United States v. Yarbrough , 2001 CAAF LEXIS 1074 ( 2001 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Bruce W. YARBROUGH, Jr., Airman First Class
U.S. Air Force, Appellant
No. 00-0671
Crim. App. No. 32964
United States Court of Appeals for the Armed Forces
Argued March 29, 2001
Decided August 31, 2001
SULLIVAN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Major Thomas L. Farmer (argued); Colonel James R. Wise,
Lieutenant Colonel Timothy W. Murphy, and Major Stephen P. Kelly (on
brief).
For Appellee: Captain Suzanne Sumner (argued); Colonel Anthony P. Dattilo,
Major Lance B. Sigmon, and Captain Christa S. Cothrel (on brief).
Military Judge: Mary M. Boone
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Yarbrough, 00-0671/AF
Judge SULLIVAN delivered the opinion of the Court.
During August of 1997, appellant was tried by a general
court-martial composed of officer members at Peterson Air Force
Base, Colorado. Pursuant to his pleas, he was found guilty of
four specifications of wrongful use of controlled substances
(marijuana, lysergic acid diethylamide, methamphetamine, and
psilocybin), in violation of Article 112a, Uniform Code of
Military Justice, 10 USC § 912a. On August 19, 1997, he was
sentenced to a bad-conduct discharge, confinement for 9 months,
and reduction to the lowest enlisted grade. The convening
authority approved the sentence on October 14, 1997. The Air
Force Court of Criminal Appeals affirmed the findings and the
sentence in an unpublished opinion. See United States v.
Yarbrough, No. 32964 (A.F.Ct.Crim.App. June 21, 2000).
On November 28, 2000, this Court granted review of the
following issue assigned by appellant:
WHETHER THE MILITARY JUDGE ERRED IN
ADMITTING APPELLANT’S SUBSTANCE ABUSE
RECORDS.
We hold that the military judge did not err under Air Force
regulations when she admitted appellant’s substance abuse records
as government evidence during the sentencing phase of his court-
martial. See United States v. Avery, 40 M.J. 325 (CMA 1994).
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United States v. Yarbrough, 00-0671/AF
The record before us shows that in early 1997, special agents
from the Air Force Office of Special Investigations (AFOSI)
identified appellant as being involved with a group of airmen who
used illegal drugs. He was called in for an interview with AFOSI
on March 4, 1997, where he admitted extensive drug use and signed
a written confession detailing it. Appellant’s commander
preferred charges against him on June 25, 1997, and on August 12,
1997, appellant referred himself to an Air Force mental health
clinic for a substance abuse evaluation. At appellant’s court-
martial, trial counsel offered appellant’s written confession and
his medical records with respect to his substance abuse
evaluation as part of the Government’s sentencing case-in-chief,
and the military judge received them without objection from the
defense. Appellant’s medical records made reference to pre-
service marijuana use, service-related drug use, underage
drinking, and various other instances of uncharged misconduct.
Prosecution Exhibit 5.
___ ___ ___
As a general introductory matter, we note that 42 USC §
290dd-2(a) (1992) provides that “[r]ecords of the identity,
diagnosis, prognosis, or treatment of any patient which are
maintained in connection with the performance of any program or
activity relating to substance abuse . . . treatment . . . shall
. . . be confidential.” Subsection (c), entitled “Use of records
in criminal proceedings,” further states that “[e]xcept as
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authorized by a court order granted under subsection (b)(2)(C) of
this section, no record referred to in subsection (a) of this
section may be used to initiate or substantiate any criminal
charges against a patient or to conduct any investigation of a
patient.” Nevertheless, subsection (e) expressly limits this
blanket of confidentiality. It states: “The prohibitions of this
section do not apply to any interchange of records—(1) within the
Uniformed Services or within those components of the Department
of Veterans Affairs furnishing health care to veterans; or (2)
between such components and the Uniformed Services.”
Air Force Instruction (AFI) 51-201, Administration of
Military Justice (25 April 1997), however, states:
8.3. Use of Confidential Drug or Alcohol
Abuse Records. Federal statutes and
regulations restrict the disclosure of
records as to the identity, diagnosis,
prognosis, or treatment of drug and
alcohol abusers under the Federal drug and
alcohol abuse prevention programs. Refer
to 42 USC § 290dd-3.
8.3.1. Although these statutes and
the federal regulations exempt from
their prohibitions the interchange of
records entirely within the Armed
Forces (42 CFR § 2.12 (1982)), the Air
Force adopted the standards as a
matter of policy, with the limited
exceptions in AFI 36-2702 [sic],
Social Actions Education [sic]
Program.
8.3.2 Disclosure of these records is
permitted at the request of, and
with written consent of, the
accused-patient:
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8.3.2.1. As evidence for the
defense before findings.
8.3.2.2. As evidence in
mitigation or extenuation in
presentencing proceedings.
8.3.2.3. After trial in
support of clemency or
clemency petitions to TJAG or
SAF.
8.3.3 Follow the procedure outlined
in 42 CFR § 2.31 in authorizing
release of the records by the
accused-patient. Avoid discussion
of the records in open court to the
extent feasible.
8.3.4. Only release necessary and
relevant portions of the records for
purposes of . . . 8.3.2. An accused
cannot selectively authorize
disclosure of the records to mislead
the court or other parties to the
trial (e.g., disclosing favorable
early records, but not later ones
indicating regression). If there is
reason to believe an accused is
selectively authorizing disclosure,
either resolve the matter among
counsel, or by an in camera review
of the records by the military
judge.
8.3.5 Drug and alcohol abuse
records may be disclosed at trial
without the consent of the accused
to rebut or impeach evidence
presented by the accused. See U.S.
v. Evans, 20 M.J. 504 (AFCMR 1985).
U.S. v. Fenyo, 6 M.J. 933 (AFCMR
1979), pet. denied, 7 M.J. 161 (CMA
1979).
(Emphasis added.)
Appellant contends that admission of a two-page excerpt from
his substance abuse records as part of the Government’s case-in-
chief on sentencing violated the above Instruction and AFI 36-
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United States v. Yarbrough, 00-0671/AF
2701, Social Actions Program (15 August 1994). In this regard,
he particularly notes paragraph 4.14 of this Air Force
Instruction, entitled “Maintaining Confidentiality of SA
[Substance Abuse] Records and Information,” which states the
following:
4.14.1.1. Only disclose the identity,
diagnosis, prognosis, or treatment of
clients for purposes authorized by law.
Do not introduce records against the
member in a court-martial. Carefully
review all SA records, including case
files, before their release to ensure that
the release doesn’t violate these
statutes.
(Emphasis added.) On these regulatory grounds, appellant claims
that the military judge committed plain error by admitting, as
part of the prosecution’s sentencing case-in-chief, portions of
his substance abuse evaluation containing admissions to various
acts of uncharged misconduct.
The Government counters, however, that these are not the only
regulatory provisions bearing on the use of substance abuse
records in courts-martial. It cites paragraph 5.12 of the above-
noted Air Force Instruction, entitled “Using Evaluation Results,”
which provides:
5.12.1. Except in cases of self-
identification, information concerning
personal SA that the client provides in
response to evaluation questions may be
used against the client in a court-martial
or on the issue of characterization in an
administrative separation proceeding. You
may introduce such evidence for other
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United States v. Yarbrough, 00-0671/AF
administrative purposes or for impeachment
or rebuttal purposes in any proceeding in
which the client introduced evidence of SA
(or lack thereof). You may also base
disciplinary or other action on
independently derived evidence of SA.
(Emphasis added.) Nevertheless, pointing to the second sentence
of this regulation, appellant argues that even in cases of non-
self-identification, this substance abuse information cannot be
used in the Government’s case-in-chief, as done in his case.
We initially note that the record in this case makes clear
that appellant did not refer himself for substance abuse
evaluation until after charges had been preferred by his
commander. (Charge Sheet and P.E. 5). He was not self-
identified as defined in paragraph 5.5 of AFI 36-2701, supra.
The Court of Criminal Appeals considered this fact crucial in
applying the above regulatory provisions. It said:
We interpret [¶ 5.12.1] as allowing the
use of substance abuse information for
impeachment or rebuttal purposes in cases
of self-identification. In all other
cases, use of an individual’s substance
abuse information in a court-martial is
not restricted by AFI 36-2701, if
otherwise admissible under the rules of
evidence.
The appellant’s case is not one of
self-identification. He sought substance
abuse counseling after he had been
apprehended for his drug involvement,
after his confession to the AFOSI, and
after his commander preferred court-
martial charges against him. Under these
circumstances, information concerning his
personal substance abuse could be used
against him in a court-martial. AFI 36-
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United States v. Yarbrough, 00-0671/AF
2701, ¶ 5.5.1.2. Furthermore, when the
appellant failed to object to the
introduction of his records at trial, he
effectively consented to their release.
Unpub. op. at 3 (first emphasis added).
The challenges raised by appellant call for a legal
construction of the above Instructions. We believe the Court of
Criminal Appeals’ construction of these Instructions was
reasonable, and we adopt it. See United States v. Shavrnoch, 49
M.J. 334, 338 n.2 (1998); see also United States v. Roach, 29 M.J.
33, 36 (CMA 1989)(“We defer to this service court’s [Coast Guard
Court of Military Review] construction of its own regulations. .
. .”).
In support of the lower court’s regulatory view, we note that
AFI 51-201 makes clear that, although the Air Force has generally
adopted civilian standards for confidentiality of statements of
substance abuse patients, there are exceptions to this rule which
are delineated in AFI 36-2701, supra. Moreover, although some
tension might be perceived as existing between the broad, non-use
language of paragraph 4.14.1.1., and the specific-use language of
paragraph 5.12.1 of AFI 36-2701, it is generally understood that
the more specific provisions prevail over the more general. See
2A Sutherland Statutory Construction § 46:05 at 177-78 (6th ed.
2000). Finally, although the defense reading of paragraph 5-12.1
of AFI 36-2701 is technically plausible, it is inconsistent with
a similar confidentiality scheme for voluntary disclosures to
command authority provided in paragraphs 5.5.1.1.2 - 5.5.1.3 of
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this same Instruction and the Air Force’s general regulatory
approach to these matters. See United States v. Avery, 40 M.J. at
327-28 (noting the importance of self-identification as a
triggering factor in Air Force drug-patient confidentiality
program); see generally Sutherland, supra at 154 (“whole statute
interpretation”).
In view of the above, we conclude that appellant has not
established that the military judge’s ruling violated service
Instructions. It was his burden to show, inter alia, that error
occurred in his case, and he has failed to meet this burden. See
United States v. Tanksley, 54 M.J. 169, 173 (2000) (burden on
accused to show plain error occurred at his court-martial).
The decision of the United States Air Force Court of Criminal
Appeals is affirmed.
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