       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
            Jeremy N. NAVARETTE, Specialist
               United States Army, Appellant
                          No. 19-0066
                    Crim. App. No. 20160786
             Argued May 21, 2019—August 1, 2019
                 Military Judge: S. Charles Neill
   For Appellant: Captain Zachary A. Gray (argued); Colonel
   Elizabeth G. Marotta, Lieutenant Colonel Tiffany D. Pond,
   Lieutenant Colonel Todd W. Simpson, and Captain Joseph
   C. Borland (on brief).
   For Appellee: Captain Lauryn D. Carr (argued); Colonel
   Steven P. Haight, Lieutenant Colonel Eric K. Stafford, and
   Lieutenant Colonel Wayne H. Williams (on brief).
   Judge SPARKS delivered the opinion of the Court, in
   which Judges RYAN, OHLSON, and MAGGS, joined.
   Chief Judge STUCKY filed a separate dissenting
   opinion.
                   _______________

   Judge SPARKS delivered the opinion of the Court.

   This case arises out of the conviction by members,
contrary to his pleas, of Specialist (E-4) Jeremy N.
Navarette of one specification of wrongful distribution of
cocaine in violation of Article 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 912a (2012). Appellant was
sentenced to ninety days of confinement, forfeiture of all pay
and allowances, reduction to E-1, and a bad-conduct
discharge. The convening authority approved the sentence.
   Approximately three months after filing his brief with
the United States Army Court of Criminal Appeals,
appellate defense counsel moved to stay appellate
proceedings and requested a Rule for Courts-Martial
(R.C.M.) 706 inquiry to assess Appellant’s competence to
participate in appellate proceedings, his ability to
               United States v. Navarette, No. 19-0066/AR
                          Opinion of the Court

understand or cooperate intelligently in his trial, and his
degree of mental responsibility when the offense occurred.
The lower court denied the motion and affirmed the findings
and sentence. In their written opinion, the lower court
concluded that “the primary basis for the R.C.M. 706 inquiry
[was] appellant’s competency” and noted that Appellant had
requested that court to “order an inquiry into his mental
responsibility at the time of the offense” if it ordered “an
inquiry into [his] current mental status.” United States v.
Navarette, No. ARMY 20160786, 2018 CCA LEXIS 446, at
*4 & n.4, 2018 WL 4510119, at *2 & n.4 (A. Ct. Crim. App.
Sept. 17, 2018). Appellant then petitioned this Court and we
granted review to determine whether the Army Court
erroneously denied Appellant a post-trial R.C.M. 706
inquiry. 1 For reasons to follow, we opt not to directly answer
the granted issues because of concerns that the lower court’s
review under Article 66, UCMJ, 10 U.S.C. § 866, remains
incomplete.
                             Background

   The charge in this case arises out of an encounter
Appellant had with an undercover law enforcement agent,
Special Agent Stewart, at a bar outside Fort Drum, New
York. Appellant, who was not the target of the undercover
operation, approached Special Agent Stewart, they talked
and exchanged phone numbers, and he invited her to a
party. Later, Appellant texted Special Agent Stewart,


     1   This Court granted oral argument on the following issues:

          I.    Whether the Army Court erroneously denied
                Appellant a post-trial R.C.M. 706 inquiry by
                requiring a greater showing than a non-
                frivolous, good faith basis articulated by Unit-
                ed States v. Nix, 15 C.M.A. 578, 582, 36
                C.M.R. 76, 80 (1965).
          II. Whether the Army Court erred when it held
              that submitting matters pursuant to United
              States v. Grostefon, 12 M.J. 431 (C.M.A.
              1982), was evidence of Appellant’s competence
              during appellate proceedings.




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           United States v. Navarette, No. 19-0066/AR
                      Opinion of the Court

mentioning that he would get liquor, and she responded that
she was looking for something else. Appellant asked if she
meant cocaine and marijuana (using slang terms for the
drugs) and Special Agent Stewart told him yes. Two weeks
later, Appellant sold Special Agent Stewart three-and-a-half
ounces of cocaine.
    At trial, defense counsel argued that Appellant had been
entrapped and sold the drugs to Special Agent Stewart
because she was pretty, not because he dealt drugs. Though
he did not pursue the defense of mental responsibility, 2
defense counsel did introduce Appellant’s post-traumatic
stress disorder (PTSD) and attention deficit disorder (ADD)
as evidence of Appellant’s extreme suggestibility.
    Three months after filing his brief with the Army Court
of Criminal Appeals on April 27, 2018, appellate defense
counsel requested a stay of proceedings for an R.C.M.
1203(c)(5) inquiry. As part of his motion, appellate defense
counsel submitted Appellant’s discharge paperwork
following a nearly seven-week involuntary hospitalization
for psychiatric care in the state of California and a detailed
letter from the psychiatrist who treated Appellant during
his hospital stay. Appellant was also involuntarily
hospitalized twice just prior to appellate defense counsel’s
filing, from March 26, 2018, to April 2, 2018, and from April
7, 2018, to April 22, 2018.
   The letter and discharge paperwork stated that
Appellant was diagnosed with bipolar disorder and PTSD. 3
While in a manic state, Appellant had entered a grade
school believing he worked for the FBI and had to educate
the children about responding to a terrorist attack. He also
crashed his car into a school bus, made threats against other
people, and attempted to kill himself with a cord around his
neck. The third involuntary hospitalization lasted from May
9, 2018, to June 26, 2018. This period of hospitalization

   2  Trial defense counsel informed the military judge that a
mental responsibility defense would be incorporated into the de-
fense of entrapment.
   3 Prior to this hospitalization, including at the time of court-
martial, Appellant’s mental health diagnosis had included PTSD,
ADD, anxiety, and depression.



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          United States v. Navarette, No. 19-0066/AR
                     Opinion of the Court

required two extensions by the Mental Health Division of
the Los Angeles County Superior Court, which necessitated
that court finding that Appellant qualified as “gravely
disabled” with each extension.
    Appellant’s psychiatrist concluded that Appellant had
experienced recurrent manic and depressive episodes over
the course of his personal history, with the bipolar disorder
most likely beginning in adolescence or early adulthood. He
stated that bipolar disorder is characterized by impaired
judgment and decision-making capacity “as judgment and
awareness of consequences are certainly compromised by the
underlying bipolar illness.” “The coexistence of the
posttraumatic stress disorder only complicates this clinical
picture and the patient’s capacity to function.”
   Appellate defense counsel declined to answer questions
from the lower court regarding Appellant’s ability to
communicate with his client, citing attorney-client privilege,
nor did he directly state any concern about Appellant’s
competence to participate in the appellate process.
                         Discussion

    R.C.M. 706 governs trial level inquiries into the mental
capacity of an accused. The rule offers guidelines for a
mental health query by a board of one or more qualified
professionals to determine whether the accused, at the time
of the offense and as a result of severe mental disease or
defect, was “unable to appreciate the nature and quality or
wrongfulness of his or her conduct” and whether, at the time
of the court-martial, the accused suffered “from a mental
disease or defect rendering the accused unable to
understand the nature of the proceedings against the
accused or to conduct or cooperate intelligently in the
defense.” R.C.M. 706(c)(2)(C), R.C.M. 706(c)(2)(D).
   R.C.M. 1203(c)(5) allows that an appellate authority may
order a psychiatric evaluation in accordance with R.C.M.
706 if a “substantial question is raised as to the requisite
mental capacity of the accused.” The requisite capacity
contemplated by R.C.M. 1203(c)(5) is the capacity to
“conduct and cooperate intelligently in the appellate
proceedings.” “In the absence of substantial evidence to the



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           United States v. Navarette, No. 19-0066/AR
                      Opinion of the Court

contrary, the accused is presumed to have the capacity to
understand and to conduct or cooperate intelligently in the
appellate proceedings.” Id. Thus, the rule requires that an
appellant establish a nexus between his mental impairment
and his ability to participate intelligently in the
proceedings. 4
    The lower court found no substantial question raised
regarding Appellant’s competency for three reasons. First,
Appellant’s discharge paperwork after his extended
psychiatric hospital stay indicated Appellant was
responding well to treatment and presented no issues that
would cause the court to question competency. The
paperwork indicated that Appellant displayed, with the help
of a medication regimen, “remarkable improvement,”
“complete resolution of psychotic symptomatology,” and good
insight and judgment. Second, the lower court stated that
defense counsel had asserted no actual claim that Appellant
was too mentally unstable to understand or cooperate with
the proceedings, in line with the standard for incompetence
outlined in R.C.M. 909(a). Third, the lower court noted that
Appellant submitted two Grostefon issues, neither of which
offered any indication Appellant was unable to competently
assist in his appeal.
    Generally, the decision to grant or deny a motion for a
sanity board is reviewed for an abuse of discretion. United
States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008) (citing
United States v. Collins, 60 M.J. 261, 266 (C.A.A.F. 2004)).
Under the abuse of discretion standard, “[f]indings of fact
are reviewed under a clearly erroneous standard and
conclusions of law are reviewed de novo.” United States v.
Ellerbrock, 70 M.J. 314, 317 (C.A.A.F. 2011). We
acknowledge that abuse of discretion is the correct standard
for assessing the Army Court of Criminal Appeals decision.
However, prior to making our assessment, we find it


   4  If the lower court orders an R.C.M. 706 hearing under
R.C.M. 1203(c)(5), it is within that court’s discretion to determine
the scope of the inquiry and whether to include an inquiry into an
appellant’s mental capacity at the time of trial and/or at the time
of the offense. United States v. Massey, 27 M.J. 371, 374 (C.M.A.
1989).



                                 5
            United States v. Navarette, No. 19-0066/AR
                       Opinion of the Court

prudent to raise two concerns surrounding Appellant’s
medical condition that we feel should be more thoroughly
addressed to ensure a proper Article 66, UCMJ, review.
    Our first and primary concern is that a sufficient nexus
has not been established between Appellant’s medical condi-
tion and his ability to cooperate intelligently in the appellate
proceedings. In order to obtain an R.C.M. 706 inquiry at the
appellate level, an appellant must make a showing that
there is a sufficient reason to question either his mental ca-
pacity or mental responsibility. See United States v. Young,
43 M.J. 196, 197 (C.A.A.F. 1995). Thus, an appellant must,
at a minimum, articulate how his mental condition prevents
him from being able to understand or participate in the pro-
ceedings. Without such a nexus, Appellant does not raise a
“substantial question” as to his mental capacity. 5 Here, Ap-
pellant has yet to articulate how his mental condition affects
his ability to participate in his appellate proceedings, and it
was not an abuse of discretion for the lower court to require
him to do so.
   We recognize and fully support that appellate defense
counsel has an ethical obligation to his client not to overstep
the attorney-client privilege. 6 However, we note the absence


   5  Appellate defense counsel might raise a substantial question
by presenting documents or averring facts showing a nexus be-
tween Appellant’s mental illness and an inability to participate in
the proceedings. See, e.g., United States v. Proctor, No. ACM
27931, 1990 CMR LEXIS 547, at *1, 1990 WL 79243, at *1
(A.F.C.M.R. May 8, 1990) (finding good cause to order the conven-
ing of a sanity board where “[t]he documents filed with [the court]
indicate appellant’s longstanding refusal to cooperate with coun-
sel”; “[a]llied papers show that the appellant asked that his per-
sonal copy of the record of trial be destroyed”; and “defense coun-
sel avers that the appellant apparently believes he will be freed
from confinement by divine deliverance in the fashion of St.
Paul”).
   6 However, see United States v. Nelson, 732 F.3d 504, 519 (5th
Cir. 2013) (explaining that physical characteristics that are ob-
servable to anyone who interacts with a client like demeanor,
bearing, or sobriety are not protected by attorney-client privilege);
Edward J. Imwinkelried, The New Wigmore: A Treatise on Evi-
dence: Evidentiary Privileges § 6.7.1 (3d ed. Supp. 2019) (explain-
ing that the “prevailing view” is that an “attorney can be asked to


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            United States v. Navarette, No. 19-0066/AR
                       Opinion of the Court

of even a prima facie statement by counsel or another wit-
ness that there is reason to question Appellant’s competence
to participate in his appeal.
   Our second concern is that it is not clear the lower court
appropriately considered the degree to which Appellant
suffered from serious mental illness that may have impacted
his decision-making capacity during the period of appellate
representation. The discharge summary and letter from
Appellant’s treating psychiatrist report ongoing and long-
term struggles with mental health. As noted earlier,
Appellant was involuntarily hospitalized March 26, 2018, to
April 2, 2018, and April 7, 2018, to April 22, 2018.
Appellant’s third, nearly seven-week long involuntary
hospitalization covered a period of time from May 9, 2018,
through June 26, 2018. Two of these periods of
hospitalization appear to have occurred during the time
appellate defense counsel was preparing the brief filed on
April 27, 2018. With regard to the longest period of
hospitalization, Appellant’s treating psychiatrist reported
that, upon admission, he demonstrated “symptoms of
profound levels of thought and behavioral disorganization”
which included “severe loss of impulse control, confusion,
[and] delusional and grandiose thinking.” Though we
recognize that the discharge paperwork indicated Appellant
was responding to treatment at the time of his release, we
are not yet convinced that Appellant’s significant mental
health struggles during the period of appellate
representation were appropriately considered by the lower
court.
                             Decision
   The decision of the United States Army Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General for remand to the Army
Court of Criminal Appeals to (1) give appellate defense


disclose … facts about the … mental competency” of a client “even
if, in a broad sense, the attorney has learned of the facts by virtue
of his or her interaction with the client” but suggesting that the
privilege might apply when an opinion about mental capacity “is
entirely or largely based on the content of the client’s statements”
(footnotes omitted)).



                                 7
           United States v. Navarette, No. 19-0066/AR
                      Opinion of the Court

counsel the opportunity to make a showing of nexus between
Appellant’s significant and documented mental health issues
and his capacity to participate in appellate proceedings 7;
and (2) give the lower court the opportunity to more fully
evaluate Appellant’s R.C.M. 1203 motion in light of counsel’s
representations and all other evidence relating to
Appellant’s mental capacity, particularly in regard to the
events that unfolded during the period of appellate
representation. 8




   7   We recognize that, prior to this opinion, we have never ex-
plicitly held that such a nexus is required. It is appropriate given
R.C.M. 1203(c)(5)’s mandate that “[a]n appellate authority may
not affirm the proceedings while the accused lacks mental capaci-
ty to understand and to conduct or cooperate intelligently in the
appellate proceedings” to afford Appellant the opportunity to es-
tablish this nexus.
   8  On July 1, 2019, the Army Office of the Judge Advocate Gen-
eral forwarded to this Court Appellant’s petition for a new trial.
Given our determination that the lower court’s appellate review of
Appellant’s R.C.M. 1203 motion remains incomplete, we deny Ap-
pellant’s petition without prejudice.



                                 8
          United States v. Navarette, No. 19-0066/AR


   Chief Judge STUCKY, dissenting.

   Appellant suffers from severe mental health issues and
requested, through counsel, a sanity board to determine
whether those issues rendered him incompetent to
participate in appellate proceedings and/or negated his
mental responsibility for the offense for which he was
convicted. In my view, the United States Army Court of
Criminal Appeals (CCA) abused its discretion in denying
that request. However, I am more troubled by the manner in
which the majority disposes of this case than by my
disagreement on that narrow issue. For the foregoing
reasons, I respectfully dissent.
                       I. Background
                        A. Backstory
    As Appellant’s treating psychiatrist at the U.S.
Disciplinary Barracks put it, Appellant had “a very bad
childhood.” The issues were myriad: he was emotionally and
physically abused, his mother was a drug addict, he was
raped in high school, and his siblings were taken and placed
in foster care. Seeking to gain custody of his siblings, he
joined the Army. He did well at first, until returning from a
deployment in which his best friend killed another friend of
Appellant’s by negligently discharging a weapon. Appellant’s
support of his best friend led his other friends to ostracize
him. Meanwhile, his fiancée ended their relationship.
                        B. The crime
   Against this backdrop, Appellant went out for drinks at
an off-base bar. He noticed an attractive woman, so he went
over to her, kissed her on the cheek, and told her she was
beautiful. Unbeknownst to Appellant, she was in fact
Special Agent (SA) Stewart, a member of Criminal
Investigation Command, which was conducting an
undercover drug operation. Appellant invited her to a party,
and the two exchanged phone numbers. Drugs were not
discussed.
   Later that night, SA Stewart texted Appellant, who
responded that he would “grab … alcohol.” In response, SA
Stewart noted that she was “looking to get [her] friends
high” and asked Appellant if he had anything more than
              United States v. Navarette, 19-0066/AR
                Chief Judge STUCKY, dissenting

alcohol. Appellant asked if she meant “like yay or bud”
(references to cocaine and marijuana, respectively) and,
when SA Stewart confirmed that she wanted drugs, he
replied that she “met the right dude.” Two weeks later, after
two failed attempts to acquire them, Appellant delivered the
drugs. He continued to express romantic interest in SA
Stewart, but never mentioned drugs again.
                          C. The fallout
    The Government elected to court-martial Appellant for
this conduct. Although he did not raise a lack of mental
responsibility defense, he attempted to incorporate his
mental health into an entrapment defense. He had
previously been diagnosed with attention deficit disorder
(ADD) and tested in the bottom fraction of a percentile on an
IQ assessment. 1 Nonetheless, he was convicted of wrongfully
distributing cocaine. He was sentenced to a bad-conduct
discharge, reduction to the lowest enlisted grade, forfeiture
of all pay and allowances, and confinement for ninety days.
The convening authority approved the findings and sentence
without any modification.
                        D. The aftermath
    While in confinement, Appellant was treated for post-
traumatic stress disorder (PTSD), anxiety, and obsessive-
compulsive disorder. He was released from confinement in
late February 2017. In August of that year, he was admitted
to Red River Hospital in Wichita Falls, Texas, where he
remained for over a month. On March 26, 2018, he was
admitted to the Veterans Medical Center Hospital in Long
Beach, California, where he remained until April 2. Five
days later he was admitted to Aurora Las Encinas Hospital
in Pasadena, California, where he remained until April 22.
His prognosis at discharge was “good with … follow up.”
   Despite that positive outlook, on May 9, roughly two
weeks after his release from Aurora Las Encinas, Appellant
was apprehended by police while “in a florid manic state.”

   1  The expert who conducted the test opined that anxiety and
distractibility likely artificially depressed Appellant’s score, but
stated that Appellant’s true IQ would be “extremely low … what
we used to call the mild mentally retarded range.”




                                 2
            United States v. Navarette, 19-0066/AR
              Chief Judge STUCKY, dissenting

Believing himself to be an FBI agent sent to instruct
children on how to respond to a terrorist attack, he
attempted to enter a school, made threats, crashed his car
into a school bus, and then attempted to kill himself. He was
again admitted to the hospital, this time at Del Amo
Hospital in Torrance, California. There he was diagnosed
with bipolar disorder. His initial seven-day commitment was
extended to fourteen and then thirty days, as a Los Angeles
County Superior Court repeatedly found him “gravely
disabled” under the pertinent California statute—meaning
that he was incompetent to feed, clothe, and shelter himself.
He was finally discharged on June 26. His prognosis was
good, if he continued hospital treatment and his medication
regimen, which consisted of two drugs twice daily and
another drug once daily. He was prescribed a thirty-day
supply of these medications. It is unclear if he ever obtained
them.
                       E. The appeal
    Appellant’s brief to the CCA was filed on April 27, five
days after his release from Aurora Las Encinas. Following
his admission to Del Amo, the severity of Appellant’s
condition prompted his treating physician to contact
Appellant’s defense counsel, unsolicited, on May 18 to alert
them to the diagnosis and its potential impact on his case.
Consequently, on July 30, 2018, just over a month after his
release from Del Amo, Appellant moved the CCA to stay
appellate proceedings and order an inquiry under Rule for
Courts-Martial (R.C.M.) 706. The Government elected to
oppose this motion. Oral arguments were heard on the
motion and Appellant’s other issues on August 30. During
oral argument, Appellate defense counsel declined to make
any assertion regarding whether his communications with
his client had given rise to any competency concerns. The
lower court then denied the motion and affirmed the
findings and sentence on September 17, 2018. On February
27, 2019, we granted Appellant’s petition for grant of review.
                         II. Analysis
   Appellant is clearly deeply troubled, and I question how
the lower court could conclude on the facts before it that
there was not a substantial question about his competence.




                              3
             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

But I am more troubled by this Court’s decision not to
determine whether or not the lower court abused its
discretion. That is, in my view, the only appropriate course
here. Instead, however, the Court remands the case to afford
appellate defense counsel a fifth bite at the proverbial apple
for reasons that are, at best, strained.
                   A. Background principles
     “Historically, we have given preferential treatment to the
question of mental responsibility of a military member, even
[if] the matter was not litigated at trial.” United States v.
Young, 43 M.J. 196, 197 (C.M.A. 1995). This is largely
because courts are ill-suited to make mental health
assessments, which are “a matter for consideration by highly
trained medical personnel.” United States v. Nix, 15 C.M.A.
578, 583, 36 C.M.R. 76, 81 (1965). Where an appeal is not
frivolous or made in bad faith, “to allow the court to
determine that there is no cause to believe that an accused
may be insane or otherwise mentally incompetent would be
inconsistent with the legislative purpose to provide for the
detection of mental disorders ‘not … readily apparent to the
eye of the layman.’ ” Id. (alteration in original) (citation
omitted) (internal quotation marks omitted).
 B. A nexus is required between Appellant’s mental health
                 issues and his competence
   Rule for Courts-Martial 1203(c)(5) provides:
       An appellate authority may not affirm the
       proceedings while the accused lacks mental
       capacity to understand and to conduct or cooperate
       intelligently in the appellate proceedings. In the
       absence of substantial evidence to the contrary, the
       accused is presumed to have the capacity to
       understand and to conduct or cooperate
       intelligently in the appellate proceedings. If a
       substantial question is raised as to the requisite
       mental capacity of the accused, the appellate
       authority may direct that the record be forwarded
       to an appropriate authority for an examination of
       the accused in accordance with R.C.M. 706, but the
       examination may be limited to determining the
       accused’s present capacity to understand and
       cooperate in the appellate proceedings.




                                4
              United States v. Navarette, 19-0066/AR
                Chief Judge STUCKY, dissenting

    This rule clearly and unambiguously requires the
Appellant, through counsel, to raise a “substantial question”
as to his “present” competence—his “capacity to understand
and to conduct or cooperate intelligently in appellate
proceedings.” A nexus, in other words. It is inconceivable
that any litigant or judge involved in this case has any other
understanding of this rule, and I struggle to believe that
anyone could reasonably think Appellant is urging a
contrary interpretation. If there were any doubt about the
meaning of this provision, our case law is unequivocal: mere
diagnosis with a mental health condition, even bipolar
disorder, is not on its own sufficient to require a sanity
board. See, e.g., United States v. Inabinette, 66 M.J. 320
(C.A.A.F. 2008); United States v. Shaw, 64 M.J. 460
(C.A.A.F. 2007); Young, 43 M.J. 196. There must be
substantial evidence that any mental condition interferes
with (in fact, disables) his capacity to understand and
participate in the proceedings.
   Certainly, appellate defense counsel did himself no
favors by failing to explicitly articulate in his brief how
Appellant’s mental health conditions relate to his
competence. 2 But I also believe counsel can be forgiven for
assuming that it goes without saying that Appellant was
incompetent—or at least extremely likely to be

   2  It is true that in Appellant’s brief to this Court, he stated
that the “ ‘clear evidence appellant has significant mental health
issues’ ” identified by the CCA “unequivocally” meets the standard
for a sanity board. This could be read to say “significant mental
health issues,” on their own, are enough to justify a sanity board.
But in context, this must refer to Appellant’s specific mental
health issues, for three reasons. First, as noted above, the
standard is unmistakably clear. Because the existence of mental
health issues is not enough on its own to raise a question of
incompetence, the brief must be referring to the specific
manifestations of those issues in Appellant’s case. Second,
Appellant did draw this connection explicitly in his reply brief.
Finally, Appellant argued on at least five different occasions at
oral argument that the facts of this case raised a substantial
question of present competence. While counsel might be criticized
for the quality of his argument to this effect, there is no question
that his position (at least before this Court) was that the evidence
raised a substantial question as to nexus.




                                 5
             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

incompetent—while in a delusional dissociative state and
while involuntary committed by a court that found him
unable to feed, clothe, or shelter himself. How can a man
competently assist his defense when he does not even know
his own identity?
   What is also clear is that the nexus need not actually be
established—an appellant need only raise a substantial
question as to that nexus. The issue is not whether
Appellant’s condition rendered him incompetent to
participate in appellate proceedings; that is, after all, to be
decided by the court after the completion of a sanity board.
The issue is, rather, whether the evidence of Appellant’s
condition raises a substantial question as to his present
competence.
    On these points of law, it does not appear that I am in
meaningful disagreement with the majority, the CCA,
Appellant, or the Government. 3 Appellant has had two
briefs and two oral arguments to attempt to establish the
required nexus. The CCA determined that he had failed to
do so. I believe that determination was an abuse of
discretion. Rather than weigh in on that question, the heart
of the matter, the majority remands the case to give
Appellant yet another opportunity to establish the nexus. It
seems implicit in the Court’s opinion, therefore, the grafting
on of certain novel procedural requirements to make this
showing. With that I disagree.
  C. Appellant must make a nonfrivolous, good-faith claim
  that there is a substantial question as to his competence
    If all are agreed that the required showing is evidence
raising a substantial question as to Appellant’s present
competence, the divergence must be over what sort of
showing must be made to establish that substantial

   3 I also agree with the majority that we have never “explicitly
held” that a nexus is required. However, unlike the majority, I
attach no significance to that fact. The requirement is so obvious
as to need no explication, and it is clear that appellate defense
counsel understood the requirement and argued accordingly (if not
necessarily effectively). There is therefore no justification for
remand. If Appellant did not establish a substantial question as to
nexus, the conviction must be affirmed.




                                6
             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

question, and the standard the CCA must apply in
evaluating that showing. The latter, despite being a granted
issue here, goes unanswered by the majority, leaving the
CCA to repeat a possibly erroneous analysis on remand. The
majority provides multiple and conflicting answers to the
former. 4
    Appellant contends that a request for a sanity board
should be granted if the request is nonfrivolous and made in
good faith. See Nix, 15 C.M.A. at 582, 36 C.M.R. at 80;
United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008).
The Government agreed that this is the standard, at least in
its brief to this Court. The CCA, however, did not mention
Nix or this standard at all in its opinion. Neither does this
Court, except to refuse to endorse or repudiate it. Although
this Court has applied the Nix standard fairly recently in its
history, we have never expressly decided whether or not it
applies to a motion for a post-trial sanity board pursuant to
R.C.M. 1203(c)(5).
    Of course, we need not decide that issue to resolve this
case, at least not necessarily. If the lower court’s opinion was
or was not an abuse of discretion under any potentially
applicable standard, we need not reach that question. But
rather than taking such a position, the majority instead
remands to the lower court without deciding that it abused
its discretion and without telling it what standard it should
apply. As the issue was granted, briefed, and argued, I see
no reason not to provide that guidance, lest we need to
return to this issue in this case again, further elongating
these proceedings.
    The standard matters. Although I conclude that
Appellant has met either standard, the standards are
different. The difference in what the CCA must decide, and
what we must potentially review for an abuse of discretion,
is between an independent, subjective determination by the

   4 We also granted review on the issue of whether the CCA may
properly consider the submission of personally asserted matters in
reviewing an appellant’s motion for a sanity board. The majority
also declines to decide that issue, opening the door for further
proceedings here if the CCA repeats its use of that information
and the Government prevails below.




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             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

CCA that a substantial question has or has not been raised,
and the much more cabined review of whether Appellant’s
claim rises to the level of frivolity or bad faith. See Nix, 15
C.M.A. 578, 36 C.M.R. 76. Although I think the CCA abused
its discretion under either standard in this case, I believe it
is at least a closer question under the standard the CCA
appeared to use than the one identified by the parties.
   Turning to the question of what a movant must show to
warrant a sanity board under the applicable standard, I see
no need for complicated or sui generis burdens. The movant
will present his or her evidence, and, in the opinion of the
CCA, subject to review for abuse of discretion by this Court,
that evidence will satisfy the applicable standard or it will
not. Simple enough.
    I share the majority’s frustration that appellate defense
counsel refused to articulate a personal concern about
Appellant’s competence based on their interactions. Yet his
failure to do so simply detracts from (or, perhaps more
accurately, fails to add to) the weight of the evidence in
support of Appellant’s motion. If, as a result of that choice,
the evidence is such that Appellant has not met his burden,
the CCA did not abuse its discretion and we should affirm
its judgment. If, despite that choice, the evidence is still
strong enough to meet his burden, the CCA did abuse its
discretion, and an R.C.M. 706 inquiry should be ordered. 5
   It is not immediately clear whether the majority accepts
or rejects my straightforward rule that an appellant’s
motion for a sanity board should be granted if, and only if,
the evidence he presents meets the applicable standard.
Indeed, the Court’s opinion appears to contradict itself. The
Court notes that counsel might meet the standard “by
presenting documents or averring facts showing a nexus
between Appellant’s mental illness and an inability to
participate in the proceedings.” United States v. Navarette,
__ M.J. __ (6 n.5) (C.A.A.F. 2019). But counsel has done


   5  Appellant argues that this Court can itself order an R.C.M.
706 inquiry under these circumstances. As this Court is not
resolving that question in its disposition of this case, I will not
express an opinion on the merits of that claim.




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             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

precisely that in this case. The Court itself seems to
acknowledges that Appellant’s hospitalizations and
delusions during the pendency of his appeal call his
competence into question, as it concludes that the CCA may
not have “appropriately considered” those facts. Id. at __ (7).
Either those facts are relevant to establish a nexus between
Appellant’s condition and his competence, in which case the
majority is wrong to claim Appellant failed make a nexus
argument, or they are not, in which case the CCA was right
to disregard them.
   The majority also explains:
       In order to obtain an R.C.M. 706 inquiry at the
       appellate level, an appellant must make a showing
       that there is a sufficient reason to question either
       his mental capacity or mental responsibility. See
       United States v. Young, 43 M.J. 196, 197 (C.A.A.F.
       1995). Thus, an appellant must, at a minimum,
       articulate how his mental condition prevents him
       from being able to understand or participate in the
       proceedings. Without such a nexus, Appellant does
       not raise a “substantial question” as to his mental
       capacity. Here, Appellant has yet to articulate how
       his mental condition affects his ability to
       participate in his appellate proceedings, and it was
       not an abuse of discretion for the lower court to
       require him to do so.
Id. at __ (6) (footnote omitted).
    Was Appellant’s failure only that he did not explicitly
connect the dots between his delusions and hospitalizations
to his participation in appellate proceedings? Although
counsel could have been clearer, I think counsel can be
forgiven for thinking that Appellant’s delusions and
repeated commitments spoke for themselves. But if
appellate defense counsel’s advocacy was inadequate, the
CCA appropriately denied relief and Appellant’s claim(s) to
relief, if any, lies elsewhere.
   Was the failure instead that appellate defense counsel
did not claim personal concerns about Appellant’s
competence based on their interactions? First of all, having
expressly declined to make that claim on four previous
occasions, it seems that Appellant waived any such




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            United States v. Navarette, 19-0066/AR
              Chief Judge STUCKY, dissenting

argument, although the majority is probably wise not to step
onto those particular Penrose stairs. 6 Secondly, while such a
claim may be sufficient, I see no reason why it should be
necessary before a CCA orders a sanity board.
Hypothetically, evidence of incompetence could be
overwhelming notwithstanding counsel’s subjective, lay
impression that an appellant is perfectly competent. In that
case, counsel should be able to successfully move for a sanity
board notwithstanding an inability to claim personal
reservations about competence based on client interaction.
But if it is the case that appellate defense counsel need not
make a specific representation to prevail, there is no need to
remand—Appellant has either raised a substantial question
here or he has not.
     D. The CCA abused its discretion in not finding a
              substantial question raised
    As set out above, to prevail on a motion for a sanity
board under R.C.M. 1203(c)(5), Appellant must: (1) produce
evidence (2) raising a substantial question (3) as to
Appellant’s present capacity to understand and participate
in the proceedings.
   The evidence produced by Appellant showed that he had
been involuntarily hospitalized four times during the course
of post-trial proceedings. He spent roughly half of the six
months prior to the CCA’s decision involuntarily committed.
One of those commitments was due to multiple rulings from
a California court finding him “gravely disabled,” meaning
that he was unable to feed, clothe, and shelter himself. At
times during this period, he suffered from extreme
delusions, losing touch with reality and his own identity.
    After his third hospitalization he was released with a
“good” prognosis, conditioned on continued treatment. He
was committed yet again. He was released from his fourth
hospitalization roughly two months before oral arguments
before the CCA, and roughly three months before that court
issued its ruling. On that occasion, his prognosis was also


   6 Query whether waiver can apply to an argument necessary
to determine whether or not an appellant has the capacity to
waive an argument.




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             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

good, assuming he continued outpatient treatment and
maintained his medication regimen. Although he was
prescribed a one-month supply of these medications, it was
not clear from the record if he actually obtained them, if he
had the means to do so, or if he actually took them as
prescribed if he did. Nor was his level of access to psychiatric
care apparent.
    At the time the CCA considered and ruled on his motion,
Appellant was suffering from five diagnosed mental health
issues requiring at least three separate prescription
medications and regular outpatient treatment. Although he
had been released from his fourth inpatient hospitalization,
he had suffered serious relapses requiring further treatment
relatively soon after each of his three previous releases from
treatment.
    Given these facts, I would find—regardless of the
applicable standard—that it was an abuse of discretion to
conclude that there was no substantial question as to
Appellant’s competence. This is not to say Appellant was or
is incompetent. It is, of course, entirely possible that
Appellant was competent at the relevant times. Perhaps it is
even likely. But it is not the court’s place to determine
whether or not Appellant was competent—at least, not until
it receives a report of a sanity board. Rather, the court must
determine whether the evidence raises a substantial
question as to Appellant’s competence. As Appellant was
obviously incapable of understanding and assisting in his
defense at various stages throughout the course of appellate
proceedings, and his condition was prone to recurrence, I
conclude that a substantial question was raised under any
standard, and this case should have been turned over to the
medical professionals.
   That having been said, it is incorrect to say that the CCA
did not consider the mental health issues I have discussed.
It clearly did so. However, the CCA determined that
Appellant had been restored to competence and, that being
the case, he needed to produce evidence of subsequent
incompetence. This was either an abuse of discretion or it
was not. I conclude that it was. The fact that counsel could
benefit from a do-over, however, does not justify remand.




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             United States v. Navarette, 19-0066/AR
               Chief Judge STUCKY, dissenting

                       III. Conclusion
    For the foregoing reasons, I conclude that an R.C.M. 706
inquiry should be ordered. More importantly, though, I
believe the resolution of this case should turn on whether
the lower court abused its discretion. I therefore respectfully
dissent.




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