                       UNITED STATES, Appellee

                                    v.

               Anthony J. CLARK, Airman First Class
                     U.S. Air Force, Appellant

                              No. 04-0722

                         Crim. App. No. 34791

       United States Court of Appeals for the Armed Forces

                         Argued March 8, 2005

                     Decided September 30, 2005

GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.

                                 Counsel

For Appellant: Captain L. Martin Powell (argued); Lieutenant
Colonel Carlos L. McDade and Major Sandra K. Whittington (on
brief); Major Terry L. McElyea.

For Appellee: Captain Stacey J. Vetter (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Captain C. Taylor Smith (on brief).

Military Judge:   David Brash


       This opinion is subject to revision before final publication.
United States v. Clark, No. 04-0722/AF


      Chief Judge GIERKE delivered the opinion of the Court.

      Generally, in the absence of a privilege, any relevant

statement by an accused could be admitted into evidence by the

Government as a statement of a party opponent.1       M.R.E. 302,

however, maintains the integrity of the sanity review process by

protecting an accused when a sanity review board is ordered

under Rule for Courts-Martial (R.C.M.) 706.       Any statement made

by the accused or any derivative evidence obtained through use

of such a statement is confidential and may not be admitted into

evidence.2   But there is no privilege under M.R.E. 302 when the

accused first introduces into evidence any qualifying statements

or derivative evidence.

      This case presents the issue of whether the military judge

violated the M.R.E. 302 privilege rule when he granted the

Government’s motion to compel the production of Appellant’s

statements in the sanity board report.       We hold that the

military judge erred by releasing Appellant’s privileged

statements to the Government.        We conclude that Appellant’s

defense counsel did not first introduce derivative evidence.

Accordingly, the defense did not trigger M.R.E. 302’s exception




1
  See generally Military Rules of Evidence (M.R.E.) 801(d)(2)
(admitting a party’s own statement into evidence against that
party).
2
  See R.C.M. 706(c)(5), Manual for Courts-Martial, United States
(2000 ed.)(MCM).

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United States v. Clark, No. 04-0722/AF


permitting disclosure of Appellant’s statements to the sanity

board.

                                 BACKGROUND

      Contrary to Appellant’s pleas, a military judge found him

guilty of disobeying a lawful order, wrongfully using psilocyn,3

and breaking restriction, in violation of Articles 90, 112a, and

134, of the Uniform Code of Military Justice (UCMJ).4     In

addition, the military judge found Appellant guilty, pursuant to

his pleas, of wrongfully using methamphetamine, in violation of

Article 112a, UCMJ.5     He sentenced Appellant to a bad-conduct

discharge, six months of confinement, forfeiture of $600 pay per

month for six months, and reduction to the grade of E-1.

     When Appellant violated an order not to drive and attempted

to leave base, Appellant admitted to his first sergeant, Senior

Master Sergeant Crute, that he knew it was wrong to leave base

while on restriction.      The next day Appellant was hospitalized

because his co-workers thought he displayed irregular behavior.

Between May 31, 2001, and June 6, 2001, Dr. Peterson treated

Appellant and prescribed a mood stabilizer, a sedative and a

“very high potency anti-psychotic” medication for Appellant.




3
  The Air Force Court of Criminal Appeals later set aside this
charge and specification on factual insufficiency grounds.
United States v. Clark, 60 M.J. 539 (A.F. Ct. Crim. App. 2004).
4
  10 U.S.C. §§ 890, 912a, 934 (2000).
5
  10 U.S.C. § 912a (2000).

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United States v. Clark, No. 04-0722/AF


Appellant remained in Dr. Peterson’s care until the end of June

2001.

        At the defense counsel’s request, Dr. Gregoria Marrero held

an R.C.M. 706 sanity board to assess Appellant’s mental

responsibility for the charged offenses.            She submitted a

complete report of her findings.             During the trial, the defense

decided not to rely on the results of the sanity board.            The

defense instead called Dr. Peterson to testify.            The military

judge qualified Dr. Peterson as an expert in the field of

psychiatry, and she testified about her impressions of Appellant

during the period she was treating him.            She described

Appellant’s beliefs that “he had special powers, special

abilities” and “could read [people’s] minds.”            Dr. Peterson

explained that it was “fairly difficult to follow his train of

thought, even though he was coherent” because Appellant was

speaking very rapidly and “basically jumping from topic to

topic.”    Dr. Peterson concluded that she believed Appellant had

a manic episode, most likely due to Bipolar I disorder.

Regarding whether Appellant knew the nature and quality or

wrongfulness of his actions on May 29 and 30, Dr. Peterson

stated, “Given the way he presented to me and my experience

working with people who have had a manic episodes [sic] where it

builds up over a matter of a few days, I could only surmise that

it would affect his ability -- his judgment.”



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United States v. Clark, No. 04-0722/AF


      The defense did not inquire into the results of the sanity

board during the direct examination of Dr. Peterson.       However,

Dr. Peterson admitted that she had reviewed Dr. Marrero’s

report.    When asked whether she reviewed the report before

forming her opinion, Dr. Peterson replied, “No and I wouldn’t

want to.   No.   I looked at all the other information first then

met with him.”     She explained that she did not base her opinion

on the report.     Rather, “I just wanted to see what my colleague

-- what her findings were.       I came to my own conclusion and then

I wanted to look at that and see what she had drawn up.”

      The military judge conducted his own inquiry of Dr.

Peterson and asked about the impact of the sanity board report

on her diagnosis.     Dr. Peterson reaffirmed that her opinion was

formed independent of Dr. Marrero’s report.       But the military

judge asked, “Did Colonel Marrero reference within the report

any statements made by Airman Clark?”        Dr. Peterson confirmed

that Dr. Marrero had included Appellant’s statements in the

report and that she had reviewed them.

      The Government then argued that in light of the defense

testimony, the Government should have an opportunity to

interview Dr. Marrero regarding her examination of Appellant and

to fully review her report from the sanity board.       The military

judge granted the Government’s motion and, over defense

counsel’s objection, ordered the defense to produce and to



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United States v. Clark, No. 04-0722/AF


disclose to the prosecution the sanity board report, which

included Appellant’s statements.             The military judge did not

make any findings of fact regarding this issue and did not

explain his decision.      The military judge did not allow the

defense to redact Appellant’s statements from the report.

       As a result, the Government presented Dr. Marrero as a

prosecution witness.      Although the military judge did not allow

the Government to enter the sanity board report into evidence,

Dr. Marrero testified to the entire contents of the report

including Appellant’s admissions of culpability and his attempts

to feign mental problems.       Furthermore, at the trial, Dr.

Marrero revealed more of her interview with Appellant than she

included in her report.      For example, when Dr. Marrero

questioned Appellant about his declarations to treatment staff

that he was God, he responded “[t]hat he was playing along and

enjoying the attention that he was getting.”

                                    DISCUSSION

       In federal civilian courts, if a defendant presents an

insanity defense with expert witnesses to confirm his infirmity,

the prosecution may compel the defendant to submit to a

psychiatric evaluation by the Government.6            The medical expert

who examined the accused may testify only to his conclusions and

their basis and cannot reveal the contents of any statements the


6
    See Fed. R. Crim. P. 12.2.

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United States v. Clark, No. 04-0722/AF


accused made during the examination because the defendant is

still protected by the doctor-patient privilege.7

      Court-martial practice has a similar process to protect

statements to a sanity board but different rules pertain.

M.R.E. 302 guarantees a servicemember a right to confidentiality

comparable to a civilian under Fed. R. Crim P. 12.2(c)(4).             The

military accused often must rely on military doctors for

evaluation and treatment.       But there is generally no doctor-

patient privilege in the military.8          As a result, the prosecution

could retrieve any records of medical diagnosis or treatment.

The drafters of M.R.E. 302 recognized this uniquely military

concern.   They noted that “even when the actual communications

made by the accused are not revealed by the expert witness in

open court, under the present Manual they may be studied by the

prosecution and may be used to discover other evidence later

admitted against the accused.”9          Accordingly, M.R.E. 302 was

proposed and implemented to provide “a form of testimonial

immunity intended to protect an accused from use of anything he

might say during a mental examination” ordered under R.C.M.

706.10   Contrary to the dissent’s assertions, M.R.E. 302 does not


7
   See Fed. R. Crim. P. 12.2(c)(4). See, e.g., United States v.
Curtis, 328 F.3d 141, 144 (4th Cir. 2003); United States v.
Johnson, 362 F. Supp. 2d 1043, 1087-97 (N.D. Iowa 2005).
8
   See M.R.E. 501(d).
9
   MCM, App. 22, A22-7 (2000 ed.)(referring to the Manual for
Courts-Martial, United States (1969 revised ed.)).
10
    Id. at A22-8.

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United States v. Clark, No. 04-0722/AF


distinguish between a psychiatric evaluation ordered by the

Government and an evaluation requested by the defense.      R.C.M.

706(a) allows “any investigating officer, trial counsel, defense

counsel, military judge, or member” to request “an inquiry into

the mental condition of the accused.”11      And M.R.E. 302 applies

to any “mental examination ordered under R.C.M. 706.”12      “It is a

general rule of statutory construction that ‘if the statute is

clear and unambiguous, a court may not look beyond it but must

give effect to its plain meaning. . . .’”13      We reject the

dissent’s invitation to construe M.R.E. 302 in a manner clearly

inconsistent with its plain meaning.14

      “[T]he creation of Rule 302 was purely to protect the

privilege against self-incrimination of an accused undergoing a




11
   R.C.M. 706(a), MCM, (2000 ed.).
12
   M.R.E. 302(a).
13
   United States v. McGowan, 41 M.J. 406, 413 n.4 (C.A.A.F. 1995)
(quoting Tibbs v. United States, 507 A.2d 141, 143-44 (D.C. App.
1986)). The Manual for Courts-Martial is interpreted according
to rules of statutory construction. United States v. Lucas, 1
C.M.A. 19, 22, 1 C.M.R. 19, 22 (1951).
14
   The dissent does not provide any citation of authority to
support its assertion that “[t]he R.C.M. 706 evaluation in this
case was not one contemplated by the drafters.” __ M.J. __, __
(8 n.1) (C.A.A.F. 2005) (Crawford, J., dissenting). Regardless,
this situation is clearly within the ambit of the plain meaning
of R.C.M. 706, which expressly lists the defense counsel as one
of the individuals who shall transmit to appropriate authority
that he/she has reason to believe the accused lacks mental
responsibility or mental competence. Query: if the rule were as
the dissent proposes, how often would a defense counsel seek an
R.C.M. 706 evaluation of the accused?



                                         8
United States v. Clark, No. 04-0722/AF


mental examination . . . .”15       Accordingly, M.R.E. 302 includes a

provision that generally prohibits use of any derivative

evidence of an accused’s statements to the sanity board to

determine guilt or innocence or during the sentencing phase of a

court-martial.16    “There is no privilege under this rule when the

accused first introduces into evidence such statements or

derivative evidence.”17

      Following the Supreme Court’s decision in Jaffee v.

Redmond,18 the President adopted a psychotherapist-patient

privilege for the military justice system with the

implementation of M.R.E. 513.19          The rule allows a patient the

privilege to refuse to disclose, or allow another to disclose, a

confidential communication between the patient and a

psychotherapist.     But this rule “is not a physician-patient

privilege.”20    Rather, it is “based on the social benefit of

confidential counseling recognized by Jaffee, and similar to the

clergy-penitent privilege.”21       M.R.E. 513 intends to safeguard

statements “made for the purpose of facilitating diagnosis or




15
   MCM, App. 22, at A22-8.
16
   See M.R.E. 302(a).
17
   M.R.E. 302(b)(1).
18
   518 U.S. 1 (1996).
19
   Exec. Order No. 13,140, 64 Fed. Reg. 55,115, 55,116-17 (Oct.
12, 1999).
20
   MCM, App. 22, at A22-44.
21
   Id.



                                         9
United States v. Clark, No. 04-0722/AF


treatment of the patient’s mental or emotional condition.”22        An

exception to M.R.E. 513, however, eliminates the privilege “when

an accused offers statements or other evidence concerning his

mental condition in defense, extenuation, or mitigation.”23

Because Appellant presented an insanity defense, he could not

have claimed a psychotherapist-patient privilege under M.R.E.

513.

       This Court has previously addressed whether an expert’s

diagnosis sufficiently derives from a sanity board report to

warrant its release to the prosecution.      In United States v.

Bledsoe,24 the prosecution called Dr. Townsend-Parchman, a member

of the accused’s sanity board, to testify about the results of

the board during its case-in-chief.       The defense called Dr.

Martin to testify that he and two other members of the sanity

board had concurred in a diagnosis that the accused had a

“conversion disorder.”25      After the direct examination of Dr.

Martin, the trial counsel asked to review the sanity board

report.    The prosecution alleged that Dr. Martin’s testimony

opened the door to the accused’s medical history, “particularly

the statements made by the accused in the evaluation process.”26

The trial counsel requested access to those statements alleging


22
     M.R.E. 513(a).
23
     M.R.E. 513(d)(7).
24
     26 M.J. 97 (C.M.A. 1988).
25
     Id. at 100.
26
     Id.

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United States v. Clark, No. 04-0722/AF


they were necessary for an effective cross-examination of Dr.

Martin.    The military judge overruled a defense objection and

provided the sanity board documents to the prosecution.     While

this Court held there was no prejudicial error in Bledsoe, we

expressed “doubt that the diagnosis offered by a defense expert

can, in and of itself, be considered ‘derivative evidence’

merely because it is based in part on what the accused has told

the examining psychiatrists.”27

       In this case, the Government alleges that Appellant waived

his right to the privilege by submitting derivative evidence

from the sanity board, specifically expert testimony of a

psychiatrist who reviewed the report.     We disagree.

       The Government concedes that “the defense did not elicit

statements made by Appellant during his sanity board.”     The

Government asserts, however, that Appellant presented derivative

evidence because Dr. Peterson admitted that she had read the

report before testifying and thus “opened the door” for the

Government.    While Dr. Peterson admitted on direct examination

that she “reviewed the sanity board [report] written by Doctor

Marrero,” she further clarified that she did not read the report

until after forming her own opinion.      Aside from this single

statement by Dr. Peterson, the defense counsel’s direct

examination did not mention or allude to the report or the


27
     Id. at 103.

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United States v. Clark, No. 04-0722/AF


included statements.28      The military judge, however, elicited

information regarding the sanity board report.

      M.R.E. 302 was specifically drafted to allow the defense to

control whether an accused’s statements to a sanity board would

be released to the prosecutors and presented at the court-

martial.   If the defense does not allege insanity at court-

martial, or does so only through lay testimony, the sanity board

report will not be provided to the prosecution.       But “[i]f the

defense offers expert testimony concerning the mental condition

of the accused,” the military judge shall compel the defense to

release to the prosecution “the full contents, other than any

statements made by the accused,” of the sanity board report.29

“If the accused presents a defense, however, which includes

specific incriminating statements made by the accused to the

sanity board, the military judge may order disclosure to the

trial counsel of ‘such statement . . . as may be necessary in

the interest of justice.’”30       While the defense chose to present

an insanity defense in this case, Dr. Peterson’s testimony

relied only on her own treatment of Appellant and did not in any


28
   The dissent asserts that Dr. Peterson’s testimony was “at
least to some colorable degree, ‘received from’ or ‘deduced
from’” the sanity board report. __ M.J. at __ (10) (Crawford,
J., dissenting). But Dr. Peterson’s testimony affirms the
defense’s claim that Dr. Peterson did not rely on the sanity
board report in her evaluation of Appellant.
29
   M.R.E. 302(c).
30
   MCM, App. 22, at A22-9 (quoting M.R.E. 302(c)).



                                     12
United States v. Clark, No. 04-0722/AF


way reveal to the members Appellant’s incriminating statements

to the sanity board.

      In this case, the defense counsel’s direct examination of

Dr. Peterson is not derivative evidence, and therefore Appellant

did not waive his right to confidentiality under M.R.E. 302.

Once the defense offers expert testimony concerning an accused’s

mental condition, M.R.E. 302(c) allows the military judge to

provide the Government with the sanity board report after

redacting the accused’s statements.          Here, the military judge

provided the entire sanity board report to the Government, and

he allowed the Government to elicit Appellant’s statements from

a Government rebuttal witness.           This violated the privilege

extended to Appellant by M.R.E. 302.

      The military judge abused his discretion by releasing the

sanity board report to the prosecution in its entirety and

allowing the Government to admit Appellant’s statements into

evidence.    While the defense requested Appellant’s sanity board,

M.R.E. 302 afforded Appellant a privilege to prevent the

Government from using his statements against him.

      To determine the impact of the improper testimony, we must

first determine whether the military judge’s release and

admission of Appellant’s statements is constitutional error.            It

is not.   The Supreme Court has concluded that if a defendant

requests the psychiatric evaluation or presents an insanity



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United States v. Clark, No. 04-0722/AF


defense, “The defendant would have no Fifth Amendment privilege

against the introduction of [testimony from his psychiatric

evaluation] by the prosecution.”31        Because Appellant requested

the sanity board, he may not claim a Fifth Amendment violation

because the Government did not compel his appearance at the

board.    Here, the disclosure resulted in a trial error.      The

military judge’s ruling violated a privilege guaranteed to

Appellant under M.R.E. 302.

       “For nonconstitutional errors, the Government must

demonstrate that the error did not have a substantial influence

on the findings.”32     Our consideration “cannot be merely whether

there was enough to support the result,” aside from the military

judge’s error.33    We must also examine “whether the error itself

had substantial influence.”34       To evaluate the prejudice from the

military judge’s erroneous ruling, we consider “(1) the strength

of the Government’s case, (2) the strength of the defense case,

(3) the materiality of the evidence in question, and (4) the

quality of the evidence in question.”35        After evaluating each of

these factors, we remain uncertain whether Appellant’s

31
  Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987). See also
United States v. Byers, 740 F.2d 1104, 1111-13 (D.C. Cir. 1984).
32
  United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)
(citing United States v. Walker, 57 M.J. 174, 178 (C.A.A.F.
2002)).
33
     Kotteakos v. United States, 328 U.S. 750, 765 (1946).
34
     Id.




                                     14
United States v. Clark, No. 04-0722/AF


conviction was “substantially swayed by the error.”36       Appellant

was prejudiced not only by the military judge’s decision to

release to the Government Appellant’s statements in the report,

but also by the Government’s later use of those statements and

others made to the report’s author to rebut Appellant’s claims

of diminished mental responsibility.       The Government called only

one expert witness, Dr. Marrero, to rebut the insanity defense.

Dr. Marrero’s testimony was not limited to her conclusions;

rather, she freely recalled Appellant’s statements and behavior

during the sanity board.37      Dr. Marrero testified that Appellant

said, “I know what I was doing,” and that he was not concerned

with his punishment since “the worst that could happen was

getting out of the military.”        Dr. Marrero further described

Appellant’s attitude when he admitted that “he was playing along

and enjoying the attention that he was getting.”       Dr. Marrero

examined Appellant only once: when she conducted the R.C.M. 706

sanity board.    Accordingly, the statements that she recounted


35
   United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)(citing
United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).
36
   Kotteakos, 328 U.S. at 765.
37
   The dissent states that the “prosecution did not seek to admit
the accused’s statement to Dr. Marrero, but to obtain the
conclusions from that expert, which are based on case-specific
facts.” __ M.J. at __ (14) (Crawford, J., dissenting). The
prosecution, however, did attempt to admit into evidence the
entire sanity board report. While the military judge did not
allow the report to be admitted into evidence, he did allow the
trial counsel to elicit Appellant’s statements from Dr. Marrero
during direct examination.



                                     15
United States v. Clark, No. 04-0722/AF


were necessarily made as part of the sanity board process.         The

military judge should not have given the prosecution Appellant’s

statements to the sanity board.          He further compounded the error

by allowing the Government to elicit testimony about Appellant’s

statements during the cross-examination of Dr. Peterson and the

direct examination of Dr. Marrero.

        The Government’s case relied heavily on the improper

testimony of the sole member of Appellant’s sanity board.38

While Appellant’s first sergeant testified that Appellant

appeared normal to her on May 29, 2001, it is reasonable to

assume that the military judge would have given more weight to a

doctor’s diagnosis.      The insanity defense may have succeeded if

the military judge had not released Appellant’s privileged

statements to the Government and allowed the prosecution to use

them to his detriment.

                                     DECISION

      The decision of the United States Air Force Court of

Criminal Appeals is reversed.        The findings of guilty to Charges

II and IV, their specifications, and the sentence are set aside.

The findings of guilty to the remaining charge and specification

are affirmed.    The record is returned to the Judge Advocate

General of the Air Force with authorization for a rehearing on

38
  We do not question Dr. Marrero’s qualifications as a
psychiatrist nor do we suggest that Dr. Marrero is incompetent,



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United States v. Clark, No. 04-0722/AF


Charges II and IV.     If there is not a rehearing on the findings,

a sentence rehearing on the remaining charge and specification

may be held.    If the convening authority determines that a

sentence rehearing is impracticable then he may approve a

sentence of no punishment.




as suggested by the dissent. But we do hold that her testimony
was improper under the Military Rules of Evidence.

                                     17
United States v. Clark, No. 04-0722/AF


     CRAWFORD, Judge (dissenting):

     The majority’s application of Military Rule of Evidence

(M.R.E.) 302 would allow a defendant to obtain, at Government

expense, an expert mental evaluation, devoted solely to the

defense, and cloak with immunity any statements made during the

examination.   With this immunity in place, the defense is then

free to call to the stand another Government-paid expert, whose

opinion and testimony were likely based, at least in part, on

both the earlier examination and the statements of the defendant

made during that examination.   This second expert could then

testify for the defense without fear that the Government could

either obtain or use the defendant’s statements made during the

earlier examination.   The majority’s holding runs counter to the

self-incrimination clause, is an improper balance of competing

interests, and overlooks the history behind M.R.E. 302.

     In describing the posture of this case, the majority omits

an important, if not controlling, fact:   the sanity board

conducted by Colonel (Dr.) Marrero was requested by the defense,

with all portions of the board report being delivered only to

the defense.   Although Rule for Courts-Martial (R.C.M.)

706(c)(3)(A) requires that the board’s ultimate conclusions on

all questions “shall be submitted to the officer ordering the

examination, [under R.C.M. 706(b)(1)] . . . and to all counsel

in the case, the convening authority, and, after referral, to
United States v. Clark, No. 04-0722/AF


the military judge” (emphasis added), the results of this report

–- lock, stock, and barrel –- were delivered only to the

defense.    This is hardly the instance of involuntary examination

and compelled statements that the drafters of M.R.E. 302 had in

mind.

        In this case, a defense counsel zealously and creatively

represented her client by skillfully manipulating the Rules for

Courts-Martial, the Military Rules of Evidence, and military

health care assets to achieve a case posture that counsel

believed would prove most advantageous to her client at trial.

That is her job.    At trial, the trial counsel argued that this

manipulation, and the testimony of Dr. Peterson, resulted in a

waiver of Appellant’s privilege under M.R.E. 302 as to

statements made by Appellant to an earlier sanity board convened

at Appellant’s request.    That is his job.    In the interest of

fairness and justice, the military judge construed the

evidentiary and procedural rules to permit access to and use by

the trial counsel of Appellant’s statements at the sanity board

Appellant had requested.    That is his job.

        Because, as the majority correctly notes, we address

neither a constitutional question nor one arising under Article

31, UCMJ, it is now this Court’s job to decide whether the

military judge’s decision to admit evidence in potential

abrogation of a privilege was an abuse of his discretion.


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United States v. Clark, No. 04-0722/AF


     The decision to admit evidence is reviewed for an
     abuse of discretion. Whether a conversation is
     privileged is a mixed question of law and fact. To
     find an abuse of discretion requires more than a mere
     difference of opinion -- the challenged ruling must be
     “arbitrary, fanciful, clearly unreasonable,” or
     “clearly erroneous.”

United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.

2000)(internal citations omitted).    “As has often been said, the

purpose of a criminal trial is truthfinding within

constitutional, codal, Manual, and ethical rules.    Because the

privilege rules limit truthfinding by excluding legally relevant

evidence, these rules are not ‘favored’ by the federal courts.”

United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997)

(internal citations omitted).

     Like other federal courts, we should not construe rules

conferring privileges in such a way as to defeat both the truth-

finding process and the intent of the drafters.   In United

States v. Bledsoe, 26 M.J. 97 (C.M.A. 1988), this Court

construed M.R.E. 302, contrary to its literal language, to

achieve what we perceived as the drafters’ intent.   We should

once again construe this rule so as to preserve that same

intent, and to promote the orderly administration of military

justice.   M.R.E. 302 provides:

     (a) General rule. The accused has a privilege to
     prevent any statement made by the accused at a mental
     examination ordered under R.C.M. 706 and any
     derivative evidence obtained through use of such a
     statement from being received into evidence against


                                  3
United States v. Clark, No. 04-0722/AF


     the accused on the issue of guilt or innocence or
     during sentencing proceedings. This privilege may be
     claimed by the accused notwithstanding the fact that
     the accused may have been warned of the rights
     provided by Mil. R. Evid. 305 at the examination.

     (b) Exceptions.

     (1) There is no privilege under this rule when the
     accused first introduces into evidence such statements
     or derivative evidence.

     (2) An expert witness for the prosecution may testify
     as to the reasons for the expert’s conclusions and the
     reasons therefore as to the mental state of the
     accused if expert testimony offered by the defense as
     to the mental condition of the accused has been
     received in evidence, but such testimony may not
     extend to statements of the accused except as provided
     in (1).

     (c) Release of evidence. If the defense offers expert
     testimony concerning the mental condition of the
     accused, the military judge, upon motion, shall order
     the release to the prosecution of the full contents,
     other than any statements made by the accused, of any
     report prepared pursuant to R.C.M. 706. If the
     defense offers statements made by the accused at such
     examination, the military judge may upon motion order
     the disclosure of such statements made by the accused
     and contained in the report as may be necessary in the
     interests of justice.

     This rule is designed to balance the competing interests of

the self-incrimination clause and the insanity defense.   Under

the rule, the “prosecution may compel the accused to submit to

government psychiatric examination.”   But that expert may

testify “only as to his or her conclusions and their basis and

not the contents of any statements by the accused during the

examination.”   MCM, App. 22, A22-7.



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United States v. Clark, No. 04-0722/AF


                               FACTS

     On May 29, 2001, Appellant, when he was restricted, was

arrested for wrongfully trying to leave the post.   Appellant’s

first sergeant testified Appellant appeared normal when he was

brought back to the unit.   However, the next day Appellant was

hospitalized because of what a co-worker thought was bizarre

behavior.   Dr. (Major) Karen Peterson, a psychiatrist, treated

Appellant from May 31 to June 28, 2001.

     Later, pursuant to a defense request, the convening

authority ordered a sanity board.    The sole member of the board

was Dr. (Colonel) Gregoria Marrero, a forensic psychiatrist.

Upon completion of the examination, the sanity board report was

returned directly to the defense team and not given to the trial

counsel or the convening authority.    While Dr. Marrero agreed

with Dr. Peterson that Appellant suffered from a manic episode

on May 29-30, 2001, Dr. Marrero concluded that Appellant knew

what he was doing on those dates, and his hospitalization was

due to malingering.   After the sanity board, Appellant obtained

the assistance of Dr. Peterson as a confidential consultant and

notified the prosecution of the intent to raise the lack of

mental responsibility as a defense.    At trial, the defense

called Dr. Peterson as an expert witness.   She opined that there

was a “high likelihood” that Appellant was suffering from a

severe mental disease or defect on May 29 and 30, 2001.    As a


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United States v. Clark, No. 04-0722/AF


result of this, it would be difficult for Appellant to

appreciate the nature and quality or the wrongfulness of his

actions.

     The record of trial reveals the following colloquy between

defense counsel and Dr. Peterson:

     Q. Was there anything else that you used to
     formulate that opinion?

     A. This week, I also met for the first time an
     Airman Paytas and she described the change in his
     behavior back at this period of time. I also
     reviewed the sanity board written by Doctor
     Morrero [sic].

     Q. Now, did you review that prior to formulating
     your opinion?

     A. No and I wouldn’t want to. No. I looked at
     all the other information first then met with him.

     Q. So, did you use that as part of your opinion,
     to base your opinion on?

     A. Not to base my opinion on, I just wanted to
     see what my colleague -- what her findings were.
     I came to my own conclusion and then I wanted to
     look at that and see what she had drawn up.

Emphasis added.

The following inquiry was with the military judge:

      Q.   Major, have you seen the charge sheet in this case?

      A.   Yes, I have.

      Q. Do you know the offenses that were alleged to have
      occurred at approximately 29 or 30 May?

      A.   I don’t recall the specifics of them.



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United States v. Clark, No. 04-0722/AF


      Q. Did you sit down and go through the elements -- what
      we call the elements of the law in those offenses?

      A.   Yes, I did.

      Q. Okay. So you’ve taken that in your [sic] account in
      your ultimate assessment?

      A.   Yes.

      Q. You told us that you looked at the medical records
      that Airman Clark had maintained on him over at the
      hospital correct?

      A. Right.

      Q. Do those include prior mental health records?

      A.   No.    He did not have any.

      Q. Had none? My next few questions come from a vantage
      point of ignorance, I’m afraid. The only person who has
      seen the full sanity board report is Captain Johnson [the
      defense counsel], Airman Clark, of course and I assume
      you have seen it. We haven’t seen it so some of my
      questions may be a little off cue, because I don’t know
      what’s in the thing.

      A.   Okay.

      Q. Apparently Colonel Marrero rendered a diagnosis
      during the course of that report, is that right?

      A. She said rule out -- she would rule out several
      diagnoses. She didn’t pin point anything.

      Q. Okay. Did Colonel Marrero reference within the
      report any statements made by Airman Clark?

      A.   Yes, she did.

      Q.   Did you read those?

      A.   Yes.

      Q. So you’re [sic] overall assessment is based on the
      following: your inpatient contact with Airman Clark 30
      [sic] through 6 June?

      A.   Right



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United States v. Clark, No. 04-0722/AF


      . . . .

      Q. You reviewed Colonel Marrero’s assessment in the
      sanity board report to include both narrative and certain
      statements attributed to Airman Clark?

      A.   Right.

      Q. You took a look at the charge sheet and reviewed what
      we call elements of the law?

      A. Uh-huh. Right.

      Q. Affirmative response.       And you reviewed the DSM-IV is
      that correct?

      A.   That’s correct.

      Q. Aside from your own professional experience, anything
      else brought to bear upon your ultimate opinion?

      A. No. No, Sir.

Emphasis added.

     The military judge ruled that after Dr. Peterson’s

testimony, M.R.E. 302 no longer barred the testimony of Dr.

Marrero as to either Dr. Marrero’s opinions or the statements of

Appellant made during Dr. Marrero’s examination.

                    “Ordered Under R.C.M. 706”

     M.R.E. 302 is designed to ensure Fifth Amendment

protections when “the accused” is “ordered under R.C.M. 706” to

submit to a Government psychiatrist.1     In this case, the


1
  One can parse the language from R.C.M. 706(a) to support a
number of positions. The R.C.M. 706 evaluation in this case was
not one contemplated by the drafters. It was requested by the
defense, and returned to the defense, but not to the commander
or convening authority. Any defense counsel would like any
number of these types of evaluations until they get the one they
desired.

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United States v. Clark, No. 04-0722/AF


examination the defense would like to exclude was one requested

by the trial defense team and returned only to that team.    This

was not the type of examination contemplated by M.R.E. 302.

R.C.M. 706 permits the Government to order a psychiatric

examination of an accused, an examination to which the accused

must submit if he or she wishes to introduce expert testimony in

support of an insanity defense.   Once the defense of lack of

mental responsibility is raised by the defense, M.R.E. 302

allows testimony or other evidence regarding the conclusions of

the R.C.M. 706 examination, but generally excludes statements

made by the accused.

     In this case, because the defense was dissatisfied with the

results of its essentially “private” R.C.M. 706 board, it called

Dr. Peterson, Appellant’s treating psychiatrist, to testify.

She reviewed the full report of Dr. Marrero’s R.C.M. 706 board

before testifying.

     In 1987, the Supreme Court addressed this dilemma:

     [I]f a defendant requests such [a psychiatric]
     evaluation or presents psychiatric evidence, then at
     the very least, the prosecution may rebut this
     presentation with evidence from reports of the
     examination that the defendant requested. The
     defendant would have no Fifth Amendment privilege
     against the introduction of this psychiatric testimony
     by the prosecution.

Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987).




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United States v. Clark, No. 04-0722/AF


                         “Derivative” Evidence

     M.R.E. 302 does not apply when the defense introduces

evidence “derivative” of the sanity board.       “Derivative” is

defined as “a word formed from derivation.”      A secondary meaning

is “something derived.”    “Derived” is defined as “to take or

receive esp. from a specified source.”    Webster’s New Collegiate

Dictionary 342 (1983).    As indicated, derived means “receive

from.”   Major (Dr.) Karen Peterson’s testimony was, at least to

some colorable degree, “received from” or “deduced from” Colonel

(Dr.) Gregoria Marrero and the statements that Appellant had

made to Colonel Marrero.    Once Dr. Peterson testified, Dr.

Marrero was permitted to testify as to both her findings and

Appellant’s statements.

     The majority holds that, even if the defense perverts the

mechanism of R.C.M. 706 to receive an essentially private

psychiatric examination, uncontemplated by the drafters, the

results of which the defense does not like, then both the

results of that examination and Appellant’s statements would

remain privileged under a rule intended to protect statements

made in the course of a compliant R.C.M. 706 inquiry.       This

result, the majority reasons, is compelled by a plain reading of

both rules, notwithstanding subsequent use of both those results

and statements by a second defense expert who is called to

testify to contrary conclusions after a second examination.        In


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United States v. Clark, No. 04-0722/AF


answer to the majority’s query,2 I must posit a corollary:        If

the rules were as the majority proposes, what defense counsel

would not be per se ineffective in failing to request such an

R.C.M. 706 inquiry?

       The same scenario in this case was presented to Judge

Weinstein in United States ex rel. Edney v. Smith, 425 F. Supp.

1038 (E.D.N.Y. 1976) aff’d without opinion, 556 F.2d 556 (2d

Cir.), cert. denied, 431 U.S. 958 (1977).     Edney, at his trial,

raised the insanity defense and called a psychiatric expert to

testify on his behalf.     The court permitted the prosecution to

call in rebuttal the psychiatrist who originally examined the

defendant at counsel’s request for the purpose of trial

preparation.    This psychiatrist testified for the Government

that Edney did not suffer any mental disease or defect and

appreciated the nature of his acts.    Judge Weinstein delivered a

lengthy and careful decision and concluded that although the

psychiatric testimony may have been privileged, the defendant

waived any attorney-client privilege by offering the expert

testimony on the insanity defense.     A number of other courts

have done likewise, including the Supreme Court of Washington in

State v. Pawlyk, 800 P.2d 338, 350 (Wash. 1990); see also

Pawlyk v. Wood, 248 F.3d 815 (9th Cir. 2001).



2
    __ M.J. __ (8 n.14).

                                  11
United States v. Clark, No. 04-0722/AF


                          Insanity Defense

     A third exception is M.R.E. 302(c), which recognizes that

the defense waived the privilege under M.R.E. 302 by presenting

testimony from Dr. Peterson.   Once the “defense offers expert

testimony concerning the mental condition of the accused, the

military judge . . . shall order the release to the prosecution

of the full contents . . . of any report prepared pursuant to

R.C.M. 706.”   Thus, the privilege under M.R.E. 302(a) did not

extend to the testimony of Dr. Marerro when the defense first

called Dr. Peterson to the stand, and used her findings and

conclusions resulting from a psychiatrist examination of the

defendant to show lack of mental responsibility.

     M.R.E. 302 protects direct communications with the expert.

Generally, consulting with the expert does not create an

opposing witness.   But when an attorney asks an expert to

examine his client to gain the expert’s opinion, that opinion

will be privileged except when the defense seeks to employ that

report to improve the opinion of another expert and to prevent

any counter arguments.   The opinions of both experts do not rely

totally on statements from the accused but include other

information from other sources, including witnesses as to the

specific facts.   While the first expert’s opinion is privileged,

the opinion is only partially related to the accused’s

communication.    But even those communications that are


                                 12
United States v. Clark, No. 04-0722/AF


privileged, either under the Fifth Amendment or the attorney-

client privilege, are waived when there is a derivative use of

the first expert’s report as in this case.    M.R.E. 302.   Cf.

United States v. Olivero, 39 M.J. 246 (C.M.A. 1994) (failing to

catalog or seal the statements resulted in the inference of

derivative use, allowing the inference that the witness’s

statements were obtained prior to the immunized statements,

whether or not it was seen or relied upon).   See also United

States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003) (timing by itself

was enough to show derivative use).   A member of the prosecution

may not, in the first instance, interview or call the expert

from the first sanity board.   But M.R.E. 302 does not render the

first expert completely incompetent to testify.   If that

testimony is contrary to the defense position, it should not

allow the defense to continue shopping around until it finds an

opinion to its liking.   To expand the Fifth Amendment and the

attorney-client privilege to exclude the first expert’s opinion

when the defense has the second expert examine that report

deprives the trier of fact of the benefit of valuable expert

advice.   Edney, 425 F. Supp. 1038; Pouncy v. State, 353 So.2d

640, 642 (Fla. Dist. Ct. App. 1977); State v. Carter, 641 S.W.2d

54, 58 (Mo. 1982).   The defense should not be allowed to bury

the witness or corner the market on expert witnesses.   Cf.

United States v. Warner, ___ M.J. ___ (C.A.A.F. 2005)(requiring


                                13
United States v. Clark, No. 04-0722/AF


comparable witnesses for defense).     The fact that the statements

of the accused were elicited by Dr. Marrero does not mean they

are always privileged if the defense seeks to admit these same

statements through Dr. Peterson.      But as mentioned, Dr.

Marrero’s opinion does not rely solely on the accused’s

statements but also on case-specific facts and third-party

descriptions of the accused’s behavior and reactions on

particular occasions.

     In this case, the prosecution did not seek to admit the

accused’s statement to Dr. Marrero, but to obtain the

conclusions from that expert, which are based on case-specific

facts.   This is permissible when there has been derivative use

of her opinion and report.   Thus, Dr. Marrero should be able to

give her opinion, which is based on observations of the accused,

third parties’ descriptions of the accused’s behavior, and other

facts surrounding the conduct.   What the majority seeks to do is

transform the privilege under M.R.E. 302 unto a broad rule of

incompetency that undermines the truthfulness of a criminal

trial.   The result is to unnecessarily expand the privilege.

For these reasons, I respectfully dissent.




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