It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators. The PTAO languished. Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.” The TC then provided the DC with a grant of immunity and order to testify. The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].” Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

The contents of the subsequent exchange are disputed by the parties[.]

Some documentation may have helped – email for example. It appears the defense counsel did not press the issues of ongoing PTA negotiations and clarify what was going on. (This may have happened and that has not been put into the opinion, but the tenor of the opinion belies that.)

Notably, the appellant does not contend on appeal that the second trial counsel ever told him or his counsel that the offer had been accepted.

And apparently the DC never asked? On appeal appellant was left to argue:

The appellant’s main argument is that the Government constructively accepted his 9-month offer when its agents took advantage of his cooperation in the co-conspirator’s case. We find that the appellant waived this issue when he entered an unconditional guilty plea according to the negotiated 12-month pretrial agreement.

If the defense thought that they had an implied agreement or acceptance of an agreement, then a motion to “compel” or enforce an implied agreement would have been proper at the time of trial.

The first time the defense raised the 9-month confinement cap was in their clemency letter of 1 February 2012, making a case in equity based on the cooperation of the appellant in the absence of an approved pretrial agreement.

A pretrial motion to enforce an implied PTA would have helped ferret out the facts, make a record, and have a military judge possibly agree with the defense. At least NMCCA would not have been able to find waiver, would have been forced to address the issue (had the MJ ruled against the defense), and Appellant might have gotten some pyrrhic appellate relief (trial was in December 2011 and the decision is dated yesterday).

Trial counsel could have helped here in being clear about what was happening with the PTA negotiations and the immunity issues. (Although perhaps that’s where some of the undocumented discussions are disputed.)

The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity. R.C.M. 704 covers the issues of immunity, tempered by case law. Basically only the GCMCA can grant immunity, but . . . . Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing. See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

The military judge found that a promise of immunity was made to the appellant by a person the appellant reasonably believed had the authority to make such a promise. Nonetheless, the military judge also ruled that the trial defense counsel’s representation was not so deficient as to overcome the presumption of her competency.

The Dubay judge had found that the appellant did not detrimentally rely on his sergeant major’s offer of immunity. See generally, United States v. Churnovic, 22 M.J. 401 (CMA 1986), for a discussion of the de facto immunity concept. In Churnovic the court had this point.

On several occasions, this Court has rejected claims that prosecution was barred by an assurance given the accused that he would not be prosecuted. For example, in United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960), a squadron commander’s promise of immunity was held not to bind a convening authority, who neither knew of it nor authorized it. Likewise, in United States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955), the promise of a subordinate did not preclude a commander from instituting prosecution. However, if an official authorized expressly or implicitly by the convening authority has promised a suspect that, in return for certain disclosures, he would not be prosecuted, we have not hesitated to enforce that promise. Thus, in Cooke v. Orser, 12 M.J. 335 (C.M.A.1982), a promise of immunity made by the staff judge advocate of the commander exercising general court-martial jurisdiction precluded prosecution of suspected espionage. Likewise, in United States v. Brown, 13 M.J. 253 (C.M.A.1982), this Court enforced an informal agreement that if the accused gave good information about drug activity, the convening authority would grant him some form of relief. There, the staff judge advocate had made the agreement; and he had been entrusted by the convening authority with that responsibility. Our conclusion was that the Government must abide by an agreement on which an accused has reasonably relied to his detriment.

In Cunningham v. Gilevich, 36 M.J. 94, 100-01 (C.M.A. 1992), the court recognized that it had applied some type of de facto immunity since Cooke, but found that the petitioners in that case had not established that the officer who offered the immunity had done so with apparent authority. In Samples v. Vest, 38 M.J. 482, 486-87 (C.M.A. 1994) the court again recognized the concept of de facto immunity, but held it was not applicable where the appellant had not shown that he had been misled.

United States v. McKeel, 63 M.J. 81, 87 (C.A.A.F. 2006), cert. denied, McKeel v. United States, 549 U.S. 1019 (2006). Interestingly McKeel was cited in Call v. Polk, 454 F. Supp. 2d 475 (W.D. NC 2006), a non-military habeas case.

The NMCCA found a “substantial basis to question the voluntariness of the appellant’s pleas.”

It appears the defense counsel did investigate the existence of an agreement

and confirmed the existence of an agreement from both the sergeant major and the battalion legal officer, but she could not ascertain the actual terms of the agreement. The sergeant major told Capt D the appellant was only provided immunity for the 1 February 2008 suspected marijuana use and possession of the false ID; the legal officer had no recollection of the terms of the agreement.6 Capt D also learned from the sergeant major that he shredded the agreement before he deployed to Iraq.

Subsequently the defense counsel

informed the appellant of what she had learned regarding the immunity agreement and advised him it would be difficult to prove its actual terms.

Providency went ahead and the usual colloquy ensued about any other agreements.

At the DuBay hearing, the appellant explained why he told the military judge there were no other agreements. He testified that on the day of trial, he asked his trial defense counsel if he should tell the judge about the immunity agreement and she advised him not to, because doing so would most likely result in his returning to the brig for “another four month[s]” or a “really long time” while the issue was further litigated and that he probably would lose. . . . When [the defense counsel] later testified, no one asked her if the appellant’s recollection of her advice was accurate, she only testified generically that she advised her client that proving the terms of the agreement would be difficult, and that ultimately he chose to accept the pretrial agreement rather than pursue any relief under the immunity agreement. She also testified that she prepared the appellant for his guilty pleas on the day of trial, but could not specifically remember what they discussed.

NMCCA takes issue with various inconsistencies with the defense counsel’s notes, knowledge of events before trial, what was testified to at the Dubay hearing, and facts adduced in the providency enquiry.

After trial the defense counsel submitted a clemency request which

specifically referenced the immunity agreement: “As stated in the enclosure, Pvt Sagona had an understanding that he would not be charged with future misconduct for drug abuse after he agreed to give information on Marines who were smoking marijuana on restriction.

Here is the nub of NMCCA’s conclusions and reasons for setting aside the findings and sentence.

The existence of the immunity agreement created a potential legal basis for the appellant to seek significant relief, had the issue been litigated at trial. The record is unclear, but it leaves an impression that the appellant’s attorney presented one of two options regarding the immunity agreement: 1) pretend the agreement never existed and get out of jail immediately pursuant to the pretrial agreement, or 2) endure a lengthy and undetermined period of confinement before he could litigate the issues presented by the immunity agreement. If, at the time of his pleas, the appellant had disclosed the existence of the agreement to the military judge, then the existence of the agreement would not necessarily have hindered the military judge from accepting the pleas as voluntary, so long as the military judge could ascertain that the appellant voluntarily waived any potential relief stemming from the immunity agreement in exchange for the protections offered in sentence limitation portion of the pretrial agreement. On the other hand, if the appellant’s decision not to pursue potential relief was influenced by some form of coercion or duress, i.e., protracted and unnecessary imprisonment, then we cannot say that his pleas were truly voluntary. Had this experienced trial judge [LtCol Robinson] received full disclosure on the record of all pertinent facts regarding the appellant’s decision, we have no doubt that he would have been the singularly most qualified person to determine the voluntariness of the appellant’s guilty pleas. Regrettably, the military judge was prevented from doing so due to the misleading information provided by the appellant and his trial defense counsel.

Interestingly the NMCCA concludes, in a footnote, that the trial counsel was unaware of all of this! How can this be? Was the issue never discussed during pretrial negotiations? Did the trial counsel not talk with the command “legal officer?” Was there a term in the PTA to waive all waivable motions? Did that come up at trial? Also, what happened in the SJA shop when they read the clemency petition and read it in conjunction with the verbatim record of trial?

A de facto promise of immunity does not automatically bar prosecution. There is a fact evaluation. In some situations a lesser remedy, such as exclusion of statements and evidence may be applied.

(Jab: had this appellant received a sub-jurisdictional punishment we are unlikely to have heard of this court-martial under the UCMJ.)

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044 (2009 CCA LEXIS 477). WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE ASSURANCES OF AIR FORCE OFFICIALS PROVIDED HIM WITH DE FACTO IMMUNITY FROM PROSECUTION. The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), on the issue of de facto immunity.

I had something similar come up recently in regard to “promises” made by the most senior enlisted person at a command. The ultimate factual issue became the nature of the persons “authority” to convey a commander’s promise and what was said to the accused.

Basic rule — only a general court-martial convening authority may grant immunity. However, the Court of Appeals for the Armed Forces has held that under certain circumstances, a promise by the SJA may result in de facto immunity. See Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982); United States v. Kimble, 33 M.J. 284 (C.M.A. 1991) (SPCMCA and his or her representative); United States v. Churnovic, 22 M.J. 401 (C.M.A. 1986); see also, United States v. Vileta, NMCM 200000315 2003 CCA LEXIS 81 (N-M.C. Ct. Crim. App. 31 March 2001).

Whenever a witness or potential defendant is induced to surrender his or her rights in return for any consideration or benefits promised by Government prosecutors, the prosecution must and can be compelled to uphold its end of the bargain or agreement. Santobello v. New York, 404 U.S. 257 (1971). Similarly, whenever the Government offers immunity to a witness or potential defendant, the Government has an extraordinarily high burden of providing that the promise was kept in every respect and that the testimony thus obtained is not used, directly or indirectly, in any manner that is contrary to the letter or the spirit of its agreement. See generally United States v. North, 285 U.S. App. D.C. 343, 910 F.2d 843 (D.C. Cir. 1990).

Vileta, slip op. at 29. While an unpublished opinion, the court in Vileta correctly summarized the law of de facto immunity.

“A de facto grant of immunity arises when there is an after-the-fact determination based on a promise by a person with apparent authority to make it that the individual will not be prosecuted. De facto immunity, commonly called ‘equitable immunity,’ triggers the remedial action of the exclusionary rule and permits enforcement of the agreement.” United States v. Jones, 52 M.J. 60, 65 (C.A.A.F. 1999) (internal citations omitted).

Long, slip op. at 5.

When the promise of immunity has been made by an officer having apparent but not actual authority, the remedy addresses the extent of detrimental reliance. Normally, detrimental reliance upon apparent authority can be remedied by measures short of a bar to prosecution, such as exclusion of evidence obtained directly or indirectly from the servicemember’s reliance or precluding nonevidentiary uses of immunized statements in the decision whether to prosecute.

United States v. McKeel, 63 M.J. 81, 83 (C.A.A.F. 2006).

Keep in mind that if the issue comes up in the context of an interrogation, that dismissal may not be the ultimate remedy. Certainly you should challenge any resulting statements as being coerced through an unlawful promise or inducement. If there is apparent authority to “grant” immunity and that “authority” has been sufficiently conveyed to the accused, then dismissal may be the option. But if there is no apparent or actual authority and promises are made, should not any “promise” be an unlawful inducement.

And here’s a particularly intriguing reference for situations where there has been extended delay in the prosecution – a not unusual situation of extensive time lags between offense, investigation, and preferral.

Courts have found situations where de facto immunity has occurred. . . . United States v. Spence, 29 M.J. 630 (A.F.C.M.R. 1989) (finding de facto immunity when Air Force officials expressly and implicitly promised the appellant for eight months that he would be placed in therapy and not prosecuted).

Long, slip op. at 5 (emphasis added).

The case against a Navy SEAL accused of not protecting an alleged Iraqi terrorist took a major turn Friday when a military judge ordered that five key defense witnesses be granted immunity to testify on his behalf. If not, he warned, the case will be halted.

Here is an interesting comment on CAAFLogs post on this case.

JWS says: March 13, 2010 at 12:40 pm (Quote) There is another aspect that makes all this even more weird. I have changed my mind on this case because I have learned something new. Apparently two factual allegations are: 1. The assault was not at the arrest scene. These two Seals purposely went to the brig just to beat up the thug. 2. They then falsely blamed the assault on the MAA at the brig. If true, this is ugly. Now I see why Gen. Cleveland recommended mast. He was hoping to keep things quiet. And it also explains why the dug their heels in when a CM was demanded.

Anyone have information as to the validity of this?

Five sailors could offer testimony contradicting the government’s main witness in the controversial prosecution of three Navy SEALs accused of mistreating a suspected Iraqi terrorist. But whether they’ll take the stand is in question after the government denied their requests for immunity on Friday.

As military justice practitioners well know, the issue of immunity for defense witnesses is difficult. The prosecution routinely grants their witnesses immunity, but rarely, unless ordered by a judge, do they grant immunity to defense witnesses. I’m not sure the SEAL cases are ones in which this obvious disparity should become an issue.

Military.com reports here (initially):

The Army has been investigating five soldiers at its largest training base since December over allegations that soldiers’ food may have been poisoned, but officials said Friday no one was ever in any danger.

But the reports now are:

A statement released by authorities at Fort Jackson also said no credible evidence has been found to support the allegations.

In United States v. Willis, No. ARMY 20071339, which is being argued on Thursday, the issue is: “WHETHER THE PROSECUTION AGAINST APPELLANT WAS BARRED BY A GRANT OF DE FACTO IMMUNITY WHEN THE GOVERNMENT AGREED TO DISMISS CHARGES IF APPELLANT PASSED A POLYGRAPH EXAMINATION AND APPELLANT PASSED A POLYGRAPH EXAMINATION.”

h/tip CAAFLog.