38 M.J. 482

(Cite as: 38 M.J. 482)

<KeyCite Citations>

David SAMPLES, Lieutenant, U.S. Navy,

Petitioner.

v.

Captain WIT. VEST, J.S. Navy, NavyMarine Trial Judiclary, Tidewater

Judicial

Circuit, and the United States. Respondents.

Misc. No. 94-8022.

U.S. Court of Military Appeals.

Argued Noys 9,1993

Jan 11, 1984/

Accused sought extraordinary relief in the nature of writs of prohibition and mandamus. The United States Court of Military Appeals, Wiss, J., held that evidence

Petition denied and stay dissolved.

Crawford, J., filed an opinion concurring in result.

Gierke, J., filed an opinion concurring in result.

[1] CONSTITUTIONAL LAW — 278.6(2)

92k278.6(2)

Where accused honestly and reasonably believes that official has promised him transactional immunity and that official has lawful authority to do so, promise is functional equivalent of grant of immunity, and due process requires that it be enforced. U.S.C.A. Const. Amend. 5; R.C.M. 704(a).

[1] MILITARY JUSTICE - 1140 258Ak1140

Where accused honestly and reasonably believes that official has promised him transactional immunity and that official has lawful authority to do so, promise is functional equivalent of grant of immunity, and duo process requires that it be enforced. U.S.C.A.

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Const. Amend. 5; R.C.M. 704(a),

(2) MILITARY JUSTICE - 1140 258Ak1140

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Finding that assistant judge advocate and Shyny Paid not mislead accused into believing he was receiving grant of transactional immunity and that accused understood that grant of immunity was limited to use of his statements, so that there was no enforceable promise of transactional immunity, was supported by the evidence.

482 For Petitioner: Lieutenant David P. Shaldon, JAGC, USNR (argued); Lieutenant Alan D. Titus, JAGC, USNR (on brief).

For Respondents: Lieutenant Commander David B. Auclair, JAGC, USN (argued); Colonel T.G. Hess, USMC and Commander S.A. Stallings, JAGC, USN (on brief).

Opinion of the Court

WISS, Judge:

This is a petition for extraordinary relief in the nature of writs of prohibition and mandamus. Petitioner is a Navy lieutenant who faces a general court-martial on a charge of indecent assault at the Tailhook Symposium ("Tailhook") of Navy and Marine Corps aviators in Las Vegas, Nevada, on September 7, 1991. Petitioner claims that ha has been granted immunity from any prosecution arising out of the events at that conference and, accordingly, seeks dismissal of the charge now pending against him. He made a motion to that end at his courtmartial, but the military judge denied it after extensive litigation. Upon his petition to this Court, we stayed further trial proceedings and ordered the Government to show cause why the requested relief should not be granted. --MJ... (Oct. 27, 1993). After the Government responded to our order, we heard oral argument in the cause.

We have carefully considered petitioner's argument that has been ably presented in his briefs and during the argument in this matter, as well as the Government's defense of its

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38 M.J. 482

(Cite as: 88 M.J. 482, "482)

prosecution of petitioner.

Additionally, we have scrutinized the record of the trial proceedings at which petitioner's motion was litigated. Now, we hold that, on the basis of the military judge's findings of fact, which are supported in the evidence of record, petitioner has not carried his burden of persuasion that he was given an enforceable promise of transactional immunity. See United States v. Churnovic, 22 MJ 401, 407 (CMA 1986) *483 (Everett, C.J.); see also Cunningham v. Gilevich, 36 MJ 94, 101 (CMA 1992).

I

The charge against petitioner that has been referred to general court-martial is based on an incident at Tailhook in which an intoxicated young woman was lifted into the air by apparently three officers and stripped of her clothing below the waist. This incident was but one small part of the extensivo misconduct by dozens of officers that is alleged to have occurred at the now infamous Tailhook.

When the light of day first focused on the unofficial activities at that conference, a variety of investigative efforts followed, including those by special agents of the Office of the Inspector General, Defense Criminal Investigative Services (DCIS), Ultimately, in connection with bringing these investigations to some point of closure, the Chief of Naval Operations (CNO) designated Vice Admiral Joseph P. Rotohy Commander, Naval Surface Force, U.S. Atlantic Fleet, the Consolidated Disponitions Authority for all Tailhook cases involving Navy officers. In that capacity, Admiral Reason was given full disciplinary and convening authority under the Uniform Code of Military Justice over all officers under Tailhook investigation, regardless of those officers' duty assignments elsewhere.

One of the difficulties that investigators claimed they met from the outset was the wall of silence behind which all Tailhook attendees huddled. As Special Agent Matthew Walingki of DCIS explained: "We had been out for 9 months doing interviews where hundreds of naval aviators had said to us, 'I was standing

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next to my friend.' 'What's your friend's name?' 'I can't remember.'"

In an effort to crack the wall and to learn what really happened at Tailhook, suggested to Admiral Restor** which one by one, investigative subjects who seemed to be lesser involved were sent to mast (nee Art. 15, Uniform Code of Military Justice, 10 USC 815) in front of Admiral Reason, where known charges were disposed of, then immediately to the office of Captain Williams, the Force Judge Advocate for Admiral Reason, who advised the subjects of their post-mast rights; then immediately to Commander Robert Monahan, the Assistant Force Judge Advocate, who dated and delivered to the

to Testify signed by Admiral Reason and who purported to explain those two documents to the subjects, then typically immediately to an office where DCIS agents interviewed the immunised officers. Petitioner was one of approximately 20 officers subjected to this assemblydime, and what was said to him and by whom along the way in what forms the basis of this petition.

At each point along this route, petitioner stood alone, without either his military or civilian defense counsel at his side. Why defense counsel permitted such a situation is unexplained in the record; also unsatisfactorily explained is why no official who received petitioner at any point in this process was particularly concerned about petitioner's legal representation.

First stop was Admiral Reason's office. / Petitioner's role, if any, in the indecent assault that is the subject of the instant courtmartial also was one of the charges against him at mast. On the basis of petitioner's denial of involvement therein, however, Admiral Reason diamissed the mast as to that charge. Thereafter, petitioner's route along the assembly line proceeded.

Next stop was Captain Williams' office. There, according to petitioner's unrebutted trial testimony, Captain Williams referred to the dismissed indecent assault and remarked,

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38 M.J. 482

(Cite as: 88 M.J. 482, °483)

"'Well, I think you got off because, in my personal opinion, I think you assaulted that woman and many other women.'" Thereafter, Captain Williams completed the post-mast paperwork and rights' advisement.

In

Next stop was Commander Monahan front of petitioner, Commander Monahan dated a "Grant of Immunity" and an "Order to Testify," each of which had already 484 been signed by Admiral Reason, and handed them to petitioner. TherGrant oftImmunity" stated, in parts

2. In consideration of your testimony as a witness for the Government in the matters described in enclosure (1), you are hereby granted immunity from the use of your testimony (or other information given by you or any other information directly or indirectly derived from such testimony от other information) describing the events related in enclosure (1) against you in any criminal case, except a prosecution for parjury, giving a false statement under the provisions of this grant of immunity, or otherwise failing to comply with an order to testify in this matter.

3. It is understood that this grant of immunity from the use of your testimony.. against you in any criminal case is effective only upon the condition that you testify under oath as a witness for the Government. (Emphasis added.) On the basis of this Grant of Immunity, the Order to Testify directed petitioner

to appear before agents of the Department of Defense Inspector General's Office and answer their questions fully and truthfully and to cooperate in any courts-martial, disciplinary hearings, or administrative hearings which might arise as a result of the above-captioned investigation. In accordance with section 6002, Title 18, United States Code, no testimony or other information given by Lieutenant David Samples or any information directly or indirectly derived from such testimony or other information can be used against him in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with this order. (Emphasis added.)

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Notwithstanding the apparent unambiguity of these documents, Commander Monahan then purported to "explain" to petitioner what they meant. The military judge found that, "although CDR Monahan's testimony was somewhat unclear as to the exact words that he used in explaining the nature of the grant of immunity and order to testify,... nothing in CDR Monahan's explanation to the accused amounted to the express granting of transactional immunity." Essential Findings at 12. Earlier, though, the military judge had found that Commander Monahan had "explained to the accused that if he would give a complete account of the events of the evening of 07 September 1991, that he would not be prosecuted." Essential Findings at 8. A reading of the entirety of the 57 record pages of Commander Monahan's testimony cannot help but leave uncertainty as to whether his "explanation" of the seemingly clear grant of testimonial immunity affectively blurred the legal distinction between it and the broader concept of transactional immunity. See RCM 704(a), Manual for Courts-Martial, United States, 1984.

After the explanation, Commander Monahan directed petitioner to read both documenta. The military judge found that, in fact, "[t]he accused did read both documenta and he acknowledged his understanding of the content of each document." Essential Findings at 8. Of decisional importance to our action on this petition, the military judge found as fact that Commander Monahan's "partial misstatement of the law" as to the nature of the immunity "was understood by the accused in the context of the written grant of testimonial immunity and did not supersede the limits of that immunity... In short, the accused understood that the grant of immunity extended only to any testimony or statements made by him." Essential Findinga at 12.

Next stop the following day, was Special Agent Walinski whom petitioner was handdelivered by Commander Monahan. The military judge found that "Agent Walinski initially explained to the accused that 'if he told the truth about the events... of Saturday,

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of

MJ: Well, worry about in what respect? WITNESS: Well, the possibility prosecution or any sort of disciplinary action, you know....

MJ: Well, that was the question I naked.
WITNESS: I'm sorry.

Q. Okay. So, I mean, you told him that you don't have to worry about prosecution or disciplinary action as long as you're telling the truth?

A. That's right. (Emphasis added.) Even though this testimony might be construed much more broadly, the military judge found: "CDR Ritter explained to the accused that he would be giving a statement under a testimonial grant of immunity, and that the accused could not be prosecuted for any statement that he made to him. This advice was acknowledged by the accused." Essential Findings at 10.

For his part, petitioner's testimony as to what was said and what he understood it to mean-especially by Commander Monahan--was somewhat inconsistent. At some points, he quite forthrightly explained his understanding to be that nothing he said could ever be used against him unless he lied. For instance:

And he [Commander Monahan) gave me the-I was reading the grant of immunity and he explained to me that the grant of immunity basically was that, as long as I didn't perjure myself, whatever I said wouldn't be used to prosecute me. And that was it.

The way that occurred was he [Lieutenant Commander Ritter! asked me, he says, "Now, Are you aware of what the grant of immunity means?" and I briefed him as to what Commander Monahan had said to me, the same words again. I 488 said, "What it means in the way I was briefed by Commander Monahan" I said "was, as long

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38 M.J. 482

(Cite as: 88 M.J. 482, 488)

as I don't perjure myself, that anything I say will not be used to prosecute me....

WITNESS: That, as long as I didn't--I was supposed to be truthful and forthright to the DOD investigators and that, as long as I didn't perjure myself, then nothing would be used against me for prosecution.

Q. When you say nothing could be used against you, you mean nothing that you said, correct?

A. Anything that I said.

Q. What if....

A. He used those words. I don't recall him ever using those words but....

Q. That's fine. But your impression clearly was then that Commander Monahan explained the documents to you to mean that anything you said to investigators or anyone else under your grant couldn't be used against you unless, as you said, the conditions of perjury or false statement might be met.

A. Unless I didn't tell the truth, that's correct, sir.

At other points, however, he claimed an understanding of a broader immunity.. that, "as long as" he "told the truth," he was free of any and all prosecution for Tailhook events. The ambiguity was pointedly addressed in the following exchange between trial counsel and petitioner:

Q. Commander Monahan never told you that you couldn't be prosecuted for anything that might have happened at Tailhook if evidence came from some other source, did he? A. No, he did not.

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Resolving this inconsistency in the context of the other evidence, the military judge found as fact that "the accused by his own account was not misled by CDR Monahan concerning the nature of the grant of immunity." Essential Findings at 12. As to his subsequent interview with Agent Walinski petitioner testified that Walinski did not discuss with him the grant of immunity, thus obviously negating any arguable reliance by petitioner on any misleading statements that Agent Walinski might have made.

п

704(a/2)), immunity. (FN11

That power may not be delegated and, when exercised, must be in writing. RCM 704(c) and (d). Here, Mane & Reagon as 257

general concemartial convenings Authority Ammeter the GNQs deurpation af Consolidated Disposition Authority properly inted petitioner tastymon to

of the written docume that Commander Monahan handed to petitioner following mast.

FNI. Compare RCM 704(aX1) with RCM 704(a)(2). Manual for Courts-Martial, United States, 1984. Petitioner, though, argues that, in fact, he

promised a more far. ranging transactional immunity--immunity from any prosecution for any conduct at Tailhook. Mainly, the basis for his claim is Commander Monahan's purported "explanation" of the document to be a grant of that inclusive protection.

[1] We have recognized that, "in certain situations falling short of a formal de jure 487 grant of immunity" as described above, see 36 MJ at 100, transactional immunity might be granted de facto. See, e.g., United States v. Kimble, 33 MJ 284, 289-90 (CMA 1991); see also United States v. Palumbo, 897 F.2d 245, 248 (7th Cir.1990). Where an accused honestly and reasonably believes that

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