United States v. Youngman

CRAWFORD, Judge

(dissenting):

I would affirm the decision below based on waiver and the non-evidentiary use of immunized testimony.

The granted issue is whether the judge erred in denying the defense motion for a new Article 321 investigation because the prosecution presented appellant’s immunized testimony to the Article 32 investigating officer. In this case, one can consider appellant’s offenses to fall into two categories. The first category relates to appellant’s use of drugs2 and the second relates to appellant’s performance of military duties.3 Simply stated, the defense contends that the convening authority would not have referred this case to a general court-martial but for the use of appellant’s immunized testimony at the Article 32 hearing to investigate whether appellant committed the drug offenses.

Investigators initially believed appellant was a minor player in the drug scene. As a result, appellant was offered and accepted an Article 154 for his use of marijuana. Subsequently, appellant was granted testimonial immunity in order to testify against Airman First Class (A1C) Bell. Ten days after appellant received testimonial immunity, A1C Hargrave implicated appellant in use of marijuana in April of 1995. Later, another co-accused implicated appellant in the use of marijuana on April 8,1995.

Appellant, in response to these new allegations of drug use, told an agent of the Office of Special Investigations that he and A1C Hargrave had used marijuana in March and April of 1995. When interviewed by assistant trial counsel, appellant admitted to use, possession, and distribution of marijuana between March and April 1995. Later, appellant told the assistant trial counsel that, contrary to his earlier statement, he did not buy marijuana from A1C Bell.

A1C Bell, knowing appellant had been granted immunity and would testify against him, pleaded guilty in accordance with a pretrial agreement that included a provision that A1C Bell testify against appellant. During A1C Bell’s providence inquiry, he implicated appellant in possession of marijuana between March and April of 1995. In addition, A1C Hargrave, in exchange for an administrative discharge, agreed to testify that appellant had used marijuana after imposition of appellant’s Article 15.

Both groups of offenses were then referred to an Article 32 investigation. No objection to use of appellant’s immunized testimony was *130made either at the Article 32 hearing or to the convening authority. However, at trial, based on a defense motion, the judge dismissed all drug Charges and specifications against appellant.

ROM 405(j)(4) and (k), Manual for Courts-Martial, United States (1995 ed.), state that failure of defense counsel to make objections within 5 days of receipt of the Article 32 investigator’s report constitutes waiver. If the defense had made a successful motion pursuant to ROM 405 to the convening authority to dismiss the drug charges and specifications instead of waiting until trial, and, if the convening authority nonetheless had referred appellant’s military-duty-performance offenses to a general court-martial, there would be no issue. It is very likely that defense counsel made the tactical decision not to make such a motion because of the probability of just such a scenario. This is sandbagging at its worst, yet the majority is rewarding it.

Even setting aside the waiver issue, as I have previously noted in United States v. Olivero, 39 MJ 246, 255 (CMA 1994) (summarizing United States v. Byrd, 765 F.2d 1524, 1530-31 (11th Cir., 1985)), “Kastigar [v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)] does not prohibit nonevidentiary uses such as the decision to indict.” That is what happened in this case.

At the time of referral, the Government had evidence from at least two witnesses regarding appellant’s drug possession and use that was not derived from appellant’s immunized testimony. This evidence and the evidence relating to appellant’s duty performance could have supported referral of all the charges, except the distribution-of-marijuana charge, to a general court-martial. The fact that the testimony of the witnesses came after appellant’s grant of immunity does not make it derivative of the grant of immunity. If all of the evidence resulting in referral was based on immunized testimony, but none of the immunized testimony or truly derivative evidence was used at trial, I would hold that there was no violation of Kastigar. Thus, I dissent.

. UCMJ, 10 USC § 832.

. Wrongful possession of marijuana between March 22 and April 25, 1995; use of marijuana between May 9 and July 1, 1995; false official statement that he had paid Airman First Class Bell $15.00 for marijuana; and false statement under oath that he had paid Airman First Class Bell $15.00 for marijuana.

. Dereliction of duty (2 specifications); failure to repair (2 specifications); and disobedience of a lawful general regulation by failure to shave his facial hair.

. UCMJ, 10 USC § 815.