United States v. Private E-2 ANDREW L. GEAN
2012 CCA LEXIS 161
A.C.C.A.2012Background
- Military judge convicted appellant of two AWOL specifications and three threats specifications; one threat specification acquitted.
- Appellant’s case is reviewed under Article 66, UCMJ.
- Convictions for communicating a threat were challenged as privileged communications and as obtained via compelled psychiatric evaluation.
- Psychiatrist-directed evaluation involved appellant responding under command directive, not invoking Article 31 rights.
- Court found the threats convictions legally and factually insufficient and did not resolve privilege or Article 31 issues.
- Sentence reassessment reduced the sentence to a bad-conduct discharge; rest of sentence canceled as set aside.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether psychiatric communications were privileged under Mil. R. Evid. 513. | Gean contends communications are privileged. | Gean’s statements fall outside privilege due to compulsory evaluation. | Not addressed; insufficiency of evidence forecloses the issue. |
| Whether the psychiatrist-directed responses were suppressible as compelled statements. | Statements obtained under command-directed evaluation were improper. | Evaluation context compelled truthful responses. | Not addressed; insufficiency of evidence forecloses the issue. |
| Whether there is legal and factual sufficiency to convict for communicating a threat. | Threats were wrongful under Article 134. | Responses were for legitimate psychiatric evaluation and not wrongful. | Conviction invalid as a matter of law under these circumstances. |
| Whether the government’s hearsay evidence in aggravation was admissible. | Hearsay supported aggravation. | Hearsay improperly admitted. | Not reached; conviction found insufficient. |
| Whether sentence reassessment was appropriate after invalidating threats convictions. | Reassess to reflect only AWOL conduct." | Maintain larger sentence after reassessment. | Yes; reassessment yielded only bad-conduct discharge. |
Key Cases Cited
- United States v. Brown, 65 M.J. 227 (C.A.A.F. 2007) (definition of when a threat is not wrongful)
- United States v. Schmidt, 36 C.M.R. 213 (1966) (threats during psychiatric evaluation and legitimate purpose)
- United States v. Wright, 65 M.J. 703 (N.M.Ct.Crim.App. 2007) (limits of threats during evaluation)
- United States v. Cotton, 40 M.J. 93 (C.M.A. 1994) (elements of wrongful threat under Article 134)
- United States v. Sales, 22 M.J. 305 (C.M.A. 1986) (guidance on sentence reassessment)
- United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) (sentence reassessment framework (Sales/Moffeit))
- United States v. Bar nothing, --- (---) (not cited)