United States v. RICE

This opinion is subject to administrative correction before final disposition. Before KORN, HARRELL, and STAMPFLI Appellate Military Judges _________________________ UNITED STATES Appellant v. Brandon K. RICE Electrician’s Mate Third Class (E-4), U.S. Navy Appellee No. 202600089 _________________________ Decided: 19 August 2026 Appeal by the United States pursuant to Article 62, Uniform Code of Military Justice Military Judge: Jason A. Pfeil Before a general court-martial convened at Naval Station Norfolk, Vir- ginia. For Appellant: Lieutenant Erin H. Bourneuf, JAGC, USN Commander John T. Cole, JAGC, USN Colonel Iain D. Pedden, USMC Mr. Brian Keller For Appellee: Major Thomas A. Short, USMC  United States v. Rice, NMCCA No. 202600089 Opinion of the Court Chief Judge KORN delivered the opinion of the Court, in which Senior Judge HARRELL and Judge STAMPFLI joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ KORN, Chief Judge: This case is before us on an interlocutory appeal pursuant to Article 62(a)(1)(A), Uniform Code of Military Justice (UCMJ). 1 Appellee is charged with attempted wrongful sale of military property, conspiracy to commit lar- ceny of military property, wrongful sale of military property, larceny of mili- tary property, and obstructing justice, in violation of Articles 80, 81, 108, 121, and 131b, UCMJ. 2 The military judge granted Appellee’s motion to abate the proceedings due to violations of the protections provided by Kastigar v. United States, 3 and the Government raises this issue on appeal: Did the military judge abuse his discretion in abating Appellee’s court-martial based on a proffer let- ter that explicitly conferred no immunity? We conclude that the military judge did not abuse his discretion, and we deny the Government’s appeal. I. BACKGROUND Following a series of reported thefts from USS Wasp (LHD 1), the Naval Criminal Investigative Service (NCIS) identified Appellee as one of multiple suspects. Appellee’s defense counsel spoke with trial counsel about the possi- bility of Appellee cooperating with the Government against another suspect. 4 The parties then sought to formalize Appellee’s cooperation through a letter detailing what protections would apply at an initial proffer session and nego- tiated the language of that letter. The initial draft of the letter included a clause that stated 1 10 U.S.C. § 862(a)(1)(A). 2 10 U.S.C. § 880, 881, 908, 921, 931b. 3 406 U.S. 441 (1972). 4 Multiple trial counsel, including the trial department head, participated in Ap- pellee’s case. We refer to them collectively as “trial counsel.” 2  United States v. Rice, NMCCA No. 202600089 Opinion of the Court the government may make derivative use of, and may pursue investigative leads suggested by, statements made or infor- mation provided by you or your client. That is: (1) Your client waives any right to challenge such derivative use and agrees that such use is proper . . . . .... This provision eliminates the necessity of a Kastigar hearing at which the Government would have to prove that its evidence at trial or other legal proceeding is untainted by statements made or information provided during the proffer. 5 Defense counsel asked trial counsel to remove the “Kastigar waiver” so they could “conduct [the proffer session] like a normal proffer session where [Appel- lee would] have Kastigar protections.” 6 Trial counsel then modified the letter, telling defense counsel in an email, “No issues with removing the Kastigar lan- guage. . . . I wanted it to be clear that we can use the information to pursue investigative leads against other people involved and that [Appellee] does not waive his rights under Kastigar to challenge information if a case ends up be- ing brought against him.” 7 They eventually agreed on a letter dated 26 Febru- ary 2024 (hereinafter “the proffer letter”), which omitted the “Kastigar waiver” to which defense counsel objected. Appellee and defense counsel met with a Government team for a proffer session on 29 February 2024. An NCIS agent recorded the proffer session. Charges were referred in Appellee’s case in October 2025. By that time, the recording of Appellee’s proffer session had been inadvertently deleted. Appel- lee moved to dismiss all charges and specifications, or alternatively to abate the proceedings, due to alleged derivative use Kastigar violations. 8 The mili- tary judge denied the motion to dismiss but granted the motion to abate pro- ceedings “until the recording of [Appellee’s] proffer session is recovered such that the Court can perform the analysis under Kastigar of what evidence is 5 App. Ex. X at 52. 6 App. Ex. X at 44. 7 App. Ex. X at 44. 8 App. Ex. VII. 3  United States v. Rice, NMCCA No. 202600089 Opinion of the Court untainted by his statements from the proffer session such that it may be used against [Appellee].” 9 The Government appealed that decision. II. DISCUSSION A. The military judge did not abuse his discretion in determining that evidence derived from the information provided by Appellee at the proffer session could not be used against him. 1. Standard of Review In an Article 62, UCMJ, appeal, we “consider the evidence in the light most favorable to the party that prevailed at trial—in this case, Appellee,” 10 and “are bound by the military judge’s factual determinations unless they are unsup- ported by the record or clearly erroneous.” 11 We review a military judge’s decision to abate proceedings for an abuse of discretion. 12 It is an abuse of discretion when the military judge: (1) predicates a ruling on findings of fact that are not supported by the evidence in the record; (2) uses incorrect legal principles; (3) applies correct legal principles to the facts in a way that is clearly unreasonable; or (4) fails to consider important facts. 13 9 App. Ex. XIII at 19. As an initial matter, Appellee argues that this Court lacks jurisdiction over this appeal, because “[t]he Military Judge’s ruling left open the pos- sibility that he might consider the contemporaneous notes or the testimony of the Gov- ernment actors present at the proffer session to be an adequate substitute. Accord- ingly, this abatement is not the ‘functional equivalent’ of a termination of the proceed- ings . . . .” Appellee’s Brief at 12. We disagree. While the military judge acknowledged the possibility that the Government could recover the recording, the record is clear that such a possibility is so remote that the military judge’s ruling is the functional equivalent of a termination of the proceedings. We therefore have jurisdiction. See United States v. Badders, 82 M.J. 299, 304 (C.A.A.F. 2022) (stating that service courts must liberally construe Article 62 when interpreting whether its requirements are met, and the federal act it was modeled after “was ‘intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.’ ” (quoting United States v. Wilson, 420 U.S. 332, 337 (1975)). 10 United States v. Flanner, 85 M.J. 163, 169 (C.A.A.F. 2024). 11 United States v. Black, 82 M.J. 447, 451 (C.A.A.F. 2022) (citing United States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017)). 12 United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001) (citing United States v. Richter, 51 M.J. 213, 223 (C.A.A.F. 1999)). 13 United States v. Rudometkin, 82 M.J. 396, 401 (C.A.A.F. 2022). 4  United States v. Rice, NMCCA No. 202600089 Opinion of the Court 2. Analysis Two types of immunity are available at courts-martial—transactional im- munity and testimonial immunity. Transactional immunity exempts an ac- cused “from trial by court-martial for one or more offenses under the UCMJ.” 14 Testimonial immunity protects an accused against “the use of testimony, state- ments, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial.” 15 Testimonial immun- ity—in contrast to transactional immunity—does not bar prosecution of the person who has received the grant of immunity. 16 In a case like Appellee’s, immunity may only be granted by a general court- martial convening authority or designee. 17 A purported grant of immunity by an official not empowered to make such a grant is invalid. 18 However, even when there is no formal grant of immunity, a military judge may provide relief tailored to the circumstances if a suspect detrimentally relies on a promise of immunity from a person with apparent authority to make such a promise. 19 When a promise of immunity has been made by an officer having apparent, but not actual, authority, the remedy depends on the extent of detrimental reli- ance. 20 Normally, detrimental reliance upon apparent authority can be reme- died by measures short of a bar to prosecution, such as exclusion of evidence obtained from the detrimental reliance or precluding non-evidentiary uses of immunized statements in the decision whether to prosecute. 21 Although defense counsel and trial counsel failed to use exacting language to describe the nature of the protections that existed for Appellee when he co- operated in the proffer session, it appears that both parties agreed that the information he provided could not be used against him. This was evident based 14 Rule for Courts-Martial (R.C.M.) 704(a)(1). 15 R.C.M. 704(a)(2). 16 See R.C.M. 704(a) Discussion. 17 R.C.M. 704(c)(1). 18 United States v. McKeel, 63 M.J. 81, 83 (C.A.A.F. 2006). 19 Id. 20 See United States v. Caliendo, 13 C.M.A. 405, 409, 32 C.M.R. 405, 409 (1962); United States v. Thompson, 11 C.M.A. 252, 255, 29 C.M.R. 68, 71 (1960). 21 See United States v. Jones, 52 M.J. 60, 65 (C.A.A.F. 1999); United States v. Oli- vero, 39 M.J. 246, 249 (C.A.A.F. 1994). 5  United States v. Rice, NMCCA No. 202600089 Opinion of the Court on defense counsel asking to remove “the Kastigar waiver” 22 so Appellee could have “Kastigar protections,” and trial counsel modifying the proffer letter and clarifying that Appellee “does not waive his right under Kastigar to challenge information if a case ends up being brought against him.” 23 After reviewing the communications between the parties and the resulting proffer agreement, the military judge determined The Government eliminated from the contract [Appellee’s] spe- cific waiver of the ability to challenge the use of the derivative evidence against [Appellee] and replaced it with a specific pro- tection that he did not “waive any right” to challenge the use of the derivative evidence against him. By this change, it appears that the Government intended to provide [Appellee] with the ability to challenge the use of evidence derived from his state- ments at any court-martial brought by the Navy; and that the Government acknowledged that any such evidence would have to survive a Kastigar hearing. . . . . . . At the time the [trial counsel] drafted the Second Proffer Letter, she meant that the Government could use [Appellee’s] statements to develop the investigation against people other than [Appellee]; and that [Appellee] retained his right under Kas- tigar to challenge any evidence used against him that was de- rived from his statements in the proffer session, if he becomes a court-martial accused. 24 The military judge found that the proffer letter “was a similar promise to a grant of testimonial immunity,” “made by a person with apparent authority to do so,” and “protected some right of [Appellee] to challenge the use of the evi- dence derived from his statements against him.” 25 The military judge therefore enforced the agreement between the parties to “provide direct and derivative 22 While Kastigar deals with immunity that stems from compelled testimony, the course of negotiation indicates that the parties used the term “Kastigar” to include a prohibition on the Government using evidence derived from Appellee’s proffer state- ments against him. 23 App. Ex. X at 44. 24 App. Ex. XIII at 16 (emphasis in original). 25 App. Ex. XIII at 14, 17 (internal quotations omitted). 6  United States v. Rice, NMCCA No. 202600089 Opinion of the Court use protections to [Appellee].” 26 The military judge considered all the facts be- fore him and used correct legal principles to arrive at this conclusion, and thus did not abuse his discretion. The Government argues that the military judge erred by failing to conduct the proper analysis, required by the Court of Appeals for the Armed Forces (CAAF) in United States v. McKeel, 27 to determine whether relief was war- ranted for a promise of de facto immunity. 28 McKeel permits a military judge to grant relief if: (1) a promise of immunity was made; (2) the accused reason- ably believed that a person with apparent authority to do so made the promise; and (3) the accused detrimentally relied upon the promise. 29 While it is accu- rate that the military judge did not explicitly cite McKeel in his ruling, he none- theless considered the appropriate factors to conduct the analysis required by McKeel. The military judge found that trial counsel’s communications and use of the proffer letter amounted to a “similar promise” to a grant of testimonial immunity. 30 He further found that, “in the context of the negotiations and the resultant change of the agreement . . . the Government represented that it had the authority to enter into such an agreement,” so the promise was “made by a person with apparent authority to do so.” 31 Finally, the military judge deter- mined that “[Appellee] relied on [trial counsel’s] representations” by agreeing to the proffer session. 32 By drawing these conclusions, which were based on an application of correct legal principles to the facts before him, the military judge applied the McKeel factors and did not abuse his discretion in doing so. B. The military judge did not abuse his discretion in concluding that the lost recording of the proffer session was essential to deter- mine whether the Government improperly derived evidence from Ap- pellee’s statements, and there was no adequate substitute. Having found that the military judge did not abuse his discretion in apply- ing Kastigar protections to the proffer session, we must next determine whether he abused his discretion in finding that the lost recording was evi- dence essential to a fair trial and that there was no adequate substitute for 26 App. Ex. XIII at 17. 27 63 M.J. at 81. 28 Appellant’s Brief at 29. 29 63 M.J. at 83. 30 App. Ex. XIII at 17. 31 App. Ex. XIII at 17 (internal quotations omitted). 32 App. Ex. XIII at 16. 7  United States v. Rice, NMCCA No. 202600089 Opinion of the Court that evidence. We conclude that he did not abuse his discretion in making those findings. When evidence is lost or destroyed, Rule for Courts-Martial (R.C.M.) 703(e)(2) sets forth the criteria for a military judge to consider in deciding whether an accused is entitled to relief and what type of relief may be given. To be entitled to relief under R.C.M. 703(e)(2), an accused must show: (1) the destroyed evidence is essential to a fair trial; (2) there is no adequate substitute for the evidence; and (3) the accused is not at fault or could not have prevented the unavailability of the evidence. 33 If relevant and necessary evidence is of such central importance to an issue that is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party. 34 Determining whether there is an adequate substitute for unavailable evidence depends upon the purpose of the evidence. 35 A mili- tary judge has broad discretion in determining whether an adequate substitute exists. 36 When an accused is prosecuted for offenses that were the subject of infor- mation provided under a grant of immunity, the government bears “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” 37 The government must prove that its evi- dence “is derived from a legitimate source wholly independent of the compelled testimony.” 38 The military judge found that “The Government did not keep suf- ficient records of the evidence obtained before the proffer such that the Court can determine what evidence is tainted and what evidence is not.” 39 He there- 33 See United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015). 34 United States v. Warda, 84 M.J. 83, 91 (C.A.A.F. 2023). The Government does not argue that Appellee is at fault for the missing recording or could have prevented its destruction. 35 Id. at 94 (citing United States v. Rothe, 2021 CCA LEXIS 117 at *17 (A.F. Ct. Crim. App. Mar. 24, 2021) (unpublished)). 36 Simmermacher, 74 M.J. at 202. 37 Kastigar, 406 U.S. at 461–62. 38 Id. at 460. 39 App. Ex. XIII at 8. 8  United States v. Rice, NMCCA No. 202600089 Opinion of the Court fore concluded that, based on the record before him at that time, “the Govern- ment has not shown that ‘it has based [Appellee’s] prosecution on sources in- dependent of’ [Appellee’s] statements made pursuant to the [proffer] letter.” 40 The military judge thus determined that the recording was necessary “to be able to perform the analysis required under Kastigar to vindicate [Appellee’s] rights protected by the . . . Proffer Letter [and] the case against [Appellee] as presently constituted cannot proceed without it.” 41 That determination is sup- ported by the evidence based on the application of correct legal principles, and was therefore not an abuse of discretion. The Government argues that because the recording of the proffer session would be inadmissible at trial, it is not of central importance to an issue essen- tial to a fair trial. 42 We disagree. Protecting an accused from the Government’s improper use of his statements is essential to a fair trial, and we find that the military judge did not abuse his discretion in determining that the case cannot procced without the recording. The Government next argues that even if R.C.M. 703 applies to the record- ing of the proffer session, contemporaneous notes taken by Government per- sonnel are an adequate substitute. 43 The proffer session took place at the local NCIS office, and Appellee and defense counsel were prohibited from bringing electronic devices, thereby preventing them from creating their own record- ing. 44 The proffer session lasted approximately three hours, while the contem- poraneous notes the Government now argues are an adequate substitute are “a two-and-a-half-page and three-page set of notes from a Legalman First Class and an investigator who were present.” 45 The military judge found, “because the Government has lost the recording of the proffer session . . . there is no adequate substitute for that evidence for the Government to show that its evi- dence is untainted.” 46 A military judge has broad discretion in determining whether an adequate substitute exists, and the military judge did not abuse his discretion when he found that neither set of notes was an adequate substi- tute for the recording. 40 App. Ex. XIII at 8 (citation omitted). 41 App. Ex. XIII at 19. 42 Appellant’s Brief at 22. 43 Appellant’s Brief at 28–29. 44 See App. Ex. XIII at 5. 45 Appellant’s Brief at 5, 17. 46 App. Ex. XIII at 18. 9  United States v. Rice, NMCCA No. 202600089 Opinion of the Court The Government asserts that “Here, nothing in the handwritten notes sup- ports any argument that clearly exculpatory evidence—or even admissible ev- idence—was revealed during the proffer session.” 47 However, the agreement between the parties did not just preclude the Government from using Appel- lee’s statements as exculpatory or admissible evidence. Instead, the Govern- ment could not use Appellee’s statements for many additional purposes, such as “evidentiary and non-evidentiary uses, including the indirect use of testi- mony to alter the investigative strategy or to inform the decision to prose- cute.” 48 The military judge found that the limited information contained in the notes cannot “permit the Court to determine whether all the evidence, investi- gative steps, and prosecution decisions were ‘based . . . on sources independent of’ [Appellee’s] statements made pursuant to the [proffer],” 49 and this was not an abuse of his discretion. C. The military judge did not abuse his discretion by abating the proceedings as a remedy. Having found Appellee was entitled to Kastigar protections which the mil- itary judge could not analyze due to the lost recording, the military judge then considered what remedy to apply. Appellee requested dismissal of all charges for the Kastigar violation, but the military judge concluded that dismissal would only be an appropriate remedy following a determination at a Kastigar hearing that the Government improperly utilized protected information. 50 Therefore, based on the Government’s inability to produce evidence of such central importance to an issue that it was essential to a fair trial, the military judge abated the proceedings. 51 This was an appropriate remedy and was therefore not an abuse of discretion. 47 Appellant’s Brief at 28. 48 United States v. Morrissette, 70 M.J. 431, 438 (C.A.A.F. 2012) (citing United States v. Mapes, 59 M.J. 60, 67 (C.A.A.F. 2003); United States v. Hubbell, 530 U.S. 27, 39 (2000)). 49 App. Ex. XIII at 8 (citation omitted). 50 App. Ex. XIII at 18. 51 App. Ex. XIII at 18. 10  United States v. Rice, NMCCA No. 202600089 Opinion of the Court III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, the Government’s appeal is DENIED. The case is returned to the Judge Advocate General for remand to the military judge for further proceedings consistent with this opinion. FOR THE COURT: MARK K. JAMISON Clerk of Court 11