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CAAFlog

Court of Appeals for the Armed Forces

1/18/2023

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United States v. Pyron, stems from a rehearing after the case had been set aside because of a member issue. Original NMCCA published opinion, 81 M.J. 637 (N-M Ct. Crim. App. 2021) here.
​This case stems from an interlocutory appeal under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2018). At a rehearing in this case, the military judge denied the Government’s motion to admit Appellant’s testimony from his original court-martial. We hold that the military judge abused his discretion by excluding this evidence. Because the United States Navy-Marine Corps Court of Criminal Appeals (CCA) reached the same conclusion, we affirm the judgment of the lower court.
. . .
​The Government then moved to admit Appellant’s testimony from his first trial under Military Rule of Evidence (M.R.E.) 801(d)(2) as an admission by a party opponent. Citing the standards imposed by relevant case law, the Government argued that the “testimony was not induced by the Government’s use of wrongfully introduced evidence nor was it the result of ineffective assistance of counsel.” The defense opposed the Government’s motion, asserting that Appellant’s prior testimony “was induced by the Government’s actions and it [was] unfairly prejudicial.”
What was the Government action? A member in the first trial had given answers in voir dire suggesting his having a daughter may affect his decision making. Yet neither party nor the MJ followed up on that. Later,
As the CCA noted in its decision, “neither trial counsel nor the military judge asked any further questions of LT Alpha” to rehabilitate him. Id. And yet later in the process, “the trial counsel [mistakenly] made arguments regarding the [defense] challenge for cause that suggested a rehabilitation colloquy had been conducted, and the military judge ​adopted those incorrect facts and based his denial of the [defense] challenge [for cause] upon them.” Nevertheless, the CCA did “not find that the trial counsel intentionally misled the military judge as to LT Alpha’s answers.” Instead, the lower court found that trial counsel made an “honest mistake.” But because of this prejudicial error, the court set aside and dismissed the findings and sentence and authorized a rehearing.
The question then becomes whether the "error" at the first trial is the type of prosecution misconduct that resulted induced Appellant's testimony at the first trial. Here is the nub of the answer.
There is a “general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison, 392 U.S. at 222). As explained by the Supreme Court:

     A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

However, the Supreme Court announced an exception to this general rule: If the government engaged in illegal conduct and this conduct prompted the accused’s testimony, the government may not use “any testimony impelled” by this illegality because it is “the fruit of the poisonous tree.” Id. Thus, under Harrison, an accused’s testimony at a prior trial is admissible at a subsequent trial unless (1) the government engaged in illegal conduct at the first trial, and (2) the government’s illegal conduct induced the accused’s prior testimony. See id.
The Chief concludes that the TCs mistake is not the type of illegal conduct contemplated in the Harrison exception. It seems that

"in United States v. DeWitt, this Court’s predecessor definitively refused to extend the Harrison exception “to instances . . . where there is no primary illegality on the part of the Government’s” agents. 3 M.J. 455, 456 (C.M.A. 1977)."

DeWitt was a UA case. The appellant had unsuccessfully challenged admissibility of the Army form recording that he was absent from a certain date and time. He then changed his plea to guilty. However, the MJ rejected the guilty plea. So, it became a NG case again. At this point, the prosecution offered his statements made in response to his guilty plea along with the form and gained a conviction. On appeal CMA held it error to admit the form but found sufficient evidence from the providence (in court under oath) statements to sustain a conviction.

Because it was a judicial error in admitting evidence that caused the testimony

"Such lofty motive as prompted the Supreme Court in 
Harrison and this Court in Bearchild would not be served by extending this doctrine to instances such as this case, where there is no primary illegality on the part of the Government’s investigators."

Fn. 3 cites two federal cases with a similar result--judicial errors are not primary illegality of the prosecution.

In 
Pyron II we have a combination--a TC who was wrong about the voir dire of one member and whether he had been rehabilitated, a defense counsel who did not point that error out, and a military judge who had forgotten (or not noted) that the TC was wrong and so did not correct the error.

A collateral point from Pyron II would be that of situational awareness.

Sr. Judge Crawford was the sit-in judge for this unanimous opinion.
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Court of Appeals for the Armed Forces

12/13/2022

1 Comment

 
#2 for this season is United States v. Day.
The sole assigned issue in this appeal is “[w]hether attempted conspiracy . . . is a viable offense under the UCMJ.” Consistent with our holding in United States v. Riddle, 44 M.J. 282, 285 (C.A.A.F. 1996), we answer this question in the affirmative. We therefore affirm the judgment of the United States Air Force Court of Criminal Appeals (AFCCA).
This was a guilty plea case with what appears to be standard language to waive all waivable motions.
​ In short, Appellant informed JM that she wanted to kill her husband to obtain the benefits of a life insurance policy. Appellant and JM agreed to meet in a Walmart parking lot so that JM could supply Appellant with a substance for poisoning her husband. When they met, Appellant paid JM $100, and JM provided Appellant with a clear plastic bag containing a white substance that JM said was fentanyl. Appellant did not know that JM was working as an informant for Air Force investigators and that the substance JM provided was not actually fentanyl.
So the first question for Judge Maggs, writing for the court (including Sr. Judge Effron) was whether the issue presented was waived as a result of the unconditional guilty plea.

At trial the MJ went through the usual colloquy with counsel about what potential issues would be waived. At no time, they were asked four times, did the defense raise a failure to state an offense as a potentially waived issue. The unconditional guilty plea continued through sentencing.

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Court of Appeals for the Armed Forces

11/22/2022

 
United States v. Thompson is the first opinion of the new season. Judge Maggs writes for a unanimous court (with Senior Judge Erdmann sitting in the fifth chair).
Appellant argues that the United States Air Force Court of Criminal Appeals (AFCCA) erred in affirming a judgment that he sexually assaulted a fifteen-year-old girl. Appellant asserts the AFCCA erred in conducting its factual sufficiency review by requiring him to prove his mistake of fact defense with “direct evidence.” We agree that certain language in the AFCCA’s opinion supports Appellant’s argument. We therefore set aside the AFCCA’s decision and remand the case for a new factual sufficiency review.
AFCCA's unpublished opinion is here. While noting AFCCA's description of the legal rules "at length" relating to factual sufficiency, Judge Maggs then goes on to say (and quote AFCCA)

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Commentary on Mil. R. Evid. 513

9/30/2022

 
A new item in the AF JAG Reporter is worthy of a read.

Captain Rocco J. Carbone, III and Captain Christina L. Heath, A Review of 2022 Court of Appeals for the Armed Forces Updates to Military Rule of Evidence 513. September 27, 2022 at 1.

A "headline" suggests that "
C.A.A.F.’s opinions and actions this term helped to demarcate some of the boundaries to Mil. R. Evid. 513, yet the likelihood of litigation remains high."

Mellette has proved useful, on a trial motion to reconsider denial of access, but not useful because the response was that "records older than 10 years are not retained" (or words to that effect).

We are particularly interested in their language
Regarding the “inappropriateness to allow [the] privilege,” courts have held that the privilege should not act as both a “sword” and a “shield.” In other words, the privilege holder may not use it to disclose evidence “to establish advantageous facts and then invoke the privilege to deny the evaluation of their context, relevance, or truth—thus turning the privilege from a shield into a sword—a circumstance the waiver rule’s broader language seeks to avoid.” Regarding appropriateness, practitioners should consider the perceived intent behind the communication when it was made and for what purpose
The question implicates the common cherry-picking that goes on with reports of offenses whether it be about psych records or the, very common, cherry-picking of texts on a smartphone. It seems that cherry-picking during the course of an investigation fits within the idea of establishing "advantageous facts" with the intent to advance a prosecution.

An off the wall question is whether the Rule also applies to patient-therapist records of an accused. The Rule does not contain a general exception for records of the accused. There is a specific exception when the accused has first offered statements concerning a mental condition. See R.C.M. 513(d)(7). Why should there not be a similar rule for a witness who first offers evidence of a mental condition? Is there an 'they opened the door argument?'

We have a couple of questions that relates to a not uncommon event.

Scenario 1.

A court-martial accused and "victim" are in civilian court on a divorce and child custody matter.

Under the state rules of discovery there can be required depositions and medical and mental health records disclosure. These records, after all, may be relevant to who is the best parent to have full or joint custody of a child or whether a divorce should be granted 'for cause.' There is due process attendent to the nature and extent of the discovery. And the records may now be part of the court records for the case (e.g., in testimony).

Scenario 2. 

An alleged victim goes to civilian court for a Protective Order. The person "accused" has the due process right to a hearing. At the hearing, the "accuser" has the opportunity to make a presentation, and assume she does. See, e.g., Fairfac County, VA, Local Rules. (Caution. Every states rules may differ.)

The accused (or his divorce/child custody lawyer) provides a copy of any documents to the court-martial defense counsel. (Assume the DC was not present at a PO hearing.)

What use, if any, can be made of these records in a court-martial?

Court of Appeals for the Armed Forces

9/11/2022

 
Update. A commenter has provided the following for consideration.
In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.­­__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).

Appellant was convicted of three specifications of violating Article 134, UCMJ, and one specification of violating Article 128, UCMJ. For the Art. 134 charges, the Government had to prove two elements: “(1) that Appellant knowingly and wrongfully produced, possessed, or distributed child pornography; and (2) that under the circumstances, the Appellant’s conduct was to the prejudice of good order and discipline in the armed forces.” Id. At trial, the government relied on Appellant’s military status, his location on a military installation, and use of “resources he received from the military to effectuate the commission of his crimes” to prove the second element of Art. 134, UCMJ. Brief for Appellee at 15, United States v. Richards, No. 22-0091 (C.A.A.F. Apr. 25, 2022). The CAAF said definitively that this was not enough. While finding that “the Government failed to proffer any evidence that Appellant’s misconduct had any negative effect- indeed, any effect at all- on the good order and discipline of the armed forces,” the Court solidified that evidence of actual harm is required to prove the element of prejudicial to good order and discipline. Richards, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).

In an important reminder for trial counsel, Judge Hardy states that the “constitutional mandated” to prove beyond a reasonable doubt every element of the charged offense “applies just as much to the terminal element of Art. 134, UCMJ, as it does every other element of a criminal offense. Id. 

The Court spends a large section of the 15-page decision, as does Judge Maggs’ concurrence, discussing the definition, or lack thereof, of the phrase prejudicial to good order and discipline. “The Government’s expansive view of the scope of conduct that is ‘to the prejudice of good order and discipline’- essentially that any misconduct that has a nexus to the military qualifies- suggests that it might be necessary for us to better define such conduct, something that would be well within this Court’s authority to do so.” Id. After going through some history, the Court settles on the definition given by Colonel William Winthrop in 1895: “The misconduct must be activity against ‘good order’ which affects the ‘condition of tranquility, security, and good government of the military service.’”

The government cited to a few cases, primarily United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988), to suggest that unlawful conduct coupled with the use of government resources to tangentially further that crime prejudices good order and discipline.  The Court explicitly states that it does not overrule Davis, but it does state “[t]o whatever extent older cases suggest that prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused, those cases have been overruled.” Richards, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
​
The CAAF overturned AFCCA and the trial court’s decision and found that the case was not legally sufficient as to the three specifications of Art. 134, UCMJ. The case was remanded for further proceedings. For the field, the take aways are: the government must prove every element of the charged offense and the phrase “prejudicial to good order and discipline” means something. 
Some years ago, Air Force Colonel Jeremy Weber turned a masters thesis into a law review article about good order and discipline.

Jeremy S. Weber, Whatever Happened to Military Good Order and Discipline. 66 CLEVE. ST. L. REV. 123 (2017).
If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform.
His statistical research shows that the term is often stated or used but that it defies definition. He explores the root of the term going back to the Seventeenth and Eighteenth centuries. As one of his purposes for examining the current state of UCMJ art. 134 prosecutions he says that,
​ This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134.
In developing that theme he reviews military and Supreme Court decisions challenging prosecutions under Article 134 and concludes,
However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept.
He gets us to one "limitation" in the Manual for Courts-Martial under Article 134(1) that the conduct have a "reasonable and palpable effect" on good order and discipline--a limitation perhaps ignored in trials. He recognizes this still does not define what actions can be prejudicial in many cases rather it's an attempt to give weight to the severity of the conduct. The article is a good read, especially as Judge Maggs has given it a bit of currency--he cites Weber's article in his (and Judge Stucky's) concurring opinion in United States v. Richard, __ M.J. ___, No. 22-0091/AF, 2022 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Is there a volunteer to do a case review for us (anonymous even)? We don't want to write more ourselves because we are in the middle of a brief on this very issue.

​Submit a draft to admin@nimj.org.

Court of Appeals for the Armed Forces

9/4/2022

 
In Sigrah, the court explains R.C.M. 914 and the "Jencks Act.
We reiterate today that the Kohlbek framework is the appropriate prejudice analysis for preserved nonconstitutional R.C.M. 914 error.
​R.C.M. 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made. In its opinion, the lower court agreed that the military judge erred in her application of R.C.M. 914. However, the lower court determined that the error did not substantially influence the findings.

After review of the record, we conclude that the military judge’s error in not striking the relevant testimony pursuant to R.C.M. 914 had a substantial influence on the findings. Consequently, the lower court’s decision is reversed and the findings and sentence are set aside.
  • Army Criminal Investigation Command (CID) began an investigation. [and] interviewed the victim, appellant, SPC D, and SPC B.
  • All of the interviews were video recorded and temporarily stored on a CID server.
  • [T]he relevant interview rooms were configured in a manner such that the video-recording feature automatically began whenever someone entered an interview room.
  • [H]owever, the interviewing CID agent had to affirmatively press a button to engage the audio recording feature. "So we have the option to turn the audio on and off in the interview rooms, but the video is always recording.”"
  • Video recordings of interviews—and the audio recordings of interviews, if the button was pressed— were automatically stored on a CID server with limited storage space.
  • Unless a CID agent accessed the server and affirmatively preserved a specific recording, the recordings were automatically overwritten when the server’s storage capacity was reached.
  • [I]t was CID policy at the time to preserve only subject interviews on a physical disc.
  • [N[on-subject witness interviews would be overwritten approximately thirty to fortyfive days after the interview.
  • [O]nly appellant’s CID interview— video and audio—was preserved on a physical disc.
  • {I]nterviews of the victim and SPCs D and B were not affirmatively preserved by CID and, as such, were eventually automatically overwritten.
    • The victim and SPCs D and B did, however, provide written sworn statements to CID during their interviews, all of which were preserved and disclosed to the defense.
    • The victim wrote a sevenpage sworn statement; SPC D wrote a five-page sworn statement; and SPC B wrote a four-page sworn statement.
    • SPC D was advised of his Article 31(b), UCMJ, rights prior to his interview and waived his rights. Notwithstanding the rights advisement, SPC D’s interview was not affirmatively preserved.
  • Following the victim’s direct examination, defense counsel moved to strike her testimony under R.C.M. 914 because the government failed to preserve her recorded interview.
  • Trial counsel acknowledged the victim’s recorded interview contained statements and that the government could not produce those statements due to the recording being automatically overwritten.
  • Trial counsel argued that despite the loss of the statements, there was no showing of bad faith on the part of CID and that the defense had access to the victim’s sworn statement. During the same Article 39(a), UCMJ, hearing, the defense indicated it would be making the same motion, supported with the same evidence, with respect to the testimony of SPCs D and B. The government maintained its argument concerning the absence of bad faith and the availability of sworn statements as to SPCs D and B.
  • The military judge orally denied defense counsel’s R.C.M. 914 motions for all three witnesses and stated she would supplement the record with written findings of fact and conclusions of law.

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Court of Appeals for the Armed Forces

8/30/2022

 
CAAF declines to apply the "common authority" doctrine in favor of the Government in Black.
The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.
ACCA decision.

Black appealed ACCA's reversal of the trial court’s decision to suppress photographic evidence of child pornography found on appellant’s cell phone. In suppressing the evidence, the trial judge reasoned that PFC A. – who discovered the photos – did not have common authority to consent to a search of PFC Black’s phone. ACCA disagreed.
 
Black appealed and CAAF granted review to answer the following question:
“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”
In deciding the issue of common authority, CAAF concluded that the Military Judge did not abuse his discretion in deciding that PFC A. did not have common authority over the phone when he consented to a search. The CAAF reasoned:
Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
 
Neither the Supreme Court nor this Court has ever held that the scope of a person’s common authority over property is coextensive with that person’s access to the property. If that were true, determining whether common authority existed would be trivial. The only question would be whether the person who consented to the search had access to the searched property. Under the Government’s theory, a property owner would “assume the risk” that another person might provide consent to an unlimited search by law enforcement simply by giving that person limited, temporary possession over their property. Yet that is not how the analysis in common authority cases proceeds.
 
In Rader, this Court expressly rejected the idea that the owner of a computer that was also used by a third party could not limit the scope of the third party’s access to certain applications or files. 65 M.J. at 34. And although the Court recognized that one way of restricting access was through the use of technological restraints such as passwords or encryption, we also acknowledged that courts should consider “whether the defendant otherwise manifested an intention to restrict third-party access.” Id. (internal quotation marks omitted) (citation omitted). Accordingly, even though Appellant had not password protected or encrypted the photo galleries containing the child pornography, that does not mean that Appellant could not have excluded those galleries from the scope of PFC Avery’s common authority.
​

[…] Although we might have reached a different conclusion than the military judge in the first instance, we are mindful that there must be more than a mere difference of opinion to establish an abuse of discretion. The military judge’s decision was not based on clearly erroneous facts, and it was not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Solomon, 72. M.J. at 179 (internal quotation marks omitted) (citation omitted). The military judge did not exhibit an erroneous view of the law, and he did not abuse his discretion in suppressing the evidence obtained from Appellant’s phone.”
In addition, there are two new grants.

No. 22-0211/AF. U.S. v. Liam C. Lattin. CCA 39859. 
 
I.   WHETHER THE LOWER COURT ERRED WHEN IT DID NOT APPLY THE EXCLUSIONARY RULE.
 
II.  WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO ADDRESS A SEARCH AUTHORIZATION'S STATED EXPIRATION DATE.
 
No. 22-0230/AR. U.S. v. Tristen D. Willey. CCA 20210631.
 
I.   WHETHER TRIAL DEFENSE COUNSEL'S WITHDRAWAL OF A MOTION FOR APPROPRIATE RELIEF ON THE GROUNDS OF MULTIPLICITY AND UNREASONABLE MULTIPLICATION OF CHARGES WAIVED APPELLATE REVIEW OF THE MILITARY JUDGE'S ALLEGED ERROR OF ACCEPTING APPELLANT'S GUILTY PLEAS TO FACIALLY DUPLICATIVE OFFENSES.
 
II.  WHETHER ANY OF THE OFFENSES IN THIS CASE WERE FACIALLY DUPLICATIVE, AND IF SO, WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS TO THOSE OFFENSES.

Jake Dianno

Jake is a 2L at Villanova Law who is externing with NIMJ.

Court of Appeals for the Armed Forces

8/16/2022

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United States v. Rudometkin.
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Court of Appeals for the Armed Forces

8/9/2022

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In Bench, (the 21st published opinion this term) the issue was
​[W]hether Appellant’s right to be confronted by a complaining witness was violated when trial counsel misled Appellant’s son by telling him that Appellant was not watching his son’s remote live testimony. Because Appellant failed to preserve this issue at trial, the Court must decide whether any error was plain or obvious. We hold that it was not.
[corrected] ​The court first discussed but did not find waiver of the issue. The court proceeded to a plain error analysis. 
​The Government more reasonably argues that Appellant waived this issue by operation of law under the plain language of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.). That rule provides that such claims “must be raised before the court-martial adjourned for that case and, unless otherwise provided in [the Manual for Courts-Martial, United States], failure to do so shall constitute waiver.” R.C.M. 905(e). We acknowledge that the language of the rule would appear to be dispositive on this point in the Government’s favor, but as this Court has recognized in the past, there has long been disagreement in our own precedent about whether the word “waive[d]” in R.C.M. 905(e) actually means “waived” (as defined by the Supreme Court in Olano, 507 U.S. at 733), or instead means “forfeited” (the failure to preserve an issue by timely objection). See Hardy, 77 M.J. at 441–42 (noting the disagreement in this Court’s precedents); id. at 445 (Ohlson, J., dissenting) (same). Two of our more recent precedents lead us to conclude that regardless how one interprets the word “waive[d]” in R.C.M. 905(e), that rule does not extinguish a claim when there has been plain error.

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Court of Appeals for the Armed Forces

8/9/2022

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Update Monday, August 8, 2022 Appeal - Summary Disposition
 
No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. On further consideration of the granted issue, 82 M.J. 194 (C.A.A.F. 2022), and in light of United States v. Mellette, __ M.J. __ (C.A.A.F. July 27, 2022), we conclude that even assuming some error by the military judge, Appellant was not prejudiced. Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.
Following the Supreme Court’s proviso in Trammel v. United States  Trammel, 445 U.S. 40, 50 (1980) that evidentiary privileges are to be strictly construed, the CAAF holds in a 3-2 opinion in Mellette that the M.R.E. 513(a) psychotherapist-patient privilege does not extend to behavioral health diagnoses and treatments contained within medical records or some other form not consisting of communication between a patient and a psychotherapist or psychotherapist’s assistant.
​
CAAF’s ruling resolves a circuit split between the land and sea forces in favor of the Army appellate court’s minimalist approach. In 2006 the Coast Guard Court of Criminal Appeals took an expansive view of the M.R.E. 513 privilege. See H.V. v. Kitchen, 75 M.J. 717 (CGCCA 2016). In 2019, in an unpublished opinion the Army Court of Criminal Appeals followed the dissent in Kitchen by finding that mental health diagnoses and treatments are independent of confidential communications and significantly are often meant to be disclosed to a third party, such as a pharmacist or a physician prescribing a medication for a physical ailment (United States v. Rodriguez, 2019 CCA LEXIS 387). (Disclosure: this writer was Rodriguez’s appellate counsel.) In 2021 the Navy Court of Criminal Appeals followed the Coast Guard’s more expansive view of the M.R.E. 513 privilege in in its ruling in United States v. Mellette (81 M.J. 681). The CAAF granted certoriari, specifying three issues relating to the M.R.E. 513 privilege and here we are. (Notably, the Air Force Court of Criminal Appeals had not weighed in on the issue but anecdotally, Air Force counsel and trial judges have followed the expansive interpretation of the privilege until now.)

In Mellette, the CAAF granted review of three issues: a. Are diagnoses and treatment records subject to the M.R.E. 513 privilege? b. Should the NMCCA have reviewed the mental health records before ruling? c. Was there a waiver of the M.R.E. 513 privilege in the case?  Deciding the first issue in favor of the petitioner, the second and third issues are not reached. CAAF’s holding centers on both Trammel’s prescription that evidentiary privileges “must be strictly construed.” Examining the specific language of M.R.E. 513(a), the court finds that the limiting language of “communication” and “between the patient and a psychotherapist” are meaningful choices. The court notes that in contrast the analogous Florida state statute explicitly protects both communications and records, unlike M.R.E. 513. Turning to a government argument that the M.R.E. 513 privilege is akin to the attorney/client privilege in M.R.E. 502, the court dismisses this argument by noting that first, the protection for attorney work product is a separate rule (R.C.M. 701(f)) without an equivalent rule for psychotherapist work product; and second, that the attorney-client privilege is in fact narrow and does not include the underlying facts that may be communicated with an attorney (citing to Upjohn Co, 449 U.S. 383, 395 (1981) and In re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir. 1992)).

In the dissent, Judge Maggs (joined by Judge Sparks) argues that diagnoses and treatment are privileged under M.R.E. 513(a) “only to the extent that they reveal confidential communications between the patient and psychotherapist that were made for the purpose of diagnosing or treating the patient’s mental condition.” Had this been the majority opinion, the practical effect may well have been to force in camera review of medical records, deny the disclosure of specific diagnoses and allow the production of medication records (as few medications are prescribed for one and only one behavioral health condition).
​
Of note to trial practitioners, the CAAF finds with respect to the specific mental health records at issue in Mellette that the sought records “to include the dates visited said mental health provider, the treatment provided and recommended, and her diagnosis….were not protected from disclosure by M.R.E. 513(a)” and that these records should have been produced and potentially admitted. As well, the court also reiterates that diagnoses and evidence that relate to a witness’ credibility and reliability are material to the defense.  One would expect that going forward defense discovery requests for AHLTA and similar records will request the same specific three categories requested in Mellette.
​
Although on its face CAAF’s decision in Mellette may appear to buck against the trend of expanding victims’ rights, it actually follows the contemporary judicial path of construing privileges narrowly in order to preserve the truth-seeking purview of the tribunal. The decision falls in line with Harpole (77 M.J. 231)(narrowing the victim-advocate privilege), Jasper (72 M.J. 276)(narrowing the clergy-parishioner privilege), and Durbin (68 M.J. 271)(narrowing the spousal privilege).

Nathan Freeburg, a guest post.

Readers are invited to offer guest posts by emailing us at admin@nimj. org.

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