. Appeals Court
U.S.
the Armed Forces.
Argued Dec. April
Decided *2 AND
CHARGE SPECIFICATION BE- THE APPELLANT CAUSE RELIED TO A HIS DETRIMENT PRETRIAL ON AGREEMENT. below,
For the reasons discussed we affirm.
I. BACKGROUND
Appellant contends that he entered into a
pretrial agreement
special
with a
court-mar-
EFFRON, J.,
opinion
delivered the
of the
(SPCMCA)
convening authority
tial
before
Court,
C.J.,
GIERKE,
in which
and CRAW-
entering
pretrial agreement
into
with the
BAKER, JJ.,
joined.
FORD and
ERD-
general
court-martial
authority
MANN, J.,
opinion.
dissenting
filed a
(GCMCA)
present
in the
case.
to
Prior
en-
Appellant:
(argued);
For
John B. Wells
tering
pleas, Appellant
his
moved to dismiss
McWilliams, JAGC,
Lieutenant Richard H.
charges
grounds
on
that his earlier
USNR.
agreement with the SPCMCA included a
grant
immunity. According
Appellant,
Mattioli,
Appellee: Captain Roger
For
E.
agreed
the SPCMCA
that there would be no
Purnell,
(argued);
USMC
Commander C.N.
(1)
if Appellant:
agreed
court-martial
to ac-
(on
JAGC,
brief);
USN
Colonel W.K. Liet-
cept nonjudicial
punishment under Article
zau, USMC,
Hines,
Captain
and
Glen R.
(2000),
§
10 U.S.C.
for the
USMC.
misconduct,
charged
agreed
to waive
separation
his
contest
from the
Judge
opinion
EFFRON delivered the
military
at an administrative
the Court.
present
board.
motion
The
was denied. The
Appellant
charged
rape,
viola
appeal
grant
concerns the
immu-
tion of Article
Military
Uniform Code of
nity and
concerning
related considerations
(2000).
(UCMJ),
§
Justice
10 U.S.C.
At
punishment.
administration of
general
composed
a mili
alone,
tary judge sitting
Appellant was con
THE
A.
AUTHORITY TO
victed, pursuant
pleas,
to his
of the lesser
GRANT IMMUNITY
assault,
included offense of
indecent
viola
134, UCMJ,
tion of Article
10 U.S.C.
934 Military
recognizes
types
law
two
of immu-
adjudged
The
sentence included a
may
nity
granted
ac-
discharge,
dishonorable
confinement for five
immunity exempts
cused. Transactional
an
allowances,
years,
pay
forfeiture
all
trial
accused “from
court-martial for one
grade.
and reduction to the lowest enlisted
or more offenses under the code.” Rule for
convening authority approved
The
the sen
(R.C.M.) 704(a)(1).
Courts-Martial
Testimo-
pretrial agreement,
tence.
Pursuant to
immunity protects
against
nial
an accused
convening authority suspended all confine
testimony, statements,
any
use of
“the
period
ment
excess of fifteen months for a
directly
indirectly
information
derived
of fifteen months from the date the sentence
testimony
from such
or statements
adjudged.
Navy-
The United States
person in a later court-martial.” R.C.M.
Corps
Appeals
Marine
Court of Criminal
704(a)(2).
af
immunity—in
Testimonial
unpublished opinion.
firmed in an
United
immunity—does
trast
to transactional
McKeel,
States v.
No. NMCCA
prosecution
bar
has
who
re-
2005 CCA LEXIS
been made
an officer
but
authority,
remedy
not actual
addresses
A. NONJUDICIAL PUNISHMENT
the extent
detrimental reliance. See Cal
agent
During an
with an
interview
iendo,
409,
409;
at
32
at
13 C.M.A.
C.M.R.
Special Investigations
Air Force
Office
255,
at
Thompson,
charged administratively military. assume, from the deciding, without the CPO approval made the offer with the of a court- Appellant accepted offer. SPCMCA, convening authority, martial proceeding pursuant held a SPCMCA to Ar- Appellant reasonably upon and that relied 15, UCMJ, Appellant pleaded ticle at which apparent offer made with authority. Be guilty charges, including to various rape. cause the claimed nonjudicial punishment ordered present case is based on rather forty-five days SPCMCA included of restric- authority, than Appellant actual must demon tion, forty-five days duty, of extra forfeiture strate detrimental reliance and that remedial pay months, per of one-half month for two steps inadequate. supra were See Section grade and reduction in from E-3 to E-2. *4 I.A. military judge We note that the ruled that B. REFERRAL TO TRIAL BY by Appellant nonju- statements made at the GENERAL COURT- punishment proceeding dieial could MARTIAL against admitted into evidence him at the Subsequently, Appellant processed prosecution court-martial. agreed also discharge. administrative Consistent with Appellant’s at trial that decision to waive an agreement, the SPCMCA Ap- forwarded discharge administrative and matters pellant’s discharge packet administrative related to his separation, administrative GCMCA, who also served as the adminis- against could not him be used at trial. In authority. GCMCA, discharge trative addition, prosecution agreed Appel- that previous knowledge who had no of the sentencing lant would be entitled to full cred- charges against Appellant, ap- declined to punishment it under Pierce for the received prove discharge, and ordered an investi- nonjudicial punishment proceeding. at the gation charges into the Appellant Well before entered into discus- § 10 U.S.C. After the CPO, by sions with the he was interviewed investigation completed, the GCMCA re- agent of the OSI in which he set forth the charge rape—for Appellant ferred a of which details of Appellant’s his misconduct. admis- had punishment—to received trial sions, report, recounted in the OSI by general court-martial. ample grounds reject for the GCMCA proposed discharge administrative and order III. DISCUSSION a pretrial investigation under Article UCMJ. Trial counsel asserted that the Gov- Appellant contends that he received a nothing ernment Appellant’s learned rape charge part of on the as during nonjudicial punish- statements of his with the SPCMCA. He proceeding already ment that it did not know further contends that the GCMCA erred agent, from admissions to the OSI and an charge referring general that court- affidavit the CPO who made the offer to martial, and that the judge erred in Appellant supports Appellant this assertion. denying his motion at trial to dismiss the any during has not identified statement made charge. nonjudieial punishment proceedings or in I.A., packet the administrative that add- supra, As noted in Section when any significance ed to the informa- matter a servicemember seeks dismissal charges that presented tion would have been to the upon based the ser making disposi- GCMCA the course vicemember must demonstrate that decision, by tion absent the communi- promise was made an officer authorized to by grant immunity. Appellant recognized Appellant at cated CPO. Under these tri al, circumstances, acknowledged appeal, and has that we conclude that the Govern- on prose- by claimed was not issued ment shown that the decision to general proceed- convening authority. court-martial cute was untainted the Article 15 0109a.(l). § General Judge Advocate discharge packet. ing administrative and the by the approved were actions Olivero, All these atM.J. See convening special court-martial ap- summary, record reflects In (SPCMCA). However, McKeel’s dis- when at tri- taken actions were propriate remedial general charge was received package al, Appellant has not demonstrated (GCMCA), Appellant has not reliance. detrimental adminis- approve the declined to that officer any unique circumstances identified resulting steps discharge and initiated trative charges. of the would warrant dismissal being referred charge rape in a general court-martial. IV. DECISION on the a motion to dismiss filed McKeel Navy- the United States The decision of immu- had de facto grounds that he received Appeals Corps Court Criminal Marine Following an Article nity from Leiker. affirmed. 39(a), Military Justice Code Uniform session, 839(a) (2000), (UCMJ), 10 U.S.C. ERDMANN, Judge (dissenting): dis- the motion to denied is not concludes under Rule for ground on the miss to de facto transactional entitled (R.C.M.) 704, immunity is Courts-Martial *5 remedial appropriate that because it finds discretion of the GCMCA. within the sole that McKeel have been taken and actions they parents that and his testified McKeel detrimental reliance. has not demonstrated authority to had the believed CPO Leiker concept of As I conclude that the detrimen- accepted if he inform McKeel that in a proper a de tal is not element reliance his Article 15 and waived punishment under analysis, immunity I conclude facto would discharge board he an administrative right to granted facto de that McKeel had been That testimo- not be court-martialed. would immunity, that he was entitled Although the isny uncontroverted. that the promise, and enforcement of convinced that judge that he was not stated bringing a was barred from Government authority, he apparent had Leiker CPO prosecution against him. subsequent mother believed found that McKeel’s respectfully therefore dissent. authority.1 gen- At the Leiker had the straightforward. in this are The facts case court-martial, plea a of McKeel entered eral school, attending training an initial While and was sentenced guilty to indecent assault suspected rape sexual McKeel was of confinement, E- reduction to years five of During of recruit. a subse- assault a female 1, pay all and allowances and forfeiture of Special quent with the Office of interview pre- discharge. Pursuant dishonorable (OSI), Investigations made McKeel a number convening authority sus- trial incriminating after of statements. Sometime in portion excess pended that of sentence (CPO) interview, Petty Chief Officer OSI of fifteen period for of fifteen months Leiker, officer, legal McKeel the chief told months. nonjudi- parents accepted he his that if opinion recognizes 15, 10 punishment cial under Article immunity test and creates a cept of de facto (2000), an adminis- and waived U.S.C. 815 may military judge when a to determine not discharge he would be trative promises of appropriate relief nonjudi- fashion accepted court-martialed. McKeel immunity person without actual made 15 and waived punishment cial “(1) immunity was authority: of McKeel an administrative board. made; reasonably the accused believed opportunity to consult not do apparent that a prior accepting judge with a advocate (3) the accused Navy, promise; Manual so made Dep’t See offer. only general any specific court-martial conven- lieved that did not make 1. The (GCMCA) grant ing authority stepfather. could findings regarding or It testimony was relevant. he be- line from the record since 86 upon
relied to his her detri- test. opinion prom- The lead that the found concept ment.” While the of detrimental ises made judge staff advocate led reliance has sometimes in been referenced Cooke to cooperated believe that he he this court’s jurisprudence, I believe would not by military au- court-martialed concept misplaced that the in the de facto Cooke, thorities. 12 Finding M.J. at 342. Consequently, context. review that an gamble accused “need not on the justice in military is warranted. integrity prosecutorial authorities military justice system,” opinion the lead Thompson, United States v. 11 C.M.A. process held that rights Cooke’s due had (1960), 32 C.M.R. and United been violated. Id. at 343. Caliendo, 405, 409, States 13 C.M.A. (1962), C.M.R. were decided under Judge concurring Chief opinion Everett’s para. 148e the Manual Courts-Mar upon immunity provisions para- relied tial, (1951 ed.).2 United States In those graph 68h the 1969 MCM. He concluded cases individuals who did not general have judge that while the staff advocate did not authority informed grant immunity, have the subse- suspects that no action would be taken quent actions of the GCMCA ratified his against they them if either returned stolen (Everett, C.J., Id. at 354 property or testified about a theft.3 This concurring). Judge The dissent of Cook court held both cases that there was no found that power GCMCA had the valid of immunity because the individu to grant immunity enough and it was not als purporting to make the did accused reasonably have believed requisite cases, have the authority. In both granted that he had been Id. at however, the court held that if the defen (Cook, J., dissenting). While the lead dants had incriminated themselves reli *6 opinion concept hinted at the of de facto ance on promises, the defective incriminating immunity, it specifically was not raised or evidence or statements would not be admissi opinion. discussed in the Thus, recognizing jure ble. while de immuni ty and enforcing the of pretrial voluntariness 704, Rule for Courts-Martial Manual for statements, the court did not raise the issue Courts-Martial, (1984 ed.) United States immunity de facto and made no conclu (1984 MCM), recognized both transactional in regard. sions that immunity provided and testimonial and that immunity could granted by be a This splintered court issued a decision in MCM, GCMCA.5 The 1984 in the discussion Orser, (C.M.A.1982), v. 12 Cooke M.J. 335 Q8h 704(e), to R.C.M. recognized for first time para. under of the Manual Courts- for concept immunity. (1969 de facto Case law Martial, ed.) (1969 United States rev. MCM).4, began explicitly too recognize concept. appellant In that argued case the Churnovic, In 401, v. that United States 22 judge the staff M.J. advocate to the com- (C.M.A.1986), Strategic petty mander of the Air 402-03 a prom- Command chief officer immunity him prosecution ised from informed a if he crew member that he not would provided a polygraph punished gave statement and took a if he information about or provision 2. That dealt charged espionage with the or 4. provid- interest bias of Cooke was with for a grant witness and authorized a GCMCA to ing information and materials to the Un- Soviet testimonial produced ion. The three-member court three separate Judge opinions. Fletcher wrote the upon by 3. The other case relied in opinion, Judge lead Chief Everett concurred and Roberts, 354, analysis, Shepardson this v. 14 M.J. Judge Paragraph Cook dissented. 68h author- (C.M.A.1983), nothing 358 to do with immu- a ized GCMCA to nity but a rather is case which the pretrial agreement a withdrew from and the issue in the case was whether the with- Only changes, pertinent minor none to this proper. drawal was held court that a con- discussion, have been made to Rule for Courts- vening authority agreement was bound to adoption Martial 704 since the 1984 MCM. the accused had relied on the to his detriment.
87
at
Samples, 38 M.J.
immunity enforced.
“if he
The court stated:
drugs.
turned in
of detrimental reliance
immunity
prosecution
The issue
promised
revealing
independent
its
evidence
possessing
requirement
in return for
hashish
requested
subsequent
do not
support
prosecution
and if he
a
location
information,
benefit of
immu-
he is entitled
of transactional
arise because a
promise.”
at 407. In
States
subsequent
Id.
United
nity
will be no
means that there
(C.M.A.1991),
Kimble,
284,
v.
33 M.J.
289-90
prosecution.
by
promise
a
court
that a
made
held
finding
is
of de facto testi-
Where there
prosecute if
com-
Kimble
SPCMCA not
pro-
immunity,
can
monial
the Government
for child abusers
pleted
program
a treatment
prosecution
with a
but has the burden
ceed
immuni-
constituted
of transactional
was obtained
establishing
that all evidence
recognized
ty.
Both of these cases
the immunized testimo-
independently from
immunity
cept of de facto
where
441,
States,
Kastigar v. United
406 U.S.
ny.
with
prosecute
was made
someone
461-62,
32 L.Ed.2d
92 S.Ct.
authority.
apparent
however,
If,
that there is
finding
there is
Gilevich,
Cunningham
In
36 M.J.
immunity, the court
no de facto testimonial
(C.M.A.1992),
recognized
the court
100-01
go
statements
on to examine whether the
will
type of
applied
it had
some
de facto
alleged
from the
immuni-
evidence derived
Cooke,
immunity
since
but found
ty process
admissible. Cun-
are otherwise
petitioners
that case had not established
(unlawful
ningham, 36
101-02
induce-
M.J. at
immunity
the officer who offered the
obtaining
statements
ments and influences
apparent authority.6
so
In
had done
with
give rise to Article
nonetheless
(C.M.A.
Vest,
Samples v.
38 M.J.
486-87
(2000),issues).
U.S.C.
1994)
again recognized
concept
court
agree
suggest-
with the first two criteria
it
of de facto
but held was not
determining
majority for
whether
ed
applicable
appellant
where the
had
shown
an accused must
de facto
exists:
he had
been misled.
(1)
honestly
reasonably
believe that
From these cases it
clear that de facto
made;
principle
is a well-established
of promise
by person
was made
despite
language
law
the clear
Jones,
65;
authority to
at
do so.
704(c).7 What is not
clear is the
R.C.M.
so
*7
Samples,
In this case there
Rule for Courts-Martial
attending
training. Chief
seaman
his initial
types
immunity:
of
transactional immu-
two
Petty
legal
the
offi-
Leiker was
chief
Officer
nity,
prosecutions,
which bars future
military
was the face of the naval
cer and
immunity,
testimonial
which allows future
justice
par-
system to
McKeel and his
both
prosecutions
bars
use of immunized
but
testimony
undisputed
discloses
ents.
testimony
immunity
at the trial. De facto
to have the
that CPO Leiker held himself out
applications to these different
has different
authority
promise
to
that McKeel would not
immunity.
finding
types of
If there
a
is
required
if
prosecuted
he undertook the
immunity,
there
facto transactional
then
de
appellant
A
observer would con-
prosecution,
is
action.
reasonable
can be no
as the
question
a
E-2
promise clude that
new
would not
entitled to have the
transactional
Gilevich,
Concluding
immunity
Cunningham v.
was no transactional im-
offer.
there
munity,
(C.M.A.1992).
on to hold that under the
the court went
M.J.
31(d),
provision
"unlawful influence”
of Article
establishing
had the
the Government
that
burden
may
Only
authority
a
GCMCA
petition-
any
prosecute
to
evidence used
may
do
in accordance with this rule.
so
independent
testimony
derived from
er was
petty
promise
of a chief
officer who is also
facto
constitutes de
transactional im-
legal
highest ranking
munity
officer
his unit.
adequate simply
it is
to
ensure
concluding
erred in
immunized statements are not used
a sub-
Leiker did not have the
au-
sequent prosecution,
very
existence of
thority
immunity.
finding
to
That
is
which violates the terms of the
evidence,
supported by
directly
is
Leiker,
I conclude that CPO
an officer
contrary
undisputed
testimony,
apparent authority,
with
promised McKeel
findings by
conflicts
other
nonju-
accepted
he
judge.
punishment
dicial
under Article 15 and
disagree
with the
that detrimen-
waived
an administrative dis-
any place
tal reliance has
in the de facto
charge board. McKeel did both
it is
and now
immunity analysis. Detrimental reliance in
prom-
time
the Government to honor its
appears
this
migrated
context
have
from
importance
ise.
in enforcing
such
705(d)(4)(B),
R.C.M.
which
lists
condi- grants
emphasized by
Chief
tions
convening authority
under which a
can Judge Everett in Cooke as follows:
pretrial
agreement. Among
withdraw
a
where,
here,
as
high,
the stakes are
these
is
conditions
a withdrawal before an
suspect who has
asked
been
for informa-
begins performance
accused
of promises con-
lawyer—must
tion—and his
know
agreement.
tained in the
This condition
promise
given by
which is
Roberts,
Shepardson
came from
which
judge
staff
in-
possessing
advocate
all the
a convening
held that
will be bound
apparent authority
dicia of
and is reason-
pretrial agreement
to a
if the
accused
ably
suspect
relied on
will thereaf-
detrimentally
agreement.
relied on
Otherwise,
judicially
ter be
lips
enforced.
(C.M.A.1983).
354, 358
will remain sealed when it is vital to na-
Rule
applica-
for Courts-Martial 705 is not
security
they
tional
be unlocked. Al-
case,
ble
this
nor will
applicable
it be
though in
this case an officer who
well
involving
most cases
of de facto
have
a spy
escape
been
and traitor will
pretrial
There was no
military prosecution, it still is in the na-
between McKeel and
CPO Leiker McKeel
tional interest
of immuni-
and the SPCMCA because McKeel was not
ty be enforced.
being referred for a court-martial.8 See
Cooke,
(Everett, C.J.,