United States v. McKeel
63 M.J. 81, 2006 CAAF LEXIS 491, 2006 WL 1006431 (2006)
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Rule of Law:
When an accused servicemember detrimentally relies on a promise of immunity from an official with apparent, but not actual, authority, the remedy is tailored to the harm suffered and does not automatically bar prosecution, especially if remedial measures like evidence exclusion are available.
Facts:
- During an interview with the Air Force Office of Special Investigations (OSI), Appellant McKeel admitted to engaging in sexual intercourse with an intoxicated female shipmate whom he believed was unable to consent.
- Following the OSI interview, a Chief Petty Officer (CPO) in McKeel's chain of command offered him a deal.
- The CPO proposed that if McKeel accepted nonjudicial punishment under Article 15 and waived his right to an administrative discharge board, he would not be court-martialed.
- McKeel accepted the offer and, at an Article 15 proceeding, pleaded guilty to various charges, including rape, and received nonjudicial punishment.
- McKeel's administrative discharge packet was then forwarded to the General Court-Martial Convening Authority (GCMCA) for final approval.
- The GCMCA, who had no prior knowledge of the agreement, declined to approve the administrative discharge.
- The GCMCA then ordered an Article 32 investigation into the charges, which resulted in the rape charge being referred to a general court-martial.
Procedural Posture:
- Appellant McKeel was charged with rape at a general court-martial.
- Prior to entering a plea, McKeel's defense counsel filed a motion to dismiss the charges, arguing he had been granted immunity in a prior agreement.
- The military judge denied the motion to dismiss.
- McKeel then pleaded guilty to the lesser included offense of indecent assault and was convicted and sentenced by the military judge.
- The convening authority approved the sentence, suspending confinement in excess of fifteen months pursuant to a pretrial agreement.
- McKeel (as appellant) appealed his conviction to the U.S. Navy-Marine Corps Court of Criminal Appeals, which affirmed the trial court's decision.
- McKeel (as petitioner) petitioned the Court of Appeals for the Armed Forces for review, which was granted on the issue of the denied motion to dismiss.
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Issue:
Does a promise of transactional immunity made by an officer with apparent, but not actual, authority bar prosecution when the accused cannot demonstrate detrimental reliance on that promise?
Opinions:
Majority - Judge Effron
No, a promise of transactional immunity from an officer with only apparent authority does not bar prosecution where the accused fails to show detrimental reliance. Within the military justice system, only a General Court-Martial Convening Authority (GCMCA) has the actual authority to grant immunity. If a subordinate with apparent authority makes such a promise, the accused must demonstrate that they reasonably believed the promise and relied on it to their detriment to receive a remedy. Here, McKeel had already made incriminating admissions to the OSI before the immunity promise was made. Therefore, his subsequent actions in reliance on the promise—accepting nonjudicial punishment and waiving his discharge board—did not provide the government with any significant information it did not already possess. The military judge provided adequate remedies by excluding statements made during the nonjudicial punishment proceeding and ensuring sentence credit, thus negating any detrimental reliance and making dismissal of the charges unnecessary.
Dissenting - Judge Erdmann
Yes, the promise should bar prosecution because the government should be bound by a promise of de facto transactional immunity made by an agent with apparent authority, regardless of detrimental reliance. The concept of detrimental reliance is improperly applied to de facto transactional immunity cases; it is relevant to pretrial agreements, not promises to forgo prosecution entirely. McKeel, a junior enlisted member, reasonably believed the Chief Petty Officer, his unit's chief legal officer, had the authority to make the promise. Once McKeel fulfilled his part of the bargain by accepting nonjudicial punishment and waiving his rights, the government was bound to honor its promise not to prosecute. Enforcing such a promise is essential to maintain the integrity of the military justice system; the only proper remedy for a breach of a promise of transactional immunity is to dismiss the charges.
Analysis:
This decision significantly reinforces the strict hierarchical authority within the military justice system, cementing the GCMCA's exclusive power to grant immunity. It establishes that promises made by officials with only apparent authority are not automatically enforceable and places a heavy burden on the accused to prove detrimental reliance. This makes it substantially more difficult for a servicemember to have charges dismissed based on such a promise, limiting the remedy to ameliorative measures like evidence exclusion rather than a complete bar to prosecution. The case serves as a strong precedent against enforcing 'de facto' immunity grants unless tangible harm from reliance can be clearly demonstrated.
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