United States v. Beauge ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Frantz BEAUGE
Chief Petty Officer (E-7), U.S. Navy
Appellant
No. 201900197
Decided: 11 January 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Hayes Larsen (arraignment)
Michael Luken (trial)
Sentence adjudged 1 March 2019 by a general court-martial convened
at Naval Station Norfolk, Virginia, consisting of officer and enlisted
members. Sentence approved by the convening authority: reduction to
E-1 and confinement for one year.
For Appellant:
Lieutenant Commander Christopher Riedel, JAGC, USN
For Appellee:
Major Clayton L. Wiggins, USMC
Lieutenant Joshua C. Fiveson, JAGC, USN
Judge STEWART delivered the opinion of the Court, in which Senior
Judge GASTON and Judge HOUTZ joined.
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
STEWART, Judge:
Appellant was convicted, contrary to his pleas of two specifications of sex-
ual abuse of a child, in violation of Article 120b, Uniform Code of Military
Justice [UCMJ], 10 U.S.C. § 920b, for committing lewd acts upon his twelve-
year-old niece by intentionally rubbing her genitalia with his finger and by
kissing her and putting his tongue in her mouth, with an intent to gratify his
sexual desire.
Appellant asserts two assignments of error [AOEs]: (1) the military judge
abused his discretion in denying Appellant’s motion for discovery of the
victim’s mental health records under Military Rule of Evidence [Mil. R. Evid.]
513(d)(3) when the victim’s psychotherapist had reported information from
the victim’s confidential communications to her under a duty imposed by
Florida state law; and (2) Appellant’s trial defense counsel were ineffective by
failing to pursue access to the victim’s mental health records under either the
child abuse exception to the psychotherapist-patient privilege, Mil. R. Evid.
513(d)(2), or as constitutionally required. We find no prejudicial error and
affirm the findings and sentence.
I. BACKGROUND
A. The Summer of 2014
Appellant’s convictions stem from conduct during the summer of 2014. In
June of that year, Ms. “Golf,” 1 Appellant’s twelve-year-old niece, moved into
Appellant’s home because Ms. Golf’s parent’s home entered foreclosure.
Facing eviction and potential homelessness, Appellant and his wife offered to
take in Ms. Golf and her brother. Ms. Golf’s parents were initially reluctant
but ultimately assented to the offer. Ms. Golf and her brother spent several
weeks of the summer at Appellant’s home where twelve people resided,
1 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
including Appellant and his three children, Ms. Golf’s cousins. Sometime
prior to the beginning of the school year, Ms. Golf returned to her own home.
Early in Ms. Golf’s stay with Appellant, Appellant requested that she
meet him in his garage. Initially thinking that she was in trouble, she met
Appellant in the garage where he explained to her how he had put a roof over
Ms. Golf’s and her brother’s heads, watched over other children, and that it
“wasn’t fair that he wasn’t getting anything back.” 2 Ms. Golf felt scared and
guilty as a result of this comment. She assumed Appellant wanted money in
exchange for staying at his home, but after Appellant’s comment, he leaned
in and kissed her on the lips and put his tongue into her mouth. Ms. Golf left
the garage and went to the bathroom where she began to cry.
That night, Appellant approached Ms. Golf again, this time while she was
in bed in a room that she shared with her cousin. Appellant asked Ms. Golf to
follow him into the master bedroom. Once in Appellant’s bedroom, Appellant
kissed Ms. Golf and placed his hands on her lower back and buttocks under-
neath her clothing. Appellant told Ms. Golf to “hump” him, meaning to rub
herself against his pelvic area. 3 This went on for approximately ten to fifteen
minutes and at the conclusion of the episode, Appellant thanked Ms. Golf.
This same process occurred several times during Ms. Golf’s stay with Appel-
lant, and only whenever Appellant’s spouse worked at night.
On another occasion, Appellant approached Ms. Golf while she showered.
Ms. Golf noticed a figure standing in the bathroom as she concluded her
shower. She could tell that the figure was that of Appellant, because she
noticed the colors of his uniform and his general figure. Ms. Golf wrapped
herself in a towel, and as she attempted to exit the shower, Appellant asked
her if she “missed him.” 4 In an effort not to anger Appellant and quickly leave
the bathroom, Ms. Golf replied “yes.” 5 At that point, Appellant placed his
hand in between the edges of Ms. Golf’s towel and rubbed Ms. Golf’s clitoris.
Charges stemming from the above-described conduct were referred to a
general court-martial after Ms. Golf reported Appellant’s activity to a teacher
and a school guidance counselor. The guidance counselor referred Ms. Golf to
2 R. at 375.
3 Id. at 387-88.
4 Id. at 397.
5 Id.
3
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
a local therapist, 6 Ms. Delta, who reported Appellant’s conduct to local law
enforcement authorities via the Florida Abuse Hotline Information System
[“Hotline”], as she was required to do pursuant to Florida law. 7
B. Appellant Unsuccessfully Sought Production of Hotline Records
At trial, Appellant submitted a discovery request asking for the produc-
tion of records pertaining to Ms. Delta’s Hotline report. The Government
responded by providing a “Confidential Investigative Summary” [“summary”]
of the Hotline report. The summary contains no information identifying the
reporter of the information within the report, and contains a brief narrative
apparently summarizing the information provided by the reporter to the
Hotline. 8 The narrative portion of the summary describes an allegation that
Ms. Golf’s uncle fondled her, and “even attempted to penetrate her on some
occasions; however, he was never successful with his attempts to penetrate
her.” 9 Later, Appellant’s Defense team and representatives from the Child
Protective Team of Brevard County, Florida, separately, interviewed
Ms. Golf. It appears that Ms. Golf made no mention of “penetration” during
those interviews. 10
Later, Appellant moved to compel the discovery of “all records of commu-
nications between [Ms. Golf] and Ms. [Delta] on or about 15 December 2016
leading to a report of child sexual abuse allegedly committed against
[Ms. Golf] being made to the [Florida] Department of Children and Fami-
lies.” 11 Appellant argued below—as he does on appeal—that while these
records would normally constitute privileged communications between a
psychotherapist and her patient, the privilege should have been pierced
6 Appellant conceded below that Ms. Delta was a “psychotherapist / clinical coun-
selor.” R. at 29. There appears to be no dispute that as a threshold matter, the
communications between Ms. Golf and Ms. Delta fall within the psychotherapist-
patient privilege. See Mil. R. Evid. 513(b).
7 Fla. Stat. § 39.201.
8 App. Ex. X at 16.
9 Id.10 Id. at 7.
11 App. Ex. X. On appeal, Appellant suggests he was entitled to Ms. Delta’s “clini-
cal notes.” Despite the difference in verbiage used, we assume that Appellant bases
his alleged errors on failures to obtain the same “[e]vidence of a patient’s records or
communications” that the rule contemplates and were sought below. Mil. R. Evid.
513(b)(5).
4
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
because Florida law imposed a duty to report information contained in those
communications. See Mil. R. Evid. 513(d)(3). Appellant argued that Mil. R.
Evid. 513(d)(3) should be read such that if state law imposes a duty to report,
then all communications from patient to psychotherapist made during the
meeting in which the psychotherapist learns of reportable abuse are not
privileged. The Government argued that the exception should be read more
narrowly, such that the rule excepts from privilege only the specific infor-
mation that state law requires to be disclosed. The military judge heard
argument at a pretrial Article 39a, UCMJ, session, and ordered Appellant
and the Government to submit bench memoranda dealing with how the
exception to the privilege came to be, and what the drafters intended with its
issuance.
After reviewing the additional briefs, the military judge ruled that the
communications between Ms. Golf and Ms. Delta were privileged, and that
only the information reported to authorities was exempt from that privilege. 12
On the first day of trial, the Government additionally provided the Defense
with the audio recording of Ms. Delta’s report to the Hotline.
C. The Military Judge’s Analysis
The military judge relied heavily on the purposes underpinning Florida’s
mandatory reporting requirement and Florida’s establishment of the report-
ing Hotline. His ruling discusses how Florida’s Section 39.201, which makes
disclosure of child abuse a mandatory reporting requirement for psychother-
apists, exists to ensure both that investigations are initiated after reports of
abuse, and that therapists do not violate their professional responsibilities to
patients in cases of child abuse. The military judge noted that the rule does
not detail precisely what psychotherapists must report to authorities, as the
statute only requires that reporters of the information provide their name.
The military judge went on to analogize this reporting requirement with
Florida’s “dangerous patient exception,” which also permits the disclosure of
confidential communications between doctor and patient. The military judge
explained that, like that exception, the Florida statutory scheme does not
require the psychotherapist to disclose all communications with the patient,
but only those necessary to communicate abuse to authorities. He also noted
that the Florida statutes limit who may access reports of abuse made to the
Hotline.
12 App. Ex. XII at 6.
5
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
Next, the military judge analogized Mil. R. Evid. 513(d)(3) to Mil. R. Evid.
513(d)(2) (another exception to the psychotherapist-patient privilege dealing
with allegations of child abuse). He cited LK v. Acosta, 13 an Army Court of
Criminal Appeals case that analyzed the drafters’ intent behind the child-
abuse exception. He noted that the purpose behind Mil. R. Evid. 513(d)(2)
was not to mandate the disclosure of every alleged victim’s mental health
records to their alleged abuser, but rather to ensure that military command-
ers were appropriately informed of allegations of abuse within their com-
mands. In concluding that the exception is limited in scope, he reasoned that
reading Mil. R. Evid. 513(d)(3) to require disclosure of all communications
between psychotherapist and patient any time a state had a mandatory
reporting scheme in place would “obliterate” the privilege in its entirety and
chill communications between psychotherapists and their patients. 14 In other
words, “Florida’s mandatory reporting laws were placed to protect alleged
child abuse victims, not to thwart a child-victim’s access to ‘advice, diagnosis,
or treatment of a mental or emotional condition.’ ” 15
The military judge ultimately concluded that Ms. Golf’s communications
with Ms. Delta on 15 December 2016 (the date Ms. Golf initially disclosed the
alleged abuse to Ms. Delta) were privileged under Mil. R. Evid. 513. Only the
information reported out by Ms. Delta was excepted from the privilege.
Appellant appeals this ruling, and asserts that his trial defense counsel were
ineffective for not pursuing the aforementioned communications through
other evidentiary rules.
II. DISCUSSION
A. The Military Judge’s Ruling Under Mil. R. Evid. 513(d)(3)
Appellant asserts that the military judge’s ruling under Mil. R. Evid.
513(d)(3) was erroneous. We review a military judge’s ruling on a motion to
produce a psychotherapist’s records for an abuse of discretion. 16 “To find an
abuse of discretion requires more than a mere difference of opinion—the
challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly
13 76 M.J. 611 (A. Ct. Crim. App. 2017).
14 App. Ex. XII at 5.
15 Id. (quoting Mil. R. Evid. 513(b)(1)).
16 United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018).
6
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
erroneous.” 17 A military judge abuses his discretion when he (1) predicates
his ruling on findings of fact that are not supported by the evidence of record;
(2) uses incorrect legal principles; (3) applies correct legal principles to the
facts in a way that is clearly unreasonable, or (4) fails to consider important
facts. 18 We review conclusions of law de novo. 19
We find no error in the military judge’s conclusions that Ms. Golf’s com-
munications with Ms. Delta are privileged under Mil. R. Evid. 513, and that
the Mil. R. Evid. 513(d)(3) exception applies to only the information Ms. Delta
reported to Florida’s Child Abuse Hotline. As the military judge recognized in
his thorough, detailed ruling, Mil. R. Evid. 513 is a rule of privilege, not
discovery. 20 Originating with the Supreme Court’s decision in Jaffee v.
Redmond, 21 the purpose of the rule is to protect the societal benefit of confi-
dential mental health counseling, similar to the clergy-penitent privilege. 22
Thus, Mil. R. Evid. 513 establishes a privilege against disclosure of confiden-
tial communications made by a person who “consults with or is examined or
interviewed by a psychotherapist for purposes of advice, diagnosis, or treat-
ment of a mental or emotional condition.” 23
We agree with the military judge that Ms. Golf’s communications with
Ms. Delta fall within the protections of the Rule. 24 We also agree with his
interpretation of Mil. R. Evid. 513(d)(3), which creates an exception from the
privilege “when federal law, state law, or service regulation imposes a duty to
report information contained in a communication.” 25 In interpreting statutory
or other provisions of the Manual for Courts-Martial, “[t]he plain language
17 United States v. Jasper, 72 M.J. 276 279-80 (C.A.A.F. 2013).
18 United States v. Commisso, 76 M.F. 315, 321 (C.A.A.F. 2017) (citations omit-
ted).
19 United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).
20 LK v. Acosta, 76 M.J. 611, 613 (ACCA 2017).
21 518 U.S. 1 (1996).
22 Acosta, 76 M.J. at 614 (quoting Mil. R. Evid. 513 analysis at A22-45).
23 Mil. R. Evid. 513 (b)(1).
See Mil. R. Evid. 513(b)(2) (defining psychotherapist as a “psychiatrist, clinical
24
psychologist, clinical social worker, or other mental health professional”).
25 Mil. R. Evid. 513(d)(3).
7
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
will control, unless use of the plain language would lead to an absurd re-
sult.” 26
Here, the plain language of Mil. R. Evid. 513(d)(3) states there is no privi-
lege when “information contained in a[n otherwise confidential] communica-
tion” is required to be disclosed by a state statute. Like the military judge, we
conclude the plain meaning of this phrase is that the privilege is lost with
respect to the “information” that is mandatorily reported (and therefore no
longer confidential), not the entirety of the confidential communications
leading to the report. After all, “the essential function of the privilege is to
protect a confidence that, once revealed by any means, leaves the privilege
with no legitimate function to perform.” 27 Reading the exception in this
manner also comports with the rule’s requirement that
Any production or disclosure permitted by the military
judge under this rule must be narrowly tailored to only the
specific records or communications, or portions of such records
or communications, that meet the requirements for one of the
enumerated exceptions to the privilege . . . and are included in
the stated purpose for which the records or communications are
sought . . . . 28
Other privileges have been construed in precisely this manner—i.e., that
the privilege over certain confidential information can be lost while the
underlying privilege is preserved. For instance, in United States v. Mays, the
Court of Military Appeals held that an attorney could reveal confidential
communications to defend against an allegation of ineffective assistance of
counsel, but that the attorney-client privilege was lost only with respect to
communications relevant to defend against the allegation, not all communi-
cations between the client and the attorney. 29 In United States v. Marrelli, an
attorney was compelled to turn over certain fraudulent checks his client had
given him, as they fell outside the scope of the attorney-client privilege, but
the privilege still existed regarding communications properly falling under
the attorney-client privilege regarding legal services that were not in fur-
26United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007) (citing United States v.
Martinelli, 62 M.J. 52, 82 n.24 (C.A.A.F. 2005) (Crawford, J. dissenting)).
27 Charles T. McCormick, McCormick on Evidence, § 93 (7th ed. 2013), quoted in
Jasper, 72 M.J. at 281.
28 Mil. R. Evid. 513(e)(4) (emphasis added).
29 33 M.J. 455 (C.M.A. 1991).
8
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
therance of a crime. 30 Similarly, in United States v. Rhea, the court held an
attorney could disclose a calendar his client had given him (which was
evidence of a crime), but not how the calendar came into his possession,
which narrowly tailored the disclosure to only meet the law’s requirements
while still maintaining the privilege with respect with respect to the rest of
the communications concerning the calendar. 31
To read the rule otherwise would produce absurd results. There would be
no way under the language of the rule to determine the parameters of the
“communication” at issue: would it mean the privilege would be lost over the
patient’s entire privileged conversation; every privileged conversation with
the same psychotherapist; only those conversations in which the abuse was
discussed; any part of any conversation discussing the abuse; the statements
and diagnoses the psychotherapist made in response, something in between?
Thus, to interpret the rule more broadly would mean the privilege was lost
over some (potentially large) amount of unrelated confidential information
solely because it was conveyed during the same treatment session or to the
same psychotherapist. This would result in child victims in most states
essentially having no psychotherapist-patient privilege when seeking initial
or even follow-up treatment, which would defeat the public policy purpose for
which this privilege was created by Jaffee—encouraging mental health
treatment through open, honest communications (secured by confidentiality)
with mental health providers. 32
Finally, as the military judge noted, this interpretation comports with the
framework of the state statute at issue. Florida’s Section 39.201 makes
disclosure of child abuse a mandatory reporting requirement for psychiatrists
so as to initiate a safety assessment for alleged victims and start an investi-
gative process. The purpose of the statute is not to mandate that psychia-
trists disclose protected communications beyond what is necessary to report
alleged child abuse. Thus, we share the military judge’s view that “Florida’s
mandatory reporting laws were placed to protect alleged child abuse victims,
not to thwart a child-victim’s access to advice, diagnosis or treatment of a
mental or emotional condition.” 33 Similarly, as our sister court discussed in
30 15 C.M.R. 276, 281 (C.M.A. 1954).
31 33 M.J. 413, 415-19 (C.M.A. 1991).
32 App. Ex. XVI.
33 App. Ex. XII at 5; see also Jaffee v. Redmond, 518 U.S. 1 (1996) (“if the purpose
of the privilege is to be served the participants in the confidential conversation must
9
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
Acosta, dealing with the Mil. R. Evid. 513(d)(2) exception, the drafter’s intent
for the Mil. R. Evid. 513 exceptions was to ensure military psychotherapists
could properly report child abuse, “not to turn over every alleged child vic-
tim’s mental health records to the alleged abuser.” 34
B. Ineffective Assistance of Counsel Claim
Appellant asserts that his trial defense counsel were ineffective for failing
to pursue the aforementioned communications through either Mil. R. Evid.
513(d)(2) [the “child abuse exception”] or by virtue of a constitutional right to
pierce the psychotherapist-patient privilege. We review claims of ineffective
assistance de novo. 35
To determine whether counsel’s representation was ineffective, we apply
the two-prong test established by Strickland v. Washington. 36 That test
places the burden on Appellant to demonstrate (1) that counsel’s performance
was in fact deficient, and (2) that any deficiency was prejudicial. 37 Our
analysis of the first prong is guided by the maxim that the Sixth Amendment
entitles an accused to representation that does not fall “below an objective
standard of reasonableness” in light of “prevailing professional norms.” 38 We
afford deference to counsel’s performance and decision-making by presuming
that counsel provided the representation envisioned by the Sixth Amend-
ment. 39 Because Appellant’s argument stems from counsel’s failure to make a
motion to compel records, he must also show that a reasonable probability
exists that any such motion would have been meritorious, meaning success-
ful. 40 “Failure to raise a meritless argument does not constitute ineffective
be able to predict with some degree of certainty whether particular discussions will
be protected”) (quoting Upjohn Co. v. United States, 449 U.S. 393, 393 (1981)).
34 76 M.J. at 619.
35 United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008).
36 466 U.S. 668, 687 (1984).
37 United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010); United States v.
Davis, 60 M.J. 469, 473 (C.A.A.F. 2005).
38 Strickland v. Washington, 466 U.S. 668, 688 (1984); United States v. Terlep, 57
M.J. 344, 349 (C.A.A.F. 2002).
39 United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
40 See United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007).
10
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
assistance.” 41 As for the second prong, prejudice means that counsel’s defi-
cient performance resulted in the denial of “a fair trial, [that is] a trial whose
result is unreliable.” 42 In other words, we test whether there is a reasonable
probability that, but for counsel’s deficiencies, the result of the trial would
have been different. 43
Appellant has not carried these burdens here.
1. A reasonable probability does not exist that a motion to compel
Ms. Golf’s privileged communications under Mil. R. Evid. 513(d)(2) would
have been successful
The child abuse exception provides that there is no privilege under Mil. R.
Evid. 513 “when the communication [between psychotherapist and patient] is
evidence of child abuse or neglect, or in a proceeding in which one spouse is
charged with a crime against a child of either spouse.” 44 Appellant argues
that Ms. Delta’s notes “were evidence of child abuse” and thus fall within this
exception to the psychotherapist-patient privilege. He distinguishes the
instant case from Acosta, 45 dealing with the same rule, where our sister court
found that evidence establishing the absence of abuse was not subject to the
child abuse exception. For the following reasons, Appellant’s argument fails.
Appellant’s threshold point that the communication or notes sought were
in fact evidence of child abuse and thus subject to the exception, while rea-
sonable, is no silver bullet for his claim. Clearly, Ms. Delta had reason to
report an allegation of child abuse to authorities following her initial meeting
with Ms. Golf. It thus stands to reason that they discussed some allegation of
child abuse in that meeting.
Thus, contrary to the Government’s argument, Appellant’s request differs
in a crucial way from the issue in Acosta. There, the accused sought general-
ized mental health records without the sort of information that Appellant had
here, namely, that Ms. Golf had some communication with her psychothera-
pist discussing child abuse. The Government also suggests that when Appel-
41United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997) (quoting Boag v.
Raines, 769 F.2d. 1341, 1344 (9th Cir. 1985)).
42 United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citation and inter-
nal quotation marks omitted).
43 United States v. Quick, 59 M.J. 383, 387 (C.A.A.F. 2004).
44 Mil. R. Evid. 513(d)(2).
45 76 M.J. at 611.
11
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
lant argues that trial defense counsel should have pursued potentially excul-
patory evidence through a rule geared toward disclosing evidence of child
abuse, Appellant’s argument is “internally inconsistent.” 46 However, this
overlooks the fact that the evidence sought could plausibly be evidence both
of child abuse and exculpatory to the extent it offered inconsistencies, or
failures in memory by Ms. Golf.
But the question at issue is not whether Appellant’s argument is reasona-
ble; rather, it is whether his counsel had a reasonable probability of success
had he brought a motion on the basis of Mil. R. Evid. 513(d)(2). We conclude
the answer to this latter question is no. The exceptions to the psychothera-
pist-patient privilege were created to “address the specialized society of the
military and separate concerns that must be met to ensure military readiness
and national security.” 47 “These exceptions are intended to emphasize that
commanders are to have access to all information necessary for the safety
and security of military personnel, operations, installations, and equipment.
Therefore, psychotherapists are to provide such information despite a claim
of privilege.” 48 As noted above, the privilege itself is based on the societal
benefit of confidential counseling recognized by Jaffee. 49
Similar to his argument under Mil. R. Evid. 513(d)(3), Appellant argues
that by making any mention of child abuse during communications with a
psychotherapist, a patient loses all privilege over the entirety of those com-
munications. His reading of the rule would grant broad access to any manner
of privileged communications between psychotherapists and minor patients
whenever a patient makes any mention of child abuse. Given the drafter’s
intent behind the privilege and its exceptions, we find that this interpretation
of the rule’s plain language would lead to a similar absurdity as that which
we identify above in discussing Mil. R. Evid. 513(d)(3). 50 We will not endorse
such an interpretation for a rule whose purpose is to ensure that commanders
are able to be privy to allegations of child abuse to ensure the safety of
personnel, and to investigate allegations, “not to turn over every alleged child
victim’s mental health records to the alleged abuser.” 51
46 Gov. Br. at 30.
47 Manual for Courts-Martial, United States (2016 ed.), App. 22, at A22-51.
48 Id.
49 Jaffee v. Redmond, 518 U.S. 1 (1996).
50 United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007).
51 Acosta, 76 M.J. 611, 617-19 (ACCA 2017).
12
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
Accordingly, we do not find it reasonably probable that a motion to compel
Ms. Golf’s privileged communications through Mil. R. Evid. 513(d)(2) would
have proven successful. Rather, we conclude the military judge would have
interpreted this exception under these circumstances, as we do, to extend no
farther than the Mil. R. Evid. 513(d)(2) exception—i.e., that it pierced the
privilege only as to the abuse allegations reported by Ms. Delta to the Hot-
line, to which the Defense already had access. We conclude for any further
information the military judge would have determined that the Defense was
in fact pursuing evidence of an absence of abuse, which our sister court in
Acosta found, and we agree, is beyond the purview of the exception.
2. A reasonable probability does not exist that a motion to compel
Ms. Golf’s privileged communications under a constitutionally-based exception
would have been successful
While Mil. R. Evid. 513(d) no longer contains an enumerated constitu-
tional exception, it is axiomatic that an evidentiary rule of privilege may not
infringe on the “basic constitutional rights of due process and confronta-
tion.” 52 We stated in J.M. v. Payton-O’Brien that “when determining whether
in camera review or disclosure of privileged materials is required under Mil.
R. Evid. 513, the military judge should determine whether infringement of
the privilege is required to guarantee a meaningful opportunity to present a
complete defense.” 53 Appellant argues that trial defense counsel’s ability to
meaningfully cross-examine the Government’s key witness, Ms. Golf, was
unconstitutionally hampered by lack of access to her privileged communica-
tions with her psychotherapist. He suggests that those communications
would have contained inconsistent statements by Ms. Golf, and thus afforded
Appellant a more complete cross-examination. 54 However, Appellant was not
deprived of his right to cross-examine Ms. Golf; rather, what is at issue here
is his ability to discover information that may or may not have proven useful
in that cross-examination. The Sixth Amendment’s guarantees do not trans-
form the desire to discover information into a constitutional right. 55
52 J.M. v. Payton-O’Brien, 76 M.J. 782, 788 (N-M. Ct. Crim. App. 2017).
53 Id. (emphasis in original).
54 App. Br. at 27-28.
55Ritchie v. Pennsylvania, 480 U.S. 39, 52 (1987) (plurality op.) (Justices Stevens
and Scalia refused to consider the merits of the case, leaving seven justices to review.
Four of those seven Justices joined in Part III-A of the opinion holding that the
Confrontation Clause is not a rule of pretrial discovery.).
13
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
In Ritchie v. Pennsylvania, the Supreme Court addressed whether disclo-
sure of privileged records from Pennsylvania’s Children and Youth Services—
a protective service agency “charged with investigating cases of suspected
mistreatment and neglect”—was required where a defendant asserted a need
for the records to impeach a witness. 56 The Pennsylvania Supreme Court,
interpreting Davis v. Alaska 57—a case relied upon by Appellant here—
answered this question in the affirmative. The United States Supreme Court
disagreed, finding that “if we were to accept this broad interpretation of
Davis, the effect would be to transform the Confrontation Clause into a
constitutionally compelled rule of pretrial discovery. Nothing in the case law
supports such a view.” 58 The Supreme Court added that the right to question
adverse witnesses “does not include the power to require the pretrial disclo-
sure of any and all information that might be useful in contradicting unfa-
vorable testimony.” 59 Contrasting Davis, the Supreme Court provided that
the constitutional error was not that the defendant was deprived of potential-
ly favorable discovery, but rather that the he was “denied the right to expose
to the jury the facts from which jurors . . . could appropriately draw infer-
ences relating to the reliability of the witness.” 60
While this Court has contemplated a constitutional right can nevertheless
be at play with respect to the pretrial discovery of privileged mental health
records, 61 we cannot find that Appellant’s trial defense counsel would have
been successful had he taken the constitutional approach Appellant now
56 Id. at 43, 52.
57 415 U.S. 308 (1974) (finding that preventing cross-examination of a state wit-
ness with evidence of juvenile convictions violated the Confrontation Clause).
58 Ritchie, 480 U.S. at 52.
59 Id.60 Id. at 54 (citing Davis, 415 U.S. at 318). The Ritchie Court ultimately remand-
ed the case for an in camera review of the records in dispute to determine whether
they contained information that “probably would have changed the outcome of the
trial.” We need not take similar action here, as Appellant has failed to meet the
requirements of Mil. R. Evid. 513(e)(3), discussed infra.
61 Payton-O’Brien, 76 M.J. at 788 (relying on Holmes v. South Carolina, 547 U.S.
319 (2006) for the notion that a constitutional right is implicated by a refusal to
compel discovery of privileged mental health records). Of course, were the Govern-
ment in possession of the privileged communications, and they contained favorable or
exculpatory evidence for the Defense, certain constitutional rights would come into
play. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963).
14
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
suggests to disclosure of Ms. Golf’s privileged communications. Appellant
asserts that had his counsel pursued such an approach, the military judge
would have at least ordered production of those communications for in
camera review. 62 However, Mil. R. Evid. 513(e)(3) makes in camera review a
matter of discretion for the military judge. 63 The Rule also provides a four-
pronged test that the party moving for disclosure of the privileged communi-
cations must satisfy before in camera review is justified:
(A) a specific factual basis demonstrating a reasonable like-
lihood that the records or communications would yield evidence
admissible under an exception to the privilege;
(B) that the requested information meets one of the enu-
merated exceptions under [Mil. R. Evid. 513(d)];
(C) that the information sought is not merely cumulative of
other information available; and
(D) that the [moving] party made reasonable efforts to ob-
tain the same or substantially similar information through
non-privileged sources. 64
Even setting aside (B), Appellant fails to carry his burden to satisfy all of
these elements. With regard to (A), as discussed above, Appellant has not
articulated a reasonable likelihood that the records of which he was deprived
would yield any additional evidence, much less admissible evidence. 65 The
perceived inconsistency regarding “attempted penetration” is not enough to
demonstrate a reasonable likelihood that the communications sought would
yield additional admissible evidence. Without more, a preponderance of the
evidence does not support that trial defense counsel could have provided the
type of specific factual basis necessary to justify in camera review.
62 App. Br. at 25.
63 The Rule states that the military judge may order in camera review of disputed
privileged records, assuming the requisite elements of Mil. R. Evid. 513(e)(3) are met.
64 Mil. R. Evid. 513(e)(3).
65 We recognize the inherent difficulty faced by defense counsel to articulate a
specific factual basis requiring disclosure of information that counsel has no access
to, but in this case, counsel had access to the Hotline summary and the Hotline
report audio, from which he could have articulated a specific factual basis for addi-
tional disclosures. The failure to do so suggests there would have been little merit in
pursuing additional disclosures.
15
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
As for (C), Appellant has not carried his burden to demonstrate that the
information sought would not have been merely cumulative of other infor-
mation available. Based on the information in the record, we cannot conclude
that access to Ms. Golf’s privilege communications was likely to reveal any
additional, substantive evidence beyond that to which Appellant already had
access. Thus, we find it unlikely that Appellant would have convinced the
military judge that even in camera review was required under Mil. R. Evid.
513(e)(3).
3. Assuming Appellant had established ineffective assistance, he suffered
no prejudice
Even assuming that his trial defense counsel’s performance was deficient,
the evidence before us does not support that but for counsel’s deficiency, the
result of the trial would have been different. Based on information turned
over by the Government, the defense counsel were able to identify a possible
inconsistency in Ms. Golf’s recollection of events. They diligently worked to
pursue further records through the most reasonable avenue, and their efforts
were partially successful in that they resulted in Appellant’s receipt of the
audio recording of the psychotherapist’s telephonic disclosure to authorities.
Armed with this information, the trial defense counsel chose not to use it in
the cross-examination of Ms. Golf. 66 This suggests that the audio recording
did not reveal any additional inconsistencies with which to question Ms. Golf,
or to pursue additional communications between her and her psychothera-
pist. We find it entirely reasonable for the trial defense counsel, in possession
of a statement by Ms. Golf regarding “attempted penetration,” to make the
strategic decision not to introduce such evidence notwithstanding its poten-
tial impeachment value. Given that the evidence sought by Appellant was
speculative in nature and that in camera review (let alone disclosure) was
unlikely even if they chose to pursue it as constitutionally required, we find
no reasonable probability that a Defense motion in this regard would have
changed the outcome at trial. Thus, we cannot find Appellant suffered preju-
dice as a result of any deficiency on the part of his counsel.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
66 R. at 406-53.
16
United States v. Beauge, NMCCA No. 201900197
Opinion of the Court
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 67 The findings and sentence are AFFIRMED.
Senior Judge GASTON and Judge HOUTZ concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
67 UCMJ arts. 59, 66.
17