United States v. Custis ( 2007 )

UNITED STATES, Appellee
v.
John H. CUSTIS, Airman First Class
U.S. Air Force, Appellant
No. 07-0188
Crim. App. No. S30875
United States Court of Appeals for the Armed Forces
Argued October 15, 2007
Decided December 5, 2007
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Timothy M. Cox, (argued); Lieutenant
Colonel Mark R. Strickland, (on brief); Captain Chadwick A.
Conn.
For Appellee: Major Donna S. Rueppell, (argued); Colonel Gerald
R. Bruce, Major Matthew S. Ward, and Captain Jefferson E.
McBride (on brief).
Military Judge: Kirk R. Granier
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Custis, No. 07-0188/AF
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), 10 U.S.C. §§ 881,
911, and 934 (2000). The sentence adjudged by the special
court-martial and approved by the convening authority included a
bad-conduct discharge, reduction to the lowest enlisted grade,
and confinement for thirty days.
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
1
The panel acquitted Appellant of the specification of this
offense related to the obstruction offenses, but convicted him
of another specification of this offense for an incident that
occurred months later.
2
The granted issue states:
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY
DENYING THE DEFENSE’S MOTION TO SUPPRESS AND HOLDING THAT
CERTAIN STATEMENTS MADE BY THE APPELLANT TO HIS WIFE DID
NOT FALL WITHIN THE PRIVILEGE FOR CONFIDENTIAL MARITAL
COMMUNICATIONS.
65 M.J. 265 (C.A.A.F. 2007).
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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.
3
Between the time of the offenses and trial, Appellant and
Airman Creque were divorced and she changed her last name from
Custis to Creque.
3
United States v. Custis, No. 07-0188/AF
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 related to the facts above.4 Prior
to trial, Appellant moved pursuant to M.R.E. 504(b) to exclude
the testimony of Airman Creque concerning her confidential
communications with him between April 24, 2004, and April 26,
2004. The Government opposed the motion, arguing that because
Appellant and his wife were engaged in a joint venture to
4
No one questions that the above factual descriptions of what
Airman Creque did and observed were admissible, irrespective of
M.R.E. 504(b). See Pereira v. United States, 347 U.S. 1, 6
(1954) (noting that the marital communications privilege
protects communications, not acts).
4
United States v. Custis, No. 07-0188/AF
obstruct a lawful investigation, the trial court should apply a
federally recognized common law exception to the marital
privilege pursuant to M.R.E. 501(a)(4).
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
5
Although we decide this case on the basis of the text of the
Rule, we note that the military judge, after determining the
requirements of M.R.E. 504(b) were met, erroneously applied a
balancing test to the application of an exception to the
privilege. Where applicable, the privilege is not subject to
balancing. See United States v. McCollum, 58 M.J. 323, 340
(C.A.A.F. 2003) (stating that communications protected by M.R.E.
504(b) are “privileged unless they otherwise fall under an
exception to that rule”).
5
United States v. Custis, No. 07-0188/AF
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.
6
United States v. Custis, No. 07-0188/AF
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. 2006 CCA LEXIS 263, at *4-*5, 2006 WL 3085507, at
*1.
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 into the marital
communication privilege codified in M.R.E. 504(b). We agree.
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
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United States v. Custis, No. 07-0188/AF
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
6
This case is thus inapposite to the issue addressed in United
States v. Taylor, 64 M.J. 416, 417 (C.A.A.F. 2007).
8
United States v. Custis, No. 07-0188/AF
“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., Article 36(a),
UCMJ, 10 U.S.C. § 836(a) (2000).8 While we are aware of the
principle that privileges should be construed narrowly, as they
run contrary to a court’s truth-seeking function, Trammel v.
United States, 445 U.S. 40, 50-51 (1980), that principle has no
application to the issue at hand. To uphold the exception
relied on by the military judge and the Court of Criminal
Appeals in this case, we would need to create an exception to a
7
United States v. Westmoreland, 312 F.3d 302, 306-09 (7th Cir.
2002); United States v. Ramirez, 145 F.3d 345, 355 (5th Cir.
1998); United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th
Cir. 1997), overruled in part, on other grounds, by United
States v. Nordby, 225 F.3d 1053 (9th Cir. 2000); United States
v. Evans, 966 F.2d 398, 401-02 (8th Cir. 1992); United States v.
Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988); United States
v. Parker, 834 F.2d 408, 412 n.7 (4th Cir. 1987); United States
v. Estes, 793 F.2d 465, 467-68 (2d Cir. 1986); United States v.
Picciandra, 788 F.2d 39, 43-44 (1st Cir. 1986); United States v.
Sims, 755 F.2d 1239, 1240-44 (6th Cir. 1985); United States v.
Neal, 743 F.2d 1441, 1445-46 (10th Cir. 1984); United States v.
Ammar, 714 F.2d 238, 258 (3d Cir. 1983); United States v.
Cooper, 85 F. Supp. 2d 1, 30 (D.D.C. 2000).
8
We do not question the authority of the President to create a
“crime/fraud” exception under M.R.E. 504(c), as he has done in
the attorney-client and psychotherapist-patient privileges.
M.R.E. 502(d)(1); M.R.E. 513(d)(5).
9
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rule where none existed before, not interpret a privilege
narrowly or an exception broadly. This we may not do.
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). Our
cases commend the opposite result. See McCollum, 58 M.J. at 342
(determining whether an exception to a privilege should apply
“is a legal policy question best addressed by the political and
policy-making elements of the government”); United States v.
Rodriguez, 54 M.J. 156, 160-61 (C.A.A.F. 2000) (recognizing that
the scope and limitations on a privilege specifically delineated
in the M.R.E. rests with the President, not this Court); United
States v. Tipton, 23 M.J. 338, 342-43 (C.M.A. 1987) (rejecting
application of an exception to a spousal privilege recognized in
federal courts in favor of a strict application of the clear
test provided by the rules, which provides “‘the certainty and
stability necessary for military justice’” (quoting Stephen A.
Saltzburg et al., Military Rules of Evidence Manual 215
(1981))).
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
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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
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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 Fed R.
Evid. 501, with M.R.E. 501-13. This was based on a policy
decision by the President to create clear and specific rules of
privilege to apply within the military justice system. See
Manual for Courts-Martial, United States Analysis of the
Military Rules of Evidence app. 22 at A22-37 (2005 ed.)
(reasoning that “[u]nlike the Article III court system . . . ,
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the military criminal legal system is characterized by its
dependence upon large numbers of laymen, temporary courts, and
inherent [geographic] and personnel instability . . . .
Consequently, military law requires far more stability than
civilian law”).
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 expressly
delineated. Compare Westmoreland, 312 F.3d at 308 (discussing
underlying principles of the marital communications privilege
when adopting a crime-fraud exception), with McCollum, 58 M.J.
at 342 n.6 (determining that the “political elements of
government” should make policy determinations with respect to
privileges in the military system). Therefore, under our
system, it is for the policymaking branches of government to
weigh the utility of the marital communications privilege
against the truth-seeking function of the court-martial and, if
appropriate, make adjustments to the express exceptions.
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
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United States v. Custis, No. 07-0188/AF
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.
9
The Government did not argue waiver, a factbound determination,
at trial, see, e.g., In re Keeper of the Records (XYZ Corp.),
348 F.3d 16, 23 (1st Cir. 2003) (stating that determining waiver
of a privilege is an “evaluation [that] demands a fastidious
sifting of the facts and a careful weighing of the
circumstances”), and there are no findings by the military judge
on the issue of waiver.
14
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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.
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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 solicitation
specification. It was only those conversations that revealed
that it was Appellant who initiated the conversation regarding
the scheme to replace the blood tests, and evidence of those
conversations that revealed it was Appellant who suggested that
the blood be drawn from precisely the same place. There was no
other evidence admitted to prove that it was Appellant who
solicited Airman Creque’s help in this crime, as opposed to
Airman Creque who solicited Appellant’s participation. Given
the pivotal importance of the privileged communications to the
solicitation charge, we cannot say the members were not
substantially influenced by the erroneously admitted evidence.
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
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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.
17