IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Carson L. ALLEN, Staff Sergeant 

U.S. Marine Corps, Appellant 

No. 03-0691 

Crim. App. No. 9800849 

United States Court of Appeals for the Armed Forces 

Argued March 16, 2004 

Decided May 27, 2004

EFFRON, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Captain Rolando R. Sanchez, USMC (argued); 

Lieutenant Commander Robert D. Evans Jr., JAGC, USNR, and 

Lieutenant Commander Eric J. McDonald, JAGC, USN. 

 

 

For Appellee: Lieutenant Timothy E. Curley, JAGC, USNR 

(argued); Lieutenant Frank L. Gatto, JAGC, USNR (on brief); 

Colonel M. E. Finnie, USMC. 

 

Military Judge: W. P. Hollerich 

 

 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Allen, No. 03-0691/MC 

2

Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of officer and enlisted 

members, Appellant was convicted, contrary to his pleas, of 

maiming and assault with intent to commit grievous bodily harm, 

in violation of Articles 124 and 128, Uniform Code of Military 

Justice [hereinafter UCMJ], 10 U.S.C. §§ 924 and 928 (2000). He 

was sentenced to a bad-conduct discharge, confinement for 12 

months, forfeiture of all pay and allowances, and reduction to 

pay grade E-1. The convening authority approved the sentence as 

adjudged, but deferred and suspended both the adjudged and 

automatic forfeitures under specified conditions. The NavyMarine Corps Court of Criminal Appeals determined that the 

findings were multiplicious, dismissed the assault conviction, 

approved the conviction for maiming, and approved the sentence. 

United States v. Allen, 59 M.J. 515 (N-M. Ct. Crim. App. 2003). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER THE COURT OF CRIMINAL APPEALS 

ERRED IN AFFIRMING THE COURT-MARTIAL’S 

DECISION ADMITTING A STATEMENT DERIVED 

FROM OTHER STATEMENTS COVERED BY A 

GRANT OF IMMUNITY. 

II. WHETHER THE DECISION TO PROSECUTE WAS 

BASED ON STATEMENTS APPELLANT MADE 

UNDER A GRANT OF IMMUNITY. 

For the reasons discussed below, we affirm. 
United States v. Allen, No. 03-0691/MC 

3

I. BACKGROUND 

 At the time of the events at issue in this appeal, 

Appellant was a staff sergeant (SSgt) in the Marine Corps, 

stationed in Hawaii. The findings of the court-martial were 

based on injuries sustained by CJ, Appellant’s infant son. 

A. THE INITIAL INJURY AND STATE COURT PROCEEDINGS 

 In late February and early March, 1996, Appellant’s wife 

and CJ traveled to Baltimore, Maryland, while Appellant remained 

in Hawaii. They returned to Hawaii on March 6. Later that 

evening, Appellant and his wife brought CJ, who was then three 

months old, to Kapiolani Medical Center in Hawaii. CJ was 

transferred to Tripler Army Medical Center where he was treated 

for injuries consistent with Shaken Baby Syndrome. Medical 

personnel estimated that the injury probably occurred during the 

period in which Appellant’s wife and CJ were in Baltimore and 

Appellant was in Hawaii. 

 The Naval Criminal Investigative Service (NCIS) opened an 

investigation into the incident. Based upon the initial medical 

examination, NCIS viewed Appellant’s wife as the source of the 

injury, and did not maintain an active investigation of 

Appellant. 

 As a result of this incident, the Hawaii Department of 

Human Services placed CJ in foster care and initiated civil 

proceedings in Family Court under Hawaii’s Child Protective Act, 
United States v. Allen, No. 03-0691/MC 

4

Haw. Rev. Stat. § 587-1 (2003). The court issued an order on 

April 8 limiting Appellant’s wife to supervised contact with CJ. 

The order also provided that Appellant would regain custody of 

CJ, subject to a number of conditions. These conditions 

included a requirement that Appellant’s wife “secure[] a 

separate residence from [Appellant],” and that both Appellant 

and his wife participate “in therapy services, including 

parenting education, with Geraldine Wong, M.A.” 

 The April 8 order also stated that “[t]he protections of 

[Haw. Rev. Stat.] § 587-42(a) are invoked on behalf of Mr. and 

Mrs. Allen.” Under § 587-42(a), 

[a]ny testimony by or other evidence 

produced by a party in a child protective 

proceeding under this chapter, which would 

otherwise be unavailable, may be ordered by 

the court to be inadmissible as evidence in 

any other state civil or criminal action or 

proceeding, if the court deems such an order 

to be in the best interests of the child. 

 Appellant subsequently regained custody of CJ. Following a 

hearing on May 7, the Family Court issued a further order, 

attaching a service plan prepared by the Department of Human 

Services and agreed to by Appellant and his wife. The service 

plan provided that Appellant’s wife would participate in 

“individual/family therapy with Gerry Wong,” that Appellant 

would provide for the daily care of CJ, and that Appellant would 

“attend therapy with Gerry Wong, M.A. when requested by Ms. 
United States v. Allen, No. 03-0691/MC 

5

Wong.” The order stated that “all prior consistent orders shall 

remain in full force and effect until further order,” and 

directed the parties to return to court for a review hearing on 

November 1, 1996. 

B. THE SECOND INJURY 

 On August 8, CJ was hospitalized with serious injuries, 

including a fractured skull and swelling of the brain. 

Appellant explained to medical personnel that on the morning of 

August 8, he had been carrying CJ in his arms when CJ arched his 

back and fell onto the concrete floor. At that time, CJ was 

eight months old, and Appellant was the sole custodian. The 

most recent visit of Appellant’s wife to the family had been on 

August 7. 

 While both Appellant and his wife were at the hospital, 

they were approached by an NCIS agent. After consulting with an 

attorney, they told the agent that they would not answer her 

questions, but they would permit the agent to monitor their 

conversations with the doctors and social workers at the 

hospital. 

 The hospital convened a Suspected Child Abuse and Neglect 

meeting on August 14. Appellant’s supervisor, Colonel Charles 

Jackson, and NCIS Special Agent (SA) Bruce Warshawsky, attended 

the meeting. The medical personnel who treated CJ stated that 

the injuries were likely the result of non-accidental trauma, 
United States v. Allen, No. 03-0691/MC 

6

and were not consistent with Appellant’s explanation that CJ had 

fallen from his arms by accident. Appellant and his wife then 

joined the meeting, and they were advised that CJ’s injuries 

were consistent with Shaken Baby Syndrome. 

 Following the meeting, Colonel Jackson had a further 

conversation with Appellant, and told him that the medical 

personnel suspected that he had injured CJ by shaking him in an 

abusive manner. As the discussion came to an end, Colonel 

Jackson said to Appellant, “If your son dies, I believe they are 

going to prosecute you for murder.” According to Colonel 

Jackson, Appellant was visibly upset as a result of this 

conversation. 

C. THE INCRIMINATING STATEMENTS 

 On the evening of August 15, Appellant and his wife 

attended a family counseling session with Ms. Wong pursuant to 

the service plan attached to the Family Court’s May 7 order. 

Appellant told Ms. Wong of the following sequence of events 

concerning CJ. First, he placed CJ in bed with him, and fell 

asleep. While sleeping, he dreamed that CJ had been taken from 

him. When he awoke, he forgot that CJ was in the same bed. 

Appellant went to check CJ’s crib, discovered that the crib was 

empty, and panicked. Then he heard CJ cry. Appellant returned 

to the bed, grabbed CJ, and shook him. 
United States v. Allen, No. 03-0691/MC 

7

 Appellant’s wife became upset upon hearing Appellant’s 

narrative. Ms. Wong phoned a friend of Appellant’s wife, Carol 

Ward, who came to Ms. Wong’s office and eventually drove 

Appellant’s wife to the Ward residence. Before leaving, 

Appellant’s wife advised Ms. Wong to call Appellant’s friend, 

SSgt Samuel Walker, to assist Appellant. 

 At Ms. Wong’s request, SSgt Walker came to the office. 

Appellant, who spoke privately to SSgt Walker, told SSgt Walker 

that he had caused CJ’s injuries, and demonstrated how he had 

shaken CJ. Appellant told SSgt Walker that he wanted to turn 

himself in to NCIS. SSgt Walker asked Appellant if he would 

prefer to wait until the following morning before turning 

himself in to NCIS. Appellant indicated that he wanted to 

surrender himself that night. Appellant and SSgt Walker then 

returned to Ms. Wong’s office. 

 At that point, Ms. Wong contacted an official of the Hawaii 

Child Protective Services, Ms. Kathleen Reeber, and told her 

that Appellant had confessed. Ms. Reeber, who spoke with 

Appellant by telephone, advised him that anything he said to her 

would not be treated as confidential. She also suggested that 

he might wish to consult with an attorney before speaking with 

NCIS. While Appellant was on the phone with Ms. Reeber, SSgt 

Walker pressed the mute button and told him that he should not 

speak to a Child Protective Services official until he obtained 
United States v. Allen, No. 03-0691/MC 

8

“some more advice.” Appellant rejected SSgt Walker’s 

suggestion, stating that “everything [was] all right.” In the 

course of his subsequent conversation with Ms. Reeber, Appellant 

made a number of incriminating statements. 

 While Appellant was speaking to Ms. Reeber, SSgt Walker 

attempted to contact his chain of command. SSgt Walker reached 

his commander’s wife, who called Appellant’s commander, Colonel 

Jackson. Colonel Jackson, who was concerned that Appellant 

might harm himself, proceeded to Ms. Wong’s office. SSgt Walker 

intercepted Colonel Jackson before he met with Appellant, and 

informed him that Appellant wanted to surrender to NCIS. 

Colonel Jackson then overheard a portion of Appellant’s 

conversation with Ms. Wong. After walking into Ms. Wong’s 

office, Colonel Jackson observed that Appellant appeared to be 

“shell-shocked” and “emotional.” Appellant told Colonel Jackson 

that it was all part of a bad dream. When Colonel Jackson 

commented to Appellant that he “was going to go freely and turn 

himself in or I was going to call the [Military Police],” 

Appellant responded, “[Y]ou don’t have to do that, I know I did 

this, and that I am not trying to deny it.” 

 Appellant told Colonel Jackson that he wanted to speak with 

his wife before going to NCIS. Colonel Jackson, along with SSgt 

Walker, drove Appellant to meet with his wife. During the 

drive, Appellant repeated the incriminating remarks that he had 
United States v. Allen, No. 03-0691/MC 

9

made earlier in the evening to Ms. Wong, Ms. Reeber, and SSgt 

Walker. Soon after they arrived, a chaplain also arrived, along 

with the wife of SSgt Walker’s commanding officer. Appellant 

repeated his incriminating remarks to them, and demonstrated how 

he had shaken CJ. 

 Eventually, Colonel Jackson and SSgt Walker drove Appellant 

to the NCIS office, where Colonel Jackson told SA Warshawsky 

that Appellant wanted to confess. SA Warshawsky took Appellant 

into an interview room and administered a cleansing warning, 

which informed Appellant that “any prior illegal admissions or 

other improperly obtained evidence which incriminated [him could 

not] be used against [him] in a trial by court-martial.” SA 

Warshawsky also advised Appellant of his self-incrimination 

rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b)(2000), and 

Miranda v. Arizona, 384 U.S. 436 (1966). See Military Rule of 

Evidence 305 [hereinafter M.R.E.]. Appellant indicated that he 

understood both the cleansing warning and his right against 

self-incrimination, and that he still desired to speak to NCIS. 

He then made a detailed incriminating statement. 

D. DEVELOPMENTS AT TRIAL 

At a pretrial hearing, Appellant moved to suppress the 

multiple statements that he made on the evening of August 15, 

1996, citing among other protections, the privilege against 

self-incrimination in the Fifth Amendment and Article 31. He 
United States v. Allen, No. 03-0691/MC 

10

contended that his statements to Ms. Wong did not constitute a 

voluntary waiver of the privilege because he was compelled to 

speak to her as a result of the order issued by the Family 

Court, and that the other statements were derived from his 

admissions to Ms. Wong. The military judge determined that the 

state statute referenced in the Family Court order provided 

Appellant with immunity for any statements that he made to Ms. 

Wong, as well as any derivative statements. Based on that 

determination, the military judge suppressed Appellant’s 

statements to Ms. Wong, SSgt Walker, Ms. Reeber, Colonel 

Jackson, and the chaplain, but concluded that the statement made 

at the NCIS office following the cleansing warning by SA 

Warshawsky was not tainted. At trial, Appellant’s statement to 

SA Warshawsky was a key aspect of the prosecution’s evidence 

that resulted in Appellant’s conviction. 

II. DISCUSSION 

A. IMMUNITY 

The Government may not compel a person to make an 

incriminating statement. U.S. Const. amend. V; Article 31, 

UCMJ; M.R.E. 301. Through a grant of immunity coextensive with 

the privilege against self-incrimination, the Government may 

require a person to make a statement that would otherwise be 
United States v. Allen, No. 03-0691/MC 

11

incriminating. Kastigar v. United States, 406 U.S. 441 (1972). 

As noted in M.R.E. 301(c)(1): 

The minimum grant of immunity adequate to 

overcome the privilege is that which under 

[Rule for Courts-Martial] 704 or other 

proper authority provides that neither the 

testimony of the witness nor any evidence 

obtained from that testimony may be used 

against the witness at any subsequent trial 

other than in a prosecution for perjury, 

false swearing, the making of a false 

official statement, or failure to comply 

with an order to testify after the military 

judge has ruled that the privilege may not 

be asserted by reason of immunity. 

 If a person provides information under a grant of immunity, 

the Government in a subsequent criminal prosecution must 

affirmatively demonstrate “that the evidence it proposes to use 

is derived from a legitimate source wholly independent of the 

compelled testimony.” Kastigar, 406 U.S. at 460. See United 

States v. Boyd, 27 M.J. 82, 84 (C.M.A. 1988). A grant of 

immunity by one jurisdiction within the federal structure, such 

as a State, provides equivalent protections against use of the 

information by other jurisdictions, such as another State or the 

Federal Government. See Murphy v. Waterfront Comm’n of New 

York, 378 U.S. 52, 79 (1964). 

The underlying principle furthered by a grant of 

testimonial immunity is that the witness and the Government 

should be left “in substantially the same position as if the 

witness had claimed [the] privilege [against self-
United States v. Allen, No. 03-0691/MC 

12

incrimination].” Id. See Boyd, 27 M.J. at 84. We have 

recently described this principle as “extract[ing] a ‘quid pro 

quo’ from the Government for the information it compels from the 

citizen.” United States v. Mapes, 59 M.J. 60, 67 (C.A.A.F. 

2003). In addition to requiring that the Government abstain 

from using the compelled information in any way to prosecute the 

citizen, this “quid pro quo” also requires that “the Government, 

if challenged in court, demonstrate that it has followed a 

process to ensure it has not exploited the compelled 

information.” Id. 

The Government may not rely upon or use immunized testimony 

in making the decision to prosecute. See United States v. 

Olivero, 39 M.J. 246, 249 (C.M.A. 1994); United States v. 

Kimble, 33 M.J. 284 (C.M.A. 1991). The burden is upon the 

Government in such a case to demonstrate “by a preponderance of 

the evidence, that the prosecutorial decision was untainted by 

the immunized testimony.” Olivero, 39 M.J. at 249. See Mapes, 

59 M.J. at 67. 

 As noted in Part I, the military judge in the present case 

determined that Appellant’s statements to Ms. Wong were made 

pursuant to a grant of immunity under state law. See Haw. Rev. 

Stat. § 587-42(a). The parties in this appeal have not 

identified an opinion by the Hawaii state courts that reaches a 

conclusion as to whether the statute provides a grant of 
United States v. Allen, No. 03-0691/MC 

13

immunity. For purposes of this appeal, we shall assume without 

deciding that the military judge correctly interpreted the 

Family Court order and the state statute as providing a grant of 

testimonial immunity to Appellant. 

B. THE MOTION TO SUPPRESS 

 Under Kastigar, the Government must demonstrate that 

Appellant’s incriminating statement to NCIS was “derived from a 

legitimate source wholly independent of” his earlier inculpatory 

statement to Ms. Wong. 406 U.S. at 460. The record in the 

present case demonstrates that Appellant’s statement was the 

product of his own desire to confess, and was not derived by the 

Government from his earlier statement to Ms. Wong. 

 The idea of confessing to NCIS on August 15 originated with 

Appellant, and he steadfastly resisted the advice of others who 

urged him to defer making a statement to NCIS. SSgt Walker, who 

heard Appellant’s confession shortly after he arrived at Ms. 

Wong’s office, asked Appellant if he would not rather wait to 

speak with NCIS until the following morning, but Appellant 

insisted that he do so that evening. Ms. Reeber, the Child 

Protective Services official who spoke to Appellant that night, 

told Appellant that he should consult with his attorney before 

speaking to NCIS. Appellant did not take her advice. SSgt 

Walker, upon learning that Appellant was speaking with a Child 

Protective Services official, interrupted Appellant’s 
United States v. Allen, No. 03-0691/MC 

14

conversation to advise him to remain silent. Again, he rejected 

that advice. 

The record further demonstrates that Colonel Jackson, who 

came to Ms. Wong’s office to protect Appellant from harming 

himself, was told upon arrival by Appellant’s friend, SSgt 

Walker, that Appellant wanted to make a statement to NCIS. 

Appellant expressed no reluctance to Colonel Jackson about 

turning himself in to NCIS. When Colonel Jackson remarked that 

he would call the police if Appellant did not go freely, 

Appellant said “[Y]ou don’t have to do that, I know I did this, 

and that I am not trying to deny it.” Under other 

circumstances, a statement similar to Colonel Jackson’s remarks 

might be problematic in terms of assessing the derivative nature 

of any subsequent statement. In the present case, however, 

there is no evidence of record that Colonel Jackson’s remarks 

prompted Appellant to make a statement that he otherwise did not 

want to make or that it was used to overcome any reluctance 

manifested by Appellant. On the contrary, Appellant repeatedly 

insisted to both friends and officials that he wanted to make a 

statement to NCIS that night, even when they cautioned him about 

doing so. 

Against this backdrop, SA Warshawsky administered a 

cleansing warning to Appellant, informing him that “any prior 

illegal admissions or other improperly obtained evidence which 
United States v. Allen, No. 03-0691/MC 

15

incriminated [him could not] be used against [him] in a trial by 

court-martial.” SA Warshawsky also advised Appellant of his 

Article 31(b) and Miranda rights. Appellant indicated that he 

understood these rights and that he desired to waive them. Only 

at that point did SA Warshawsky allow Appellant to make a 

statement. 

In summary, the evidence shows that Appellant wanted to 

make a statement to NCIS, that he was determined to confess that 

evening, that he did not waver from that course, and that his 

confession to NCIS was knowingly and voluntarily made. His 

decision to confess did not result from Government exploitation 

of his immunized testimony. Under these circumstances, the 

Government has met its burden of affirmatively demonstrating 

that his statement was derived from a legitimate source wholly 

independent of the compelled testimony. 

C. THE DECISION TO PROSECUTE 

Although Appellant moved to suppress the testimonial use of 

his confession to NCIS, he did not move to dismiss the charges 

or otherwise allege at trial that the Government improperly used 

immunized testimony in the course of making the decision to 

prosecute. Under Rule for Courts-Martial 907(b)(2)(D)(ii), an 

allegation of improper use of immunized testimony in the 

prosecutorial decision constitutes a waivable basis for a motion 

to dismiss. In that context, we conduct a plain error review; 
United States v. Allen, No. 03-0691/MC 

16

that is, we assess (1) whether there was an error; (2) if so, 

whether the error was plain or obvious; and (3) if the error was 

plain or obvious error, whether it was prejudicial. See United 

States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998). 

Although the investigation initially focused on Ms. Allen 

because of the estimated time of the abuse that resulted in CJ’s 

hospitalization on March 6, 1996, Appellant became a suspect 

following the events of August 8 at which time CJ was in his 

sole custody. At the hospital team meeting on August 14 the 

focus shifted sharply to Appellant, a day before he made his 

statements to Ms. Wong and the others. Moreover, his statement 

to NCIS, which we have determined to be otherwise admissible, 

provided an independent basis for making the decision to 

prosecute. Under these circumstances, the preponderance of the 

evidence demonstrates that the prosecutorial decision was 

untainted by Appellant’s statement to Ms. Wong. Olivero, 39 

M.J. at 249; see also Mapes, 59 M.J. at 67. There was no error, 

much less plain error, in not dismissing the charges. 

III. CONCLUSION 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.