CAAFlog » Courts of Criminal Appeals » CCA Opinions

With a published opinion in United States v. Hardy, __ M.J. __, No. 38937 (A.F. Ct. Crim. App. Jun. 22, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s guilty pleas waived his claim that his convictions of various offenses related to sexual contact with a minor are an unreasonable multiplication of charges.

“[T]he prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Unreasonable multiplication of charges is different from multiplicity, which “is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” Ibid.

In the Air Force case of United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a pretrial agreement provision to waive all waivable motions served as a waiver – rather than forfeiture – of any objection to both multiplicity and unreasonable multiplication of charges. Writing for the majority, Judge Stucky explained that:

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.  The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.

71 M.J. at 313 (marks and citations omitted). The minority concurred in the result (finding neither multiplicity nor unreasonable multiplication), because:

“Although Appellant expressly waived all waivable motions, the military judge delimited that waiver by cataloguing the specific motions and issues waived. This catalogue did not include multiplicity or an unreasonable multiplication of charges. . .”

67 M.J. at 314. This analysis included the observation that:

[A]n accused cannot silently waive appellate review of plain error.


Gladue strongly suggested – but did not explicitly state – that a guilty plea alone does not waive a claim to an unreasonable multiplication of charges (because if the plea alone was a waiver, then the pretrial agreement waiver provision interpreted by the court was mere surplusage). But in Hardy the Air Force court reaches the opposite conclusion.

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On May 20, 2016, the President signed Executive Order 13,730 (discussed here) that amended Mil. R. Evid. 311 to limit application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The prior (and longstanding) rule stated that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused (1) makes a timely objection and (2) has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new (current) rule adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

In United States v. Mottino, No. 201700153 (N-M. Ct. Crim. App. Jul. 27, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants a prosecution appeal and reverses a military judge’s ruling suppressing evidence because:

the military judge’s findings of fact are not clearly erroneous, but that her analysis and application of the law do not include the balancing test required under MIL. R. EVID. 311(a)(3).

Slip op. at 2.

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The Army CCA’s published en banc opinion in United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (link to slip op.), is notable for a number of reasons. The case involves a claim of ineffectiveness of counsel based on the defense counsel foregoing any peremptory challenge in pursuit of a certain number of members (a strategy known as the numbers game), the members repeatedly asked questions about uncharged adultery after the military judge instructed them to disregard it, and a split en banc court concludes that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56.

But the CCA also finds that the failure of defense counsel to object to improper prosecution closing argument waived – rather than forfeited – any error.

Kelly is one of a number of recent cases in which the Army CCA reaches the same remarkable conclusion. See United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017) (link to slip op.); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.); United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). The CCA also reached the same conclusion for improper sentencing argument in United States v. Hoffman, __ M.J. __, No. 20140172 (A. Ct. Crim. App. Jun. 27, 2017) (link to slip op.).

Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). Waiver of an error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief). But waiver is the intentional relinquishment or abandonment of a known right. The mere failure to make a timely objection, however, usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test).

The Army CCA’s conclusion in Kelly that failure to object to improper closing argument waives – rather than merely forfeits – the error is remarkable because CAAF’s precedent (and the CCA’s own practice) clearly state the opposite. Writing for the en banc CCA, Judge Wolfe finds that:

R.C.M. 919(c) governs argument on findings. The rule states: “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” R.C.M. 919(c). The rule has no “plain error” condition.

Kelly, __ M.J. at __, slip op. at 6. CAAF, however, has long held that:

Despite the language of “waiver” in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).

United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Judge Wolfe’s opinion in Kelly does not acknowledge (or even cite) CAAF’s decision in Diffoot.

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Rule for Courts-Martial 1001A addresses victim-impact statements, which are sworn or unsworn statements given by a victim during the sentencing phase of a court-martial. Upon a showing of good cause the statement may be given by counsel for the victim. R.C.M. 1001A(e)(2).

In United States v. Barker, __ M.J. __, No. 39086 (A.F. Ct. Crim. App. Jul. 7, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that a military judge improperly admitted two unsworn written victim-impact statements during sentencing because:

None of the unsworn statements are self-authenticating and the Prosecution offered no evidence, other than the redacted statements them-selves (with their redacted titles), to establish that the statements are relevant to Appellant’s court-martial, to authenticate them as letters written by one of his victims, or to indicate that the victims desired to exercise their right to be reasonably heard at Appellant’s sentencing hearing through the statements.

Slip op. at 9.

The statements were allegedly written by people who were depicted in the images of child pornography that the appellant pleaded guilty to possessing and viewing, and the CCA acknowledges that “the Supreme Court has recognized that child pornography is a continuing crime and a child depicted in the images is victimized each time the images are downloaded and viewed.” Slip op. at 6 (citing Paroline v. United States, 134 S. Ct. 1710, 1716–17 (2014)). The CCA also acknowledges that:

Victim impact evidence is a form of aggravation evidence that, with a proper foundation, the Prosecution may introduce during a sentencing hearing under R.C.M. 1001(b)(4). Victim impact is also an appropriate topic for a sworn or (in the case of non-capital cases) unsworn statement offered by a victim in exercising his or her right to be reasonably heard during a sentencing hearing under R.C.M. 1001A(c).

Slip op. at 7-8. Nevertheless:

The Prosecution did not attempt to lay the necessary foundation for admission of hearsay victim impact statements under R.C.M. 1001(b)(4) and it appears that, sub silentio, the Prosecution was offering the statements under R.C.M. 1001A. An obvious and necessary foundational predicate for a statement offered under R.C.M. 1001A is that the victim (not just the Prosecution) wishes the court to consider the statement.

Slip op. 8. The CCA also addresses the rather-unique fact that the statements were written before the appellant’s crimes:

[T]he fact that a victim impact statement was authored before an accused’s criminal acts does not necessarily make the statement irrelevant to the accused’s offenses. However, there must be some evidence establishing a foundational nexus between the victim impact described in the statement and the subsequent offenses committed by the accused. The evidence must establish that the accused’s offenses impacted the victim at some point in the manner described in the statement, whether or not the victim continues to be impacted to the same degree, or even it all, by the time of trial. The fact that the victim may be suffering a lesser impact at the time of trial does not necessarily make the statement stale, but it may be a matter in mitigation. However, in conducting the required Mil. R. Evid. 403 balancing test, the military judge should consider the length of time since the statement was authored and the degree of lessened victim impact (if any) by the time of trial to ensure that the probative value of a statement prepared in advance of the trial is not substantially outweighed by a danger of unfair prejudice, misleading the sentencing authority, or any of the other listed factors.

Slip op. at 8.

The CCA finds the improper admission of two statements to be harmless.

On Tuesday CAAF granted review in this Air Force case:

No. 17-0405/AF. U.S. v. Sean C. Mooney. CCA 38929. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here and is published at 76 M.J. 545. The appellant pleaded guilty before a federal district court and at a general court-martial to separate offenses all related to a sexual relationship with a 14-year-old. The federal plea (and sentence of imprisonment for six years) came first, and the court-martial plea (and approved sentence including confinement for two years) came second. The plea agreements made no provisions for whether those sentences would run concurrently or consecutively, but the convening authority ordered that they run consecutively (first the civil, then the court-martial). The Air Force CCA approved this decision, concluding that:

Given the support for this disposition in DoD and Air Force regulatory guidance and the absence of conflicting authorities within the UCMJ, we find the convening authority’s action was sufficient to toll the effective date of confinement under Article 57(b), UCMJ, and thereby require Appellant’s military sentence to confinement be served consecutively with his federal sentence.

76 M.J. at 549-550, slip op. at 7-8. The regulatory guidance is DoD 1325.7-M and Air Force Regulation 125-30, which suggest that court-martial sentences should be served consecutively with civil court sentences. The UCMJ, however, does not include a provision allowing consecutive sentences under the circumstances of this case (where a federal civil conviction is followed by a court-martial conviction). But the Code does address all other possible scenarios, permitting consecutive sentences where a court-martial conviction is followed by a civil conviction (Article 14), and where there is a court-martial sentence and one adjudged by a state or foreign court (Article 57a).

The Air Force CCA interpreted that silence as a grant of discretion:

In the case sub judice, Appellant’s sentence to confinement by a federal district court is not covered by the provisions of Article 57a. As such, we must determine whether the absence of guidance restricted the convening authority’s discretion in directing the running of Appellant’s military sentence to confinement. We hold, contrary to Appellant’s argument, that it did not.

76 M.J. at 548, slip op. at 8.

In United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous CAAF found no requirement to show prejudice in the case of an objected-to major change (functionally rendering this a structural error), and reversed a conviction of sexual abuse of a child after concluding that the change altered the means of committing the offense and was not fairly included in the original specification. The court also held that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, reversing a conviction of a specification that amounted to obstruction of justice (but omitted an element of that offense).

Reese remained convicted of making false official statements and of wrongful use, possession, or distribution of marijuana, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he contested the charges CAAF reversed), and he was sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge.

Last week the Coast Guard CCA reassessed the sentence, reducing it dramatically:

We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings of guilty of Charges I and II and their specifications are reaffirmed. A sentence providing for confinement for three months, reduction to E-1, and a bad-conduct discharge is affirmed.

United States v. Reese, No. 1422, slip op. at 3 (C.G. Ct. Crim. App. Jul. 20, 2017) (link to slip op.).

Sometimes such reductions do not result in meaningful relief to the appellant because they come after the confinement has already been served. For Reese, however, the reduction is very meaningful, as he was sentenced in November 2014.

In a published decision in United States v. Mull, __ M.J. __, No. S32367 (A.F. Ct. Crim. App. Jun. 22, 2017) (en banc) (link to slip op.), Chief Judge Drew writes for a unanimous court to explain that:

[U]se of a controlled substance is wrongful unless it is justified or authorized, for example by a doctor’s prescription directing a particular use. Our decision in [United States v. Lancaster, 36 M.J. 1115 (A.F.C.M.R. 1993)] rested on the erroneous, contrary presumption that using a prescribed controlled substance for a medical purpose other than the prescribed one must also be lawful absent a specific prohibition. Lancaster’s holding, that the use of a controlled prescription drug for an ailment other than one for which the drug was prescribed cannot be punished under Article 112a, is overruled.

Slip op. at 8 (emphasis in original). This holding seemingly reaches any surplus prescription drugs retained by a person subject to the UCMJ and later used for any ostensibly legitimate – but different from the original – purpose. The case, however, involved a guilty plea to a much narrower set of facts. Airman First Class (E-3) Mull pleaded guilty to wrongful use of diazepam, despite having a valid prescription for diazepam at the time of his use, based on the following:

At several points over the course of the charged time frame, I was given a prescription for diazepam from my medical provider to help treat pain I experienced due to the herniated disc in my back. During this same time frame, I was also using heroin on a regular basis; and my tolerance from heroin was increasing. To augment the sedative effect of the heroin I was injecting intravenously, I would take diazepam even when I did not have any back pain in an effort to augment my heroin use and also to help control my withdrawals from heroin. I knew that this was wrong because it wasn’t the reason I was prescribed diazepam.

Slip op. at 6 (quoting plea inquiry). Using a prescription drug recreationally seems wholly distinguishable from using it for an ostensibly-legitimate but unprescribed purpose, but the Air Force Court appears to foreclose any possible distinction. Chief Judge Drew goes so far as to note that:

The stated rationale for our holding in Lancaster was that “[w]e have found no specific provision in any statute or punitive regulation prohibiting a person for whom a drug is prescribed from retaining unused amounts of the drug and later taking it for another ailment.”

Slip op. at 8 (quoting 36 M.J. at 1118). This rationale is rejected because the Manual for Courts-Martial defines wrongful use as “without legal justification or authorization,” slip op. at 8 (quoting MCM, pt. IV, ¶ 37.c.(5)), and the Air Force Court’s opinion seems to hold that only a specific, particularized medical order provides such justification or authorization for the use of prescription drugs.

Further evidence of the broad reach of this opinion comes from its discussion of United States v. Pariso in which the CCA explained that use of pills from an old prescription “to get high would still have been wrongful.” 65 M.J. 722, 724 (A.F. Ct. Crim. App. 2007) (discussed here). Chief Judge Drew’s opinion could have simply affirmed Pariso and applied its holding to the facts of this case, but the CCA doesn’t do that. Rather, the court seems to extend Pariso to apply to any use of an old prescription.

Assuming that’s what the CCA’s opinion really means, it’s only a small step from criminalizing any use of an old prescription to criminalizing the mere possession (perhaps even constructively) of an old prescription.

That would be a massive expansion of criminal liability under Article 112a.

In J.M. v. Payton-O’Brien and Ravenscraft, __ M.J. __, No. 201700133 (N-M. Ct. Crim. App. Jun 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants an alleged victim’s Article 6b petition for a writ of mandamus and reverses the military judge’s ruling that ordered disclosure of portions of her mental health records to the defense.

The military judge’s ruling was based on “the now-excised, constitutional[ly-required] exception to the psychotherapist-patient privilege,” Mil. R. Evid. 513. Slip op. at 2. The CCA rejects application of this former exception, concluding that an order for production or release of privileged records must be based on an actual, enumerated exception to the rule. However, the CCA finds that the military judge may take other actions to protect an accused’s constitutional rights.

Writing for the panel, Judge Jones explains that:

a military judge may not order production or release of MIL. R. EVID. 513 privileged communications when the privilege is asserted by the holder of the privilege unless the requested information falls under one of the enumerated exceptions to the privilege listed in MIL. R. EVID. 513(d). However, when the failure to produce said information for review or release would violate the Constitution, military judges may craft such remedies as are required to guarantee a meaningful opportunity to present a complete defense.

Slip op. at 2. Such other remedies could include an order to:

(1) strike or preclude all or part of the witness’s testimony;

(2) dismiss any charge or charges, with or without prejudice;

(3) abate the proceedings permanently, or for a time certain to give the witness an opportunity to reconsider; or

(4) declare a mistrial.

Slip op. at 15 (paragraphing added).

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In a lengthy opinion in United States v. Hale, __ M.J. __, No. 201600015 (N.M. Ct. Crim. App. May 31, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses convictions of rape, violating a general order, adultery, indecent language, wrongful use of steroids, assault with a dangerous weapon, and kidnapping, and the sentence that included confinement for 26 years.

The reversal is because of a conflict of interest between the lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The defense team included a second Marine captain (identified as Capt JS) who “the appellant requested . . . as individual military counsel.” Slip op. at 3.

Judge Fulton writes for the panel (which includes Chief Judge Glaser-Allen), concluding:

The record convinces us that Capt KC’s representation was adversely affected by the conflict of interest. The conflicts presented in this case were obviously significant and upsetting to Capt KC. After Capt KC moved to dismiss the charges involving SK because of the GHQE’s text messages, LtCol CT—her prospective RO and her husband’s current RO—accused the defense of unethical conduct. LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt KC to audibly sob at counsel table, and she was unable to continue.

Slip op. at 22 (ellipses in original) (emphasis added). As a result:

The sepsis of undisclosed conflict in this case infects much of the record. Even the post-trial Article 39(a) session did not convincingly diagnose the full extent of the conflict or its prejudice. A member of the public fully informed of the facts of this appellant’s representation would not have faith in the process that led to these convictions. It is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved.

Slip op. at 28.

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CAAF is considering the impact of questioning of a military suspect, after he invoked his right to remain silent and requested an attorney, in order to give investigators access to the suspect’s cell phone for a search, in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page). The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017.

While we await CAAF’s decision, the Air Force CCA decided a closely-analogous issue in two cases, one post-conviction and the other an interlocutory prosecution appeal under Article 62.

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With a published decision in LK v. Acosta & Sanchez (United States v. Sanchez), __ M.J. __ (A. Ct. Crim. App. May 24, 2017) (link to slip op.), a three-judge panel of the Army CCA grants a petition for a writ of mandamus for an alleged victim under Article 6b, reversing a military judge’s ruling that ordered the alleged victim’s mental health records produced for an in camera review.

But while beginning its decision with the observation that the Rule “gives unclear guidance to military judges,” slip op. at 1, the CCA reaches two dubious conclusions that make things worse.

Analyzing the exception to the privilege for “evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse,” Mil. R. Evid. 513(d)(2), the CCA interprets the first clause to apply only to inculpatory (and specifically not to exculpatory) evidence, and the second clause to apply only to the admission of evidence (and not to its production pursuant to an order from the court-martial).

They are puzzling conclusions that make a straightforward exception very confusing.

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In United States v. Mangahas, Misc. Dkt. No. 2016-10 (A.F. Ct. Crim. App. Ap. 4., 2017) (link to slip op.), a three judge panel of the Air Force CCA grants a Government appeal and reverses a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment.

The allegation dates back to February 1997, when the accused and the alleged victim were cadets at the United States Coast Guard Academy. The charges were preferred eighteen years later, in October 2015.

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In a published issued yesterday, in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA affirms a concept that I last noted here: Military retirement isn’t really retirement, it’s merely a change in duty status-

Notwithstanding Barker [v. Kansas, 503 U.S. 594, 605 (1992)] and its implications regarding the tax status of retired pay, we are firmly convinced that those in a retired status remain “members” of the land and Naval forces who may face court-martial. As the appellant was in a retired status during the offenses and the proceedings, he was validly subject to court-martial.

Slip op. at 8.

The appellant, Gunnery Sergeant Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ.

All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

Writing for the panel Judge Rugh explains that:

By act of Congress, the appellant was subject to the UCMJ when he committed the offenses. Art. 2(a), UCMJ (“The following persons are subject to this chapter . . . . Retired members of a regular component of the armed forces who are entitled to pay. . . . [and] Members of the Fleet Reserve and Fleet Marine Corps Reserve.”).

Slip op. at 4 (link to Article 2).

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Article 73 allows an accused convicted by a court-martial to petition for a new trial on the grounds of newly discovered evidence or fraud on the court. In a decision issued last week in Cook v. United States, Misc. Dkt. No. 2016-18 (link to slip op.), a three-judge panel of the Air Force CCA grants one such petition on the basis of newly discovered evidence.

Judge Speranza, writing for the unanimous panel, finds that the prosecution made an issue of whether the alleged victim would have consented to the alleged sexual act, rather than whether she did in fact consent. As a result:

newly found evidence regarding [the alleged victim’s] extramarital sexual relationship with [a paramour] would probably produce a substantially more favorable result for Petitioner in findings and, at the very least, sentencing. Moreover, evidence that [the alleged victim] engaged in an extramarital affair with [the paramour] discloses noncumulative impeachment evidence that is relevant not only to a material issue in the case, but the dispositive issue in Petitioner’s case — [the alleged victim’s] credibility.

Slip op. at 12 (emphases in original).

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Mil. R. Evid. 513 is the military psychotherapist-patient privilege. The scope of the rule, and its exceptions, have been a topic in recent high-profile cases including EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. 2016) (CAAFlog case page), and Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page) (argued Tuesday, October 11, 2016).

A recent published opinion by the Air Force CCA in United States v. Chisum, 75 M.J. 943, No. S32311 (A.F. Ct. Crim. App. Nov. 29, 2016) (link to slip op.), provides additionally analysis of the rule. Specifically, the CCA addresses when a military judge is required to conduct an in camera review of mental health records. Acknowledging the three-prong test stated by the NMCCA in United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006), the Air Force CCA concludes that:

in applying this three-prong test, we recognize that the burden for in camera review is not high because the moving party will often be unable to determine the specific information contained in a psychotherapist’s records. See [Klemick]. We also note that “[w]here discovery obligations potentially impact a recognized privilege, an in camera review is generally the preferred method for resolving the competing compulsions.” Bowser, 73 M.J. at 897.

Slip op. at 6 (emphasis added).

Applying this not high burden, the CCA finds that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine. The witnesses acknowledged receiving mental health treatment for perception and memory issues, and the CCA finds that this was “a reasonable basis for the military judge to conclude that the mental health records contained further information reflecting the extent and severity” of those conditions. Slip op. at 7.

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