United States v. Olivero

39 M.J. 246, 1994 CMA LEXIS 24, 1994 WL 238258

• Court: United States Court of Military Appeals
• Decided: June 3, 1994
• Docket: No. 68,335; CMR No. S28424
• Status: Published

Opinions

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a special court-martial convicted appellant, contrary to his pleas, of using marijuana and committing perjury, in violation of Articles 112a and 131, Uniform Code of Military Justice, 10 USC §§ 912a and 931, respectively. The approved sentence provides for a bad-conduct discharge, confinement for 4 months, reduction to the lowest enlisted grade, and a reprimand. The Court of Military Review affirmed the findings and sentence in an unpublished opinion.

We granted review of the following issues:

I (Modified)

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO GRANT APPELLANT’S MOTION TO DISMISS BECAUSE THE GOVERNMENT’S DECISION TO PROSECUTE WAS BASED ON IMMUNIZED TESTIMONY. See Kastigar v. United States, 406 U.S. 441, 460-61, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212 (1972); Cunningham v. Gilevich, 36 MJ 94 (CMA 1992); United States v. Kimble, 33 MJ 284, 291 (CMA 1991).

II

WHETHER THE MILITARY JUDGE ERRED BY FINDING APPELLANT GUILTY OF PERJURY, CHARGE II AND ITS SPECIFICATION, BECAUSE THE EVIDENCE PRESENTED FAILED TO SUFFICIENTLY PROVE THE FALSITY OF APPELLANT’S STATEMENT WITH TWO WITNESSES OR ONE WITNESS AND INDEPENDENT CORROBORATION.

Factual Background

The charges in this case arose out of a drug investigation in which Technical Sergeant (TSgt) Terry Stuart was a subject. As a part of that investigation, Captain Humphrey, Chief of Military Justice at March Air Force Base, California, interviewed TSgt Stuart’s wife in June 1990. Mrs. Stuart told Capt. Humphrey that she had “used marijuana with” appellant. Because Mrs. Stuart also said that appellant was “a possible person using marijuana with her husband,” Capt. Humphrey requested immunity for appellant as “a potential witness against” TSgt Stuart. Capt. Humphrey made no notes of this interview with Mrs. Stuart, and Mrs. Stuart’s statement was never reduced to writing.

On August 1, 1990, the general court-martial convening authority gave appellant testimonial immunity regarding his knowledge of TSgt Stuart’s use of controlled substances. The Government did not certify, seal, or memorialize any evidence of appellant’s drug use prior to this grant.

On August 2, 1990, Capt. Humphrey gave appellant a copy of the written grant of immunity and order to testify, told him to read it carefully and then left him alone in the room so that he could consult with his lawyer by telephone. After “quite a long time,” appellant informed Capt. Humphrey that he had consulted with his lawyer and asked if he could have a few minutes alone, and Capt. Humphrey agreed. After a 5-10 minute break, she met again with him and asked if he understood the grant of immunity. While he said he did, she explained what immunity meant and informed appellant that he could be prosecuted for perjury if he lied.

Capt. Humphrey then proceeded to interview appellant, who described two specific instances in which he had used marijuana with TSgt Stuart, one in March 1990 and a second at the end of May or beginning of June 1990. Appellant said that in both instances he and TSgt Stuart smoked the marijuana while riding off-base in TSgt Stuart’s ear. At Capt. Humphrey’s request, Capt. Hamstra-Havermann of the base legal office witnessed the interview. At the end of the interview, appellant asked Capt. Humphrey what was going to happen to him, and she responded that she could not “make any promises.”

The investigation under Article 32, UCMJ, 10 USC § 832, into the charges against TSgt Stuart convened on August 3, with Capt. Humphrey as the government representative. Contrary to his oral, unsworn statement on the previous day, appellant testified under oath at the Article 32 investigation that he had never used marijuana with TSgt Stuart.

The formal charges against appellant were not preferred until August 16, 1990. On that date appellant was charged with use of marijuana, apparently on the basis of Mrs. Stuart’s statement to Capt. Humphrey that she had used marijuana with appellant on one occasion.¹ The perjury charge was based on appellant’s testimony at TSgt Stuart’s Article 32 investigation, in which he denied ever using marijuana with TSgt Stuart.

At a conference pursuant to RCM 802, Manual for Courts-Martial, United States, 1984, on the day before appellant’s court-martial convened, defense counsel presented the military judge with a motion to dismiss Charge I and its specification (use of marijuana), based on the Government’s improper use of immunized testimony, and citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). In his written motion to dismiss, defense counsel’s offer of proof included the following assertions:

Prior to the accused’s testimony at the Article 32 in the Stuart ease, a decision to prosecute the accused had not been made. No evidence was cataloged or sealed in preparation for the accused’s prosecution prior to his immunized statements. Capt. Humphries [sic] did not make any notes, nor a memo of record of her interview with Deidre Stuart. Miss Regina Taylor [a potential witness to appellant’s use of marijuana with Mrs. Stuart] had not been located and contacted by the Government until after the accused’s immunized statements ____

(Emphasis added.)

When the court-martial convened, the military judge announced that he “would reserve ruling on the motion” to dismiss until after presentation of the prosecution case on the merits.

During the trial on the merits, Capt. Humphrey testified that she “didn’t catalog any evidence or certify any evidence in preparation for the prosecution of’ appellant. Mrs. Stuart’s oral statement to Capt. Humphrey was not reduced to writing prior to her testimony at the Article 32 investigation. When appellant’s defense counsel asked Capt. Humphrey if, prior to the Article 32 investigation in TSgt Stuart’s case, there had been a decision whether to prosecute appellant, she responded, “I guess, I don’t understand your question.” No other evidence regarding the timing of the decision to prosecute appellant was presented by either side. Appellant’s offer of proof in support of his motion to dismiss was unchallenged by the prosecution.

Mrs. Stuart testified that appellant used marijuana with her and another woman on one occasion in August or September 1989. She also testified that, on another occasion, she came to her house, smelled marijuana smoke, and saw the remains of a marijuana cigarette. TSgt Stuart was in the house with appellant at the time. When Mrs. Stuart asked, “ Where is mine?,’ ” TSgt Stuart said, “[T]hat’s all we had.” Mrs. Stuart did not actually see either appellant or TSgt Stuart smoking marijuana.

At the close of the prosecution case, defense counsel renewed the motion to dismiss Charge I and its specification, specifically arguing that prosecutorial misuse of immunized testimony “could include assistance in focusing the investigation, deciding to prosecute, refusing to plea bargain, interpreting the evidence, planning cross-examination, and planning trial strategy.” (Emphasis added.) This language was taken almost verbatim from United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.1973).²

The military judge denied the motion, finding “that the sole evidence” of appellant’s use of marijuana was the testimony of Mrs. Stuart, who had provided evidence of appellant’s marijuana use “well before the issuance of the grant of immunity.”³ Although the issue was squarely raised by defense counsel, neither the military judge nor the Court of Military Review ruled specifically on the failure of the Government to show that the decision to prosecute was unaffected by appellant’s immunized testimony at the Article 32 investigation.

Use of Immunized Testimony (Issue I)

In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that prosecutorial authorities are prohibited from using testimony which is compelled by grants of immunity. In United States v. Kimble, 33 MJ 284 (1991), this Court held that immunity protection extends to nonevidentiary uses of immunized statements such as the decision to initiate prosecution. Id. at 291. In such cases, prosecution may only proceed “if the Government shows, by a preponderance of the evidence, that the ... decision to prosecute was untainted by” the immunized witness’ testimony. See Cunningham v. Gilevich, 36 MJ 94, 102 (CMA 1992); United States v. North, 910 F.2d 843, 856-60 (D.C.Cir.) (discussion of nonevidentiary use of immunized testimony), modified in part, 920 F.2d 940 (1990), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991); see also United States v. Harris, 973 F.2d 333, 336 (4th Cir.1992) (Government may not alter investigative strategy as result of immunized statement).

We recognize that the federal circuits are divided on the question “whether Kastigar permits ... ‘nonevidentiary use of immunized testimony.’ ” See United States v. Harris, 973 F.2d at 337 n. 2; United States v. North, 910 F.2d at 856-60. Nevertheless, after Cunningham and Kimble, military law is clear: the Government may not prosecute unless it can show, by a preponderance of the evidence, that the prosecutorial decision was untainted by the immunized testimony.

The record in appellant’s case is devoid of any evidence that there was a decision to prosecute appellant before his compelled and allegedly perjured testimony on August 3. The Government concedes that “[i]t is unclear from the record when the decision to prosecute appellant was made.” Answer to Final Brief at 3. Had the Government decided to prosecute appellant prior to his immunized testimony, it would be obvious that the prosecutorial decision was independent of his testimony.

Because the Government was unable to show that the prosecutorial decision was made before the immunized testimony, it had the burden of showing by a preponderance of the evidence that the prosecutorial decision was untainted by the immunized testimony. Compare United States v. Kimble, supra (decision to prosecute based on additional evidence disclosed by accused in immunized statement), with Samples v. Vest, 38 MJ 482, 489 (CMA 1994) (Gierke, J., concurring in the result) (decision to prosecute based on independent testimony of witness discovered 4 days after accused’s immunized statement). Accordingly, appellant’s conviction of wrongful use of marijuana cannot stand unless the Government established, by a preponderance of the evidence, that the decision to prosecute appellant was independent of his compelled testimony at the Stuart Article 32 investigation. Cunningham v. Gilevich and United States v. Kimble, both supra.4

In this case the issue was squarely raised by defense counsel. The Government introduced evidence that Mrs. Stuart’s testimony against appellant was obtained prior to and independent of appellant’s compelled testimony, but they failed to show that the decision to prosecute was untainted by appellant’s compelled testimony at the Stuart Article 32 hearing. In fact, all the evidence indicates the contrary: appellant was prosecuted because of what he said at the Article 32 hearing.

In Cunningham v. Gilevich, supra, we remanded the case to the convening authority and authorized a Kastigar hearing on the specific issue whether the decision to prosecute was tainted by compelled testimony. In appellant’s case, the military judge has already held the required trial-level Kastigar hearing. The issue of a tainted prosecutorial decision was squarely raised by defense counsel, but the Government did not carry its burden of proof. See United States v. Kimble, 33 MJ at 291 (Government did not demonstrate that decision to prosecute was not based on compelled testimony); United States v. Poindexter, 951 F.2d 369, 375 (DC Cir.1991) (Remand for further hearing “would be pointless” where Government “neither met [its] burden of proof nor indicated that there might be any additional evidence ... to meet that burden.”), cert. denied, — U.S. --, 113 S.Ct. 656, 121 L.Ed.2d 583 (1992). Accordingly, we must reverse the decision below as to appellant’s conviction of Charge I and its specification.⁵

Proof of Perjury (Issue II)

The perjury charge (Charge II and its specification) presents a separate issue. A grant of testimonial “immunity does not protect a witness” from a subsequent charge of perjury. United States v. Villines, 13 MJ 46, 54 (CMA 1982) (opinion of Fletcher, J.). Furthermore, the Supreme Court has held that using an immunized witness’ truthful testimony to prove that later immunized testimony was false does not violate the federal immunity statute, 18 USC § 6002. United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980). RCM 704(b) is based on 18 USC § 6002. Drafters’ Analysis of RCM 704, Manual, supra at A21-34. Aecordingly, we conclude that it was permissible to use appellant’s compelled oral statement of August 2 and his compelled testimony at the Article 32 investigation in his subsequent prosecution for perjury.

The specific testimony alleged to be false was appellant’s testimony that “he had never used marijuana with Technical Sergeant Terry D. Stuart.” The Government’s evidence consisted of three witnesses. Captains Humphrey and Hamstra-Havermann testified to appellant’s inconsistent oral statement on the day preceding his allegedly perjured testimony. Mrs. Stuart testified that on one occasion she smelled marijuana smoke in her apartment; that both appellant and TSgt Stuart were present; and that when she asked for some marijuana, TSgt Stuart responded, “[T]hat’s all we had.” Appellant contends that this evidence was legally insufficient to prove perjury. We agree.

Perjury is different from other crimes which can be proved wholly by circumstantial evidence, in that “[t]he falsity of the allegedly perjured statement cannot be proved by circumstantial evidence alone, except with respect to matters which by their nature are not susceptible of direct proof.” Para. 57c(2)(c), Part IV, Manual, supra. The subject matter of appellant’s testimony did not concern matters such as intent or predisposition, “which by their nature are not susceptible, of direct proof.”

Furthermore, proof of perjury is subject to the “two-witness” rale, which provides that “[t]he falsity of the statement cannot be proved by the testimony of a single witness unless that testimony directly contradicts the statement and is corroborated by other evidence, either direct or circumstantial, tending to prove the falsity of the statement.” Id. (emphasis added). As Judge Ferguson explained in United States v. Guerra, 13 USCMA 463, 466-67, 32 CMR 463, 466-67, 1963 WL 4583 (1963):

Nor will circumstantial evidence alone suffice to prove that the allegedly perjurious testimony was false. There must be at least one witness who “must testify of his own knowledge that defendant’s sworn statement was false.”

[T]he testimony of the one witness, aside from being corroborated, must directly contradict the accused’s statement. It is not sufficient if the falsity must be inferred

from his testimony____

(Citations omitted.)

Appellant argues that the Government’s evidence fell short of the foregoing standard of proof. The Government argues that the “two-witness” rule was satisfied in this case by the testimony of Captains Humphrey and Hamstra-Havermann, and further corroborated by the testimony of Mrs. Stuart. The government argument, however, overlooks that portion of the rule which requires direct, not circumstantial, evidence of perjury in order to sustain a conviction.

There was no direct evidence of perjury in this case. No one testified directly that appellant used marijuana with TSgt Stuart. The testimony of Captains Humphrey and Hamstra-Havermann is circumstantial evidence that one of the two statements made by appellant is false, but neither officer could testify of her own knowledge which of appellant’s statements was false. Likewise, the testimony of Mrs. Stuart is circumstantial evidence that either appellant or TSgt Stuart, or both of them, were smoking marijuana when she entered the apartment; but she was unable to testify directly of her own knowledge that appellant smoked marijuana with her husband. We hold that the absence of direct evidence of the falsity of appellant’s testimony is fatal to appellant’s conviction of perjury.

Decision

The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The charges and specifications are dismissed.

Chief Judge SULLIVAN and Judges COX and WISS concur.

1 . Judge Crawford correctly observes in her dissent (39 MJ at 251) that appellant was not charged with using marijuana with TSgt Stuart in 1990, but with using marijuana with Mrs. Stuart in 1989.

2 . Judge Crawford correctly observes that defense counsel's initial oral presentation of the motion to dismiss prior to trial on the merits focused on evidentiary use. 39 MJ at 252. On the other hand, the written motion (Appellate Exhibit II) and defense counsel's argument on the motion, after both sides had rested specifically asserted that “prosecutorily [sic] use” includes "deciding to prosecute.” Furthermore, we think it significant that defense counsel crafted his motion as a motion to dismiss, directed toward terminating prosecution, rather than as a motion to suppress evidence.

3 . Judge Crawford correctly observes that the military judge’s ruling on the motion to dismiss addressed evidentiary use. 39 MJ at 254. The fact that the military judge did not address the basis upon which the motion should have been granted may explain but does not dimmish the error. The ground of non-evidentiary use was clearly raised, and the military judge denied the motion.

4 . In her dissent Judge Crawford notes our decision in Cunningham v. Gilevich, 36 MJ 94 (CMA 1992), but asserts that "we have not adopted requirements such as ... requiring the Govemment to establish the lack of any 'non-evidentiaty’ uses.” 39 MJ at 256. In Cunningham we said: "We will permit prosecution to proceed only if the Government shows, by a preponderance of the evidence, that the evidence against petitioners is untainted by their testimony before [administrative] boards and, further, that the decision to prosecute was untainted hy their testimony." 36 MJ at 102 (emphasis added).

5 . Our decision does not disturb the military judge's ruling with respect to evidentiary use of the immunized testimony. Our decision turns on the non-evidentiary use, which was expressly raised by defense counsel's motion but not expressly ruled on by the military judge.