UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                           WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                            Sergeant STEVEN J. FURGERSON
                              United States Army, Appellant

                                        ARMY 20170239

            Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                        Charles L. Pritchard, Jr., Military Judge
                  Colonel David E. Mendelson, Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Patrick G.
Hoffman, JA; Captain Benjamin J. Wetherell, JA (on brief); Lieutenant Colonel
Tiffany D. Pond, JA; Captain Patrick G. Hoffman, JA; Captain Benjamin J.
Wetherell, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Jeremy Watford, JA (on brief).

                                        5 February 2019

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

       We briefly address the sole issue raised by appellant in his appeal: Did the
military judge abuse his discretion when he declined to conduct an in camera review
of the crime victim’s mental health records? Appellant says yes – arguing that the
records contain “Brady” information that pierces the privilege. 1 We disagree. 2

1
  See generally Brady v. Maryland, 373 U.S. 83 (1963) (requiring the government to
disclose to the defense certain information in the possession of the prosecution).
2
 An enlisted panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of sexual assault by bodily harm, anally penetrating
his spouse, in violation of Article 120(b)(1)(B), Uniform Code of Military Justice,

                                                                                (continued . . .)
FURGERSON—ARMY 20170239

                             LAW AND DISCUSSION

       Appellant’s wife [KC] claimed that in the midst of consensual vaginal sex,
appellant forcibly turned her over and had anal sex with her against her repeated
protestations and against her will. She further claimed to have suffered rectal
bleeding after the assault and sought medical attention. In the course of
investigating KC’s allegations, military law enforcement requested a copy of KC’s
medical records.

       While preparing for trial, the trial counsel began reviewing the medical
records. The first two pages consisted of a table of contents. After reading the table
of contents – and only the table of contents – the trial counsel became concerned
that privileged mental health records had been included along with unprivileged
medical records. The trial counsel then sent the following message to the defense
and to KC’s special victim counsel (SVC):

             The Government has reviewed the table of contents of
             [KC’s treatment records] but not the records themselves.
             However, based on the table of contents alone, the
             government believes some of these records may be
             evidence favorable to the defense, and should be provided
             under RCM 701(a)(6) and Brady. However, these records
             are possibly privileged communications – records of
             diagnosis and treatment – and might be privileged under
             [Military Rule of Evidence] 513.

      The SVC invoked privilege on behalf of KC. The military judge then directed
the SVC to review the records and determine which records were privileged. The
SVC objected, claiming the military judge’s order interfered with the ethical
obligations of the SVC. 3


(. . . continued)
10 U.S.C. § 920 (2012) [UCMJ]. The panel did not adjudge any punishment other
than the mandatory dishonorable discharge. See Article 56, UCMJ.
3
  We are concerned with this reasoning. At the very least, having asserted that some
documents were privileged, the SVC could be required to assert to which documents
or statements KC’s claim of privilege was being asserted. Unless all KC’s medical
records were also mental health records – and that certainly was not the case – the
privilege could not plausibly apply to every document. Just as one cannot eat and
have their cake, one cannot claim a privilege without specifying to what the claim of
privilege applies. Certainly, an SVC cannot frivolously assert to the court that

                                                                      (continued . . .)


                                          2
FURGERSON—ARMY 20170239

      Eventually, the production of KC’s non-mental health records was resolved
when the hospital provided a new set of unprivileged records. The mental health
records were never provided to the defense. Except for having reviewed the table of
contents, the mental health records were not reviewed by the trial counsel.

       What was left was the trial counsel’s hanging chad of a statement that after
reviewing the table of contents, the records “may be evidence favorable to the
defense, and should be provided under . . . Brady.” Many defense counsel would
certainly ask what had caused the government to think that the records contained
Brady matter?

      Indeed, in Acosta we surmised that a privilege created by a presidentially
promulgated rule must yield to a constitutional requirement (i.e. Brady) that the
government turn over to the defense evidence that is favorable and material. See Lk
v. Acosta, 76 M.J. 611, 615 (Army Ct. Crim. App. 2017). That is, a mere rule cannot
prevent the government from fulfilling its constitutional requirements. Id. On
appeal, appellant claims that this is just such a case.

       Admittedly, appellant was placed in a difficult position. The trial counsel
arguably thought that the records contained Brady information after reading the table
of contents. However, the defense did not know what caused the trial counsel to
assert that there was Brady evidence. The defense was never provided with the table
of contents that had been reviewed by the trial counsel. So, while the defense had a
non-frivolous belief that the records contained Brady matter, they nonetheless could
not hope to meet the procedural requirements to trigger an in camera review under
Military Rule of Evidence [Mil. R. Evid.] 513. And, given the high bar for
obtaining an in camera review, the military judge unsurprisingly denied the defense
motion.

       On appeal, the problem did not change. Although the mental health records
are included as an appellate exhibit, there is still a claim of privilege. Although we
do not decide the issue, we assume that on appeal the judges on this court cannot
search through privileged matter without first finding that an exception to the




(. . . continued)
documents are privileged without violating the duty of candor. However, to the
extent that the military judge’s order could have been misunderstood as requiring the
SVC to assert privilege without advocating KC’s interest, the SVC’s objections had
merit.




                                           3
FURGERSON—ARMY 20170239

privilege applies or that an in camera review is otherwise authorized. 4 It is enough
to tie one in knots.

       Faced with this Gordian knot, we adopted an Alexandrian solution. 5 We
concluded that the table of contents did not contain privileged communication. A
table of contents is unlikely to contain a “confidential communication made between
the patient and a psychotherapist” – and in this case, did not. Mil. R. Evid. 513.

        We therefore determined that the table of contents was not privileged and
allowed the parties on appeal to review the table of contents. With the veil now
lifted, appellant on appeal can see whether the trial counsel’s statement that there
may be Brady matter in the records had any actual support. 6

      Having reviewed the table of contents ourselves, there is nothing in the
document that was Brady matter or that would lead one to conclude that the records
themselves contained Brady matter. It is just a table of contents.

                                       CONCLUSION

     On consideration of the entire record, the findings and sentence are
AFFIRMED.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




                                           MALCOLM
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                                                   JR.
                                           Clerk of Court
                                           Clerk of Court




4
  Compare Mil. R. Evid. 1101(a) (unclear whether Military Rules of Evidence apply
to appellate proceedings), with U.S. Army Court of Criminal Appeals Rules of
Practice and Procedure Rules 6.9-6.11 (15 Jan. 2019) (presuming documents are
privileged on appeal).
5
    That is, we did not try to untie the knot, we cut it.
6
  We invited additional briefing by the parties after having had the chance to review
the table of contents. Neither party accepted the invitation.




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