United States v. JACINTO

This opinion is subject to administrative correction before final disposition.

Before
KISOR, DALY, and MIZER
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Salvador JACINTO
Aviation Structural Mechanic First Class (E-6), U.S. Navy
Appellant

No. 201800325

Decided: 18 January 2024

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges:
Roger E. Mattioli (trial)
Ryan J. Sears (DuBay hearing)

Sentence adjudged 25 June 2018 by a general court-martial convened
at the Washington Navy Yard, Washington, D.C., consisting of officer
and enlisted members. Sentence approved by the convening authority:
confinement for eight years and a bad-conduct discharge.

For Appellant:
Major Jasper W. Casey, USMC

For Appellee:
Lieutenant Michael A. Tuosto, JAGC, USN
Lieutenant Colonel James A. Burkart, USMC

For Intervenor E.B.:
Mr. Peter Coote, Esq.

19 January 2024: Administrative Correction to footnotes 5 and 6
 United States v. Jacinto, NMCCA No. 201800325
Opinion of the Court

Senior Judge KISOR delivered the opinion of the Court, in which Judge
DALY and Judge MIZER joined.

This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.

_________________________

KISOR, Senior Judge:
This case is again before us, with a lengthy and complicated appellate pro-
cedural history. A general court-martial convicted Appellant, contrary to his
pleas, of rape of a child, sexual abuse of a child, and child endangerment by
culpable negligence, in violation of Articles 120b and 134, Uniform Code of Mil-
itary Justice [UCMJ]. 1
This Court initially affirmed the findings and sentence in toto. 2 However,
the Court of Appeals for the Armed Forces [CAAF] affirmed this Court’s deci-
sion only as to Specification 1 of Charge I (sexual assault of J.B.) and Specifi-
cation 2 of Charge II (child endangerment of A.A.). The CAAF set aside our
decision affirming the guilty findings as to Specifications 2, 3, 4, and 5 of
Charge I (sexual assaults of E.B.) and Specification 1 of Charge II (child en-
dangerment of E.B.), and also set aside the part of our decision affirming the
sentence. 3 The CAAF remanded the case for further factual development on
three inter-related issues regarding whether the military judge abused his dis-
cretion in (1) denying a Defense-requested continuance; (2) denying a Defense
motion for an in camera review of the victim’s mental health records; and (3)
whether either denial resulted in prejudice. The CAAF left it up to this Court
to either obtain certain missing record evidence and gather other evidence un-
der our own authority, or to further remand for DuBay proceedings. 4
In turn, this Court ordered a DuBay hearing, which was conducted on 16
and 17 March 2022. 5 The DuBay military judge made findings of fact on 1

1 10 U.S.C. §§ 920b, 934 (2016).

2 United States v. Jacinto, 79 M.J. 870 (N-M. Ct. Crim. App. 2020) (Jacinto I).

3 United States v. Jacinto, 81 M.J. 350 (C.A.A.F. 2021) (Jacinto II).

4 Jacinto II, 81 M.J. at 355; see United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.

411 (1967).
5 App. Ex. CXXX (Order to Remand for a Fact-Finding Hearing of 10 December

2021).

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 United States v. Jacinto, NMCCA No. 201800325
Opinion of the Court

June 2022, and the parties and Intervenor (the victim E.B.) 6 filed another
round of briefing before this Court, which we now address.
Appellant re-raises two issues, and raises one new issue, which we re-order
as follows:

A. DID THE DUBAY MILITARY JUDGE ERR BY FAILING TO
ANSWER THE QUESTIONS POSED BY THIS COURT’S RE-
MAND ORDER?

B. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY
DENYING APPELLANT’S FIRST CONTINUANCE REQUEST
AFTER THE GOVERNMENT DISCLOSED ONLY DAYS BE-
FORE TRIAL THAT THE COMPLAINING WITNESS LIKELY
SUFFERED FROM A PSYCHOTIC CONDITION?

C. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY
DENYING THE DEFENSE MOTION FOR IN CAMERA RE-
VIEW OF THE COMPLAINING WITNESS’S PRESCRIPTION
AND DIAGNOSIS RECORDS?
We conclude that the DuBay military judge appropriately made findings of
fact within the general contours of this Court’s Order. We further conclude that
the trial military judge abused his discretion both in denying the continuance
and in declining to review E.B.’s mental health records in camera. However,
we also conclude that these errors did not materially prejudice Appellant be-
cause the full records from Calvert Memorial Hospital did not (and do not) con-
tain information that was (or is) constitutionally required to be produced to the
Defense. Accordingly, a continuance and in camera review of the full records
would not have resulted in any of these records being provided to the Defense
prior to trial. Therefore, we affirm the findings as to Specifications 2, 3, 4, and
5, of Charge I and Specification 1 of Charge II. We also re-affirm the sentence.

II. BACKGROUND

The general background as to this case is well established in prior opinions
of this Court and the CAAF and need not be repeated here. 7

6 On 13 December 2022, Intervenor filed a writ-appeal petition with the CAAF, and

the CAAF stayed proceedings in this Court from 22 December 2022 to 26 January 2023
when the CAAF vacated its stay.
7 See generally Jacinto I, 79 M.J. at 870; Jacinto II, 81 M.J. at 350.

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 United States v. Jacinto, NMCCA No. 201800325
Opinion of the Court

Relevant to our current analysis is that in May 2017, E.B., a child then
under 16 years of age, disclosed to her school counselor that Appellant had
sexually assaulted her. The school counselor, a mandatory reporter under state
law, contacted civilian police, who then contacted the Naval Criminal Investi-
gative Service [NCIS]. Soon after making her allegation, E.B. was admitted to
Calvert Memorial Hospital for several days.
In pretrial litigation, Appellant attempted to obtain medical records docu-
menting E.B.’s week of inpatient treatment at Calvert Memorial Hospital. The
military judge ordered the hospital to produce records of E.B.’s mental health
diagnoses and related prescriptions. He found the remainder of the records re-
quested by Appellant were privileged and that Appellant had not made a show-
ing of vital necessity to require their production.
The week before trial began, Calvert Memorial Hospital complied with the
military judge’s order and produced records containing E.B.’s mental health
diagnoses and related prescriptions. The records revealed that while at the
hospital, E.B. was prescribed several medications, including Thorazine, which
is a medication that can be prescribed for psychotic agitation. 8 The records also
indicated that E.B. was diagnosed with “depression without psychotic fea-
tures” 9 and that Thorazine was prescribed “as needed.” 10 At a pretrial Article
39(a) session to litigate a continuance motion and a motion for the military
judge to conduct an in camera review of the hospital records, Appellant pre-
sented the testimony of a child psychologist who stated that Thorazine was a
“known antipsychotic medication” used to assist patients who may be “stimu-
lated internally by things that are not actually going on” or who could be “la-
boring under the burden of delusions.” 11
Critically, the military judge denied Appellant’s motion for in camera re-
view of E.B.’s mental health records and denied his motion for a continuance
based on the timeline of the disclosure of the records. (The day before trial, the
military judge denied Appellant’s subsequent motion to reconsider his denial
of the continuance). Lack of clarity in the record of trial with regard to what
parts of E.B.’s mental health record the military judge considered in denying
the Defense’s requests, led the CAAF to conclude that “[b]ecause the record

8 App. Ex. LXXIV, “Ruling Mil. R. Evid. 513 (Sealed)” at 2.

9 App. Ex. CXXVI, “Government Bench Brief ICO Mil. R. Evid. 513 (Sealed)” at 10-

12; R. at 329 (emphasis added).
10 App. Ex. LXXIV at 2 (emphasis added); Jacinto II, 81 M.J. at 353-54.

11 R. at 322, 325.

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Opinion of the Court

before us is unclear and incomplete, we cannot make an informed decision
about whether the military judge’s crucial findings are clearly erroneous.” 12
The CAAF remanded the case to this Court for fact-finding and analysis of:
(1) the military judge’s denial of a continuance; (2) his denial to conduct in
camera review of the records; and (3) prejudice resulting from either denial. 13
This Court then ordered a DuBay hearing, directing a military judge to
make detailed findings of fact on the following questions, which are contained
in paragraph five of the Court’s Order: 14
A. What documents were produced from the hospital in re-
sponse to the military judge’s June 8, 2018, Order?
B. Of the hospital records produced in response to the mili-
tary judge’s June 8, 2018, Order, which of those documents were
reviewed by the Defense expert in forensic psychology for his tes-
timony at an Article 39(a), UCMJ, session on June 14, 2018?
C. Which hospital records were supposed to be contained in
Appellate Exhibit LXXI? 15
D. Which hospital records are the missing pages from the 17
pages produced by the hospital? 16
E. Which documents were produced by the hospital in re-
sponse to the military judge’s June 14, 2018, Order?
F. Which documents should have been produced in response
to the military judge’s June 14, 2018, Order?
Additionally, we ordered that,

12 Jacinto II, 81 M.J. at 354.

13 Id. at 355.

14 App. Ex. CXXX.

15 App. Ex. LXXI is an Order from the trial military judge to Calvert Memorial

Hospital to produce (to the trial counsel) certain parts of E.B.’s mental health record
containing the identity of treating psychotherapists, mental health diagnoses, and
medications prescribed.
16 The DuBay military judge found that the missing pages are now contained in

pages 1-13 of App. Ex. CLIIX (contained in the DuBay portion of the record).

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Opinion of the Court

(1) the military judge shall conduct an in camera review of any
records produced—or that should have been produced—by the
hospital, issue appropriate protective orders, and place portions
of the record under seal as required; and

(2) the military judge shall make additional findings of fact that
are relevant to the two issues granted by CAAF: whether the
military judge abused his discretion by denying Appellant’s con-
tinuance request; and whether the military judge abused his dis-
cretion by denying the Defense motion to conduct an in camera
review of E.B.’s mental health records.
(3) That the military judge may consider whatever testimony or
evidence that is necessary to resolve the questions contained in
our Order. 17
The DuBay military judge identified the missing records and ordered that
E.B.’s entire 212-page record from Calvert Memorial Hospital be produced for
an in camera review. 18 The DuBay military judge made detailed findings of
fact, contained in Appellate Exhibit CLXXXIX. 19

III. DISCUSSION

A. The DuBay military judge complied with the remand Order.
We review a DuBay military judge’s findings of fact under a clearly errone-
ous standard and conclusions of law de novo. 20
As an initial matter we have no trouble concluding that the DuBay military
judge answered the questions posed by this Court’s Order, with one exception
discussed below regarding which documents should have been produced in re-
sponse to the military judge’s 14 June 2018 Order. 21
The DuBay military judge held a two-day hearing in which he took testi-
mony and examined documents. He made detailed findings of fact responding

17 App. Ex. CXXX at 4.

18 App. Ex. CLXXXIX at 6.

19 In the below discussion, references to Section II of the DuBay Findings of Fact

track the lettering system of paragraph 5 of this Court’s 10 December 2021 order (App.
Ex. CXXX), restated above.
20 United States v. Cooper, 80 M.J. 664, 672 (N-M. Ct. Crim. App. 2020).

21 App. Ex. CLXXXIX at § II, pages 1-7; App. Ex. CXXX, at paragraph 5(F) (Order

to Remand for a Fact-Finding Hearing of 10 December 2021).

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Opinion of the Court

to this Court’s questions in the DuBay Order 22 (these findings were also re-
quired by the CAAF). 23 We hold that the findings of fact listed in sections II(A),
II(B), II(C), II(D), II(E), and II(F)(1-4) of Appellate Exhibit CLXXXIX, answer
this Court’s questions as to which documents were produced, when, and to
whom, and do not amount to clearly erroneous error. 24
Appellant argues that the DuBay military judge abused his discretion when
he refused to answer this Court’s question (Question in Paragraph 5(F) of this
Court’s Order, Appellate Exhibit CXXX) as to which documents “should have
been produced” in response to the military judge’s 14 June 2018 Order. 25 In his
findings of fact, the DuBay military judge found that answering that question
would pierce E.B.’s psychotherapist-patient privilege under Mil. R. Evid. 513.
Additionally, having reviewed the full Calvert Memorial Hospital records in
camera, the DuBay military judge found that certain portions of the records
were constitutionally required to be produced. 26 As a result of this conflict, the
DuBay military judge found that the question of what documents “should have
been produced” was “unresolved.” 27
We now observe that Question F in paragraph 5 of our Order may have
been inartfully drafted, as it arguably calls for a conclusion of law–what doc-
uments “should have” been “produced.” The military judge’s 14 June 2018 Or-
der did not explicitly order production of records, and clearly exempted privi-
leged material. 28 The DuBay military judge reviewed the entirety of the rec-
ords in camera, made findings of fact, as instructed, addressing the question
adequately; however, based on E.B.’s assertion of privilege, he declined to make
any conclusion of law as to what should have been produced. Regardless, we

22 App. Ex. CXXX; App. Ex. CLXXXIX.

23 Jacinto II, 81 M.J. at 355.

24 App. Ex. CLXXXIX. The letters A-F in section II of the DuBay military judge’s

Findings of Fact correspond with letters A-F in this Court’s Order (App. Ex. CXXX,
supra). II(G) and II(H) correspond with two legal issues that the CAAF directed this
Court reexamine: (1) whether the military judge abused his discretion by denying Ap-
pellant’s continuance request; and (2) whether the military judge abused his discretion
by denying the Defense motion to conduct an in camera review of E.B.’s mental health
records.
25 Appellant’s Br. at 42.

26 App. Ex. CLXXXIX at section II, paragraph (F)(3) and F(4).

27 App. Ex. CLXXXIX at section II, paragraph (F)(5); see Appellant’s Br. at 42.

28 R. at 367.

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Opinion of the Court

would review any legal conclusion de novo. We find that the DuBay military
judge adequately carried out the instructions in our Order.

B. The military judge abused his discretion in denying the continu-
ance, but there was no prejudice to Appellant.

1. Standard of review for denying a continuance
We review a military judge’s decision to deny a continuance for an abuse of
discretion. 29 An abuse of discretion occurs “where reasons or rulings of the mil-
itary judge are clearly untenable and . . . deprive a party of a substantial right
such as to amount to a denial of justice.” 30 Included in the factors we consider
are:
[S]urprise, nature of the evidence involved, timeliness of the re-
quest, substitute testimony or evidence, availability of witness
or evidence requested, length of continuance, prejudice to oppo-
nent, moving party received prior continuances, good faith of
moving party, use of reasonable diligence by moving party, pos-
sible impact on verdict, and prior notice. 31

2. The military judge abused his discretion in denying a continuance, but
there was no prejudice to Appellant.
The DuBay military judge made detailed findings of fact regarding whether
the military judge abused his discretion in denying the continuance request. 32
The DuBay military judge’s findings listed in Section II(G)(1-4) and (6-10) are
not clearly erroneous. 33
We hold that the trial military judge abused his discretion in denying the
motion for a continuance. 34 As the DuBay military judge found, trial defense
counsel was surprised by the untimely appearance of potentially exculpatory
evidence six days before trial. This and the other facts found by the DuBay

29 United States v. Weisbeck, 50 M.J. 461, 464 (C.A.A.F. 1999).

30 Id. (alteration in original) (internal quotation marks omitted) (quoting United

States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997)).
31 Id. (quoting F. Gilligan and F. Lederer, Court-Martial Procedure § 18-32.00 at

704 (1991)).
32 Sections (II)(G)(1-4 and 6-10) of Appellate Exhibit CLXXXIX

33 The finding in Section II(G)(5) is a correct recitation of a legal standard, rather

than a finding of fact.)
34 See Miller, 47 M.J. at 359.

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Opinion of the Court

military judge in Appellate Exhibit CLXXXIX unquestionably militate toward
the conclusion that the military judge abused his discretion in denying a rea-
sonable continuance, which would have to allowed the Defense to litigate to
resolve whether the late disclosure of the medical information was complete
and/or accurate, and to determine whether it was privileged.
However, the DuBay military judge’s findings articulated in Section
II(G)(11) and (12) of Appellate Exhibit CLXXXIX relate to prejudice, which are
conclusions of law, and warrant some discussion. Those findings are:
(11) Whether the Appellant suffered prejudice requires review of
both the medical records previously disclosed by the original
Trial Court and the most recent document(s) identified by the
DuBay Court as meeting the constitutional exception to M.R.E.
513.
(12) E.B., however, has exercised her privilege regarding the
most recent record 35 and permits only a partial review of this
question leaving the answer inconclusive.

We agree with the statement made by the DuBay military judge that an
analysis of prejudice requires review of the complete 212-page record from Cal-
vert Memorial Hospital that is contained in Appellate Exhibit CLXXXVII. We
have reviewed this entire unredacted document in camera and find that there
is no information contained therein that would fall into the constitutionally
required exception to Mil. R. Evid. 513 as explained by this Court in Payton-
O’Brien. 36 From a review of the entire record it is clear that E.B. was never
administered Thorazine. Nor do the hospital records indicate that she had any
problem with perception or memory. And there is no indication in the Calvert
Memorial Hospital records that she was fabricating any allegations.

Thus, we find that the DuBay military judge erred in finding that certain
portions of the Calvert Memorial Hospital records were constitutionally re-
quired. Accordingly, we find that Appellant suffered no prejudice at trial as a
result of the trial military judge’s erroneous denial of the continuance, because,

35 The “most recent record” refers to the entire 212-page Calvert Hospital record.

36 J.M. v. Payton-O’Brien, 76 M.J. 782, 788 (N-M. Ct. Crim. App. 2017).

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Opinion of the Court

upon complete review of the Calvert Memorial Hospital records, there was
nothing further that would have been required to be produced to the Defense.

C. The military judge erred in denying Appellant’s motion for an in
camera review of E.B.’s diagnosis and prescription records, but there
was no prejudice to Appellant.

1. Military Rule of Evidence 513(e)(3) allows for an in camera review.
A party desiring to pierce the confidentiality of mental health treatment
records must move a military judge to order production or, in the alternative,
move the military judge to conduct an in camera review of the requested rec-
ords. Before a military judge may even conduct an in camera review, the mov-
ing party must demonstrate by a preponderance of the evidence, all of the fol-
lowing under Mil. R. Evid. 513(e)(3):
(1) a “specific factual basis” demonstrating a “reasonable likelihood”
the records would yield evidence admissible under an exception
to the privilege;
(2) the requested information meets one of the several exceptions
under Mil. R. Evid. 513(d);
(3) the information sought is not merely cumulative; and
(4) the requesting party made “reasonable efforts” to obtain similar
information through non-privileged sources.
Relevant here, because “evidentiary rules must cede to the constitutional
needs of an accused,” a military judge may still determine that for purposes
of conducting an in camera review, production of mental health records is war-
ranted despite the lack of an enumerated exception under Mil R. Evid. 513(d),
when such action is constitutionally required. 37 In making this assessment, the
military judge must determine whether “infringement of the privilege is re-
quired to guarantee a meaningful opportunity to present a complete defense.” 38

37 J.M. v. Payton-O’Brien, 76 M.J. 782, 788 (N-M. Ct. Crim. App. 2017) (citing
United States v. Gaddis, 70 M.J. 248, 253 (C.A.A.F. 2011)).
38 Id. at 789 (emphasis in original).

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Opinion of the Court

2. The military judge erred in denying Appellant’s motion for an in camera
review of the diagnoses and prescription documents, but there was no prejudice.

a. The military judge abused his discretion in denying the Defense mo-
tion to review the Calvert Memorial Hospital records in camera.
Having found that the military judge abused his discretion in denying a
continuance, it follows that the military judge, at that point, should have held
a hearing pursuant to Mil. R. Evid. 513, and reviewed, in camera, the complete
record of E.B.’s diagnoses and prescriptions. The DuBay military judge found
that certain “inconsistencies and discrepancies [in the conflicting then-discov-
ered medical records and diagnoses] could have been resolved by a further in
camera review of the full Calvert Hospital record for E.B. by the Trial Court.” 39
This finding of fact by the DuBay military judge is not clearly erroneous, and,
moreover, we agree. The military judge should have, after holding the proper
closed hearing under Mil. R. Evid. 513(e)(2), examined the entire record in cam-
era as authorized by Payton-O’Brien. Accordingly, we hold that the military
judge abused his discretion by denying the Defense motion to conduct an in
camera review of E.B.’s mental health records. We note that this could have
saved several years of appellate litigation.

b. There was no prejudice to Appellant from this denial because the rec-
ords do not contain constitutionally required information.
After reviewing the 212-page Calvert Memorial Hospital record in camera,
the DuBay military judge also made a finding that certain pages of that record
were subject to the constitutional exception of Mil. R. Evid 513, and further
noted that E.B., through her victim’s legal counsel, asserted a privilege and
declined to permit release of those pages. 40
However, the question of whether a mental health record is subject to the
constitutional exception of Mil. R. Evid. 513 as explained in Payton-O’Brien is
a legal conclusion that we review de novo. In Payton-O’Brien we stated that
the Mil. R. Evid. 513 privilege does not prevail over the Constitution. Specifi-
cally, the privilege may be absolute outside the enumerated exceptions, but it

39 App. Ex. CLXXXIX at 10, section (II)(H)(9).

40 Id. at 6-7, section (II)(F)(3) and (4).

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must not infringe upon the basic constitutional requirements of due process
and confrontation. 41
In light of our own full in camera review of the 212-page Calvert Memorial
Hospital record we find that the DuBay military judge erred when he made a
conclusion of law that certain pages of that document were constitutionally
required. But, because we find the Calvert Memorial Hospital record does not
contain any information that is (or was) constitutionally required to be dis-
closed to the Defense, there was, ultimately, no prejudice to Appellant from the
trial military judge’s declining to review the records in camera.

41 Payton-O’Brien, 76 M.J. at 787; see also United States v. Beauge, 82 M.J. 157,

167 n. 10 (C.A.A.F. 2022). As the CAAF observed in Beauge the removal of the consti-
tutional exception from the list of enumerated exceptions in Mil. R. Evid. 513(d) has
created disagreement among the Courts of Criminal Appeals. The CAAF did not re-
solve that issue in Beauge as it was not needed to decide that case, but it did state,
[t]he right to cross-examine a witness for impeachment purposes has
constitutional underpinnings because of the right to confront witnesses
under the Sixth Amendment and the due process right to present a
complete defense. And, in certain instances, the psychotherapist-pa-
tient privilege seemingly trumps an accused’s right to fully confront
the accuracy and veracity of a witness who is accusing him or her of a
criminal offense.
Id. at 167.

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Opinion of the Court

IV. CONCLUSION

The Court of Appeals for the Armed Forces has already affirmed the find-
ings as to Specification 1 of Charge I and Specification 2 of Charge II.
After careful consideration of the DuBay record and the post-DuBay briefs
of appellate counsel and Intervenor, the findings as to Specifications 2, 3, 4,
and 5 of Charge I (sexual assaults of E.B.) and Specification 1 of Charge II
(child endangerment of E.B.), and the sentence are again AFFIRMED. 42
Judge DALY and Judge MIZER concur.

FOR THE COURT:

MARK K. JAMISON
Clerk of Court

42 Jacinto II, 81 M.J. at 355.

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