United States v. Lucas

19 M.J. 773
CourtU S Air Force Court of Military Review
DecidedDecember 21, 1984
DocketACM 24465
StatusPublished
Cited by3 cases

This text of 19 M.J. 773 (United States v. Lucas) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lucas, 19 M.J. 773 (usafctmilrev 1984).

Opinion

DECISION

SNYDER, Judge:

Pursuant to mixed pleas, the accused was convicted by a military judge sitting as a general court-martial of possession, use, and distribution of marijuana and cocaine. The only offense contested by the accused was one specification of distributing cocaine. His sentence extends to a dishonorable discharge, confinement at hard labor for 32 months, and accessory penalties. He has submitted three assignments of error for our consideration. Finding no error prejudicial to the substantial rights of the accused, and finding no manifest miscarriage of justice, we affirm.

An investigation of illicit drug activities in and around Moody Air Force Base, Georgia, identified the accused as a suspect. He was interviewed by Special Agent Law of the Air Force Office of Special Investigations (OSI) on 13 October 1983. During that interview, the accused admitted to his illicit possession, use, and distribution of marijuana, and his possession and use of cocaine. In addition to executing a written confession, the accused agreed to cooperate with OSI in identifying others involved with drug abuse activities.

The accused apparently extended his cooperation without benefit of any type of immunity until 17 November 1983. It appears that he was involved as a witness in United States v. Aea when he requested immunity prior to providing further cooperation. The Commander, Ninth Air Force, granted testimonial immunity on 17 November 1983.

Charges were preferred against the accused on 12 January 1984, investigated pursuant to Article 32 on 20 January 1984, and referred for trial by general court-martial on 25 February 1984. His trial took place on 12 and 13 April 1984. The trial counsel, Captain S, was also the trial counsel in United States v. Aea. As a result of these events, one of the assignments of error is that the accused was denied a fair trial by virtue of trial counsel’s involvement in Aea, and the “use” he made of the accused’s immunized testimony in the accused’s trial.

After reviewing the assignments of error and the Government’s reply, we granted oral argument and specified the following issue:

WHETHER THE ISSUE OF IMPROPER USE OF IMMUNIZED TESTIMONY MAY BE WAIVED UNDER THE PROVISIONS OF MIL.R.EVID. 103(a); OR, IS THE ISSUE SUBJECT TO THE PROVISIONS OF MIL.R.EVID. 103(d).

I

The key salient fact of this case is that trial defense counsel did not raise the issue at trial. Consequently, there was no evidentiary hearing at which the Government could have endeavored to demonstrate that its evidence was independent of and untainted by the accused’s immunized testimony. See United States v. Whitehead, 5 M.J. 294 (C.M.A.1978); United States v. Rivera, 1 M.J. 107 (C.M.A.1975). Thus, the issue is being raised for the first time on appeal.

Initially, we note that there was not anything at trial which should have put the military judge on notice that an evidentiary hearing was in order. Cf. United States v. Whitehead, supra, n. 9 and 11. The references to the accused having testified in United States v. Aea were vague and cryptic, and there was no indication that he had testified pursuant to immunity.

It was in Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), that the Supreme Court promulgated the threshold test for raising the issue of derivative use of immunized testimony. All an accused need do is “demonstrate that he gave testimony under immunity on matters related to his own prosecution.” Murphy v. Waterfront Comm’n, supra, 378 U.S. at 79 n. 18, 84 [775]*775S.Ct. at 1609 n. 18, 12 L.Ed.2d 695 n. 18. Once that is done, the Government must affirmatively show that its evidence is untainted and independent of the immunized testimony. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Murphy v. Waterfront Comm’n, supra; United States v. Rivera, 1 M.J. 107 (C.M.A.1975); United States v. Gardner, 18 M.J. 612 (A.F.C.M.R.), pet. granted, 19 M.J.-(1984).

For our purposes, the key word is “demonstrate.” Appellate defense counsel are well aware of their quandry; as a result, they argue that the demonstration need not occur in the courtroom. Their argument urges that the chain of command’s awareness of the accused’s previous grant of testimonial immunity prior to referring the case to trial satisfies the demonstration requirement, and that the Government’s burden, in effect, exists prior to entering the courtroom.

The end result of this argument, notwithstanding appellate defense counsel’s refusal to concede such, is that the Murphy/Kastigar rule would become self-executing. We reject this argument and hold that the issue must be raised at the trial level by defense counsel in order to key the Government’s burden.

The very wording of the test leads to the conclusion that the defense must raise the issue in order to pit the Government against its heavy burden. If there is any uncertainty after reading the threshold test, it is dispelled by the concurring opinion in Murphy and subsequent explanation in Kastigar v. United States, supra. Mr. Justice White elaborated on the test promulgated in Murphy v. Waterfront Comm’n, and emphasized its similarity to other constitutional violations. He stated as follows:

As in the analogous search and seizure and wiretap cases where the burden of proof is on the Government once the defendant establishes the unlawful search and wiretap, [citations omitted] once a defendant demonstrates that he has testified ... in exchange for immunity ... the Government can be put to show that its evidence is not tainted____

(Emphasis added).

Murphy v. Waterfront Comm’n, supra, 378 U.S. at 103, 84 S.Ct. at 1616 (White, J., concurring).

In Kastigar, the Court chose to use the coerced confession rule as its analogy, but it retained the same threshold by stating as follows:

One raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the Government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources. (Emphasis added).

Kastigar v. United States, supra, 406 U.S. at 461-462, 92 S.Ct. at 1665. The Court emphasized the extreme advantage enjoyed by a previously immunized defendant by advising that unlike those who claim a confession was coerced, the immunized defendant need not prove his testimony was used. All he need do is claim that it was.1

It is more than fair to infer that the Supreme Court was aware that the Government would know before trial that the defendant had previously testified under immunity. Nevertheless it chose to use terms such as “the defendant must demonstrate,” and “put the Government to show,” and “shift to the Government.” It would have been quite simple for the Court to instruct that the Government will put the trial court on notice of prior immunized testimony in all cases.

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Related

United States v. Felix
36 M.J. 903 (U S Air Force Court of Military Review, 1993)
United States v. Lucas
25 M.J. 9 (United States Court of Military Appeals, 1987)
United States v. Wynn
23 M.J. 726 (U S Air Force Court of Military Review, 1986)

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Bluebook (online)
19 M.J. 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lucas-usafctmilrev-1984.