United States v. Ivey, C.A.A.F. (2001)

UNITED STATES, Appellee
V.
Gerald P. IVEY, Sergeant
U.S. Army, Appellant
No. 00-0702
Crim. App. No. 9700810
United States Court of Appeals for the Armed Forces

Argued May 22, 2001
Decided July 30, 2001
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Stephanie L. Haines (argued); Colonel
Adele H. Odegard, Lieutenant Colonel David A. Mayfield, and
Major Mary M. McCord (on brief).
For Appellee: Captain Susana E. Watkins (argued); Colonel David
L. Hayden, Lieutenant Colonel Edith M. Rob, and Captain
Daniel G. Brookhart (on brief).
Military Judge:
Richard J. Hough
This opinion is subject to editorial correction before publication.
United States v. Ivey, No. 00-0702/AR
Judge GIERKE delivered the opinion of the Court.

A general court-martial convicted appellant, contrary to his
pleas, of conspiracy to wrongfully possess a controlled substance
with intent to distribute it (2 specifications), violation of a
regulation by possessing an unregistered firearm, and possession
of a controlled substance with intent to distribute it (3
specifications), in violation of Articles 81, 92, and 112a,
Uniform Code of Military Justice, 10 USC 881, 892, and 912a,
respectively.
He was also convicted, contrary to his pleas, of
transferring a firearm with knowledge that it would be used in a

drug trafficking crime, in violation of 18 USC 924(h) (4
specifications); knowingly making false and fictitious statements
in connection with the acquisition of a firearm, in violation of
18 USC 922(a)(6) (3 specifications); and knowingly transferring
a firearm to a non-resident of the state, in violation of 18 USC
922(a)(5) (2 specifications).
The violations of Title 18 of
the United States Code were assimilated under clause 3 of Article

134, UCMJ, 10 USC 934 (Crimes and offenses not capital).
The court-martial sentenced appellant to a dishonorable
discharge, confinement for 15 years, total forfeitures, and
reduction to the lowest enlisted grade.
The convening authority
approved the sentence and gave appellant administrative credit

for 185 days of pretrial confinement.
The Court of Criminal
Appeals set aside the conviction of one violation of 18 USC

922(a)(6) (making a false and fictitious statement in connection
with the purchase of a firearm).
The court affirmed the
remaining findings of guilty, and it reassessed and affirmed the

sentence.
53 MJ 685, 702 (2000).
This Court granted review of the following issue:

WHETHER THE GOVERNMENT FAILED TO PROCESS APPELLANTS
REQUESTS FOR IMMUNITY FOR CERTAIN CIVILIAN WITNESSES, IN
VIOLATION OF APPELLANTS DUE PROCESS RIGHTS AND RIGHT TO
PRESENT A DEFENSE UNDER THE FIFTH AND SIXTH AMENDMENTS TO
THE CONSTITUTION OF THE UNITED STATES.
For the reasons set out below, we affirm.
Factual Background
Appellant and his brother, James Ivey, grew up in Gary,
Indiana.
Three of appellants boyhood friends, Douglas Parrett
and two brothers, Frank and Deon McFadden, were members of the
Gangster Disciples, a nationwide gang that originated in the
Chicago, Illinois, area.
Appellant was stationed at Fort Carson,
near Colorado Springs, Colorado.
He and a local friend, Darryl
Washington, were members of a Gangster Disciples chapter in

Colorado Springs.
Appellant did not know that Darryl Washington
was an informant for the Bureau of Alcohol, Tobacco, and

Firearms, Department of the Treasury (ATF).
In early 1996, appellant and Darryl Washington met with
Douglas Parrett and the McFadden brothers in Gary, Indiana.
At
the meeting, appellant told them that another Fort Carson

soldier, Private (PVT) Alfonso Murray, had bragged about his
ability to obtain large quantities of marijuana in El Paso,
Texas, where Murray and appellant previously had been stationed.
Two drug-buying trips to El Paso ensued, resulting in purchases
of 40 pounds of marijuana in February 1996 and 50 pounds of
marijuana and 1 kilo of cocaine in April 1996.
Between the first
and second trips, PVT Murray was arrested on drug charges, and he
became an informant for ATF.
Appellant was charged with two conspiracies and numerous

firearms offenses related to the conspiracies.
His alleged co-
conspirators were PVT Murray, James Ivey, Douglas Parrett, and

Deon McFadden.
The facts surrounding the formation of the
conspiracies and the acts in furtherance of the conspiracies are

set out in detail in the opinion below.
53 MJ at 687-88.
On May 9, 1997, defense counsel gave trial counsel a request

that the convening authority grant immunity to four civilian
witnesses: James Ivey, Deon McFadden, Frank McFadden, and Douglas
Parrett.
On the same day, the defense filed a motion requesting
the military judge to abate the proceedings and requested a

continuance.
The request for a continuance recited numerous
grounds, including the pending request for immunity.

The immunity request stated that all four civilian witnesses
were awaiting sentencing and would invoke their privilege against
self-incrimination if called to testify.
The request for
immunity and the request for abatement both recited that, if the
four witnesses received immunity, they would provide exculpatory
testimony.
James Ivey would testify that [appellant] was not
part of a conspiracy as alleged in Specifications 1 and 2 of

Charge I.
Deon McFaddens attorney told appellants civilian
attorney that he had favorable information about [appellants]

involvement but could not be more specific because of the
attorney-client privilege.
Appellants defense counsel stated
that Frank McFadden had refused to talk to them but that from
other sources, the defense expects he will also testify that
[appellant] was not part of the conspiracy, and that Mr. Frank
McFadden was the owner of the Calico rifle described in
Specification 3 of Charge II.
Douglas Parrett also refused to
talk to defense counsel but [f]rom other sources, the defense

expects he will testify that [appellant] was not part of the
conspiracy, and that the gun shop owner was not deceived
regarding who were the true purchasers of the weapons described
in Charge IV.
Defense counsel represented at trial that Douglas
Parrett told appellants mother that appellant was not involved

in the charged conspiracies.
The court-martial convened three days later, on May 12,
1997, to consider several matters, including appellants motion
for abatement.
As of that date, appellants immunity request had
not been presented to the convening authority.
Furthermore, the
request for immunity had not been forwarded to the Judge Advocate
General for transmittal to the United States Attorney General.
Trial counsel informed the military judge that the four witnesses
all pled guilty to various offenses but were awaiting
sentencing.
Trial counsel informed the military judge that a
member of the Staff Judge Advocates Office contacted the

Assistant U.S. Attorney who prosecuted the four witnesses, and he
stated that they do not intend to grant them immunity.
Finally, trial counsel informed the military judge that PVT
Murray had been granted immunity.
The military judge made the following findings of fact
regarding the request for immunity:
1. The aforementioned witnesses [James Ivey, Deon
McFadden, Frank McFadden, and Douglas Parrett] were
targeted for prosecution and are awaiting sentence
after being found guilty of offenses similar to those
which the accused is facing.
2. The aforementioned witnesses are alleged as coconspirators with [appellant] in criminal offenses;
that is, Specifications 1 and 2 of Charge I alleging
violations of Article 81 of the Uniform Code of
Military Justice.
3. The aforementioned witnesses will invoke their
rights against self-incrimination if called to testify
without immunity.
4. The defense has asserted that Mr. James Ivey who is
the brother of [appellant] will testify that
[appellant] is not involved in either conspiracy
charged in Specifications 1 and 2 of Charge I.
5. The defense has not been able to talk with any of
the remaining three witnesses.
6. The defense has asserted that Mr. Doug Parrett has
talked with the mother of [appellant] and that
[appellants] mother will say that Mr. Parrett told her
that [appellant] was not involved in the conspiracies.
7. The court does not find under the circumstances of
this case that the government has engaged in
discriminatory use of immunity to obtain a tactical
advantage; nor, intended to disrupt the judicial factfinding process; nor, that the government through
overreaching has forced these witnesses to invoke their
privilege against self-incrimination.
Based on these findings, the military judge denied the motion to
abate the proceedings.
The trial on the merits commenced on May 14, 1997.
The
prosecution case consisted of seized drugs, firearms, and

documents; videotaped gun transactions; tape-recorded
conversations; the testimony of a gun shop owner and one of his
employees; the testimony of numerous law enforcement agents; the
testimony of PVT Kim Rush, who drove appellants vehicle during
the first drug-buying trip; and the testimony of Darryl
Washington and PVT Murray, government informants.
The only government witness who testified with a grant of
immunity was PVT Murray.
PVT Murray was not a helpful witness
for the prosecution.
On cross-examination, he testified
repeatedly that appellant was not part of the two charged

conspiracies.
The defense case consisted of the testimony of appellants
mother and Damond McCready, the governor of the Colorado
Springs chapter of the Gangster Disciples.
Both witnesses
presented testimony intended to show that appellant was not a

member of the Gangster Disciples.
After the trial but before the convening authoritys action,
appellant again requested that James Ivey, Douglas McFadden, and
Douglas Parrett be granted immunity.
The Staff Judge Advocate
informed the convening authority that the Assistant U.S. Attorney

would not support a request for immunity.
By this time, Deon
McFadden, Frank McFadden, James Ivey, and Douglas Parrett had

been sentenced to confinement for 60 months, 13 months, 30
months, and 60 months, respectively.
In accordance with his
Staff Judge Advocates recommendation, the convening authority

denied the request for immunity.
The request was never forwarded
to the United States Attorney General.

The Court of Criminal Appeals found that it could not be
determined from the evidence of record whether the convening
authority was ever asked, prior to trial, to deny or forward the
defense immunity request.
53 MJ at 692.
The court also found
that the parties to the trial treated the request as denied.

Id.
Finally, the court below noted that the defense made no
objection to the military judge ruling on the immunity request

without action by the convening authority.
Id.
Discussion
Appellant now contends that the Government violated RCM 704,
Manual for Courts-Martial, United States (2000 ed.),1 and Army
regulations by not forwarding the immunity request to the United
States Attorney General.
He further contends that the military
judge abused his discretion by refusing to grant a continuance

until the convening authority ruled on the request for immunity
and by refusing to abate the proceedings.
He asserts that the
military judges abuse of discretion violated his right under the

Sixth Amendment to present a defense.
He also asserts that it
was likely the Attorney General would have granted the immunity
request, since prosecution of all four witnesses had been
completed.
Finally, he asserts that the four witnesses would
have provided evidence that was material and exculpatory and

would have corroborated PVT Murrays testimony.
The Government argues that the convening authority is not
required to forward a request for immunity to the Attorney
General if he denies it.
It also argues that the military judge
correctly denied the motion for abatement.
Finally, the
Government argues that the four witnesses testimony was not

clearly exculpatory, making any error in denying the motion for
abatement harmless.
Article 46, UCMJ, 10 USC 846, entitles the prosecution,
defense, and the court-martial to equal opportunity to obtain
witnesses and other evidence in accordance with such regulations
as the President may prescribe.
The President has promulgated
All Manual provisions are identical to the ones in effect at the

time of appellants court-martial.
8
several rules to implement Article 46, including RCM 704,

subsection (e) of which provides:
Unless limited by superior competent authority, the
decision to grant immunity is a matter within the sole
discretion of the appropriate general court-martial
convening authority. However, if a defense request to
immunize a witness has been denied, the military judge
may, upon motion by the defense, grant appropriate
relief directing that either an appropriate convening
authority grant testimonial immunity to a defense
witness or, as to the affected charges and
specifications, the proceedings against the accused be
abated, upon findings that:
(1) The witness intends to invoke the right
against self-incrimination to the extent permitted by
law if called to testify; and
(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 selfincrimination; 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.
A convening authority may not delegate the authority to grant
immunity.
RCM 704(c)(3).
A general court-martial convening authority may grant

immunity to civilians not subject to the UCMJ only when
specifically authorized to do so by the Attorney General of the
United States or other authority designated under 18 USC 6004.
RCM 704(c)(2).
The Manual for Courts-Martial provides the
following guidance:
When testimony or a statement for which a person
subject to the code may be granted immunity may relate
to an offense for which that person could be prosecuted
in a United States District Court, immunity should not
be granted without prior coordination with the
Department of Justice. Ordinarily coordination with
the local United States Attorney is appropriate.

Unless the Department of Justice indicates it has no
interest in the case, authorization for the grant of
immunity should be sought from the Attorney General. A
request for such authorization should be forwarded
through the office of the Judge Advocate General
concerned. Service regulations may provide additional
guidance. Even if the Department of Justice expresses
no interest in the case, authorization by the Attorney
General for the grant of immunity may be necessary to
compel the person to testify or make a statement if
such testimony or statement would make the person
liable for a Federal civilian offense.
RCM 704(c)(1) Discussion.
The implementing Army regulation requires that when a
witness is not subject to the UCMJ, or the Department of Justice
expresses an interest in the case, the file will be forwarded to
the Judge Advocate General for coordination with the Department
of Defense and the Department of Justice, and approval by the
Attorney General.
The file must include a draft order to
testify, along with findings that the witness is likely to

refuse to testify on Fifth Amendment grounds and that the
testimony of the witness is necessary to the public interest.
Para. 2-4c(1), Army Regulation 27-10 (20 Sept 1999).2
All three prongs of RCM 704(e) must be met before a military
judge may overrule the decision of the convening authority to
deny a request for immunity.
213, 223 (1999).
United States v. Richter, 51 MJ
RCM 704(e) recognizes the view of a majority
of the federal courts that there is no right to grants of

immunity under the Fifth or Sixth Amendments.
Id.
A military judges decision not to abate the proceedings is

reviewed for abuse of discretion.
2
Id.
A military judges
This provision is identical to the one in effect at the time of

appellants court-martial.
10
findings of fact will not be overturned on appeal unless they are

clearly erroneous.
law de novo.
We review the military judges conclusions of
See United States v. Smith, 53 MJ 168, 170 (2000)
(Article 13, UCMJ, 10 USC 813, violation); United States v.

White, 48 MJ 251, 257 (1998) (evidentiary ruling); United State
v. Wean, 45 MJ 461, 463 (1997) (adequacy of representation).
The first question is whether a convening authority must
forward an immunity request for someone not subject to the UCMJ
to the Attorney General if he intends to deny it.
question in the negative.
We answer this
The literal language of RCM 704(c)(2)
restricts a convening authoritys power to grant such immunity:

he may grant it only when specifically authorized to do so by
the Attorney General or his authorized designee.
The rule does
not limit his power to deny such a request for immunity under
RCM 704(e).
The purpose of RCM 704(c)(2) is to avoid interfering
with the prosecution of civilian federal cases.
Denying a
request for immunity has no impact on civilian prosecutions.

The Army regulation likewise contemplates that the file will
be forwarded only when the convening authority desires to grant
immunity, because it requires that the file include a draft order
to testify and a finding that the testimony is necessary.
Importantly, nothing in the record suggests that the convening
authority desired to grant immunity.
Therefore, we hold that the
convening authority was not required to forward the request to

the Attorney General.
The second question is whether the government failed to
process appellants requests for immunity.
11
Because RCM
704(c)(3) prohibits delegation of the authority to act on

requests for immunity, a trial counsel or Staff Judge Advocate
would violate the rule 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.
The court below found that it could not be determined from
the record whether the convening authority informally acted on
the request at any time before he formally denied it after trial.
It is clear from the record, however, that at the time of the
first Article 39(a)3 session on May 12, the convening authority
had not formally responded to defense counsel and had not
forwarded the request to the Attorney General.
The record does
not indicate whether the convening authority was informed of the

immunity request before the military judge preempted the issue by
deciding that the request was de facto denied.
The court below found that the parties treated the request
as denied, without defense objection.
We have reservations about
this finding, because the defense specifically asked the military

judge to grant a continuance, reciting that the immunity request
was pending.
In our view, this request for a continuance was
inconsistent with agreeing that the request had been denied.

We need not decide, however, whether the military judge
erred by treating the situation as a de facto denial, because any
error was harmless.
It is clear from the record that if the
convening authority had been pressed for a formal response, he
12
most probably would have denied the request.
It is highly
unlikely that the convening authority would have forwarded the

request over the objection of the Assistant U.S. Attorney, or
that the Attorney General would have approved it despite the
objections of the Assistant U.S. Attorney.
Finally, the
convening authoritys denial of the request when the defense

renewed it after the trial is strong evidence that he did not
intend to grant it before trial.
We are satisfied that any error
in failing to present the immunity request to the convening

authority before the trial on the merits began did not have a
substantial influence on the findings.
See United States v.
Pablo, 53 MJ 356, 359 (2000); United States v. Pollard, 38 MJ 41,

52 (CMA 1993), quoting Kotteakos v. United States, 328 US 750,
765 (1946).
Finally, we reject appellants argument that any error was
of constitutional dimension.
That position was rejected in
Richter, supra, and the cases cited therein.

The remaining question is whether the military judge abused
his discretion by refusing to abate the proceedings.
that he did not.
We hold
The military judge correctly applied the three-
pronged legal test set out in RCM 704(e), and he found that the
second prong was not met, i.e., that there was no discriminatory
use of immunity or government overreaching.
See Richter, supra.
The military judges finding of fact was not clearly erroneous.

The prosecution relied primarily on the testimony of law
enforcement agents, documentary and real evidence, video and
audio tape recordings, and the testimony of coconspirators who
3
UCMJ, 10 USC 839(a).

13
did not receive immunity.
The only prosecution witness who
received immunity was PVT Murray, a government informant, who

arguably turned out to be helpful to the defense.
The third prong also was not met because the proffered
testimony was not clearly exculpatory.
The vague proffers of
testimony amounted to no more than legal conclusions that

appellant was not guilty.
Furthermore, they were secondhand and
thirdhand hearsay in some instances.
The vague legal conclusions
were cumulative to the much more factually detailed testimony of

PVT Murray, but they contained virtually no specific facts that
would corroborate PVT Murrays testimony.
Finally, even though
the civilian witnesses had been tried and sentenced when the
convening authority acted on appellants case, appellant did not
offer the convening authority, the court below, or this Court
more specific offers of expected testimony after the civilian
prosecutions were completed.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
14

United States v. Ivey, C.A.A.F. (2001)

Uploaded by

Copyright:

Available Formats

United States v. Ivey, C.A.A.F. (2001)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Ivey, C.A.A.F. (2001)

Uploaded by

Copyright:

Available Formats

UNITED STATES, Appellee

United States Court of Appeals for the Armed Forces

This opinion is subject to editorial correction before publication.

United States v. Ivey, No. 00-0702/AR

Judge GIERKE delivered the opinion of the Court.

He was also convicted, contrary to his pleas, of

transferring a firearm with knowledge that it would be used in a

The violations of Title 18 of

the United States Code were assimilated under clause 3 of Article

The convening authority

approved the sentence and gave appellant administrative credit

The Court of Criminal

Appeals set aside the conviction of one violation of 18 USC

The court affirmed the

remaining findings of guilty, and it reassessed and affirmed the

53 MJ 685, 702 (2000).

United States v. Ivey, No. 00-0702/AR

This Court granted review of the following issue:

Three of appellants boyhood friends, Douglas Parrett

Appellant was stationed at Fort Carson,

near Colorado Springs, Colorado.

He and a local friend, Darryl

Washington, were members of a Gangster Disciples chapter in

Appellant did not know that Darryl Washington

was an informant for the Bureau of Alcohol, Tobacco, and

the meeting, appellant told them that another Fort Carson

Between the first

United States v. Ivey, No. 00-0702/AR

Appellant was charged with two conspiracies and numerous

His alleged co-

conspirators were PVT Murray, James Ivey, Douglas Parrett, and

The facts surrounding the formation of the

conspiracies and the acts in furtherance of the conspiracies are

On May 9, 1997, defense counsel gave trial counsel a request

On the same day, the defense filed a motion requesting

the military judge to abate the proceedings and requested a

The request for a continuance recited numerous

grounds, including the pending request for immunity.

The request for

James Ivey would testify that [appellant] was not

part of a conspiracy as alleged in Specifications 1 and 2 of

Deon McFaddens attorney told appellants civilian

attorney that he had favorable information about [appellants]

Appellants defense counsel stated

United States v. Ivey, No. 00-0702/AR

Specification 3 of Charge II.

Douglas Parrett also refused to

talk to defense counsel but [f]rom other sources, the defense

Defense counsel represented at trial that Douglas

Parrett told appellants mother that appellant was not involved

As of that date, appellants immunity request had

not been presented to the convening authority.

Trial counsel informed the military judge that a

member of the Staff Judge Advocates Office contacted the

United States v. Ivey, No. 00-0702/AR

prosecution case consisted of seized drugs, firearms, and

PVT Murray was not a helpful witness

United States v. Ivey, No. 00-0702/AR

for the prosecution.