CAAF grant and remand – de facto immunity

Here’s an interesting grant and remand from CAAF.

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044 (2009 CCA LEXIS 477).


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  While an unpublished opinion, the court in Vileta correctly summarized the law of de facto immunity.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).

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