Week in Review

Court of Appeals for the Armed Forces

United States v. Beauge.

Broadly speaking, Military Rule of Evidence (M.R.E.) 513(a) establishes a privilege that allows a patient to refuse to disclose confidential communications between the patient and his or her psychotherapist if those communications were made for the purpose of diagnosing or treating the patient’s mental or emotional condition. M.R.E. 513(d)(3) creates an exception to that privilege when a service regulation or state or federal law imposes a duty on the psychotherapist to report certain information derived from those communications, such as when the patient alleges child sexual abuse. We hold that  this “duty-to-report” exception makes discoverable the information that was required to be reported to state authorities. We also hold, however, that the “duty-to-report” exception, standing alone, does not make discoverable the underlying confidential communications between the patient and the psychotherapist. In the instant case, we conclude that the lower court properly construed the psychotherapist-patient privilege and its exceptions, and that the military judge acted within his discretion in denying Appellant’s request for in camera review of the victim’s psychiatric records. We also conclude that Appellant was not denied the effective assistance of counsel. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA).

Air Force Court of Criminal Appeals

United States v. Barnes. GP to wrongful use of drugs and theft of military property. He was sentenced to three months, a Dismissal, and a reprimand. This is his second appearance after correction of post-trial errors. He had raised two issues of IAC. The court summarily affirmed the findings and sentence. The initial decision is here.

United States v. Mcalhaney. GP to wrongful receipt of CP and possession and viewing of CP. He was sentenced to three months, a BCD, and a reprimand. There were two post-trial errors raised, and "whether an improper reprimand in Appellant’s case made his sentence inappropriately severe." He argues partly that "the reprimand issued by the convening authority is “unduly severe, inflammatory, inaccurate, and unsupported by the evidence in the record” and, consequently inappropriate and substantially prejudicial. Finding no error or prejudice the findings and sentence were affirmed.

United States v. Mathis. GP to using drugs, DUI, and under age drinking, for which he was sentenced to 8 months, TF, RiR, and a BCD.

​Appellant raises two issues on appeal. The first is whether trial counsel’s sentencing argument was improper. The second is whether Appellant’s sentence was inappropriately severe.

Of the three instances of alleged improper argument, the second and third drew this comment from the court,

​This is a close call in light of the CAAF’s conclusion in Hardison that recruitment documents pertaining to drug policy are generally not admissible as evidence in aggravation, and we encourage trial counsel not to push the limits on this front. If evidence that an accused signed an acknowledgement regarding a service drug-abuse policy is inadmissible as evidence in aggravation, the corollary would seem to be that it is inadmissible to argue that such evidence amounts to an aggravating factor warranting a higher sentence.
. . . 
​One could question how compelling trial counsel’s argument was based on the thin support for concluding Appellant had in fact endangered his fellow Airmen, but an uncompelling argument does not equate to an impermissible one. 

United States v. Lowe. GP to an A&B on his spouse and divers A&B on spouse (a to be covered offense), for which he was sentenced to 60 days, RiR, and a BCD. The sole, Grosty, issue was IAC for failing to present and argue the appellant's PTSD diagnosis. It may not have been helpful that,

 Air Force investigators conducted interviews with Appellant’s family, co-workers, supervisors, and instructors, and found that Appellant had provided false information to his mental health providers regarding some of his experiences.
. . .
​Appellant contends that his trial defense counsel were ineffective in that they failed to present information or argue evidence of his PTSD diagnosis. Specifically Appellant argues that his trial counsel were deficient by not using his PTSD diagnosis to show: (1) how it “affected his cognitive and emotional abilities,” and (2) “how it could have mitigated the offenses for which he was convicted.” Appellant asks that we find his counsel ineffective and reevaluate his sentence. We find no merit to Appellant’s claims and determine that no relief is warranted.

Pending Appellate Cases

United States v. Richard. Hope Hedge Seck, Coast Guard petty officer sentenced to six years in prison for daughter's crib death in Kodiak. Anchorage Daily News, February 11, 2022.