## UNITED STATES ARMY COUR T 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 Cen ter of Excellence and Fort Sil l
Charles L. Pritchard , Jr., Military Judge
Colonel David E. Mende lson, Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Captain Patrick G. Hoffman, JA; Captain Benjamin J. Wetherell, JA (on brief); Lieu tenant Colonel Tiffany D. Pond, JA; Captain Patri ck G. Hoffman, JA; Captain Be njamin J. Wetherell, JA (on reply brief).

For Appellee: Colonel Steven P. H aight, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Jeremy Watf ord, JA (on brief).

5 February 2019

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

We briefly address the sole issue raised by appellant in his a ppeal: Did the military judge abuse his discretion when he declined to conduct an in camera review
of the crime victim’s mental h ealth records? Appellant says ye s – arguing that the
records contain “ Brady” information that pie rces the privilege. 1 We disagree. 2

1 See generally Brady v. Maryland , 373 U.S. 83 (1963) (requir ing the government to
disclose to the defe nse certain informati on in the possession o f the prosecution).

2 An enlisted panel sit ting as a gene ral court-mart ial convicted appellant, contrary to his pleas, of one specificatio n of sexual assau lt by bodily har m, anally penetrating his spouse, in violati on of Article 120(b)( 1)(B), Uniform Code of Military Justice,

(continued . . .)FURGERSON—ARMY 20170239

2 LAW AND DISCUSSION

Appellant’s wife [KC] claimed th at in the midst of consensual vaginal sex, appellant forcibly turned her over and had anal sex with her ag ainst her repeated protestations and against her w ill. She further claimed to hav e suffered rectal bleeding after th e assault and sought me dical attention. In th e course of investigating KC’s allegations, m ilitary law enforcement reques ted a copy of KC’s
medical records.

While preparing for trial, the trial counsel began reviewing t he medical
records. The first tw o pages consisted of a table of contents. After readin g the table of contents – and only the table of contents – the trial counse l became concerned that privileged mental health r ecords had been i ncluded along w ith unprivileged medical records. The trial counsel then sent the following mes sage to the defense and to KC’s special victim counsel (SVC):

The Government has reviewed the table of contents of [KC’s treatment recor ds] but not the reco rds themselves. However, based on the table of contents alone, the government believes some of these rec ords may be
evidence favorable to the defe nse, and should be provided
under RCM 701 (a)(6) and Brady. However, th ese records are possibly privileged comm unications – records of diagnosis and treatment – an d might be privileged under [Military Rule of Evidence] 513.

The SVC invoked privi lege on behalf of KC . The military judge then directed
the SVC to review the records an d determine which records were privileged. The SVC objected, claiming the milit ary judge’s order interfered wi th the ethical obligations of the SVC. 3

(. . . continued) 10 U.S.C. § 920 (2012) [UCMJ]. The panel did not adjudge any p unishment other than the mandatory dishonorable discharge. See Article 56, UCMJ.

3 We are concerned with this r easoning. At the ve ry least, havi ng asserted that some documents were privileged, the SV C could be requi red to assert to which documents

or statements KC’s c laim of privilege was being asse rted. Unle ss all KC’s medical
records were also menta l health records – a nd that certainly wa s not the case – the privilege could not plausibly a pply to every docu ment. Just as one cannot eat and have their cake, one ca nnot claim a privileg e without specifyin g to what the claim of privilege applies. Cer tainly, an SVC canno t frivolously assert to the court that

(continued . . .)FURGERSON—ARMY 20170239

3 Eventually, the production of K C’s non-mental h ealth records w as resolved when the hospital pr ovided a new set of unprivileged records. The mental health records were never p rovided to the defen se. Except for having reviewed the table of contents, the mental health reco rds were not rev iewed by the tr ial counsel.

What was left was the trial cou nsel’s hanging chad of a statem ent that after reviewing the table of contents, the records “may be evidence f avorable to the defense, and should be provided under . . . Brady.” Many defense c ounsel 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 re quirement (i. e. Brady ) that the
government turn over t o the defense eviden ce that is favorable and material . See Lk

v. Acosta , 76 M.J. 611, 615 (A rmy Ct. Crim. App. 2017) . That is, a mere rule cannot prevent the gover nment from fulfilling i ts constitutional requi rements. Id . On appeal, appellant claims that this is just such a case.

Admittedly, appellant was plac ed in a difficu lt position. The trial counsel arguably thought that the reco rds contained Brady information after reading the table
of contents. However , the defense di d not know wha t caused the trial counsel to
assert that there was Brady evidence. The defense was nev er provided with the table
of contents that had been revie wed by the trial counsel. So, w hile the defense had a
non-frivolous belief that t he records contained Brady matter, they none theless could not hope to meet the pro cedural requirements to trigger an in c amera review under Military Rule of E vidence [Mil. R. Evid.] 513. And, given the high bar for obtaining an in camera review, the military judge unsurprisingl y denied the defense
motion.

On appeal, the problem did not c hange. Although the mental he alth records are included as an appellate exh ibit, there is s till a claim of privilege. Although we
do not decide the issue, we assume that on appeal the judges on this court cannot search through privile ged matter without f irst finding that an exception to the

(. . . continued) documents are privilege d without violating the duty of candor. However, to the
extent that the milita ry judge’s order coul d have been misunder stood as requiring the SVC to assert privilege without advocating K C’s interest, the S VC’s objections had
merit.FURGERSON—ARMY 20170239

4 privilege applies or that an in camera review is otherwise auth orized. 4 It is enough
to tie one in knots.

Faced with this Gordi an knot, we adopted a n Alexandrian soluti on. 5 We concluded that the table of contents did not contain privileged communication. A table of contents is unlikely to contain a “confidential commun ication made between the patient and a psyc hotherapist” – and in this case, did not. Mil. R. Evid. 513.

We therefore determined that th e table of conten ts was not pri vileged and allowed the parties on appeal t o review the tab le of contents. With the veil now lifted, appellant on a ppeal can see whether the trial counsel’s statement that there may be Brady matter in the records had any actu al support. 6

Having reviewed the table of contents ourselves, there is noth ing 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 r ecord, the findings a nd sentenc e are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

4 Compare Mil. R. Evid. 1101(a) (unclear w hether Military Rules of Evide nce apply to appellate p roceedings), with U.S. Army Court of Criminal Appeals Rules of
Practice and Procedure Rules 6.9 -6.11 (15 Jan. 20 19) (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 af ter having had the chance to review
the table of contents. Neither party acce pted the invitation. MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: