U.S. v. Ivey, 55 M.J. 251

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. all three prongs of RCM 704(e) must be met before a military judge may overrule the decision of a convening authority to deny a request for immunity; those prongs are: (1) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; (2) the government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination; and (3) the witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses
2. there is no right to grants of immunity under the Fifth or Sixth Amendments
3. a convening authority need not forward an immunity request for someone not subject to the UCMJ to the Attorney General if the convening authority intends to deny that request; denying such a request for immunity does not impact on the purpose of RCM 704(e) which is to avoid interfering with the prosecution of civilian federal cases
4. a trial counsel or staff judge advocate would violate RCM 704(c)(3) if he or she de facto denied a request for immunity by withholding it from the convening authority; the rule contemplates that all requests for immunity, from either the prosecution or the defense, will be submitted to the convening authority for a decision
5. any error by the military judge in deciding that requests for immunity had been de facto denied before those requests were presented to the convening authority was harmless and had no substantial influence on the findings where the convening would have denied the requests in any event
6. any error by the military judge in deciding that requests for immunity had been de facto denied before those requests were presented to the convening authority was not of constitutional dimension
7. military judge did not abuse his discretion by refusing to abate proceedings where he found that two prongs of RCM 704(e) had not been met with respect to defense immunity requests; the judge’s finding that there had been no discriminatory use of immunity or government overreaching was not clearly erroneous, and proffered testimony was not clearly exculpatory

Trial Stages: Appeals: Harmless / Prejudicial Error

1. any error by the military judge in deciding that requests for immunity had been de facto denied before those requests were presented to the convening authority was harmless and had no substantial influence on the findings where the convening would have denied the requests in any event
2. any error by the military judge in deciding that requests for immunity had been de facto denied before those requests were presented to the convening authority was not of constitutional dimension

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision not to abate the proceedings is reviewed for abuse of discretion; his findings of fact will not be overturned on appeal unless they are clearly erroneous; his conclusions of law will be reviewed de novo