                       UNITED STATES, Appellant

                                    v.

                  James L. MACKIE, Airman First Class
                        U.S. Air Force, Appellee

                              No. 08-5005

                         Crim. App. No. S31090

       United States Court of Appeals for the Armed Forces

                        Decided April 21, 2008

                               PER CURIAM

                                 Counsel

For Appellant: Colonel Gerald R. Bruce, Major Donna S.
Rueppell, and Major Matthew Ward (on brief).


For Appellee: Lieutenant Colonel Mark R. Strickland and Captain
Tiffany M. Wagner (on brief); Colonel Nikki A. Hall.

Military Judge:    James L. Flanary




       This opinion is subject to revision before final publication.
United States v. Mackie, 08-5005/AF


     PER CURIAM:

     A special court-martial composed of a military judge

sitting alone convicted Appellee, pursuant to his pleas, of

unauthorized absence, impaired driving, larceny, and burglary in

violation of Articles 86, 111, 121, and 129, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 886, 911, 921, 929 (2000).

The adjudged sentence included confinement for seven months,

reduction to pay grade E-1, and a bad-conduct discharge.    The

convening authority reduced the adjudged confinement to six

months pursuant to a pretrial agreement.   The United States Air

Force Court of Criminal Appeals (CCA) ordered the record

returned to the Judge Advocate General and ordered a sanity

board to determine “whether the [Appellee] is currently mentally

competent, whether he was mentally competent at the time of

trial, and whether he was mentally competent at the time of his

alleged criminal conduct.”   United States v. Mackie, 65 M.J.

762, 765 (A.F. Ct. Crim. App. 2007).

     Upon certification under Article 67(a)(2), UCMJ, 10

U.S.C. § 867(a)(2), we affirm the decision of the CCA.1


1
  The Judge Advocate General of the Air Force certified the
following issues:

     I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
     APPLIED THE CORRECT STANDARD OF REVIEW WHEN
     DETERMINING WHETHER THE MILITARY JUDGE ABUSED HIS
     DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A
     SANITY BOARD.

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United States v. Mackie, 08-5005/AF


                            Background

     Appellee moved for a Rule for Courts-Martial (R.C.M.) 706

sanity board before entering his guilty pleas.    Trial defense

counsel argued that the sanity board was necessary because

Appellee’s memory loss merited further inquiry.    Specifically,

she detailed concerns that Appellee might not be able to assist

in his own defense, might not be fit to stand trial, and that

similar memory loss may have occurred during the alleged

misconduct.   In support of the motion Appellee submitted an

affidavit detailing specific instances of blackouts and memory

loss over a six-month period.

     The military judge stated that Appellee’s affidavit

“ordinarily” would be enough to order a sanity board.    But the

military judge denied the motion based on a Government

stipulation of expected testimony from Appellee’s treating

clinical psychologist, Captain (CPT) Agliata.    CPT Agliata had

seen Appellee twice by appointment and once for a brief walk-in

conversation, never conducted a forensic examination or

participated in a sanity board, and was unaware of Appellee’s

claimed memory losses and blackouts.     That stipulation,



     II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
     ERRED BY FINDING THE MILITARY JUDGE ABUSED HIS
     DISCRETION WHEN HE DENIED APPELLANT’S REQUEST FOR A
     SANITY BOARD FINDING HE HAD NOT MET HIS BURDEN OF
     FACTUAL PERSUASION TO JUSTIFY AN INQUIRY PURSUANT TO
     R.C.M. 706.

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United States v. Mackie, 08-5005/AF


according to the military judge, nonetheless “directly

answer[ed]” the question whether Appellee was competent to stand

trial and the motion for a sanity board was denied.

     On appeal the CCA held that the military judge erred by

denying the defense request for a sanity board.   Mackie, 65 M.J.

at 765.   The lower court found that CPT Agliata’s opinions in

the form of the stipulation of expected testimony were not an

adequate substitute for a sanity board.   Id.   We agree.

                             Analysis

     A military judge has the authority to order a sanity board

after referral under R.C.M. 706 if it appears there is reason to

believe the accused lacked mental responsibility at the time of

a charged offense or lacks the capacity to stand trial.      R.C.M.

706(a),(b)(2).   A motion for a sanity board should normally be

granted if it is made in good faith and is not frivolous.

United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R. 76, 80

(1965).

     We review the military judge’s decision to grant or deny a

motion for a sanity board for an abuse of discretion.2      United

States v. Collins, 60 M.J. 261, 266 (C.A.A.F. 2004).     A military

2
 Although the CCA did not expressly state the standard of
review, it analyzed the military judge’s ruling in a manner
consistent with an abuse of discretion review, specifically
citing R.C.M. 706(b)(2) and applying the principles this Court
set forth in United States v. English, 47 M.J. 215 (C.A.A.F.
1997). Mackie, 65 M.J. at 763-64.


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United States v. Mackie, 08-5005/AF


judge abuses his discretion when “the findings of fact upon

which he . . . predicates his ruling are not supported by the

evidence of record; if incorrect legal principles were used . .

. ; or if his application of the correct legal principles to the

facts . . . is clearly unreasonable.”   Id. at 266 n.5 (citation

and quotation marks omitted).

     The military judge abused his discretion in this case.      The

text of R.C.M. 706 outlines the procedures and requirements for

a sanity board.   English, 47 M.J. at 219.   This Court’s decision

in English, while never squarely holding that an examination

that tracks the requirements of a sanity board as listed in

R.C.M. 706 could be an adequate substitute for one, noted

minimum requirements necessary for such a prior medical

examination to even theoretically serve as a substitute for “the

carefully crafted procedures set forth in the Manual.”     Id.

Assuming without deciding that a stipulation could serve as an

adequate substitute for a sanity board, this stipulation fell

short of those requirements.

     The plain text of R.C.M. 706 outlines specific substantive

findings that a sanity board is required to make.   R.C.M.

706(c)(2); see also English, 47 M.J. at 219.    The sanity board

must address not only the accused’s capacity to stand trial, but

also his mental responsibility at the time of the act in

question.   English, 47 M.J. at 219 (citing R.C.M. 706).


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        As the CCA noted, those requirements were not met in this

case.    As an initial matter, CPT Agliata admitted he had not

conducted a forensic examination of Appellee or spent much time

with him, and that he was unfamiliar with R.C.M. 706 rules and

standards.    Moreover, while CPT Agliata was able to say that

Appellee was capable of standing trial at the time he drafted

the stipulation, he could not opine on whether Appellee

understood the nature and quality of his actions at the time the

alleged criminal conduct occurred, as required by English, 47

M.J. at 218-19, and R.C.M. 706(c)(2)(C).

        Having found that the issues of mental responsibility and

competency were raised by Appellee’s motion for a sanity board

-– indeed, that a sanity board would “ordinarily” be ordered on

the basis of Appellee’s affidavit -- and with no indication that

the motion was made in bad faith or was frivolous, the military

judge should have granted the motion.     Even assuming a medical

examination by a qualified physician could take the place of a

sanity board, the stipulation in this case, which failed to

provide the specific substantive information required under

R.C.M. 706(c), was a legally erroneous basis upon which to deny

the motion.

                               Decision

        The first certified question is answered in the

affirmative, the second certified question is answered in the


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United States v. Mackie, 08-5005/AF


negative, and the decision of the United States Air Force Court

of Criminal Appeals is affirmed.




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