Filed: Jul. 15, 2021
Latest Update: Jul. 16, 2021
This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Salvador JACINTO,
Aviation Structural Mechanic First Class Petty Officer
United States Navy, Appellant
No. 20-0359
Crim. App. No. 201800325
Argued May 26, 2021—Decided July 15, 2021
Military Judge: Roger E. Mattioli
For Appellant: Lieutenant Michael W. Wester, JAGC, USN
(argued).
For Appellee: Major Clayton L. Wiggins, USMC (argued);
Lieutenant Colonel Nicholas L. Gannon, USMC, Major
Kerry E. Friedewald, USMC, and Brian K. Keller, Esq. (on
brief).
Amicus Curiae for Appellee: Peter Coote, Esq. (on brief) (on
behalf of Protect Our Defenders).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY and Judge SPARKS, Judge
MAGGS, and Judge HARDY, joined.
_______________
Judge OHLSON delivered the opinion of the Court.
A panel with enlisted representation sitting as a general
court-martial convicted Appellant, contrary to his pleas, of
two specifications of rape of a child, three specifications of sex-
ual abuse of a child, and two specifications of child endanger-
ment by culpable negligence, in violation of Articles 120b and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920b, 934 (2012). The panel sentenced Appellant to a bad-
conduct discharge and confinement for eight years. The con-
vening authority approved the sentence but granted Appel-
lant three days of confinement credit. The United States
Navy-Marine Corps Court of Criminal Appeals affirmed the
findings and sentence. United States v. Jacinto, 79 M.J. 870,
891 (N-M. Ct. Crim. App. 2020).
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
We granted review to determine whether the military
judge abused his discretion in denying the defense motions
for a continuance and for in camera review of mental health
records.1 Because further development of the record is neces-
sary to resolve the granted issues, we set aside the lower
court’s decision in part and remand for proceedings consistent
with this opinion.
I. Background
Appellant was convicted in relevant part of raping and
sexually abusing his minor stepdaughter, E.B. The
allegations of abuse first came to light in a video call between
E.B. and her mother in March 2013. E.B. told her mother
during a tearful call that Appellant “had humped her from
behind” in her mother’s bedroom, but E.B. did not further
elaborate. A few days later, E.B.’s mother again asked her to
describe what happened. E.B. told her mother that while she
was lying on her mother’s bed, Appellant “came up behind her
and humped her.” However, E.B. recanted her allegations
shortly thereafter.
In May 2017, E.B. renewed her abuse allegations to her
mother and a school counselor. She also made additional al-
legations, telling the counselor that Appellant “reached into
her pants and touched her vagina” and that Appellant’s “fin-
gers went inside her vagina on another occasion.” Soon after
1 The two granted issues state:
I. A military judge may grant a continuance for rea-
sonable cause as often as may appear just. Did the
military judge abuse his discretion by denying Ap-
pellant’s first continuance request after the Govern-
ment disclosed only days before trial the complain-
ing witness likely suffered from a psychotic
condition?
II. The Fifth and Sixth Amendments guarantee an
accused the right to a meaningful opportunity to pre-
sent a complete defense. Did the military judge
abuse his discretion by denying the defense motion
for in camera review of the complaining witness’s
mental health records?
United States v. Jacinto, 81 M.J. 57 (C.A.A.F. 2021) (order granting
review).
2
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
making the May 2017 abuse allegations, E.B. was hospital-
ized for in-patient mental health treatment.
Throughout the pretrial proceedings, the defense sought
E.B.’s May 2017 mental health records from the hospital. On
June 8, 2018, the military judge ordered the hospital to pro-
duce E.B.’s prescription records and mental health diagnoses.
The hospital then disclosed at least seventeen pages of rec-
ords the week before the start of the June 18, 2018, trial.2
These records indicated that E.B. was prescribed five medica-
tions, including Thorazine for “psychotic agitation.” However,
the hospital records also indicated that E.B. was diagnosed
with major depressive disorder without psychotic features, as
well as post-traumatic stress disorder (PTSD). The defense
first learned about this information on the evening of
Wednesday, June 13, 2018, less than five full days before the
start of trial on the morning of Monday, June 18, 2018.
The next morning, a defense forensic psychologist pro-
vided testimony about the hospital records at an Article 39(a),
UCMJ,3 session. The military judge stated that these records
were marked as Appellate Exhibit LXXI. However, no hospi-
tal records are included in this appellate exhibit.4 Instead,
some, but not all, of the documents reviewed by the defense
expert are included in other portions of the record. Specifi-
cally, five pages of E.B.’s medical records that were reviewed
2 The hospital sent more medical records, but this response was
eventually narrowed to seventeen pages of which only twelve are
included in the record of trial. The trial counsel reviewed at least
three pages before securing the records and providing them to the
military judge. It is not clear from the record before us how many
other pages were provided by the hospital because after the military
judge received these medical records from trial counsel, the military
judge did not maintain them for the record of trial. He instead re-
turned the records to the victim’s legal counsel “to do with as she
and her client [saw] fit.”
3 10 U.S.C. § 839(a) (2012).
4 Appellate Exhibit LXXI is two pages and contains the military
judge’s June 8, 2018, order directing the hospital to produce certain
mental health information about E.B.
3
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
by the defense expert are completely missing from the record
of trial.5
Based on her review of the hospital records, the defense
forensic psychologist testified that:
E.B. had been prescribed “a cocktail” of medications,
including Thorazine, which was to be taken “by mouth
every six hours” with the rationale listed “as psychotic
agitation.”
Psychotic agitation is a “thought disorder” that affects
a person’s ability “to perceive [her] environment accu-
rately” by causing the person “not [to] respond[] to the
environment as it exists, but as [she is] perceiving it.”
Thorazine is “a very serious antipsychotic neuroleptic
medication; it’s an older, dirtier drug . . . with so many
side effects” that is normally used “to reduce
psychosis.”
The Thorazine prescription was “probably trying to
lower agitation,” and E.B. was “very likely”
experiencing psychotic agitation several days before
the hospitalization.
E.B. was not prescribed the “lowest dosage of Thora-
zine,” and the expert was “concerned” with the dosage
prescribed, particularly because of the frequency with
which it was to be administered.
The discharge paperwork suggested that the hospital
was “recommending” a drug “cocktail,” which included
Thorazine, “with the expectation that the medication
[would] be continued” following discharge.
At various points in her testimony, however, the forensic psy-
chologist also stated that a review of additional hospital rec-
ords would “clarify” the matter and further inform her profes-
sional opinion. She indicated that “a complete record and not
pieces of a record” would answer the “question as to why there
is an incongruity between the diagnostic coding here [(major
depressive disorder without psychotic features)] and . . . the
medication specifically outlining psychotic agitation as the
reason for its use.”
5 At oral argument, appellate government counsel explained
that twelve of seventeen pages are part of the record.
4
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
Following this expert testimony, the defense sought two
forms of relief: (1) a continuance to investigate this “late-
breaking disclosure”—this “bombshell . . . on the eve of
trial”—about Thorazine and psychotic agitation; and (2) in
camera review by the military judge of the hospital records to
determine whether they contain constitutionally required in-
formation.6 The military judge denied the continuance motion
and the defense motion for reconsideration of this continu-
ance ruling.
Before ruling on the motion for in camera review, the mil-
itary judge issued two orders on June 14, 2018. First, he
agreed with the Government that it “would be helpful” to con-
tact the hospital for clarification about E.B.’s medication and
therefore ordered the Government to “see if [it] can get some-
one to decipher what the records mean, without getting into
. . . any specific mental health statements or anything that
would be covered by [the Military Rule of Evidence (M.R.E.)]
513” psychotherapist-patient privilege. Second, the military
judge ordered the hospital to produce (1) records indicating
the dates and times when E.B. was administered Thorazine
(and other medications) during her May 2017 hospitalization,
and (2) records identifying the medications and dosages pre-
scribed upon discharge from the hospital. However, this
court-ordered information is not included in the record of
trial. In fact, the record does not reflect whether the Govern-
ment ever contacted the hospital, and if so, whether the hos-
pital provided records that were responsive to the military
judge’s order.
Three days after issuing these orders, the military judge
denied the defense request for in camera review of E.B.’s men-
tal health records. In this ruling, the military judge made the
following findings of fact:
During E.B.’s May 2017 inpatient hospital admission,
medical providers “ordered various prescriptions for
E.B.,” including Thorazine.
6 Trial defense counsel explained that the question of whether
E.B. was experiencing psychotic agitation at the time of her May
2017 accusation “goes to the heart of [her] credibility, memory, and
ability to accurately perceive events.”
5
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
Thorazine, a “powerful antipsychotic medication,” was
prescribed “as needed” “to address ‘psychotic
agitation’ ” but was “never administered to E.B.” at the
hospital.
E.B. was diagnosed at the hospital “with PTSD and
Major Depressive Disorder without psychotic
features.”
“There is no evidence that E.B. ever experienced psy-
chotic agitation.”
“There is no evidence the prescription for Thorazine
was ever filled” or “E.B. ever took Thorazine.”
Relying on these findings, the military judge determined that
the defense did not make “a specific enough showing” for him
to conduct an in camera review of privileged mental health
records.7 The military judge did not identify the documentary
or other evidence that he relied upon when making these fac-
tual findings. Moreover, there is nothing in the record before
us that demonstrates how the military judge went from de-
claring “I’ve got paperwork here . . . and witness testimony
that says [E.B.] was prescribed something for psychotic agi-
tation”8 on one day, to finding that there was “no evidence
that E.B. ever experienced psychotic agitation”9 several days
later. (Emphasis added.)
II. Standard of Review and Applicable Law
We review a military judge’s decision to deny a motion for
a continuance, or to deny a motion for in camera review of
records, for an abuse of discretion. United States v. Chisum,
77 M.J. 176, 179 (C.A.A.F. 2018) (in camera review); United
States v. Brownfield,
52 M.J. 40, 44 (C.A.A.F. 1999)
(continuance). As part of this review, we examine the military
judge’s findings of fact for clear error. United States v. Ayala,
81 M.J. 25, 27–28 (C.A.A.F. 2021). The military judge clearly
7 The lower court determined that the military judge applied
the wrong legal standard in denying the motion for in camera re-
view, but the court agreed that the defense did not establish a spe-
cific factual basis for in camera review. Jacinto, 79 M.J. at 880–81.
8 Joint Appendix at 638, United States v. Jacinto, No. 20-0359
(Mar. 13, 2021).
9 Id. at 821.
6
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
errs “when there is no evidence to support the finding, or . . .
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. Garcia, 80 M.J. 379, 385 (C.A.A.F. 2020) (citation omitted)
(internal quotation marks omitted).
Under Article 40, UCMJ, a military judge “for reasonable
cause” may “grant a continuance to any party for such time,
and as often, as may appear to be just.” 10 U.S.C. § 840 (2012).
When ruling on a continuance motion, the military judge may
consider a variety of factors. See United States v. Watkins, 80
M.J. 253, 259 (C.A.A.F. 2020); Rule for Courts-Martial
(R.C.M.) 906(b)(1) Discussion. However, a military judge’s
“ ‘unreasonable and arbitrary insistence upon expeditious-
ness in the face of [a] justifiable request for delay’ is an abuse
of discretion.” United States v. Weisbeck,
50 M.J. 461, 466
(C.A.A.F. 1999) (alteration in original removed) (quoting
United States v. Soldevila–Lopez,
17 F.3d 480, 487 (1st
Cir.1994)).
Military Rule of Evidence (M.R.E.) 513 contains the mili-
tary’s psychotherapist-patient privilege. This rule provides
specific procedures when “the production or admission of rec-
ords or communications of a patient other than the accused is
a matter in dispute.” M.R.E. 513(e)(1). Among these proce-
dures, the rule allows the “military judge [to] examine the ev-
idence or a proffer thereof in camera, if such examination is
necessary to rule on the production or admissibility of pro-
tected records or communications.” M.R.E. 513(e)(3).10
When a military judge abuses his discretion denying a
continuance or denying in camera review, the reviewing court
will not grant relief unless the appellant suffers prejudice. Ar-
ticle 59(a), UCMJ, 10 U.S.C. § 859(a) (2012); see also Chisum,
77 M.J. at 179 (in camera review); United States v. Welling-
ton, 58 M.J. 420, 425 (C.A.A.F. 2003) (continuance).
10 For purposes of this opinion, we do not decide whether there
is a constitutionally required exception to the M.R.E. 513 psycho-
therapist-patient privilege. Our focus is solely on whether the de-
fense established a factual basis for its continuance and in camera
review motions.
7
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
III. Discussion
The record before us contains conflicting information
about whether E.B. was experiencing psychotic agitation
when she was hospitalized shortly after her May 2017 outcry
against Appellant. On the one hand, the record indicates that
E.B. was diagnosed with PTSD and major depressive disorder
without psychotic features. On the other hand, the medical
records indicate that E.B. was prescribed Thorazine for psy-
chotic agitation. Because of this conflicting evidence, there is
a crucial dispute between the parties about whether the med-
ical records indicate that E.B.’s physician diagnosed E.B. with
psychotic agitation and authorized attending medical person-
nel to administer Thorazine when needed, or that E.B.’s phy-
sician was merely indicating in the charts that medical per-
sonnel were authorized to administer Thorazine if needed in
the event E.B. subsequently displayed symptoms of psychotic
agitation.
The military judge essentially sided with the Government
in this dispute when denying the defense motions for a
continuance and in camera review. Specifically, he made two
key findings of fact: (1) Although the hospital prescribed
Thorazine as needed for psychotic agitation, “[t]here is no
evidence that E.B. ever experienced psychotic agitation”; and
(2) “There is no evidence [that] the prescription for Thorazine
was ever filled” or that “E.B. ever took Thorazine,” and, in
fact, Thorazine was “never administered to E.B.” To properly
assess the military judge’s continuance and in camera
rulings, we must determine whether these two factual
findings are clearly erroneous. See Ayala, 81 M.J. at 27–28.
However, we cannot evaluate the military judge’s critical
factual findings because of obvious omissions and ambiguities
in the record.11
First, this record omits five pages of hospital documents
reviewed by the defense forensic psychologist (and presuma-
bly by the military judge) when she testified at the Article
11 In light of our decision to remand for further fact-finding, we
need not resolve at this time whether the military judge’s finding
that that there is “no evidence” is clearly erroneous when the record
does indeed contain at least “some” evidence.
8
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
39(a), UCMJ, session. This missing evidence may be im-
portant to the disposition of this case because the defense fo-
rensic psychologist’s assessment of the hospital records di-
rectly contradicts the military judge’s assessment of—and
factual findings regarding—these same records. Without this
evidence, our ability to assess the military judge’s factual
findings is significantly and substantively impeded.
Second, the record omits information that the military
judge ordered the Government and the hospital to produce on
June 14, 2018. Indeed, as previously noted, there is no indi-
cation whether the Government and the hospital even com-
plied with the military judge’s orders. However, this court-
ordered information—if produced—likely would have re-
solved the questions surrounding E.B.’s diagnosis and her
Thorazine prescription for psychotic agitation.
Because the record before us is unclear and incomplete,
we cannot make an informed decision about whether the mil-
itary judge’s crucial factual findings are clearly erroneous. Ac-
cordingly, we vacate the decision of the lower court in part
and remand for further factual development of the record.
The lower court—either on its own or by way of DuBay12 pro-
ceedings—shall obtain the missing record evidence and any
other evidence (such as affidavits from medical providers) rel-
evant to whether E.B. was diagnosed with psychotic agitation
in May 2017. To be clear, only the records as they existed at
the time of the court-martial are to be produced because those
are the only records relevant for determining if the military
judge abused his discretion.13 The lower court or DuBay mil-
itary judge should specifically identify the five missing pages
reviewed by the defense forensic psychologist, any remainder
of the earlier hospital records produced in response to the
June 8, 2018, order, and any documents that were produced
or should have been produced pursuant to the military judge’s
June 14, 2018, orders. The fact-finder also may enter any
other findings of fact necessary to resolve the granted appel-
late issues. M.R.E. 513 and other privileges will apply and the
12 United States v. DuBay, 17 C.M.A. 147,
37 C.M.R. 411 (1967).
13 Because of the standard of review, any medical or psychiatric
records that were generated after the entry of judgment are not rel-
evant for appellate review of these granted issues.
9
United States v. Jacinto, No. 20-0359/NA
Opinion of the Court
appropriate authority—i.e., either the lower court or a DuBay
military judge—shall conduct an in camera review, issue ap-
propriate protective orders, and place portions of the record
under seal as required. See R.C.M. 701(g); R.C.M. 1113. Once
the record is fully developed on the psychotic agitation issue,
the lower court shall reexamine the military judge’s continu-
ance and in camera review rulings. If the lower court deter-
mines that the military judge abused his discretion in deny-
ing Appellant’s motion for a continuance or in denying
Appellant’s motion for in camera review, then the lower court
also shall determine whether the denial of either motion ma-
terially prejudiced Appellant. This inquiry may require the
lower court to make (or order a DuBay military judge to make)
further findings of fact about whether there was discoverable
and admissible information that would have helped Appel-
lant’s defense. Following these proceedings, Article 67,
UCMJ, 10 U.S.C. § 867 (2012), shall apply.
IV. Judgment
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is set aside as to Specifications 2,
3, 4, and 5 of Charge I and Specification 1 of Charge II, and is
also set aside as to the sentence. The decision of the United
States Navy-Marine Corps Court of Criminal Appeals is
affirmed as to Specification 1 of Charge I and Specification 2
of Charge II. The record is returned to the Judge Advocate
General of the Navy for remand to the lower court for further
review.
10
