                        UNITED STATES, Appellant

                                         v.

                  Joseph J. HARDING, First Lieutenant
                        U.S. Air Force, Appellee

                                  No. 05-5003
                          Crim. App. No. 2005-02

       United States Court of Appeals for the Armed Forces

                          Argued March 21, 2006

                          Decided April 13, 2006

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

                                     Counsel


For Appellant: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Gary F. Spencer, Lieutenant Colonel Robert V.
Combs, and Major Matthew S. Ward (on brief); Major Nurit
Anderson and Captain Jefferson E. McBride.


For Appellee: Major Karen L. Hecker (argued); David P. Sheldon,
Esq., Lieutenant Colonel Mark R. Strickland, Captain Lynn
Schmidt and Captain John N. Page III (on brief).



Military Judge:    David F. Brash



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harding, No. 05-5003/AF


    Judge EFFRON delivered the opinion of the Court.

    The Government has appealed the ruling of a military judge

in a pending court-martial.   Appellee presently faces a charge

of rape (Charge I), in violation of Article 120, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 920 (2000).   Appellee

initially was charged with a separate offense (Charge II) under

Article 134, UCMJ, 10 U.S.C. § 834 (2000), which has been

dismissed by the convening authority.



                         I.   BACKGROUND

    Prior to trial, Appellee filed a discovery motion requesting

production of the alleged victim’s medical records.    Pursuant to

that request, the prosecution issued a number of subpoenas under

Rule for Courts-Martial (R.C.M.) 703(e)(2)(C).   One was issued

to Ms. Jennifer Bier, a social worker in the private sector who

had counseled the alleged victim after the charged incident.

The subpoena requested production of Ms. Bier’s records

concerning the alleged victim.   Ms. Bier declined to provide the

documents, citing their “privileged nature.”

    The defense filed a motion asking the military judge to

order production of the documents.   At a hearing under Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2000), the military judge

considered these circumstances in light of Military Rule of




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Evidence (M.R.E.) 513 (psychotherapist-patient privilege).

M.R.E. 513(a) provides the following general rule of privilege:

             A patient has a privilege to refuse to
             disclose and to prevent any other person
             from disclosing a confidential communication
             made between the patient and a
             psychotherapist or an assistant to the
             psychotherapist, in a case arising under the
             UCMJ, if such communication was made for the
             purpose of facilitating diagnosis or
             treatment of the patient’s mental or
             emotional condition.

The rule contains several exceptions, including a provision

stating that there is no privilege “when admission or disclosure

of a communication is constitutionally required.”    M.R.E.

513(d)(8).

    When there is a dispute concerning the privilege, the rule

provides a procedure for obtaining an interlocutory ruling by

the military judge.    M.R.E. 513(e).   Before ordering production

or admission of disputed evidence, the military judge must

conduct a hearing.    M.R.E. 513(e)(2).   Under the rule, the

“military judge shall examine the evidence or a proffer thereof

in camera, if such communication is necessary to rule on the

motion.”   M.R.E. 513(e)(3).   The military judge is authorized to

issue protective orders and seal pertinent records.    M.R.E.

513(e)(4), (5).

    After an evidentiary hearing in the present case under

M.R.E. 513(e)(2), the military judge concluded that he would



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United States v. Harding, No. 05-5003/AF


have to review the evidence in camera -- that is, without

disclosing the contents to the parties -- before ruling on the

motion.   See M.R.E. 513(e)(3).   Ms. Bier declined to provide the

documents.   When the military judge reissued the subpoena, Ms.

Bier refused to comply, and requested a hearing before the

military judge. The military judge held the hearing, ruled that

the subpoena was valid, and issued a warrant of attachment.     See

R.C.M. 703(e)(2)(G); Article 47, UCMJ, 10 U.S.C. § 847 (2000).

The warrant of attachment authorized the United States Marshal

or the Inspector General of the Air Force to seize the documents

and deliver them to the military judge.    The military judge

emphasized that he had not yet ruled on the admissibility of the

requested documents, and that review of the documents in camera

was necessary “to make an informed decision on production or

admissibility.”

    Ms. Bier then asked the United States District Court for the

District of Colorado to issue a preliminary injunction against

enforcement of the warrant of attachment.   The district court

declined to issue the preliminary injunction.   The court noted

that M.R.E. 513 provided a forum for protecting the rights of

victims, and observed that “the premise of Rule 513 is that

disputed questions must be resolved by a judge at an in camera

proceeding.”   Ms. Bier then sought an emergency stay pending her

appeals at the United States Court of Appeals for the Tenth


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Circuit.    After entering an initial stay pending the

Government’s response, the Tenth Circuit subsequently vacated

the stay.    Citing R.C.M. 701(f) and M.R.E. 513(e)(3), the court

concluded:   “We agree with the district court that the military

judge has followed appropriate procedures.”

      Despite receiving this green light from the court of

appeals, the United States Marshals did not enforce the warrant

of attachment.   Instead, they simply asked her to produce the

documents, and took no further action when she declined to do

so.

      The military judge considered the Government’s failure to

enforce the warrant of attachment at a hearing under Article

39(a), UCMJ.   After concluding that there was no adequate

substitute for in camera consideration of the records, the

military judge abated the proceedings as to the rape charge

(Charge I), and severed the rape charge from a separate charge

against Appellee under Article 134, UCMJ (Charge II).    The

military judge stated that the court-martial would proceed to

consider the Article 134, UCMJ offense (Charge II), which did

not involve the alleged victim of the rape charge or Ms. Bier’s

records.

      The Government filed a notice of intent to appeal the ruling

under Article 62, UCMJ, 10 U.S.C. § 862 (2000), with the

military judge and the Air Force Court of Criminal Appeals.    The


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United States v. Harding, No. 05-5003/AF


Air Force court granted the Government’s motion for a temporary

stay pending appeal.   The Government, however, did not compile

the record and forward it within the twenty-day period required

by Rule 21(d)(1) of the joint Courts of Criminal Appeals Rules

of Practice and Procedure, available on LEXIS at USCS Ct Crim

App § 150.21, available on Westlaw at CCA Rule 21, and did not

request an enlargement of time or other relief.   Five days after

the time period expired, the Government asked the Air Force

Court to suspend the filing requirement.   The court denied the

motion, as well as subsequent motions for reconsideration and

reconsideration en banc.   The Government eventually compiled the

record and filed an appeal of the military judge’s ruling under

Article 62, UCMJ.   The Air Force court dismissed the appeal, and

lifted its stay of the court-martial proceedings.

     The Government then filed a petition for extraordinary

relief with this Court, seeking a stay of the court-martial,

which we denied.    61 M.J. 478 (C.A.A.F. 2005) (summary

disposition).   In a separate action, the Judge Advocate General

filed a certificate of review under Article 67(a)(2), UCMJ, 10

U.S.C. § 867(a)(2) (2000), asking this Court to review the

following question:




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United States v. Harding, No. 05-5003/AF


          WHETHER THE AIR FORCE COURT ABUSED ITS
          DISCRETION WHEN IT DENIED THE UNITED STATES’
          APPEAL ON THE BASIS OF UNTIMELY FILING.∗

Subsequently, the convening authority dismissed Charge II, the

offense under Article 134, UCMJ.        As a result, the only offense

at issue in the present appeal is Charge I, the alleged rape,

which has been abated pending enforcement of the warrant of

attachment.



                            II.   DISCUSSION

     The Government seeks to appeal the order of the military

judge abating the proceedings, relying on the authority to

appeal “[a]n order or ruling of the military judge which

terminates the proceedings with respect to a charge or

specification.”   Article 62(a)(1)(A), UCMJ.      The Government

argues in its brief that, under the circumstances, “the

abatement order in this case has, in effect, ‘terminated the

proceedings’ for purposes of satisfying the predicate for a

valid Article 62 appeal.”

     The military judge, however, has not terminated the

proceedings.   He has issued a warrant of attachment, which the

Government vigorously defended before the Tenth Circuit as


∗
  61 M.J. 477 (C.A.A.F. 2005). We also specified four issues
related to the certified question. 62 M.J. 381 (C.A.A.F. 2005).
In view of our disposition of the certified question, we need
not address the specified issues.

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United States v. Harding, No. 05-5003/AF


“valid and enforceable upon its issuance.”   In the present case,

the Government has acknowledged that the “United States Marshals

Service has not enforced the writ of attachment the military

judge issued for these records.”

     The responsibility for enforcing the warrant of attachment

rests with officers of the Executive Branch.   The rulings of the

military judge in the present case demonstrate that he is

prepared to move forward with the trial if and when the warrant

is executed.   Under these circumstances, the Government appeal

was not authorized under Article 62, UCMJ, and the court below

could not have provided the relief requested by the Government

under Article 62, UCMJ, regardless of the timing of the

Government’s filing.   Accordingly, we answer the certified

question by holding that the Court of Criminal Appeals properly

dismissed the Government’s appeal.



                          III.   DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.    The record is returned to the

Judge Advocate General of the Air Force for transmission to the

military judge for further proceedings in the pending court-

martial.




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