UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

WOLFE, SALUSSOLIA, and ALDYKIEWICZ 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant STEVEN J. FURGERSON 

United States Army, Appellant 

ARMY 20170239 

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill 

Charles L. Pritchard, Jr., Military Judge 

Colonel David E. Mendelson, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Patrick G. 

Hoffman, JA; Captain Benjamin J. Wetherell, JA (on brief); Lieutenant Colonel 

Tiffany D. Pond, JA; Captain Patrick G. Hoffman, JA; Captain Benjamin J. 

Wetherell, JA (on reply brief). 

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, 

JA; Captain Jeremy Watford, JA (on brief). 

5 February 2019 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

WOLFE, Senior Judge: 

 We briefly address the sole issue raised by appellant in his appeal: Did the 

military judge abuse his discretion when he declined to conduct an in camera review 

of the crime victim’s mental health records? Appellant says yes – arguing that the 

records contain “Brady” information that pierces the privilege.1

 We disagree.2

 

1

 See generally Brady v. Maryland, 373 U.S. 83 (1963) (requiring the government to 

disclose to the defense certain information in the possession of the prosecution). 

2

 An enlisted panel sitting as a general court-martial convicted appellant, contrary to 

his pleas, of one specification of sexual assault by bodily harm, anally penetrating 

his spouse, in violation of Article 120(b)(1)(B), Uniform Code of Military Justice, 

(continued . . .) 
FURGERSON—ARMY 20170239 

2

LAW AND DISCUSSION 

 Appellant’s wife [KC] claimed that in the midst of consensual vaginal sex, 

appellant forcibly turned her over and had anal sex with her against her repeated 

protestations and against her will. She further claimed to have suffered rectal 

bleeding after the assault and sought medical attention. In the course of 

investigating KC’s allegations, military law enforcement requested a copy of KC’s 

medical records. 

 While preparing for trial, the trial counsel began reviewing the medical 

records. The first two pages consisted of a table of contents. After reading the table 

of contents – and only the table of contents – the trial counsel became concerned 

that privileged mental health records had been included along with unprivileged 

medical records. The trial counsel then sent the following message to the defense 

and to KC’s special victim counsel (SVC): 

The Government has reviewed the table of contents of 

[KC’s treatment records] but not the records themselves. 

However, based on the table of contents alone, the 

government believes some of these records may be 

evidence favorable to the defense, and should be provided 

under RCM 701(a)(6) and Brady. However, these records 

are possibly privileged communications – records of 

diagnosis and treatment – and might be privileged under 

[Military Rule of Evidence] 513. 

 The SVC invoked privilege on behalf of KC. The military judge then directed 

the SVC to review the records and determine which records were privileged. The 

SVC objected, claiming the military judge’s order interfered with the ethical 

obligations of the SVC.3

 

 

(. . . continued) 

10 U.S.C. § 920 (2012) [UCMJ]. The panel did not adjudge any punishment other 

than the mandatory dishonorable discharge. See Article 56, UCMJ. 

3

 We are concerned with this reasoning. At the very least, having asserted that some 

documents were privileged, the SVC could be required to assert to which documents 

or statements KC’s claim of privilege was being asserted. Unless all KC’s medical 

records were also mental health records – and that certainly was not the case – the 

privilege could not plausibly apply to every document. Just as one cannot eat and 

have their cake, one cannot claim a privilege without specifying to what the claim of 

privilege applies. Certainly, an SVC cannot frivolously assert to the court that 

(continued . . .) 
FURGERSON—ARMY 20170239 

3

 Eventually, the production of KC’s non-mental health records was resolved 

when the hospital provided a new set of unprivileged records. The mental health 

records were never provided to the defense. Except for having reviewed the table of 

contents, the mental health records were not reviewed by the trial counsel. 

 What was left was the trial counsel’s hanging chad of a statement that after 

reviewing the table of contents, the records “may be evidence favorable to the 

defense, and should be provided under . . . Brady.” Many defense counsel would 

certainly ask what had caused the government to think that the records contained 

Brady matter? 

 Indeed, in Acosta we surmised that a privilege created by a presidentially 

promulgated rule must yield to a constitutional requirement (i.e. Brady) that the 

government turn over to the defense evidence that is favorable and material. See Lk 

v. Acosta, 76 M.J. 611, 615 (Army Ct. Crim. App. 2017). That is, a mere rule cannot 

prevent the government from fulfilling its constitutional requirements. Id. On 

appeal, appellant claims that this is just such a case. 

 Admittedly, appellant was placed in a difficult position. The trial counsel 

arguably thought that the records contained Brady information after reading the table 

of contents. However, the defense did not know what caused the trial counsel to 

assert that there was Brady evidence. The defense was never provided with the table 

of contents that had been reviewed by the trial counsel. So, while the defense had a 

non-frivolous belief that the records contained Brady matter, they nonetheless could 

not hope to meet the procedural requirements to trigger an in camera review under 

Military Rule of Evidence [Mil. R. Evid.] 513. And, given the high bar for 

obtaining an in camera review, the military judge unsurprisingly denied the defense 

motion. 

 On appeal, the problem did not change. Although the mental health records 

are included as an appellate exhibit, there is still a claim of privilege. Although we 

do not decide the issue, we assume that on appeal the judges on this court cannot 

search through privileged matter without first finding that an exception to the 

 

(. . . continued) 

documents are privileged without violating the duty of candor. However, to the 

extent that the military judge’s order could have been misunderstood as requiring the 

SVC to assert privilege without advocating KC’s interest, the SVC’s objections had 

merit. 
FURGERSON—ARMY 20170239 

4

privilege applies or that an in camera review is otherwise authorized.4 It is enough 

to tie one in knots. 

 Faced with this Gordian knot, we adopted an Alexandrian solution.5

 We 

concluded that the table of contents did not contain privileged communication. A 

table of contents is unlikely to contain a “confidential communication made between 

the patient and a psychotherapist” – and in this case, did not. Mil. R. Evid. 513. 

 We therefore determined that the table of contents was not privileged and 

allowed the parties on appeal to review the table of contents. With the veil now 

lifted, appellant on appeal can see whether the trial counsel’s statement that there 

may be Brady matter in the records had any actual support.6 

 Having reviewed the table of contents ourselves, there is nothing in the 

document that was Brady matter or that would lead one to conclude that the records 

themselves contained Brady matter. It is just a table of contents. 

CONCLUSION 

On consideration of the entire record, the findings and sentence are 

AFFIRMED. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

4 Compare Mil. R. Evid. 1101(a) (unclear whether Military Rules of Evidence apply 

to appellate proceedings), with U.S. Army Court of Criminal Appeals Rules of 

Practice and Procedure Rules 6.9-6.11 (15 Jan. 2019) (presuming documents are 

privileged on appeal). 

5

 That is, we did not try to untie the knot, we cut it. 

6

 We invited additional briefing by the parties after having had the chance to review 

the table of contents. Neither party accepted the invitation. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: