                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                        Arturo CANO, Specialist
                          U.S. Army, Appellant

                               No. 04-0291

                        Crim. App. No. 20010086

       United States Court of Appeals for the Armed Forces

                        Argued December 7, 2004

                         Decided April 26, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in the result.

                                  Counsel

For Appellant: Captain Todd N. George (argued); Colonel Mark
Cremin, Colonel Robert D. Teetsel, Lieutenant Colonel Mark
Tellitocci, Major Sean S. Park, and Captain Lonnie J. McAllister
II (on brief).

For Appellee: Captain Michael C. Friess (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, Major
Natalie A. Kolb, and Captain Janine P. Felsman (on brief).

Military Judge:    Gary V. Casida


  This opinion is subject to editorial correction before final publication.
United States v. Cano, No. 04-0291/AR


     Judge ERDMANN delivered the opinion of the court.

     Specialist Arturo Cano entered pleas of not guilty to one

specification of sodomy with a child under twelve, three

specifications of indecent acts with a child under sixteen, and

one specification of indecent liberties with a child under

sixteen in violation of Articles 125 and 134 of the Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2000).    He

was tried and convicted by a military judge sitting as a general

court-martial and sentenced to a dishonorable discharge,

confinement for seventeen years, forfeiture of all pay and

allowances, and a reduction in grade to E-1.   The convening

authority approved the sentence and the findings and sentence

were subsequently affirmed by the Army Court of Criminal

Appeals.   United States v. Cano, No. 20010086 (A. Ct. Crim. App.

Feb. 4, 2004) (unpublished).

     “Where an appellant demonstrates that the Government failed

to disclose discoverable evidence in response to a specific

request . . . the appellant will be entitled to relief unless

the Government can show that nondisclosure was harmless beyond a

reasonable doubt.”   United States v. Roberts, 59 M.J. 323, 327

(C.A.A.F. 2004) (citing United States v. Hart, 29 M.J. 407, 410

(C.M.A. 1990)).   During discovery, Cano specifically requested

that the Government produce the clinical psychologist’s medical

records compiled during her therapy sessions with the victim.


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United States v. Cano, No. 04-0291/AR

After reviewing the materials in camera, the military judge

released a portion of the material and sealed the remaining

documents.    The Court of Criminal Appeals found that the

military judge erred in withholding the materials but held that

Cano was not prejudiced by the error.     We granted review to

determine whether the Court of Criminal Appeals erred in finding

that Cano was not prejudiced by the withholding of these

documents.1   We hold that the nondisclosure of these materials

was harmless beyond a reasonable doubt and therefore affirm the

decision of the Court of Criminal Appeals.

                             BACKGROUND

       On August 9, 2000 Cano’s eleven year-old stepdaughter, DH,

had a sleepover with two of her friends at the Cano home.    The

girls stayed up late and around midnight Cano came into DH’s

room and asked the girls if they wanted to take some pictures

with his computer.    He took DH’s two friends, one at a time,

into his computer room where he removed their clothes, touched

each of them on their breasts and one of them on her vaginal

area, made one of the girls touch his penis, and took pictures

of each of them.    After the girls went back to DH’s room they


1
    We granted review of the following issue:
            WHETHER THE ARMY COURT OF CRIMINAL APPEALS
            ERRED WHEN IT DETERMINED THAT THE MILITARY
            JUDGE’S ERROR IN NOT DISCLOSING MENTAL HEALTH
            RECORDS OF A VICTIM DID NOT MATERIALLY
            PREJUDICE APPELLANT. SEE UNITED STATES V.
            ROBERTS, 59 M.J. 323, 327 (C.A.A.F. 2004).

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United States v. Cano, No. 04-0291/AR

told DH what happened.   DH tried to tell her mother but Cano

prevented her from doing so.

     One of the girls lived nearby, so the two girls left Cano’s

house and went to the girl’s home where they told her mother

what had happened.   The incident was reported to Army Criminal

Investigation Command (CID), which interviewed DH as part of its

investigation.   During that interview DH gave a sworn statement

in which she alleged that Cano had sexually abused her for six

years.

     Some time after DH made this statement she met with Dr.

DeeAnn Lau, a clinical psychologist from the on-post medical

facility.   DH was treated by Dr. Lau from September 2000 through

December 2000.   At some point between the August 9 incident and

Cano’s trial, Cano’s wife (DH’s mother) told Dr. Lau that DH had

recanted her story about having been abused by Cano.   Mrs. Cano

also made other statements regarding the possibility that DH was

lying.

     At trial DH testified regarding various incidents in which

Cano had touched her, had forced her to rub his penis, had

forced her to place his penis in her mouth, and had inserted his

penis into her vagina.   DH’s mother testified for the defense.

She said that on the evening in question she had been in bed

with Cano and had been awake until approximately 1 a.m.   On

cross-examination the Government pointed out that this was



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United States v. Cano, No. 04-0291/AR

inconsistent with her statement on the night of the incident in

which she said that she had fallen asleep at midnight.   Mrs.

Cano said that she had no explanation for the discrepancy and

was also unaware that the pictures taken of the girls that had

been found on Cano’s computer were time-stamped at approximately

12:30 a.m.   She further testified that after she and DH watched

a movie about a man who was falsely convicted for something he

had not done, DH told her that “she was lying” because of the

way Cano treated her and that she “said that stuff” because Cano

spanked her.

     Prior to trial the defense made a specific discovery

request for the collection of notes taken by Dr. Lau during her

therapy sessions with DH between August and December 2000.    The

military judge rejected the Government’s contentions that the

notes were privileged and reviewed the materials in camera.

Following his review, the military judge released that portion

of the materials he deemed relevant to the case and sealed the

remainder.   The Army Court of Criminal Appeals found that

although the military judge erred in failing to release all of

the materials, that error was not prejudicial to Cano.

     In evaluating the impact of the requested evidence, the

Army court tested for materiality on the basis of whether the

evidence “might have affected the outcome of the trial.”     The

Army court found that the withheld evidence would have allowed



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United States v. Cano, No. 04-0291/AR

for some minor impeachment of DH when she testified and “would

have provided data relevant to the defense’s concern that DH’s

testimony was of a memory created or implanted during the

therapy process.”   However, after evaluating DH’s testimony the

Army court found that overall she was “direct,” “clear and

forthcoming, largely consistent with” her earlier signed

statement, and “credible.”   It also noted that her testimony was

“subject to reasonable scrutiny by the defense on cross-

examination.”   The court concluded that “the undisclosed

evidence would not, in fact, have made any difference in the

outcome of this case.”

     Before this court Cano argues that the Army court erred in

concluding that he was not prejudiced by the military judge’s

erroneous decision to deny him the opportunity to review the

withheld documents.   He argues that the lower court applied the

wrong standard for evaluating prejudice and also erred in

failing to consider the impeachment value of the withheld

evidence.   Cano argues that the withheld notes demonstrate

inconsistencies in DH’s account of what allegedly transpired

between DH and Cano and support the possibility that Dr. Lau’s

counseling techniques influenced DH’s account of events.    Cano

asserts that denying him access to these records undermined the

defense’s ability to prepare for trial effectively, and more

specifically, to prepare its cross-examination of DH.



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United States v. Cano, No. 04-0291/AR

     The Government responds by arguing that the military

judge’s error in failing to disclose this evidence was harmless

beyond a reasonable doubt and therefore did not prejudice Cano.

It contends that the evidence presented against Cano at trial

was overwhelming, noting the strength of DH’s testimony and the

defense’s failures in its attempts to impeach her credibility

and her memory.   Additionally, the Government argues that the

evidence in question is not evidence of inconsistencies or

coaching, but rather shows that DH was consistent in her

statements regarding the abuse she suffered at the hands of her

stepfather.   It concludes that the undisclosed evidence in this

case was of minimal evidentiary value and would not have

affected the fact-finder’s decision-making process.

                            DISCUSSION

The Army Court’s Prejudice Standard

     In Roberts this court clarified that “[w]here an appellant

demonstrates that the Government failed to disclose discoverable

evidence in response to a specific request . . . the appellant

will be entitled to relief unless the Government can show that

nondisclosure was harmless beyond a reasonable doubt.”   59 M.J.

at 327 (citing United States v. Hart, 29 M.J. 407, 410 (C.M.A.

1990)).   The Army court’s opinion in this case, issued prior to

this clarification, concluded that “the undisclosed evidence

would not, in fact, have made any difference in the outcome of



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United States v. Cano, No. 04-0291/AR

this case[,]” and therefore applied a lesser standard than

required by Roberts.   As we review issues of prejudice from

erroneous evidentiary rulings de novo, this court can apply the

correct “harmless beyond a reasonable doubt” standard in our

review.   See United States v. Diaz, 45 M.J. 494, 496 (C.A.A.F.

1997).


Inconsistencies in DH’s Testimony

     We first turn to Cano’s claim that Dr. Lau’s notes could

have been used to show inconsistencies in DH’s testimony.    The

most obvious difference between DH’s earlier statement and her

testimony at trial was her statement at trial that Cano had

penetrated her, while her earlier statement suggested that he

had only touched her with his penis.    Dr. Lau’s notes do contain

a statement noting that DH said Cano had penetrated her, and

therefore DH’s assertions regarding penetration would have been

revealed to the defense prior to trial had the materials been

turned over.

     Cano’s defense counsel became aware of this inconsistency

when DH testified at trial and properly impeached her during

cross-examination.   By cross-examining on that point, the

defense counsel demonstrated to the military judge that DH’s

earlier statement was not as complete as her trial testimony.

There was little more that he could have done even if he had

received the notes at an earlier date.


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United States v. Cano, No. 04-0291/AR

     Dr. Lau’s notes also indicated that during treatment, DH

made inconsistent statements concerning the timing and location

of incidents of abuse.   For example, the notes stated that DH

“denied having been abused since she was 10 y.o.”    Cano points

out that DH was, in fact, eleven years and five months old at

the time she had earlier claimed she was last molested.

Similarly, Cano argues that the evidence shows an inconsistency

with regard to the location in which DH claimed incidents of

abuse took place.   There is a notation in the therapy notes that

in talking to Dr. Lau, DH “recalled that the abuse occurred

‘downstairs in the computer room,’” but at trial DH testified

that the abuse took place in the bathroom and in her parent’s

bedroom.

     We agree with the defense that these are inconsistencies

that could have been used by the defense at trial.   However, it

was obvious throughout DH’s testimony, both on direct and cross-

examination, that her sense of the timing and locations of

various instances of abuse was not always entirely clear.

Defense counsel himself showed at trial that DH’s understanding

of time was not exact.   He began his cross-examination by asking

DH how many days were in a week, to which she replied “like 5

days,” and then asked how many hours in a day, to which she

answered “I think 26.”




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United States v. Cano, No. 04-0291/AR

     Inconsistencies such as these are not uncommon when child

abuse victims testify:

           [T]he evidence . . . is underscored by the fact that
           the persuasive testimony is from a child, from whom
           gathering more exact details as to when the sexual
           conduct precisely began is an unreasonable expectation
           and a formidable hurdle. Any person who suffers from
           some type of traumatic experience, adult or child, may
           have difficulty relating that experience in a
           chronological, coherent and organized manner. See
           Kermit V. Lipez, The Child Witness in Sexual Abuse
           Cases in Maine: Presentation, Impeachment, and
           Controversy, 42 Me. L. Rev. 283, 345 (1990).

Paramore v. Filion, 293 F. Supp. 2d 285, 292 (S.D.N.Y. 2003).

     While the additional information from Dr. Lau’s notes could

have been used to demonstrate that DH did suffer from some

confusion, that fact was already obvious from her testimony at

trial.   In United States v. Santos, 59 M.J. 317, 322 (C.A.A.F.

2004), we found that withheld evidence might have been used to

impeach an important Government witness, but concluded that the

error in withholding it was harmless beyond a reasonable doubt

because it was “largely cumulative of other information

available to Appellant” at trial, was vague, and concerned a

collateral issue.   Conversely, in United States v. Jackson, 59

M.J. 330, 335-36 (C.A.A.F. 2004), we found that erroneously

withheld evidence was “critical on a pivotal issue on the case”

and that because it was so significant the error in withholding

it was not harmless beyond a reasonable doubt.




                                10
United States v. Cano, No. 04-0291/AR

     As found by the Army court, DH’s “testimony was reasonably

direct, with a minimum of leading.     She was mainly clear and

forthcoming, and largely consistent with her signed statement of

10 August 2000 to the CID, made on the morning she reported the

abuse.”   At trial the defense was able to explore the major

inconsistency in DH’s testimony as to whether Cano had

penetrated her with his penis or simply touched her.    The

defense was able to show that DH was confused concerning the

timing and location of various encounters as well as raise the

possibility that DH was lying through the testimony of her

mother.

     Unlike the evidence in Jackson, the notes in question here

would not have been “critical on a pivotal issue in the case”

because the defense already had the opportunity to attack DH’s

credibility and the notes would not have provided any new

ammunition with which to do so.    59 M.J. at 335-36.   We find

that any inconsistencies revealed in the withheld evidence in

this case are harmless beyond a reasonable doubt because they

are cumulative of other evidence available at trial, easily

explained based on DH’s age and maturity, and are not

significant in relation to DH’s overall testimony.


Suggestive Therapy

     We next turn to Cano’s argument that the withheld evidence

could have been used to demonstrate that DH’s testimony was the


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United States v. Cano, No. 04-0291/AR

result of coaching by Dr. Lau in their counseling sessions.       The

record reveals that DH’s testimony concerning several of the

more serious allegations of abuse at trial was consistent with

the statement she gave to CID investigators immediately

following the August 9 incident.      That statement was made well

before DH had met Dr. Lau or started her therapy.     In the August

statement she said that Cano had touched her “chest” and

“private area” with his hand, and that he had her put her hands

around “the part he goes to the bathroom with and . . . shake

it.”   She also said he would “have me put it in my mouth

sometimes.”   At trial, she testified that Cano:    touched her

chest; put his finger in her vagina; put his “front bathroom

part” in her mouth; and put his “front bathroom part” inside

her; and that she had to rub Vaseline on his “front bathroom

part” so “it can be wet and moisty.”     While DH’s trial testimony

was more detailed than the earlier statement, the main

allegations in the earlier statement were largely consistent

with her testimony at trial.

       We disagree with Cano’s assertion that the withheld

evidence showed Dr. Lau to be “more of a zealot who was prone to

overreaching in interviewing an alleged child sex abuse victim

than she was a therapist whose goal it was to simply treat a

child sex abuse victim.”   It has been noted in the context of

rape counseling that the role of a therapist is:



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United States v. Cano, No. 04-0291/AR

          not [to] probe inconsistencies in their
          clients’ description of the facts of the
          incident [or to] conduct independent
          investigations to determine whether other
          evidence corroborates or contradicts their
          clients’ renditions. Because their function
          is to help their clients deal with the
          trauma they are experiencing, the historical
          accuracy of the clients’ descriptions of the
          details of the traumatizing events is not
          vital in their task.

People v. Bledsoe, 681 P.2d 291, 300 (Cal. 1984).

     There is a good deal of scholarly debate in the area of

child suggestibility and its effect on the reliability of the

testimony of a child victim.2   However, scholars agree that the

danger of false testimony from a child is greater when the child

is subjected to highly suggestive interviewing techniques such

as “closed” (yes/no) questions and “multiple interviews with

multiple interviewers.”3

     Dr. Lau was the sole therapist who treated DH during this

period and her notes make it clear that she was acting in

accordance with her role as a counselor.   She does indicate that

DH required “prompting” in telling her story.   However, the

notes surrounding this statement reflect that the prompting came



2
  See Thomas D. Lyon, The New Wave of Child Suggestibility
Research: A Critique, 84 Cornell L. Rev. 1004 (1999); Stephen J.
Ceci and Richard D. Friedman, The Suggestibility of Children:
Scientific Research and Legal Implications, 86 Cornell L. Rev.
33 (2000); David A. Martindale, On the Importance of
Suggestibility Research in Assessing the Credibility of
Children’s Testimony, 30 Ct. Rev. 8 (2001).
3
  Ceci, supra, at 86; Lyon, supra, at 1070-72.

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United States v. Cano, No. 04-0291/AR

in the form of open-ended questions because the quoted responses

by DH are in the form of factual descriptions of events rather

than yes/no answers.   Dr. Lau’s therapy questions are consistent

with her role in counseling DH, a victim of trauma, and do not

establish that Dr. Lau was a “zealot” or that she was coaching

DH.   Because we find that the notes do not provide evidence of

suggestive questioning or coaching, we conclude that withholding

the material was harmless beyond a reasonable doubt.

                             DECISION

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Cano, No. 04-0291/AR


     CRAWFORD, Judge (concurring in the result):

     See my separate opinion in United States v. Roberts, 59

M.J. 323, 327 (C.A.A.F. 2004)(Crawford, C.J., concurring in the

result).
