UNITED STATES, Appellee v. WILLIAM R. KIRSCH, Private, U. S. Army, Appellant, 15 C.M.A. 84

Opinion of the Court Quinn, Chief Judge: Although given a grant by Major General B. F. Taylor, Commander of the 24th Infantry Division, which recited he would have “immunity from prosecution for any offense” he might testify to at the trial of a fellow soldier, the accused refused to answer questions asked him by trial counsel, on the ground his answers would tend to incriminate him. Thereafter, he was charged with, and pleaded guilty to, willful refusal to testify, in violation of

Article 134, Uniform Code of Military Justice, 10 USC § 934. Notwithstanding his plea of guilty, the accused now contends his conviction is illegal because General Taylor’s grant of immunity could not deny him the right to rely upon the privilege against self-incrimination. During 1962, the accused’s friend, Private First Class John D. Roumanis, allegedly became associated with a Greek national who was believed to be a Soviet agent. At the purported agent’s request, Roumanis procured and turned over to him several items of military equipment.

An investigation into Roumanis’ activities indicated the accused and other soldiers were probably involved in other transactions with the Greek national. In late 1962, the accused was formally charged, under Articles 81 and 134 of the Uniform Code, supra, 10 USC §§ 881 and 934, respectively, with conspiracy to obtain and deliver instruments connected with the national defense to the agent of a foreign nation, in violation of 18 USC § 793, and with wrongful delivery of such instruments, in violation of the same statute.

Eventually, except for a single specification of larceny of a M-14 rifle, all charges were dropped. About the same time, charges of conspiracy to sell, and the wrongful sale of, military property were laid against Roumanis. On March 19, 1963, the accused was tried and acquitted of the charge of larceny. On the afternoon of March 21, Roumanis went to trial on the charges against him. That day, trial counsel delivered to the accused a document titled “Grant of Immunity.” The document was issued by Major General B. F.

Taylor, commanding officer of the accused’s division and the convening authority of the court-martial before which Roumanis was on trial. In substance, the grant stated the accused was “granted immunity from prosecution for any offense concerning which” he might testify as a witness at Roumanis’ trial. The next day, March 22, the accused was called as a Government witness.

He responded to some questions about his acquaintanceship with Roumanis; but when asked if he went to the Cafe Popp, in Munich, with Roumanis in April 1962, he said that on advice of counsel he rested on his rights under “the Fifth Amendment . . . and

Article 31.” The law officer immediately cautioned the court-martial to draw no adverse inference against Roumanis from the accused’s statement. He then held an out-of-court hearing to consider the accused’s contention. Reviewing General Taylor’s grant, he advised the accused it gave him immunity from prosecution by the United States for any offenses as to which he might testify as a witness. He also informed the accused that erroneous advice of counsel was no defense to a charge of willful refusal to testify.

See Ullmann v United States, 360 US 422, 100 L ed 611, 76 S Ct 497 (1956); Dennis v United States, 171 F2d 986 (CA DC Cir) (1948), affirmed 339 US 162, 94 L ed 734, 70 S Ct 519 (1950). And he reminded the accused that willful refusal to testify was a serious military. offense carrying a punishment extending to dishonorable discharge and confinement at hard labor for five years.

The accused acknowledged his understanding of the law officer’s explanation and ruling on the effect of the grant of immunity, but persisted in his refusal to answer questions by trial counsel relating to his relationship with Roumanis and the Greek national, other than to repeat that on “advice of . . . [his] counsel” he stood “firmly on the Fifth Amendment . . . and

Article 31.” Within a week of his refusal to testify at Roumanis’ trial, the present charge was lodged against the accused. For reasons which may be inferred from the provisions of a pretrial agreement with the convening authority, the accused entered a plea of guilty when the case came up for trial. On this appeal, he contends the plea of guilty should be set aside, and the charge dismissed, because the grant of immunity tendered him was either void in its entirety, or ineffectual to protect him against prosecution in a United States district court.

What the argument amounts to is that the specification fails to state an offense in violation of the Uniform Code of Military Justice, in that General Taylor had no power to issue a grant of immunity. See Grimm, “Grants or Promises of Immunity Under Military Law” (Thesis, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, April 1957). A plea of guilty does not foreclose appellate consideration of the legal sufficiency of the specification. United States v Fout, 3 USCMA 565, 13 CMR 121.

Central to the accused’s position is the principle that no person “shall be compelled in any criminal case to be a witness against himself.” Amendment V, United States Constitution;

Article 31(a), Uniform Code of Military Justice, 10 USC §831; United States v Eggers, 3 USCMA 191, 11 CMR 191. The right to exercise the privilege does not exist, however, if there is no possibility that the witness will thereafter be subject to a criminal prosecution for any offense previously committed by him which is disclosed by his testimony. Brown v Walker, 161 US 591, 598, 40 L ed 819, 16 S Ct 644 (1896).

Thus, it has been held that “once a witness has been convicted for the transactions in question, he is no longer able to claim the privilege of the Fifth Amendment and may be compelled to testify.” United States v Romero, 249 F2d 371, 375 (CA 2d Cir) (1957); United States v Gilliland, 10 USCMA 343, 27 CMR 417. An acquittal or other jeopardy has the same effect. Wigmore, Evidence, § 2279 (McNaughton rev 1961). So, too, does a valid grant of immunity.

Of the last, the Supreme Court of the United States has said: “Immunity displaces the danger” of criminal liability and eliminates the privilege against self-incrimination. Ullmann v United States, supra, at page 439. Appellate defense counsel acknowledge the principle, but contend the authority to grant immunity must be grounded in a constitutional or statutory provision because it represents the “power to annul . . . the statutory law of crimes.” Doyle v Hofstader, 257 NY 244, 177 NE 489, 495 (1931); see also United States v Ford, 99 US 594, 25 L ed 399 (1879).

They admit that in a number of cases, this Court apparently assumed the existence of power in a general court-martial authority to grant immunity to a witness to free him from fear of prosecution for offenses committed by him which might be revealed in his testimony, but they maintain the point was never specifically considered and decided. See United States v Gilliland, supra; United States v White, 10 USCMA 63, 27 CMR 137. They contend there is no statute which sanctions the grant by a general court-martial authority of immunity against prosecution.

The law officer, and the intermediate appellate authorities, held that the necessary authority was apparent in the provisions of the Manual for Courts-Martial, United States, 1951. Pertinent statements on immunity which appear in the Manual for Courts-Martial are as follows: “56. WITHDRAWAL OF SPECIFICATIONS. . . . “b. Grounds for withdrawal.— Proper grounds for the withdrawal of a specification include substantial defect in the specification, insufficiency of available evidence to prove the specification, and the fact that it is proposed to use one of the accused as a witness. “c. Effect of withdrawal. ...

If a specification is withdrawn pursuant to a grant of immunity (148e, 150&), such grant of immunity may be asserted as a defense. “67. MOTIONS RAISING DEFENSES AND OBJECTIONS. — a.

Defenses and objections which may be raised. . . . “Defenses and objections such as that trial is barred by the statute of limitations, former jeopardy, pardon, constructive condonation of desertion, former punishment, promised immunity, lack of jurisdiction, and failure of the charges to allege an offense should ordinarily be asserted by motion to dismiss before a plea is entered; but failure to assert them at that time does not constitute a waiver of the defense or objection.

Unless otherwise stated, failure to assert any such defense or objection — except lack of jurisdiction or failure of the charges to allege an offense — before the conclusion of the hearing of the case constitutes a waiver. Effect of rulings on motion.... “. . . [W]hen the trial cannot proceed further as the result of the action of the court on a motion raising a defense or objection, the court will adjourn and submit the record of its proceedings so far as had to the convening authority. “. . .

If the convening authority finds that the action of the court was proper but that the defect raised by the motion can be cured, he will take appropriate action to remedy the defect and return the record to the court for trial as above indicated. If he does not wish to return the record for trial, he will take appropriate action to conclude the case by the publication of appropriate orders in cases wherein the action of the court operates as a bar to further prosecution.

Generally such action should be taken if the proceedings are terminated by sustaining a motion to dismiss because of former jeopardy, pardon, constructive condonation of desertion, promised immunity, or when findings of not guilty are entered on motion. In other cases, he will take action appropriate under the circumstances. “68. MOTIONS TO DISMISS- “h. Promised immunity. — See 148e (Testimony of accomplices). “148. COMPETENCY OF WITNESSES. . . . “e.

Interest or bias. . . . “The fact that an accomplice testifies for the prosecution does not make him afterwards immune to trial except to the extent that immunity-may have been promised him by an authority competent to order his trial by general court-martial. The fact that a witness has obtained a promise of immunity without which he may not have been willing to testify does not disqualify him as a witness. “150. DEGRADING AND INCRIMINATING QUESTIONS. . . . “b.

Compulsory self-incrimination. “Although an answer to a question apparently would incriminate or tend to incriminate a witness, he may be required to answer if, because of grant of immunity, former trial, the running of the statute of limitations, or some other reason, he can successfully object to being tried for the offense as to which the privilege is asserted.” [Pages 78-79, 96, 98-99, 104, 276, 277, 278, 283.] Appellate defense counsel’s argument against the Manual as the source of power for general courts-martial authority to grant immunity takes two forms: First, it is contended the President has no legal power to confer upon a military commander the authority to grant immunity; and, secondly, assuming the President possesses the requisite power, the Manual provisions merely recognize the legal consequences of a grant of immunity, but do not themselves empower a general court-martial authority to issue such grants.

In approaching the problem before us, we put aside consideration of the effect of the President’s constitutional power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

Article II, § 2, clause 1, Constitution of the United States. We perceive a Congressional grant of power to provide immunity from prosecution in the provisions of the Uniform Code; and a valid delineation of a method by which to exercise the power in the Manual for Courts-Martial promulgated by the President. Under the Uniform Code, a military commander who has information indicating that a person subject to his authority is implicated in the commission of an offense cognizable by courts-martial must “determine what disposition should be made thereof in the interest of justice and discipline.”

Article 30(b), Code, supra, 10 USC §830. Paragraph 32d of the Manual for Courts-Martial, supra, elaborates upon the extent of this power. It observes that charges can be dismissed in whole or in part, if the commander decides there are “sound reasons for not punishing the accused with respect to the acts alleged.” Appellate defense counsel contend that this power is, at best, comparable to that of a prosecuting attorney to nolle prosequi a pending indictment which terminates the preliminary proceedings, but it is not a pardon, and, therefore, does not protect against prosecution if the charge is later revived.

See Apodaca v Viramontes, 53 NM 513, 212 P2d 425, 13 ALR2d 1427, 1439 (1949) ; United States v Ford, supra. We have indeed held that the decision of a general court-martial authority not to refer a pending charge to trial does not operate as a pardon so as to bar prosecution if the charge is reinstituted. United States v Werthman, 5 USCMA 440, 18 CMR 64.

The opinion in the Werthman case, however, was based largely on the provision in paragraph 32d of the Manual, that the discretion of a commander to dismiss a charge is subject to the order of “competent superior authority.” The significance of this condition will be apparent as we develop further the powers granted by Congress. At this point, it suffices to note that Werthman does not militate against General Taylor’s grant of immunity; and adherence to it does not require a decision that the grant is legally incapable of barring prosecution of the accused for offenses that might be disclosed in his testimony.

Congress did not merely invest the commander with authority to decide whether to dismiss or drop a charge before trial. It also conferred upon him the power to free an accused from the penalty of any offense committed by him in violation of the Uniform Code, if he believes such action would further the accomplishment of the military mission. By virtue of that power, a commander having court-martial jurisdiction can set aside even a judicial determination of guilt. We commented on the vastness of the power in United States v Massey, 5 USCMA 514, 520, 18 CMR 138, as follows: “. . .

The legislative history of the Code makes it clear beyond doubt that the words ‘in his discretion’ were intended to grant to the convening authority an exceedingly broad power to disapprove a finding or a sentence. Originally these words were absent from the Code’s draft. However, from the first the official commentary on the proposed

Article 64 of the Code stated that the convening authority ‘may disapprove a finding or a sentence for any reason.’ (Emphasis supplied.) Hearings before the House Committee on Armed Services, 81st Congress, 1st Session, on HR 2498, pages 1182-1183. Mr. Larkin, one of the Code’s principal draftsmen, explained that

Article 64 ‘was intended to give him (the convening authority) a free hand in doing anything he wants for any reason in cutting down the sentence or in disapproving.’ However, certain members of Congress feared that the phrasing of the

Article — as it then stood — -was insufficient to make this' fully comprehensible. Certain of the colloquy concerning the draftsmen’s intention is highly pertinent to the present case: ‘Mr. BROOKS. He (the convening authority) doesn’t have to read the record or anything esle (sic). He can just say disapproved and it is through. ‘Mr. LARKIN. That is right.

In the normal course of the review of the case he looks to its legality and the establishment of the facts and the appropriateness of the sentence and he shouldn’t approve anything that is wrong or illegal, but he can disapprove it if it is illegal, if it is wrong, and for any other reason. ‘Mr. BROOKS. Or for no reason at all? ‘Mr. LARKIN. Or for no reason at all. ‘Mr. RIVERS. That is right. ‘Mr. LARKIN.

The classic case that I think General Eisenhower stated in his testimony before your subcommittee last year was that even though you might have a case where a man is convicted and it is a legal conviction and it is sustainable, that man may have such a unique value and may be of such importance in a certain circumstance in a war area that the commanding officer may say “Well he did it all right and they proved it all right, but I need him and I want him and I am just going to bust this case because I want to send him on this special mission.” ’ (House Hearings, supra, page 1184.)” The transcendental nature of the power of a commander having courts-martial authority to exonerate from punishment is further evidenced by the fact that he need not wait until conviction to exercise it.

At any stage of the trial he can order the charges withdrawn, and the trial discontinued.

Article 44 of the Uniform Code, 10 USC § 844, indicates Congress anticipated a convening authority could, and as the occasion warranted would, withdraw charges after they had been referred to trial. Congress placed no limitation whatever on the exercise of this power. Yet, at the same time it provided, in conformity with the constitutional protection against double jeopardy, that withdrawal of a charge after the introduction of evidence results in the attachment of jeopardy, and thereafter the accused is as fully protected against prosecution as though he had been previously tried and acquitted.

Article 44, Code, supra; United States v Johnpier, 12 USCMA 90, 30 CMR 90; United States v Stringer, 5 USCMA 122, 17 CMR 122. What is the significance of this broad spectrum of power?

What name can be given to this aggregate of authority that includes the right to discontinue an investigation into whether a crime has been committed; to dismiss any formal charge that may be made; to direct that a charge previously referred to trial be withdrawn; and, finally, to set aside a determination of guilt by the triers of the facts and the adjudged sentence, and order that the charge be dismissed and the accused be free of any and all punishment prescribed by law for the offenses he committed? What more is embraced in the power of pardon?

Combined, the provisions of the Uniform Code confer upon courts-martial authority the power to create an absolute legal bar to prosecution of a person subject to the Code and to his command for any offense in violation of the Code. In our opinion, they comprehend the right to grant immunity from prosecution to a witness to free him from the danger that he may be punished for an offense to which he might be linked by his testimony. That the totality of power of the courts-martial authority equates to the power to pardon does not exhaust the problem of General Taylor’s right to issue the grant before us.

The grant did not come about in any of the ways mentioned in the Uniform Code. The question then is whether the forms described in the Code were intended by Congress to be exclusive. Stated otherwise, is an actual court-martial trial essential to effect immunity for a prospective witness? We think not.

Article 36 of the Uniform Code, 10 USC § 836, authorizes the President to prescribe rules of evidence and modes of proof for courts-martial. Its purpose is to provide means of effectuating the court-martial processes. And its language indicates clearly that Congress anticipated that circumstances might make a rule of the civilian criminal law inappropriate for the military justice system and, conversely, that a rule of narrow application in the civilian community might be especially suitable for wide usage in the military jurisdiction.

To be certain that appropriate means could be fashioned to meet the needs, Congress invested the President with broad discretion to choose procedures he deems “practicable” to accomplish the objectives of the Uniform Code. A rule of procedure designed to achieve effi-ciently and effectively a . purpose authorized by statute, without prejudice to any substantial right of a person affected by the rule, is not invalid because other methods could have been selected. See Daley v United States, 231 F2d 123, 125 (CA 1st Cir) (1956), cert den 351 US 964, 100 L ed 1484, 76 S Ct 1028 (1956).

The military establishment is a hierarchy of authority. Every commander is subject to superior authority, with the President being, by Constitutional designation, the Commander-in-Chief. The Uniform Code granted the courts-martial authority having responsibility for the initial review of a conviction, the power to set aside findings of guilt and dismiss the charges, “in his discretion.”

Article 64, Code, supra, 10 USC § 864. In exercising that power, the commander may consider the policies of his superiors, but he is not, as he would otherwise be, duty bound to do so. See United States v Estrada, 7 USCMA 635, 23 CMR 99. However, in preliminary areas of courts-martial responsibility, the commander’s decision is subject to the direction of “competent superior authority.” Manual for Courts-Martial, supra; see United States v Schuller, 5 USCMA 101, 108, 109, 17 CMR 101; United States v Grow, 3 USCMA 77, 11 CMR 77. Command responsibility is present in a decision to withdraw charges that are at trial.

The matter is also part of the trial procedure, and, therefore, within the power of the President under

Article 36, Code, supra. And, in fact, the President has provided that charges can properly be withdrawn from a court-martial when it is proposed to use an accused “as a witness.” Manual for Courts-Martial, supra, paragraph 56a. We have already seen that withdrawal of charges after the presentation of some evidence results in the attachment of jeopardy, and confers immunity from later prosecution; in consequence, the accused cannot, when called as a witness, invoke the privilege against self-incrimination.

Must immunity for a prospective witness be conditioned upon whether a particular point is reached in the court-martial process? We can infer no such limitation from the manner in which the power to grant immunity was spelled out by Congress in the Uniform Code. We are unwilling to attribute to Congress a preference for form over substance, especially in a field in which it has consistently recognized the imperatives of direct action, and the necessity for economy of personnel and effort. The military criminal practice parallels, but does not duplicate, that in the civilian community.

Courts-martial processes are designed to cope with the urgencies of war, as well as the conveniences of peace. This does not mean that any substantial right of a person subject to the Uniform Code can be diluted or denied because of military expediency. But, it does mean that when Congress confers broad power to accomplish a specified purpose, there is an allowable discretion to formulate different methods by which to exercise the power. See Logansport Broadcasting Corp. v United States, 210 F2d 24 (CA DC Cir) (1954).

In fact, from the legislative background of the Uniform Code, it may be inferred that Congress was aware of, and approved, the precise method used in this case to effectuate the powers it granted. The old Articles of War required the President to place before Congress all rules and regulations prescribing the procedures for courts-martial.

Article of War 38, 10 USC (1946 ed, Supp IV) § 1509 (now

Article 36, Uniform Code of Military Justice, 10 USC § 836). Over the years between the original grant of authority in 1916 and the Uniform Code, the President provided various manuals for courts-martial. All contain some provisions on the subject; and since 1928 these provisions have been essentially the same as those in the current Manual. All the previous manuals were known to Congress when it considered the Uniform Code.

Also, it is probable that the standing committees on military affairs in both Houses of Congress were aware of legal opinion in the Army to the effect that a grant of immunity to a witness had the “sanction of law”; and that such grants were used in practice. Dig Ops, 1912-40, § 395 (57) ; United States v Smith, 76 BR 71. Yet, in the long and detailed hearings on the Code, no voice was raised against the

interpretation of the law, or the practice, on grants of immunity to prospective witnesses who might otherwise invoke the privilege against self-incrimination. Long-continued legislative acquiescence in known procedure can properly be read into reenactment of the underlying statutes. United States v Butts, 7 USCMA 472, 475, 22 CMR 262. We come now to the accused’s contention that the Manual does not purport to establish a method by which a grant of immunity can be effected, but merely comments on the legal consequences of immunity achieved in other ways.

In several cases before this Court, which involved some of the legal effects of a grant, we proceeded on the assumption that this form of immunity was founded upon the Manual’s provisions. See United States v Gilliland, supra; United States v Thompson, 11 USCMA 252, 255, 29 CMR 68; United States v White, 10 USCMA 63, 27 CMR 137. From what we have said as to the source of the power to grant immunity, it is apparent the Manual did not create it; Congress did. But the Manual can, and does, undertake to regulate the form of its exercise before guilt is determined by a court-martial.

It can do so because the matter is one within the competency of the President under

Article 36 of the Code. Recently, the Supreme Court of the United States reaffirmed that the constitutional privilege against self-incrimination is something more than “a mere rule of evidence.” Malloy v Hogan, 378 US 1, 9, 12 L ed 2d 653, 84 S Ct 1489 (1964). Cf. United States v Moore, 14 USCMA 635, 34 CMR 415. While the distinction between substantive and procedural law has become increasingly blurred, the manner in which the privilege can be asserted and effectuated falls within the latter class.

All the pertinent Manual statements on immunity are keyed to the provision in paragraph 1506, to the effect that a witness has no right to assert the privilege of the Fifth Amendment when he has a grant of immunity from a competent general court-martial authority. A grant of immunity makes it unnecessary to institute proceedings against the witness to the point where it would become apparent, under the exact language of the Code, that the witness has acquired immunity from further prosecution.

Implicit in the accused’s own brief is acknowledgment that when a material witness invokes the privilege against self-incrimination, the President can direct that immediate steps be taken to effect his immunity by referring appropriate charges to trial, and withdrawing them as soon as some evidence is introduced. In our opinion, the President has channeled the power to grant immunity from prosecution, which was conferred by Congress upon courts-martial authority, into a direct and efficient course of action to obviate the basis for a claim of testimonial privilege.

The accused does not dispute General Taylor’s status as a competent general court-martial authority, and the record of trial indicates this requirement of the Manual provision was satisfied. The determination that General Taylor had power to grant immunity, and that his power was exer-eised in the form and for a purpose authorized by the President, still leaves open for consideration two other issues.

The first is concerned with whether the grant of immunity was effective by its own terms to eliminate the accused’s right to assert the privilege against self-incrimination, or whether the accused had the right to reject the grant and insist upon the privilege. The Supreme Court of the United States has described the Presidential grant of immunity to a prospective witness as “a deed” which confers a “property” right upon the witness; and, as a “deed,” it must be accepted before it can become operative.

Burdick v United States, 236 US 79, 59 L ed 476, 35 S Ct 267 (1915) ; United States v Wilson, 7 Peters 150 (U.S. 1833). In the Burdick case the Court distinguished the grant of immunity to a prospective witness by the President from one prescribed in a statute by Congress. Whether the distinction can survive reexamination in the light of more recent cases need not detain us. We are not dealing with a grant of immunity by the President alone; we are dealing with a statute enacted by Congress.

Congress conferred upon the courts-martial authority the power to exonerate a person subject to the Uniform Code from the penalties for any offense in violation thereof. The President’s role is no more than designation of appropriate means by which to exercise the power. The power is, therefore, statutory, not executive, in origin; and it is endowed with the qualities of a direct grant of immunity by Congress. A grant of immunity by Congress requires no acceptance to be effective; it cannot be rejected by the witness without subjecting himself to the charge of willful refusal to testify.

Brown v Walker, supra ; Ullmann v United States, supra. Appellate defense counsel’s last contention is that General Taylor’s grant of immunity will not protect the accused from prosecution in a Federal district court. Briefly, the argument is to the effect that accused’s answers might form a link in a chain of evidence to connect him with the offense of conspiracy to obtain and deliver to a foreign agent instruments connected with the national defense, in violation of 18 USC § 793. That offense is not a capital offense, and is, consequently, subject to court-martial jurisdiction, under

Article 134 of the Uniform Code. However, 18 USC § 3486 confers upon a United States attorney the power, with the approval of the Attorney General, to apply, in a case under

Section 793 and other enumerated statutes, to a “court of the United States” for an order directing a prospective witness to testify; the witness may not then assert the privilege against self-incrimination, but he cannot be prosecuted for offenses to which his testimony may be linked. In view of this statute, say appellate defense counsel, no others can grant immunity to a witness in a case involving the national security. See Botany Worsted Mills v United States, 278 US 282, 73 L ed 379, 49 S Ct 129 (1929).

The legislative history of 18 USC § 3486 indicates that the provision regarding a “court of the United States” is intended to apply to the Federal district courts. See 2 United States Code Congressional and Administrative News Service 3065 (1954). The provision relates to grand jury proceedings, which are not applicable to the military judicial system, and constitutes a grant of power to the United States attorney, a Government officer having only the most incidental connection with the military criminal law. See

Article 47, Uniform Code of Military Justice, 10 USC § 847. We perceive nothing in the language of

Section 3486 to diminish the immunity power of the military commander under the Uniform Code, and the authority of the President under

Article 36. United States v Baker, 14 USCMA 311, 34 CMR 91. Also, nothing in the

Section purports to affect the provisions of

Article 76 of the Uniform Code, 10 USC § 876, which inter alia direct, that “the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all . . . courts, agencies, and officers of the United States.”

Section 3486 merely provides a means to obtain the testimony of a witness before a Federal grand jury or district court. It does not override or lessen the powers of commanders under the Uniform Code or affect the processes of courts-martial. One last question remains: Is the grant of immunity by General Taylor sufficiently broad to protect the accused against any prosecution that might result from his testimony? Earlier in our opinion we noted the accused had originally been charged with conspiracy to obtain and deliver instruments connected with the national defense, in violation of 18 USC § 793. The provisions of

Section 793 closely correspond to those of

Section 794, but the penalty is different.

Section 793 carries a maximum punishment extending only to imprisonment for a term of ten years, but

Section 794 authorizes the death penalty. A court-martial has no jurisdiction over an offense defined in the general Federal penal code, which authorizes the death sentence.

Article 134, Code, supra; United States v French, 10 USCMA 171, 27 CMR 245. If the offense is not cognizable by a court-martial, manifestly a general court-martial authority cannot grant immunity from prosecution therefor. We may assume for purposes of this appeal that as to delivery of an instrument relating to the national defense there are sufficient differences between the two Sections to justify the conclusion that a legal bar to prosecution under

Section 793 would not prevent prosecution under

Section 794, although there may be a question of res judicata as to particular facts. Cf. United States v Coplon, 88 F Supp 910, 911 (SD NY) (1949) ; United States v Soblen, 301 F2d 236, 240 (CA 2d Cir) (1962). The assumption does not aid the accused. The record of trial indicates that the only items which might possibly be involved in transactions affecting the accused were a publication titled “The Soldier’s Guide,” a field manual, a M-14 rifle, a M-60 machine gun, a XM-79 grenade launcher, and a gas mask.

The Soldier’s Guide is an unclassified booklet published by the Government Printing Office and is readily available to the public for $1.00. FM 21-13, August 22, 1961. The field manual is not specifically described, but it is reasonably inferable that it also is an unclassified document available to the general public. Written materials of this kind are not, as Judge Learned Hand of the Court of Appeals for the Second Circuit pointed out, within the purview of the act: “. . .

As declared in Gorin v United States, 312 US 19, 28, 61 S Ct 429, 85 L Ed 488, and as the judge himself charged, it is obviously lawful to transmit any information about weapons and munitions of war which the services had themselves made public; and if that be true, we can see no warrant for making a distinction between such information, and information which the services have never thought it necessary to withhold at all.

There can, for example, be no rational difference between information about a factory which is turning out bombers, and to which the army allows access to all comers, and information about the same bombers, contained in an official report, or procured by a magazine through interviews with officers. The services must be trusted to determine what information may be broadcast without prejudice to the “national defense,” and their consent to its dissemination is as much evidenced by what they do not seek to suppress, as by what they utter.

Certainly it cannot be unlawful to spread such information within the United States; and, if so, it would be to the last degree fatuous to forbid its transmission to the citizens of a friendly foreign power. ‘Information relating to the national defense,’ whatever else it means, cannot therefore include that kind of information, and so far as Heine’s reports contained it, they were not within the section.” [United States v Heine, 151 F2d 813, 816 (1945), cert den 328 US 833, 90 L ed 1608, 66 S Ct 975 (1946).] The rifle, machine gun, grenade launcher, and gas mask appear to be instruments connected with the national defense, but they have been described in unrestricted publications issued by the military, and are also available to the public.

See TM 9-1005-223-34, April 8, 1963; TM 9-1005-224-12, October 29, 1963; TC 9-1010-205-12, February 3, 1961; TM 3-4240-231-12, June 28, 1962. Whether ready availability of information as to operation and maintenance of these articles of military equipment is sufficient to take them out of the operation of the statute need not concern us. There is no evidence in the record, and at no time has the defense ever contended, that the accused’s testimony at Roumanis’ trial might, in any way, have led to a charge under

Section 794. In the circumstances disclosed by the record of trial before us, it is not at all “evident from the implications of the question [s], in the setting in which . . . [they were] asked, that . . . responsive answer [s] . . . or an explanation of why . . . [they could not] be answered might be dangerous because injurious disclosure could result” in a prosecution under

Section 794. Hoffman v United States, 341 US 479, 486-487, 95 L ed 118, 71 S Ct 814 (1951) ; see also Mason v United States, 244 US 362, 61 L ed 1198, 37 S Ct 621 (1917). General Taylor’s grant of immunity was, therefore, coextensive with the accused’s privilege against self-incrimination, and fully protected him against any prosecution for offenses to which his testimony as a witness at Roumanis’ trial might possibly have linked him. See Murphy v Waterfront Commission of New York Harbor, 378 US 52, 12 L ed 2d 678, 84 S Ct 1594 (1964). The decision of the board of review is affirmed.

Roumanis was acquitted of the charges on a motion for a finding of not guilty. Before acceptance of the plea, the law officer asked the accused to confer again with his counsel. The matter was considered between the accused and his civilian and military lawyers, and the accused persisted in his plea. A good faith but legally taken belief in the right to remain silent does not constitute a defense to a charge of willful refusal to testify.

Dennis v United States, 171 F2d 986 (CA DC Cir) (1948), affirmed 339 US 162, 94 L ed 734, 70 S Ct 519 (1950) ; Williamson v United States, 207 US 425, 52 L ed 278, 28 S Ct 163 (1908) ; Ullmann v United States, 350 US 422, 100 L ed 511, 76 S Ct 497 (1956). Thus, the accused took the risk that the grant of immunity was legally effective to shield him from further prosecution for any offenses that might be connected with, or disclosed or uncovered by, his testimony. Braden v United States, 272 F2d 653 (CA 5th Cir) (1960), affirmed 365 US 431, 5 L ed 2d 653, 81 S Ct 584 (1961).

If the questions asked the accused had been framed to encompass only the essential facts of the offense for which he was tried and acquitted, he could not rely upon the privilege against self-incrimination, regardless of the validity vel non of the grant of immunity by General Taylor. See United States v Chase, 281 F2d 225 (CA 7th Cir) (1960). However, the inquiry about a meeting with Roumanis and the Greek national might have forged a link in a chain of evidence leading to a charge of conspiracy, especially in view of the original charges which were not referred to trial.

See Hoffman v United States, 341 US 479, 95 L ed 1118, 71 S Ct 814 (1951). If not otherwise protected against prosecution for conspiracy, the acquittal on the larceny charge did not “displace the danger,” and the accused could assert the privilege against self-incrimination. The power was intended by the Founding Fathers to be not merely a means of clemency, but “an instrument of law enforcement” which includes the power to grant immunity to a prospective witness from prosecution for any offenses committed by him. See Corwin, “The President: Office and Powers, 1787-1957,” page 158, et seq.

It was so used, at least as early as 1807, when Dr. Erick Bollman, called as a witness before the grand jury deliberating on the charges of treason against Aaron Burr, was tendered a pardon by President Jefferson to obviate his reliance upon the privilege of self-incrimination. 1 Burr’s Trial, at page 193. In Ex parte Wells, 18 Howard 307 (U.S. 1856), the Supreme Court of the United States cited with approval Lord Coke’s observation that an executive pardon can forgive any crime, offense, or punishment before as well as after conviction. In Ex parte A. H.

Garland, 4 Wallace 333, 380 (U.S. 1867), speaking of the President’s power to grant immunity before trial and conviction, the Supreme Court said the pardon power “may be exercised at any time after [the] commission [of any offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” (Emphasis supplied.) In Burdick v United States, 236 US 79, 86, 59 L ed 476, 35 S Ct 267 (1915), President Wilson gave Burdick an “ ‘unconditional pardon for all offenses’ ” so he might be interrogated in a grand jury proceeding.

Some language in the Court’s opinion appears to reflect doubt that the President’s power extends to a grant of immunity to a witness for the purpose of freeing him from incrimination by his own testimony. However, the Court specifically deemed it unnecessary to resolve the question, and nothing in the opinion diminishes the broad definition of the President’s power as advanced in earlier cases. Possession of power does not necessarily mean that the right to exercise the power can be delegated to another. There is opinion indicating that exercise of the power must be by the President personally.

See United States v Batchelor, 7 USCMA 354, 22 CMR 144; Schwartz, “A Commentary on the Constitution of the United States,” volume II, page 94 (1963); Corwin, op cit, supra, page 79. But there is also other opinion that supports the principle of delegability. See Solesbee v Balkcom, 339 US 9, 94 L ed 604, 70 S Ct 457 (1950). As the text points out more fully, Congress has not been circumscribed in the exercise of its own power to grant immunity. See 18 USC § 3486; Ullmann v United States, 350 US 422, 100 L ed 511, 76 S Ct 497 (1956).

The considerations that support delegability by Congress would appear to be equally applicable to delegation by the President. Updegraff v Talbott, 221 F2d 342 (CA 4th Cir) (1955); cf. Ludecke v Watkins, 335 US 160, 92 L ed 1881, 68 S Ct 1429 (1948). There is no indication in this provision of the Manual that the withdrawal of the Charge comes only after the presentation of some evidence. We are mindful of the provision in

Article 34(

a) of the Uniform Code, 10 USC § 834, that a convening authority “may not refer a charge to a general court-martial for trial unless he has found that the charge ... is warranted by evidence.” Although limited to a general court-martial, we assume the “spirit” of the

Article weighs against the reference of an unsupported charge to trial by either a special or

summary court-martial. The purpose of the provision is to protect an accused against the harassment and stresses of a trial on unfounded charges. See United States v Schuller, 5 USCMA 101, 17 CMR 101. It, however, may be questioned whether this laudable purpose prohibits reference of suspected charges to trial on somewhat lesser evidence, when the objective is to free the accused from prosecution thereafter so that he might be able to testify without incriminating himself. There are other circumstances that tend to a conclusion that nothing in

Article 34 stands in the way of the use of a grant of immunity as a permissible substitute for formal reference of specific charges to trial. In any event, all of the original charges against the accused were actually referred to a general court-martial for trial, and it is reasonably inferable that such action was taken on the affirmative recommendation of the staff judge advocate that the available evidence justified trial on the charges. Thus, if

Article 34 constitutes a limitation on the extent to which a grant of immunity can substitute for actual referral of charges to trial, the limitation is inapplicable here.