Opinion
FLETCHER, Judge:
Contrary to his pleas, appellant,1 Private Villines, was convicted of conspiring with Private Holodinski and Private Crone to steal the motorcycle of Corporal Hunnel, in violation of Article 81, Uniform Code of Military Justice, 10 U.S.C. § 881. He was also found guilty, contrary to his pleas, of stealing this same motorcycle, in violation of Article 121, UCMJ, 10 U.S.C. § 921. For these offenses inter alia,2 he was sentenced by members at his special court-martial to a bad-conduct discharge, confinement at hard labor for 3 months, and reduction to the grade El-1. This court-martial took place from April 17 to 27, 1978. The convening authority approved this sentence on September 7,1978, and the supervisory authority did, likewise on October 6, 1978; the Court of Military Review affirmed on June 30, 1980. 9 M.J. 807.
Appellant was earlier tried by special court-martial in March and April 1978, for these same offenses but a mistrial was declared on April 5, 1978. Between these two courts-martial of Private Villines, his trial defense counsel on April 6, 1978, requested that the Commanding General, 2nd Marine Aircraft Wing, Marine Air Corps Station, [48]*48Cherry Point, North Carolina, grant testimonial immunity3 to Private Holodinski if the Government decided to court-martial appellant again.4 In this written request counsel stated:
2. Prior to the trial of Private First Class Villines the defense interviewed Private First Class Holodinski and he made statements exculpatory of Private First Class Villines and indicated that he would testify in the same manner at trial. However, at trial Private First Class Holodinski, upon the advice of his counsel, refused to answer any questions and invoked his right against self-incrimination. Private First Class Holodinski had previously been convicted by a General Court-Martial of charges including the larceny of the Hunnell [sic] motorcycle.
3. Clearly Holodinski is a material witness in this case. The proposed grant of immunity will not preclude the government’s future proceedings against Holodinski, if any, since there is manifestly independent sources for evidence against him in light of his prior conviction and the full investigation of this incident to date. The interests of justice demand that all available evidence be presented to the finders of fact. The testimony of Holodinski can be made available to the court-martial without the government suffering any legitimate adverse consequences. Therefore the defense requests that the immunity sought in paragraph 1 above be granted.
Trial counsel on April 10,1978, forwarded this request to the general court-martial convening authority recommending disapproval. He stated:
2. The Trial Counsel agrees that in the interests of justice, all available evidence be presented to the finders of fact. However, in this case Private First Class HOLODINSKI’s testimony is not available to the defense because he has invoked his right against self-incrimination. The interests of justice do not dictate that Private First Class HOLODINSKI be given testimonial immunity in order to make him available. Placing Private First Class HOLODINSKI on the witness stand under a grant of testimonial immunity would be like placing a stick of dynamite under the interests of justice. Due to his prior convictions on offenses by two of the government witnesses at his own trial who will be testifying at the trial of Private First Class Jerry L. VILLINES, Private First Class HOLODINSKI’s obvious interest in fabricating the truth for either the Government or the Defense underlies one of the many policy reasons that Major TROMPETER’s request should not be granted.
The convening authority denied defense counsel’s request on April 18, 1978, without stating any reasons.
On April 20, 1978, defense counsel requested appropriate relief from the military judge at Private Villines’ second court-martial because his requests for immunity for Private Holodinski and Lance Corporal Paul were denied. Corporal Paul was called as a witness at an Article 39(a)5 session. He stated that he knew who stole the motorcycle of Hunnel and that appellant was not involved. He testified that he recently was convicted at a general court-martial for offenses not related to this motorcycle theft. Otherwise he refused to answer questions concerning this offense on the basis of his right against self-incrimination unless he was given immunity for his testimony. Private Holodinski also was called by the defense as a witness at an Article 39(a) session. He refused to answer any questions concerning the theft of Hunnel’s motorcycle. He did state that he had recently been convicted at a general court-martial for the theft of Hunnel’s motorcycle and this conviction was now on appeal.
Private Holodinski was excused by the military judge and at this point in the proceedings the following occurred:
DC: Your Honor, I would proffer that, if Private First Class HOLODINSKI were to testify pursuant to a grant of immunity or to testify otherwise in this [49]*49case, that he would testify that: one, he knows the individuals who stole the motorcycle belonging to Lance Corporal HUNNEL on the evening of 15-16 September 1977; that Private First Class VILLINES, to his knowledge, was not among those individuals; that he had a conversation with Lance Corporal Roland PAUL shortly thereafter, shortly after the 16th of September 1977, at which time Lance Corporal PAUL made a statement to PFC HOLODINSKI regarding the use of the PAUL vehicle and the tools in the commission of the theft of the HUNNEL motorcycle and who the individuals were to whom those tools were given and that car was loaned.
MJ: Anything further?
DC: No, Your Honor.
MJ: Government counsel?
TC: Your Honor, one of the problems with this issue, the proffer of the defense counsel does not agree with the entire detail that the government counsel would proffer as to what PFC HOLODINSKI told the government counsel; substantially, it was the same; however, there were two differences. The government feels this is certainly subject to interpretation as to the different posture of the trial counsel and the defense counsel. Would Your Hon- or like for me to make the proffer of the two differences?
MJ: Yes, I would receive a more well-rounded idea of the various offers of this case.
TC: My proffer would be that, based on my conversation at the Correctional Facility with PFC Clinton HOLODINSKI, that PFC VILLINES is involved in the theft of the motorcycle, and it is open to a legal interpretation, the fact finders’ interpretation, as to whether he is the principal to the larceny or merely an accessory after the fact. The other important detail that was different was when this conversation with Lance Corporal PAUL took place. PFC HOLODINSKI’s conversation with the trial counsel was that in this conversation in which he learned what PAUL had to say on that night was over a month later. Now, the government would just underscore again that it is a proffer; one witness talking to two opposing counsel who have their own interests in this case. We feel again that this is one of the problems in an issue like this.
After both counsel argued their positions to the military judge, he ruled as follows:
Gentlemen, my decision in this case goes back to the Fifth and Sixth Amendments of the Constitution of the United States and my obligation to assure that the accused in this case receives a fair trial and a due process of law pursuant to the Fifth Amendment of the Constitution of the United States. It is my decision in this case that, of course, limited strictly to the facts of this case before me, that I will rule in limine; that, if at the appropriate time time [sic] in this trial the-witness [sic], Lance Corporal PAUL, is called to testify and invokes his privilege as he has done in this court, I will abate the proceedings until he can be compelled to testify pursuant to a grant of use or testimonial immunity. I declined to so rule in the case of Private First Class HOLODINSKI who stands convicted of this or substantially an identical offense and is presently appealing that conviction.
Private Crone testified for the Government in this case under a grant of immunity. He stated that he and Private Holodinski had planned during the afternoon of September 15, 1977, to steal a motorcycle. Around 10:00 p.m. that night, they had located Hunnel’s motorcycle and designated it the object of the theft. Later, around midnight, they were joined by appellant and developed a plan to cut the chain securing the motorcycle, transport it to Corporal Paul’s room and dissassemble it, and transport it off base in Corporal Paul’s car. These plans were carried out by the three men between the hours of 1:00 a.m. and 3:00 a.m. on September 16,1977. He finally [50]*50stated that Corporal Paul provided Holodinski with tools when the bike was brought to Paul’s room.
Private Gary also testified for the Government in this case under a grant of immunity. He stated that he was the roommate of Corporal Paul and had slept in the room during the night of September 15, 1977. Although he personally observed nothing that evening, he further testified that appellant had joked with him the next day about sleeping through the dismantling of the dirt bike the night before.
Private Turk testified for the defense. He stated that he was the roommate of Corporal Paul and Private Gary and had slept in the room during the night of September 15, 1977. He also testified that he went to bed around 11:00 p.m. on September 15, 1977, and was awakened sometime during the night by Corporal Paul. He further added that at 6:00 a.m. September 16, 1977, he awoke and Corporal Gary was also then in the room. He testified that he observed nothing strange that night.
The general court-martial convening authority granted immunity to Corporal Paul who testified on appellant’s behalf. He stated that on the night in question he loaned his tool box to Private Gary at about 11:30 p.m. He also stated that he loaned Private Gary his car between 1:00 a.m. and 3:00 a.m. the next day. He finally stated that he did not see Private Villines, Holodinski or Crone in his room that night or any motorcycle.
Private Holodinski was not granted immunity by the convening authority nor did he testify on the merits in appellant’s case.
In its review of appellant’s conviction, the Navy Court of Military Review said (9 M.J. at 810-11) the following about the military judge’s ruling concerning the requested testimony of Private Holodinski:
In his third assignment appellant contends that the judge erred when he refused to require a grant of immunity for a defense requested witness. In United States v. Martin, No. 78 1151, 9 M.J. 731 (NCMR 1979), on reconsideration, 9 M.J. 746 (NCMR 1980), this Court was confronted with a similar issue, whether the convening authority abused his discretion by refusing to grant testimonial immunity to a witness called by the defense. In that case, when the witness refused to answer certain questions, the judge directed the trial counsel to present the matter to the convening authority to ascertain if he would grant testimonial immunity. The convening authority declined to grant immunity, thus prompting the abuse of discretion assignment of error. This Court found no abuse of discretion on the basis that there had been no showing that the convening authority’s action was “unreasonable, arbitrary, exceeded the bounds of reason or showed an unconscionable attitude.”2
In the instant case, appellant requested that the convening authority grant testimonial immunity to two witnesses to enable their being called as material defense witnesses. Both of these prospective witnesses had been convicted by general courts-martial of charges arising from the same acts for which appellant was being tried. The convening authority denied the request for immunity and at trial the defense requested that the military judge order testimonial immunity for the two witnesses after an offer of proof as to their expected testimony was submitted. The judge treated the defense request as a motion for appropriate relief under military practice and procedure and ruled with respect to the first witness that if he was called and invoked his privilege against self-incrimination the judge would abate the proceedings until the witness could be compelled to testify pursuant to a grant of use or testimonial immunity. The judge declined to so rule with regard to the other witness who was appealing his conviction of a substantially identical offense. The effect of these rulings was that the first witness was thereafter granted immunity by the convening authority but the other was not. Appellant argues that the judge erred in not requiring a grant of immunity for the second witness.
[51]*51No Court of Military Appeals opinions on this issue have been cited by counsel nor have any been found by this Court. There are opinions on this subject from various United States Circuit Courts of Appeal, however, with the majority holding that the Government is not required to grant immunity to a defense witness. United States v. Lenz, 616 F.2d 960 (6th Cir. 1980); United States v. Herman, 589 F.2d 1191 (3rd Cir. 1978); United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977). Cf. United States v. Beasley, 550 F.2d 261 (5th Cir. 1977), cert. denied, 434 U.S. 938 [98 S.Ct. 427, 54 L.Ed.2d 297] (1977); United States v. Smith, 542 F.2d 711 (7th Cir. 1976); United States v. Bautista, 509 F.2d 675 (9th Cir. 1975), cert. denied, 421 U.S. 976 [95 S.Ct. 1976, 44 L.Ed.2d 467] (1975); United States v. Jenkins, 470 F.2d 1061 (8th Cir. 1972), cert. denied 411 U.S. 920 [93 S.Ct. 1544, 36 L.Ed.2d 313] (1973); Earl v. United States, 361 F.2d 531 (Ct.App.D.C.1966), cert. denied, 388 U.S. 921 [87 S.Ct. 2121, 18 L.Ed.2d 1370] (1967). In United States v. Lenz, supra, the Sixth Circuit Court of Appeals held that defendants have no compulsory process right to have their witnesses immunized and also that the compulsory process clause of the Sixth Amendment to the Constitution provides no basis for a court to grant immunity. A recent case from the Third Circuit, however has recognized at least two theories on which immunity granted by a court might be available to a defense witness. One of the theories is the same as argued in the instant case, that the witness’s testimony is essential to an effective defense. The Court, however, set out narrow limits for its doctrine, requiring that, among other things, the testimony must be “clearly exculpatory” and “essential” and that there must be no “strong governmental interests” against immunity. Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980). Here, it appears that there were strong governmental interests in not granting immunity while review of the witness’s court-martial was pending. Accordingly, under any view, whether it be that the judge had no authority in this area or that he did have authority but governmental interests weighed against the grant, or by applying the abuse of discretion standards of United States v. Martin, supra, there was no error committed by the judge in denying appellant’s motion for relief.
On July 18, 1980, the Acting Judge Advocate General of the Navy certified (9 M.J. 210) the following question for review by this Court:
Was the United States Navy Court of Military Review correct, as a matter of law, when it held that, under any of three tests, the military judge correctly declined to either direct the testimonial immunization of PFC Holodinski, a prospective defense witness, or to abate the proceedings until a grant of testimonial immunity had been issued to PFC Holodinski; these three tests being:
a. The military judge had no authority in this area;
b. Assuming the military judge did have authority in this area, that authority permits him to take corrective action only when the convening authority is shown to have abused his discretion in declining to grant immunity to a prospective defense witness; and in this ease the defense did not carry its burden of demonstrating that the convening authority’s action was unreasonable, arbitrary, exceeded the bounds of reason, or showed an unconscionable attitude; or
c. Assuming the military judge did have authority in this area, even though the convening authority is not shown to have abused his discretion; that authority can be exercised only when the prospective witness’s testimony is shown to be clearly exculpatory and essential to an effective defense, and there are no strong governmental interests against the grant of immunity; and in this case the fact that PFC [52]*52Holodinski’s conviction by court-martial was not then final constituted a sufficient governmental interest to support the judge’s denial of the requested grant of use vis-a-vis transactional immunity.
Appellate defense counsel for Private Villines filed a brief with this Court labeling her client as the appellant and urging us to set aside the findings of guilty and the sentence approved by the lower court. Appellate government counsel filed a brief in support of the decision of the lower court.
A preliminary question to be addressed in this case is whether the military judge erred by refusing to compel Private Holodinski to answer defense counsel’s questions concerning the theft of Hunnel’s motorcycle. See Articles 46 and 47, UCMJ, 10 U.S.C. §§ 846 and 847, respectively. The military judge’s ruling was based upon Private Holodinski’s assertion of his privilege against self-incrimination guaranteed by the fifth amendment. See Article 31, UCMJ, 10 U.S.C. § 831. The military judge was aware that in one of the charges against appellant, Private Holodinski was named as a co-conspirator in the theft of Hunnel’s motorcycle. Moreover, during a hearing on this question, Private Holodinski informed the military judge that he had earlier been convicted at a general court-martial for offenses rising out of this incident and this conviction was presently on appeal.
The privilege against self-incrimination may be invoked when a “witness has reasonable cause to apprehend danger” that he will implicate himself in a criminal offense by answering a question. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). Here, the military judge was correct in finding that Private Holodinski as an alleged co-conspirator had reasonable cause to believe his answers to defense counsel’s questions would implicate him in this offense. Of course, the privilege against self-incrimination may not be invoked when a witness has already been convicted of the offenses for which his testimony might provide a basis for criminal prosecution. See Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896). Yet, in this case, Private Holodinski’s conviction was not yet final (Article 76, UCMJ, 10 U.S.C. § 876) and was on appeal.6 (Articles 66 and 67, UCMJ, 10 U.S.C. §§ 866 and 867, respectively). If his conviction was subsequently overturned and the Government again attempted to court-martial him for these offenses, his testimony at appellant’s court-martial could be used against him. See para. 140a(6), Manual for Courts-Martial, United States, 1969 (Revised edition). Cf. United States v. Milburn, 8 M.J. 110 (C.M.A.1979). In such a situation, many state and federal courts hold that a witness has a valid fifth amendment claim. See 4 Orfield, Criminal Procedure Under the Federal Rules, § 26:617 (1967), and Annot., 9 A.L.R.3rd 990, 1001-03 (1966). I conclude that the military judge did not err in refusing to compel Private Holodinski to answer these questions. Cf. United States v. Nix, 11 U.S.C.M.A. 691, 29 C.M.R. 507 (1960).
A second preliminary question of importance in this case concerns the nature of a grant of immunity in the military justice system.
A starting point for addressing this question must be the decision of this Court in United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). There a majority of the Court held that Congress had impliedly authorized, under various provisions in the Uniform Code of Military Justice, a court-martial convening authority to grant transactional immunity7 to a witness at a [53]*53court-martial. Id. at 90-92, 35 C.M.R. at 62-64. Moreover, the Court held that a witness granted such immunity could be constitutionally compelled to testify at a court-martial without infringing on his right against self-incrimination. Cf. Green, Grants of Immunity and Military Law, 53 Mil.L.Rev. 1, 25-27 (1971).
This Court also held that the President was authorized by Article 36, UCMJ, 10 U.S.C. § 836, to establish the appropriate means by which a convening authority might exercise this immunity power. United States v. Kirsch, supra at 92-95, 35 C.M.R. at 64-67. At that time, the Manual for Courts-Martial, United States, 1951, simply provided that only a general court-martial convening authority could grant immunity. See para. 148e, Manual, 1951, supra. At the time of appellant’s court-martial, the Manual also provided that only a general court-martial convening authority could grant or promise immunity. See para. Q8h, Manual, 1969, supra. As a matter of federal statutory law at the present time, a federal prosecutor when confronted with a witness who refuses to testify in court on the basis of his right against self-incrimination may, after securing approval from the Attorney General or designated Assistant Attorney-General, request an order from the court directing the witness to testify. See 18 U.S.C. § 6003. I also note that “no testimony or other information . . . derived from . . . [this compelled] testimony . . . [might] be used against the witness [as an accused] in any criminal case, “with certain limited exceptions. 18 U.S.C. § 6002. In light of these analogous federal civilian statutes and Article 36, the President was acting lawfully in specifically authorizing only a general court-martial convening authority to grant immunity to a witness at courts-martial. See generally United States v. Hardin, 7 M.J. 399 (C.M.A.979).
This preliminary inquiry is not finished. One next must consider the reasons for or conditions under which a general court-martial convening authority should exercise this power to grant immunity in order to compel a witness to testify at a court-martial. The decision in United States v. Kirsch, supra, provides some help. It acknowledged that the power of a general court-martial convening authority to grant immunity was based on the wide spectrum of powers provided him by Congress to establish a legal bar to prosecution of a person subject to the code and his command. Id. at 92, 35 C.M.R. at 64. These broad powers were conferred by Congress on a convening authority in recognition of the particular needs of the military which might dictate that a soldier be exonerated from punishment in order to assist in his command’s mission. See id. at 93, 35 C.M.R. at 65. The Manual for Courts-Martial does not elaborate further on this broad discretion.
A similar congressional concern is reflected in 18 U.S.C. § 6003, which requires that a federal prosecutor and his superiors in the Department of Justice consider “the public interest” in initiating and approving immunity grants for recalcitrant witnesses. See Comments, Defense Witness Immunity and the Right to a Fair Trial, 129 U.Pa.L.Rev. 377, 391-400 (1980). The public interest spoken of in the context of an immunity statute is the effective enforcement of criminal laws. See Note, The Due Process Right to The Immunization of Defense Witnesses, 22 B.C.L.Rev. 299 n. 3 (1981). Accordingly, it is with this idea in mind, as well as the particular needs of his command, that a general court-martial convening authority should approach his decision to grant immunity to a witness at a court-martial. See Article 36(a).
The final aspect of this preliminary inquiry is whether a general court-martial convening authority may grant immunity to [54]*54a witness who will testify for the defense. It is, of course, highly unlikely that a trial counsel on his own initiative will request a convening authority to immunize a witness who would not support his case. See Earl v. United States, 361 F.2d 531, 533 (D.C.Cir.1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967). However, there is no prohibition in federal civilian or military law against a prosecutor taking such action or forwarding a defense request with his recommendation to the general court-martial authority. See Note, supra at 299 n. 6; Green, supra at 20-21. In either event, the request must be forwarded to the general court-martial convening authority. See United States v. Kirsch, supra. He must decide whether it is in the interests of effective law enforcement and his command to grant the immunity request.8
Turning to the case before us, I note at the outset that the general court-martial convening authority did not state his reason for denying immunity to Private Holodinski. Trial counsel’s letter recommending denial of the request for immunity asserted that Private Holodinski had an obvious interest in fabricating the truth. It is a principle of federal law, however, that a grant of use immunity does not protect a witness against a subsequent prosecution for perjury. See 18 U.S.C. § 6002. Accordingly, this is not a valid reason for which this convening authority should deny this request. Cf. United States v. Turkish, 623 F.2d 769, 775 (2nd Cir. 1980).
Trial counsel also stated there were many unnamed policy reasons that militated against granting appellant’s request. The military judge in addressing this question at trial stated more particularly that denial of the request was justified by the fact that Private Holodinski was convicted of a similar offense as that charged against appellant and he was presently appealing that conviction. In other words, the grant of immunity to Private Holodinski would in the event of retrial somehow inhibit or foreclose his successful prosecution. Admittedly in the event of Private Holodinski’s retrial, the Government would have a heavy burden to show that the evidence it utilized was not a result of his immunized testimony. Kastigar v. United States, 406 U.S. 441, 460-61, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212 (1972). I consider this some basis, albeit weak, on which a convening authority could decline to grant the witness immunity as requested by the defense. See United States v. Turkish, supra at 775. Cf. Comments, supra at 394-96. Its importance is heightened in the present case because if Private Holodinski’s conviction is overturned on the ground of perjured testimony, new and untainted evidence would have to be developed to secure his conviction at a retrial.
I may now approach the particular questions of importance raised in this case. First, whether the military judge erred in refusing to order the convening authority to immunize Private Holodinski. See Government of Virgin Islands v. Smith, 615 F.2d 964, 968-69 (3rd Cir. 1980); United States v. Herman, 589 F.2d 1191, 1203-04 (3rd Cir. 1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979); United States v. Morrison, 535 F.2d 223 (3rd Cir. 1976). Second, whether the military judge erred in allowing this trial to continue without providing in some manner for the presentation by the defense of the testimony of this witness. See Government of Virgin Islands v. Smith, supra at 969-74; see also United States v. Redding, 11 M.J. 100, 117 (C.M.A.1981) (Fletcher, J., dissenting).
Viewing the first question from the perspective of the Acting Judge Advocate General of the Navy and the Navy Court of Military Review, I first must decide whether the military judge has any authority to review decisions made by a convening authority concerning immunity. A grant of [55]*55immunity, as indicated earlier, is a power or tool provided by Congress to the prosecutor to assist him in his law-enforcement function. See Note, supra at 299. There are many well-established reasons in the federal system of criminal law administration for providing broad discretion to prosecutorial authorities to exercise this power in the public interest. See United States v. Turkish, supra at 779-80 (Lumbard, J., concurring in part, dissenting in part). Although this discretion is broad, it is still subject to constitutional and statutory limits. United States v. Turkish, supra at 769, 774. In a related matter, the Supreme Court recently stated its position on the exercise of prosecutorial discretion:
There is no doubt that the breadth of discretion that our country’s legal system rests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. . .
Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978) (footnote omitted). I believe that the military judge was empowered by Congress to resolve similar questions in the military justice system. Article 39(a).
A secondary question raised in this context concerns the particular standard under which the military judge should review a decision of a convening authority denying immunity to a witness for the defense. I note that it is well established that prosecutorial authorities may not exercise their discretion “based upon an unjustifiable standard [or improper consideration] such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); see Bordenkircher v. Hayes, supra at 364; see also United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Moreover, prosecutorial authorities may not exercise their power or refuse to exercise it with the deliberate intention of distorting the judicial fact-finding process. United States v. Herman, supra at 1204; see also Government of Virgin Islands v. Smith, supra at 968; cf. United States v. Turkish, supra at 774 n.3. If sufficient evidence of such prosecutorial misconduct is presented by the defense, the Government must come forward and justify the convening authority’s action in terms of a legitimate command interest. Id.
There is no averment of such prosecutorial abuse in the case before us or any indication in the record that the convening authority acted in this manner. Moreover, as indicated earlier, I conclude that the possibility of Private Holodinski’s retrial on the same offenses to which he would testify at appellant’s trial was some reason for the convening authority to decline to exercise immunity in the command’s interest. See United States v. Turkish, supra at 775. Accordingly, the military judge did not err as a matter of law in refusing to order the immunization of Private Holodinski nor need I now postulate as to the appropriate remedy for such misconduct in other cases.
The final question to be decided in this case is whether appellant was nevertheless denied a fair trial because the military judge allowed this court-martial to continue without the testimony of Private Holodinski. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Government of Virgin Islands v. Smith, supra. As a starting point, I note that simply because prosecutorial authorities are often given unique powers, not available to a criminal defendant, to protect the public interest through effective law enforcement, the latter is not constitutionally denied a fair trial. Roviaro v. United States, supra 353 U.S. at 59, 77 S.Ct. at 627; United States v. Turkish, supra at 774-75. Rather, in making such a claim, appellant has an affirmative and heavy burden to establish that the prosecutorial authorities in the exercise of these powers denied him clearly exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Government of Virgin Islands v. Smith, supra at 970-73. He has not met that burden in the present case.
[56]*56Private Holodinski’s testimony was obviously relevant to the offenses charged against appellant. Moreover, it was potentially material in that, besides appellant, who did not testify, he was the only person who could directly challenge the testimony of the government witness Crone as to the existence of the conspiracy and the theft and disposal of Hunnel’s motorcycle. Yet, unlike the witness Corporal Paul, he did not represent in court to the military judge that he knew who stole the motorcycle and that appellant was not involved. Moreover, his representations prior to trial on different occasions to defense counsel and trial counsel raised serious questions as to the exculpatory nature of the evidence he might offer on Private Villines’ behalf. See United States v. Lowell, 649 F.2d 950, 965 (3rd Cir. 1981). Finally, no particulars as to the content of his expected exculpatory testimony were offered to the convening authority or the trial judge by either counsel. See United States v. Herbst, 641 F.2d 1161, 1168 (5th Cir. 1981). In such a situation, I conclude that it was within the trial judge’s discretion to find the proffered testimony ambiguous and not clearly exculpatory. Under these circumstances, appellant was not denied a fair trial.9 See Government of Virgin Islands v. Smith, supra at 972.
To the extent indicated above, I answer the questions certified by the Acting Judge Advocate General.
The decision of the United States Navy Court of Military Review is affirmed.