                       UNITED STATES, Appellee

                                   v.

              Michael P. JENKINS, Airman First Class
                     U.S. Air Force, Appellant

                              No. 06-0027

                         Crim. App. No. 35699

       United States Court of Appeals for the Armed Forces

                          Argued May 2, 2006

                       Decided August 9, 2006

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



                                Counsel


For Appellant: Captain John S. Fredland (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Kimani R. Eason (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Captain Jefferson E. McBride (on brief).

Military Judge:   Daryl E. Trawick


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Jenkins, No. 06-0027/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was an Airman First Class assigned to Charleston

Air Force Base, South Carolina.   Before a general court-martial

composed of a military judge sitting alone, Appellant pleaded

guilty to two specifications of wrongful use of cocaine on

divers occasions, one specification of wrongful use of

marijuana, one specification of assault with a deadly weapon,

one specification of disorderly conduct, and two specifications

of communicating a threat, in violation of Articles 112a, 128,

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

912a, 928, 934 (2000).   The military judge sentenced Appellant

to thirty months of confinement, reduction to E-1, forfeiture of

all pay and allowances, and a bad-conduct discharge.   Pursuant

to a pretrial agreement, the convening authority disapproved all

confinement in excess of eighteen months and waived automatic

forfeitures.   The United States Air Force Court of Criminal

Appeals affirmed.   United States v. Jenkins, No. ACM 35699, 2005

CCA LEXIS 275, at *9, 2005 WL 2130216, at *3-*4 (A.F. Ct. Crim.

App. Aug. 16, 2005) (unpublished).    Upon Appellant’s petition,

we granted review of the following issue:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
     ADMITTING APPELLANT’S CONFIDENTIAL COMMUNICATIONS WITH A
     PSYCHOLOGIST DURING A COMMANDER-DIRECTED MENTAL HEALTH
     EVALUATION.




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United States v. Jenkins, No. 06-0027/AF


     We conclude that Appellant’s communications fell within

exceptions (4) and (6) to the psychotherapist-patient privilege

under Military Rule of Evidence (M.R.E.) 513(d), and we affirm

the decision of the Air Force Court of Criminal Appeals.

                           BACKGROUND

     At the time of his offenses, Appellant worked on the wash

and wax detail at the Charleston Air Force Base Vehicle

Operations.    Appellant had previously been assigned to pickup

and delivery, but was reassigned after an investigation into his

illegal drug use.   On January 10, 2003, Appellant provided a

signed and sworn statement admitting that he purchased and used

cocaine approximately sixty times while attending technical

school at Fort Leonard Wood, Missouri, and used cocaine upwards

of sixty times since his arrival at Charleston Air Force Base.

On April 7, 2003, Appellant tested positive for cocaine use

during a random unit urinalysis inspection.

     On the night of May 7, 2003, Appellant was drinking with

friends while outside of his dorm.      Airman Brandon M. Times

walked by en route to his car and was confronted with racist

remarks from Appellant’s friends.     After being approached in a

hostile manner by Appellant and four of his cohorts, Airman

Times quickly drove away but soon returned to the scene with

three of his own friends in search of “[s]ome kind of

resolution.”


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United States v. Jenkins, No. 06-0027/AF


     Airman Times and his friends approached the group and were

confronted by Appellant who, while brandishing a fourteen–inch-

long knife, stated: “Y’all n****** are f****** with a crazy

white boy tonight.   I’m going to kill y’all n****** tonight,” or

words to that effect.    Upon seeing the knife, Airman Times and

his friends immediately fled the scene by foot.   Appellant

chased in hot pursuit, coming within feet of his target until

Airman Times eventually escaped into the chow hall, therein

finding safety and the assistance of Security Forces personnel

who happened to be dining at the time.   Security Forces

personnel apprehended Appellant outside the chow hall.

     Appellant was released by Security Forces the following

morning on May 8, 2003, and instructed to walk home by Master

Sergeant (MSgt) Janet Osborne.   At approximately 7:15 a.m.,

Appellant arrived at work.   He described the events of the

previous evening to his supervisors and coworkers, and speaking

of MSgt Osborne, he stated, “That f****** bitch made me mad.

She f****** made me walk home, and I was f****** drunk.    If I

had a f****** knife at that time, I would have cut her f******

throat,” or words to that effect.

     Appellant’s behavior was reported up the chain of command,

and on May 9, 2003, he was sent for a command-directed mental

health examination with Lieutenant Colonel Frank Budd, a

clinical psychologist.   The examination lasted about one hour


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United States v. Jenkins, No. 06-0027/AF


and consisted of a clinical interview, a description of

Appellant’s mental health history, and various psychological

tests.    Dr. Budd drafted a mental health evaluation following

the examination.

         At Appellant’s court-martial, the Government gave notice

that it intended to call Dr. Budd to testify on sentencing and

that it would offer Appellant’s mental health evaluation into

evidence.    Appellant objected to Dr. Budd’s expected testimony

and to admission of the evaluation, arguing that the probative

value of the evidence was outweighed by its prejudicial impact,

and also that his communications to Dr. Budd were confidential

and protected by the psychotherapist-patient privilege under

M.R.E. 513(a).

     The military judge overruled the defense objections and

held that the evidence was admissible under M.R.E. 513(d)(4) and

(6) for consideration on sentencing.    Trial counsel subsequently

introduced the mental health evaluation, and Dr. Budd testified

to his observations of Appellant during the mental health

examination.

     Dr. Budd testified that Appellant “acts with very poor

impulse control.”    He also testified that Appellant scored

extremely high on the anger inventory, “higher than [Dr. Budd

had] ever seen,” but “low and below the cutoff for the average

individual” on the self-control inventory.    He stated that


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United States v. Jenkins, No. 06-0027/AF


Appellant was “extremely impulsive, angry, likely to think angry

things, likely to do angry things, and his ability to control

his own emotions, his own reactions is extremely low . . . if he

thinks it, he will do it.”

     Dr. Budd’s written mental health evaluation noted

Appellant’s involvement in nine to ten fights in high school and

his arrest since joining the Air Force for fighting while on

leave.   The evaluation ultimately recommended that Appellant,

“be ordered into confinement pending the outcome of his Courts

Martial [sic] due to his dangerousness to others.     His condition

is not amenable to treatment in the military setting.”     Dr. Budd

also recommended that Appellant receive extensive medical and

psychiatric treatment.

     Appellant now renews his argument that the military judge

abused his discretion in admitting Dr. Budd’s testimony and the

mental health evaluation on sentencing.     He contends that his

communications to Dr. Budd were made to facilitate treatment or

diagnosis of his mental condition and were therefore protected

under the psychotherapist-patient privilege.

                             DISCUSSION

     We review a military judge’s decision to admit or exclude

evidence for an abuse of discretion.      United States v. Manns, 54

M.J. 164, 166 (C.A.A.F. 2000).




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United States v. Jenkins, No. 06-0027/AF


     M.R.E. 513(a) sets forth the general rule of the

psychotherapist-patient 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.

M.R.E. 513(b)(4) defines a “confidential communication” as one

“not intended to be disclosed to third persons other than those

to whom disclosure is in furtherance of the rendition of

professional services to the patient or those reasonably

necessary for such transmission of the communication.”

     M.R.E. 513(d) establishes eight specific exceptions to the

general psychotherapist-patient privilege, two of which are

implicated in this case.   M.R.E. 513(d)(4) states there is no

privilege when a psychotherapist “believes that a patient’s

mental or emotional condition makes the patient a danger to any

person, including the patient.”   M.R.E.(d)(6) further provides

there is no privilege “when necessary to ensure the safety and

security of military personnel, military dependents, military

property, classified information, or the accomplishment of a

military mission.”




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United States v. Jenkins, No. 06-0027/AF


                           Confidentiality

       The Government contends that Appellant’s communications to

Dr. Budd were not protected by the psychotherapist-patient

privilege because the communications were not confidential.   It

argues Appellant was ordered to undergo a mental evaluation by

his commander, and the purpose of the evaluation was not to

facilitate treatment, but to decide pretrial confinement matters

and whether Appellant was a danger to himself or to others.

In the alternative, the Government suggests that because

Appellant knew that his commander, a third party, intended to

review the evaluation, Appellant could not reasonably expect Dr.

Budd to treat the communications as confidential.

       Air Force Instruction 44-109 “establishes rules for

confidentiality” and “defines conditions requiring communication

between mental health providers and commanders.”    Dep’t of the

Air Force, Instr. 44-109, Mental Health, Confidentiality, and

Military Law (Mar. 1, 2000) [hereinafter AFI 44-109].1   AFI 44-



1
    AFI 44-109 para. 2.1 states that:

       [c]ommunications between a patient and a
       psychotherapist . . . made for the purpose of
       facilitating diagnosis or treatment of the patient’s
       mental or emotional condition are confidential
       communications and shall be protected from
       unauthorized disclosure. However, confidential
       communications will be disclosed to persons or
       agencies with a proper and legitimate need for the
       information and who are authorized by law or

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United States v. Jenkins, No. 06-0027/AF


109 suggests that communications to a therapist retain their

confidential character, even though the communications may be

disclosed to a third party, including a commander, if the

commander has a legitimate need for the information and is

authorized by law or regulation to receive the communications.

Attachment 2 to AFI 44-109 is a “Mental Health Clinic Client

Information Sheet,” described as a consent form in the

regulation, which is provided to patients prior to receiving

treatment.   It informs a patient that “[y]our provider will

treat you as a responsible individual and will expect you take

an active part in your treatment. . . .    Generally, information

discussed during the evaluation and treatment sessions is

confidential . . . .”   The document discusses only “treatment,”

and does not distinguish between evaluations to decide pretrial

confinement matters and evaluations to facilitate treatment.

The form also states the following:

     Commanders may obtain access to the records of their
     members to ensure fitness for duty or a client’s
     record when the contents of mental health records are
     essential to the accomplishment of a military mission.
     . . . Providers must take steps to protect individuals
     from harm when the client presents a serious threat to
     the life or safety of self or others.

The form does not indicate what effect, if any, disclosure for

these purposes has on the confidentiality of communications for



     regulation to receive it, unless the evidentiary
     privilege . . . applies.

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United States v. Jenkins, No. 06-0027/AF

other purposes.   On Appellant’s mental health evaluation, Dr.

Budd wrote that he followed procedures outlined in AFI 44-109

when conducting the evaluation.    Under these procedures,

Appellant should have received a copy of the consent form or a

modified version prior to initiating his mental health

evaluation.   However, the record does not indicate whether or

not he did, and thus we do no know what in fact Appellant was

advised of regarding the confidentiality of his communications.

     In this context, we need not ultimately determine the

meaning of AFI 44-109 in order to address the Government’s

argument that Appellant’s statements were not confidential.

Given Dr. Budd’s statement that he followed the regulation, the

language of the regulation suggesting confidentiality of

communications beyond the commander, as well as the absence of

evidence in the record that Appellant was informed his

communications would not be kept private, we will assume without

deciding that Appellant’s communications were confidential.

       Exceptions to the Psychotherapist-Patient Privilege

     We now turn to the issue of whether Appellant’s statements

to Dr. Budd fell within exceptions to the psychotherapist-

patient privilege under M.R.E. 513(d)(4) and (6) and could

properly be considered on sentencing.

     Appellant provides what is essentially a public policy

rationale for why his statements fall within the general


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United States v. Jenkins, No. 06-0027/AF

privilege under M.R.E. 513(a) and not within the exceptions to

the privilege.   Quoting to Jaffee v. Redmond, 518 U.S. 1, 10-12

(1996), Appellant argues that “effective psychotherapy . . .

depends upon an atmosphere of confidence and trust in which the

patient is willing to make a frank and complete disclosure of

facts, emotions, memories, and fears.”   He contends that if the

privilege is rejected here and his statements to Dr. Budd can be

used as evidence against him, he will be punished for his

candor, and other servicemembers facing similar circumstances in

the future will not be forthright when communicating with mental

health providers.

     Appellant also argues that the exceptions to the privilege

outlined in M.R.E. 513(d)(4) and (6) are ambiguous and that it

is unclear how severe his conduct must be before he is

considered a danger to “any person” or himself, or is seen to

compromise the “accomplishment of a military mission.”    He

asserts that a wide range of conduct could fall within the

ambiguous contours of the exceptions, and the Government must

resolve ambiguities by narrowly interpreting them.   He

characterizes any assertion that he is prone to violence as mere

speculation, and he describes his conduct as falling outside the

exceptions.

     In Jaffee the Supreme Court noted that society should

encourage an individual to seek assistance from a


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United States v. Jenkins, No. 06-0027/AF

psychotherapist.   518 U.S. at 10-12; see also United States v.

Rodriguez, 54 M.J. 156, 159 (C.A.A.F. 2000).    Appellant may be

correct that if statements made to a therapist can be admitted

at a court-martial under one of the exceptions to the privilege

outlined in M.R.E. 513(d), some servicemembers, knowing their

statements may one day be used against them, may refrain from

making frank disclosures during treatment.   However, while

M.R.E. 513 is based on Jaffee, the President, in promulgating

M.R.E. 513, intended to adopt a rule that did not literally

incorporate Jaffee, but instead “applies a more limited

approach” to the psychotherapist-patient privilege.   Rodriguez,

54 M.J. at 160.    The exceptions were drafted to limit the

privilege in order to balance the public policy goals stated in

Jaffee with “the specialized society of the military and

separate concerns that must be met to ensure military readiness

and national security.”   Manual for Courts-Martial, United

States, Analysis of the Military Rules of Evidence app. 22 at

A22-44 (2005 ed.).

     Appellant also asserts that the exceptions to the privilege

are ambiguous and that their application to him is therefore

unfair.   In particular, Appellant argues that the language

removing the privilege when the patient is a danger to “any

person,” or when “necessary to ensure the safety and security of

military personnel . . . or the accomplishment of a military


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United States v. Jenkins, No. 06-0027/AF

mission,” is so broad that a reasonable servicemember would not

know what is or is not covered under the exceptions.    Certainly,

the M.R.E. text does not indicate each context in which the

exceptions might apply.    Whether the exceptions apply is

necessarily a fact-specific determination for a military judge

to consider with an accurate awareness of the facts underlying

the dispute, just as hearsay determinations necessarily involve

context.    It is for this reason that the M.R.E. forego detailed

analyses of their application in different factual scenarios,

and it is for this same reason that a military judge’s

evidentiary determinations are reviewed for an abuse of

discretion.   In our view, M.R.E. 513(d)(4) and (6) provide

adequate and fair notice, informed by case law, as to their

potential applicability.

     In this case, the military judge determined that

Appellant’s mental state posed a risk to the safety of others or

himself or to the accomplishment of a military mission, and his

decision that Appellant’s statements were not protected by the

privilege and were admissible on sentencing was not an abuse of

discretion.   Dr. Budd, a clinical psychologist with seventeen

years of experience, wrote in his evaluation that Appellant’s

mental health posed a danger to others.    Appellant’s actions and

his statements to Dr. Budd during treatment substantiated those

findings.   Appellant told Dr. Budd that he was arrested once for


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United States v. Jenkins, No. 06-0027/AF

fighting while on leave.   Two days before meeting with Dr. Budd,

Appellant chased three airmen with a fourteen inch knife while

shouting racist slurs.   The following day, Appellant reiterated

those threats, telling a friend that “If that guy from last

night came around again, I would f****** kill him.”   Appellant

also communicated at that time that he would have cut the throat

of his master sergeant the previous night if he had possessed a

knife.

     Appellant told Dr. Budd that he had received four letters

of reprimand for alcohol use and that he continued to drink

heavily several times a week.   Dr. Budd was also informed that

Appellant was under investigation for illegal drug use.   In

addition, Appellant reported feelings of constant and chronic

hostility, and indicated he felt an inability to control his

anger.   Dr. Budd conducted personality testing that confirmed

Appellant experienced intense anger and was likely to act upon

his impulses.   Although we may not at this point be able to

determine every context in which M.R.E. 513(d)(4) and (6) might

apply, we conclude with confidence that the two exceptions were

implicated when Appellant made threats to kill persons while

brandishing a fourteen-inch knife.

     Based on this information, the military judge properly

applied M.R.E. 513(d)(4) and (6) to Appellant’s communications,

and he therefore did not abuse his discretion.


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United States v. Jenkins, No. 06-0027/AF

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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