UNITED STATES, Appellee, v. John H. CUSTIS, Airman First Class, U.S. Air Force, Appellant.
No. 07-0188. Crim.App. No. S30875.
U.S. Court of Appeals for the Armed Forces.
Argued Oct. 15, 2007. Decided Dec. 5, 2007.
65 M.J. 366
RYAN, J.
For Appellant: Captain Timothy M. Cox (argued); Lieutenant Colonel Mark R. Strickland (on brief); Captain Chadwick A. Conn.
Judge RYAN delivered the opinion of the Court.
A special court-martial, composed of officer and enlisted members, convicted Appellant, contrary to his pleas, of conspiracy to obstruct justice, drunken operation of a vehicle,1 soliciting obstruction of justice, disorderly conduct, and obstruction of justice, in violation of Articles 81, 111, and 134, Uniform Code of Military Justice (UCMJ),
The threshold question before us is whether a military judge may admit marital communications otherwise privileged under Military Rule of Evidence (M.R.E.) 504(b) by reference to a common law exception generally recognized in the United States federal courts but not listed within the exceptions specifically enumerated under M.R.E. 504(c).2 For the reasons set forth below we answer that question in the negative, reverse in part, and affirm the sentence.
I.
A. Factual Background
In the early morning hours of April 24, 2004, the Minot Air Force Base Security Forces stopped Appellant, who was driving a car with a broken license plate light. Noting an odor of alcohol, Appellant‘s slow responses, and his glassy eyes, the security forces conducted field sobriety tests. Appellant consented to a breathalyzer test, but failed to blow hard and long enough to give a testable sample of breath.
The security forces transported Appellant to the base hospital for a command directed blood alcohol test. Through fortuity, and unbeknownst to the security forces, the laboratory technician called in to take the blood sample from Appellant was his wife, Airman Starleeka Creque.3 Neither Appellant nor Airman Creque informed the security forces of this connection. Airman Creque drew two vials of blood from Appellant, covered the vials with tamper proof tape, and locked the vials in a secure box.
Later that day Airman Creque collected supplies from the hospital to redraw Appellant‘s blood at home. The next day she drew two new vials of blood from Appellant‘s arm at their home. She drew the second sample of blood from the same location on his arm as the first. She then took the new samples to the hospital, switched them with the two samples she had taken the day prior that were in the locked box, and gave the original samples to Appellant.
The fact of the relationship between Appellant and the technician who drew his blood for the blood alcohol test was raised by the command. Unsurprisingly, the security forces became suspicious when the lab report indicated that no alcohol was found in Appellant‘s blood sample. Investigators questioned Airman Creque several times about whether she had switched blood samples. After a dispute with Appellant, she admitted that she had switched them.
B. Motion to Suppress and Procedural Background
At issue in this case are the communications between Appellant and Airman Creque
The military judge found that certain communications between Appellant and his wife during the two days they carried out their plan to switch his blood specimens were “intended ... as private, marital communications between the two of them.” But the military judge did not grant the motion to exclude the communications pursuant to M.R.E. 504(b). Instead, after balancing the interests of the marital communication privilege in M.R.E. 504(b) against “the interests of justice,” the military judge found that “there is a greater need to protect the interests of truth in criminal proceedings.”5 Referencing M.R.E. 501(a)(4) and the common law exception to the marital privilege addressed in United States v. Smith, 30 M.J. 1022 (A.F.C.M.R.1990), aff‘d on other grounds, 33 M.J. 114 (C.M.A.1991), the military judge concluded that “communications between spouses which are intended to perpetuate a fraud [on] the court, through joint criminal misconduct in the communications between husband and wife are not protected by [M.R.E.] 504(b).”
At trial, over defense objection, Airman Creque testified as to the substance of her conversations with Appellant. She testified that they discussed the blood test at their home, and “how the [driving under the influence (DUI)] situation could be fixed.” She divulged that Appellant initiated the conversation in which he asked her if she was the only person working that evening, who else had access to the secure box, and how long the alcohol would remain in his system. She further testified that when she went to take the second blood sample, Appellant told her to make sure she used the same location as the first samples.
As relevant to the granted issue, Appellant was convicted of conspiring with and soliciting Airman Creque to obstruct justice, and with obstructing justice himself, by interfering with the investigation of his alleged April 24, 2004, DUI.
The Air Force Court of Criminal Appeals affirmed the findings and sentence, holding that a common law exception to the marital privilege not contained within the exceptions listed in M.R.E. 504(c) could nonetheless be applied to negate the codified marital communications privilege contained in M.R.E. 504(b). United States v. Custis, No. ACM S30875, 2006 CCA LEXIS 263, at *4-*5, 2006 WL 3085507, at *1 (A.F.Ct.Crim.App. Oct. 31, 2006) (unpublished). It further held that, even if the conversations between Appellant and his wife were privileged under M.R.E. 504(b) “the [A]ppellant would be no better off .... We find the evidence sufficient, even absent any mention of the conversations between the [A]ppellant and his wife, for a reasonable trier of fact to conclude” that Appellant was guilty of obstruction, as well as solicitation and conspiracy to commit obstruction. Id.
II. Discussion
Appellant argues that the military judge abused his discretion because he erroneously relied on M.R.E. 501(a)(4) for the authority to import a common law exception
A.
Military Rule of Evidence 504 and the exceptions thereto reflect the policy judgments of the President regarding those communications between a husband and wife that are privileged and as to those communications that will be exempted from that privilege. Military Rule of Evidence 504(b) provides a general privilege for confidential communications made during marriage:
(b) Confidential communication made during marriage.
(1) General rule of privilege. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law.
“Because Appellant‘s [communications] meet the requirements of M.R.E. 504(b)(1), they are privileged unless they otherwise fall under an exception to that rule.” McCollum, 58 M.J. at 340. Specific exceptions to the marital privileges established in M.R.E. 504(a) and (b) are delineated in M.R.E. 504(c).
No one questions the military judge‘s finding that the communications at issue here were confidential marital communications that would, in the ordinary course, fall squarely within M.R.E. 504(b)(1). See McCollum, 58 M.J. at 336. And Appellant‘s communications with his wife do not fall within any of the exceptions listed under M.R.E. 504(c) and no one argues that they do.6
The military judge‘s decision to deny Appellant‘s motion to suppress otherwise privileged marital communications because the communications were made in furtherance of a crime has support in the common law “joint crime participant” or “crime/fraud” exception recognized by the Air Force Court of Criminal Appeals in Smith, 30 M.J. at 1025-27 (holding that marital communications made to further a crime were not privileged). Every federal circuit that has addressed the issue has found a “joint crime participant” or “crime/fraud” exception to the common law marital communication privilege.7
But the authority to add exceptions to the codified privileges within the military justice system lies not with this Court or the Courts of Criminal Appeal, but with the policymaking branches of government. See, e.g.,
This Court has never held that an exception to a marital privilege not contained within M.R.E. 504(c) may be used to frustrate the privilege established by M.R.E. 504(b)(1).
We disagree that M.R.E. 501(a)(4) provides authority to either the Court of Criminal Appeals or this Court to create an exception to the codified marital privilege by reference to the common law exception generally accepted in the United States federal courts. Military Rule of Evidence 501 provides in relevant part:
(a) A person may not claim a privilege with respect to any matter except as required by or provided for in:
....
(4) The principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the code, these rules, or this Manual.
It is a well established rule that principles of statutory construction are used in construing the Manual for Courts-Martial in general and the Military Rules of Evidence in particular. United States v. James, 63 M.J. 217, 221 (C.A.A.F.2006); United States v. Lucas, 1 C.M.A. 19, 22, 1 C.M.R. 19, 22 (1951). “[W]hen the statute‘s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (citations and quotation marks omitted).
The plain language of M.R.E. 501 addresses only “a claim of privilege.” It does not reference exceptions. Nothing in the language of M.R.E. 501 itself warrants reference to a common law exception to limit the privilege that is specifically established in M.R.E. 504(b)(1).
Additionally, the plain language of subpart (4) states that “principles of common law” may be relied on only when “not contrary to or inconsistent with ... these rules.” As M.R.E. 504(b) gives a husband-wife privilege without a “joint crime participant” or “crime/fraud” limitation, resorting to the common law to establish such an exception is both contrary to, and inconsistent with, the broader privilege provided by the President. The above points were unassailable when laid out by Senior Judge Everett years ago, and they remain no less true today. Smith, 33 M.J. at 119-20 (Everett, S.J., concurring in part); Tipton, 23 M.J. at 343-44.
Nor is this disposition, which differs from the conclusions of other federal courts, see supra note 7 and accompanying text, absurd. This Court, unlike other federal courts, has been provided with a comprehensive set of evidentiary rules with regard to privileges and the exceptions thereto. Compare
As a consequence, whereas privileges evolve in other federal courts based on case law determinations, in the military system the privileges and their exceptions are ex-
B.
Nor do we agree with the Court of Criminal Appeals’ alternative grounds for affirming the conviction on all charges.
First, we are not persuaded by the Court of Criminal Appeals’ legal conclusion that Appellant waived any privilege that would otherwise attach to his communications with his wife by telling a coworker that his wife “had his back.”9 Custis, 2006 CCA LEXIS 263, at *5 n. 2, 2006 WL 3085507, at *1 n. 2. Military Rule of Evidence 510(a) provides that a person “waives the privilege if the person discloses ... any significant part of the matter.” “Voluntary disclosure applies only where the speaker elects to share a substantial portion of a privileged communication with a party outside of the privileged relationship.” McCollum, 58 M.J. at 338-39 (citing M.R.E. 510(a)). “[T]he overall substance of the conversation” must be conveyed to the third party for there to be a waiver of the privilege. United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.2000).
Appellant‘s comment to his coworker did not relay either the actual conversation between Appellant and his wife or the substance of the privileged communications between Appellant and his wife. M.R.E. 510(a). And the person to whom the comment was directed had no knowledge of the underlying conversation that might have given the comment in question special meaning. McElhaney, 54 M.J. at 132. Therefore, Appellant‘s single comment to his coworker did not waive the privilege.
Nor are we satisfied with the Court of Criminal Appeals’ conclusion that “the evidence [was] sufficient, even absent any mention of the conversations between the [A]ppellant and his wife, for a reasonable trier of fact to conclude” that Appellant was guilty. Custis, 2006 CCA LEXIS 263, at *4-*5, 2006 WL 3085507, at *1.
The error in admitting privileged communications in this case is not constitutional in nature. McCollum, 58 M.J. at 342. In testing for “nonconstitutional harmless error ... we conduct a de novo review to determine whether this error had a substantial influence on the members’ verdict in the context of the entire case.” United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F.2007) (citing Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). Whether the evidence is factually sufficient to sustain a conviction is an altogether different question than whether an error had a substantial influence on the members’ findings. Compare United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987) (discussing factual sufficiency), with McCollum, 58 M.J. at 342-43 (discussing nonconstitutional harmless error). If we cannot say the error did not have a substantial effect on the verdict, we cannot call it harmless, and must grant appropriate relief.
In order to prove an Article 134, UCMJ, solicitation offense the Government must prove that the accused solicited another person to commit a certain offense, and that the accused did so with the intent that the person commit the offense. Manual for Courts-Martial, United States pt. IV, para. 105.b (2005 ed.). Here, Airman Creque‘s testimony regarding her conversations with Appellant was clearly material to the members’ decision to find Appellant guilty of the solici-
Appellant‘s solicitation conviction is reversed. But none of Appellant‘s remaining convictions turned on who instigated the other‘s participation in the underlying obstruction offense. We conclude that the evidentiary error was harmless as applied to those convictions. In light of the testimony of Appellant‘s wife as to both the actions she observed and the conduct in which she and Appellant engaged in together, we do not believe the erroneously admitted evidence had a substantial influence on the members with respect to those offenses.
As to the sentence, we conclude that the error was harmless. The military judge found the charges of conspiracy to obstruct justice and solicitation to obstruct justice multiplicious for sentencing and instructed the members to consider them as one offense in determining an appropriate sentence. We presume that the panel followed the instructions given by the military judge. See United States v. Thompson, 63 M.J. 228, 232 (C.A.A.F.2006); United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F.2000); United States v. Holt, 33 M.J. 400, 408 (C.M.A.1991). As we have no reason to question that the panel did so in this case, we conclude that the offense of solicitation to obstruct justice had no impact on Appellant‘s sentence.
III. Decision
The decision of the United States Air Force Court of Criminal Appeals as to Charge III, Specification 1 (solicitation to obstruct justice) is reversed, the finding as to this specification is set aside, and this specification is dismissed. The remaining findings and the sentence are affirmed.