                       UNITED STATES, Appellee

                                    v.

                     Justin S. SHELTON, Sergeant
                         U.S. Army, Appellant

                              No. 04-0359

                        Crim. App. No. 9901201


       United States Court of Appeals for the Armed Forces

                        Argued March 15, 2005

                     Decided September 22, 2006

GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.

                                 Counsel

For Appellant: Captain Danyele M. Jordan (argued); Colonel
Robert D. Teetsel, Colonel Mark Cremin, Lieutenant Colonel Mark
Tellitocci, and Major Sean S. Park (on brief).

For Appellee: Captain Abraham F. Carpio (argued); Colonel
Steven T. Salata, and Lieutenant Colonel Mark L. Johnson (on
brief); Captain Janine P. Felsman.

Military Judge:   Stephen V. Saynisch



       This opinion is subject to revision before final publication.
United States v. Shelton, No. 04-0359/AR


     Chief Judge GIERKE delivered the opinion of the Court.

     In the military justice system, the clergy privilege is

“[o]ne of the most sacred privileges.”1    This privilege

“‘recognizes the human need to disclose to a spiritual

counselor, in total and absolute confidence, what are believed

to be flawed acts or thoughts and to receive priestly

consolation and guidance in return.’”2    Military Rule of Evidence

(M.R.E.) 503 allows a person to prevent disclosure of a

qualified confidential communication to a member of the clergy.

Specifically, the clergy privilege allows an accused “to prevent

another from disclosing a confidential communication by the

[accused] to a clergyman or to a clergyman’s assistant, if such

communication is made either as a formal act of religion or as a

matter of conscience.”3

     Appellant asserts that the military judge erred by denying

the defense motion to suppress the evidence arising from

Appellant’s communications with his pastor, Reverend (Rev.)

Ronnie Dennis, because these communications were within the

clergy privilege.   For the reasons explained below, we agree

1
  United States v. Benner, 57 M.J. 210, 212 (C.A.A.F. 2002).
See, e.g., United States v. Isham, 48 M.J. 603, 606-07 (N-M. Ct.
Crim. App. 1998) (discussing the importance of the clergy
privilege to clergy keeping the trust of servicemembers and
carrying out their mission of providing spiritual and moral
guidance).
2
  Benner, 57 M.J. at 212 (quoting Trammel v. United States, 445
U.S. 40, 51 (1980)).
3
  M.R.E. 503(a).

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United States v. Shelton, No. 04-0359/AR


with Appellant that his communications to Rev. Dennis were

privileged and that Appellant should have been able to prevent

disclosure of them.

     We evaluate the impact of this error in the context of

Appellant’s conditional guilty plea, entered pursuant to Rule

for Courts-Martial (R.C.M.) 910(a)(2).   Consistent with this

rule, the pretrial agreement establishes that Appellant reserved

the right to withdraw his guilty plea if he prevailed on appeal

in asserting that the military judge erred in denying the

defense motion to suppress.   As we conclude that the military

judge erred and Appellant has prevailed on appeal on the clergy

privilege issue, we afford Appellant the right to withdraw his

guilty plea.4


4
  This Court granted review on Issue I and specified Issue II as
follows:

     I. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
        ERRED IN UPHOLDING THE RULING OF THE MILITARY JUDGE THAT
        DENIED THE DEFENSE MOTION TO SUPPRESS ANY EVIDENCE
        OBTAINED AS A RESULT OF COMMUNICATIONS BETWEEN APPELLANT
        AND HIS PASTOR.

    II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
        APPLIED THE CORRECT APPELLATE TEST FOR DETERMINING
        MATERIALITY WITH RESPECT TO THE ERRONEOUS NONDISCLOSURE
        OF DISCOVERABLE EVIDENCE. SEE UNITED STATES V. ROBERTS,
        59 M.J. 323 (C.A.A.F. 2004).

United States v. Shelton, 60 M.J. 314 (C.A.A.F. 2004). Because
we rule for Appellant on Issue I, we need not reach Issue II.

     We heard oral argument in this case at the Marine Corps
Base, Quantico, Virginia, as part of the Court’s “Project

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United States v. Shelton, No. 04-0359/AR


                            BACKGROUND5

     Over a period of several months, the four-year-old

stepdaughter of Appellant made ambiguous statements and

exhibited unusual behavior that raised concerns in Appellant’s

wife about Appellant’s possible improper sexual activity with

her daughter.   On June 6, 1999, the child told her mother of

specific sexual contact with Appellant resulting from Appellant

instructing her to kiss him in the groin area.   Appellant’s wife

questioned Appellant about his interaction with his

stepdaughter.   Appellant denied any impropriety.

      But Appellant’s wife remained concerned, and she called

their family pastor, Rev. Dennis, to discuss her suspicions that


Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military justice system.
5
  The lower court opinion presents the background of this case:

     A military judge sitting as a general court-martial
     convicted appellant, pursuant to his guilty plea, of
     indecent acts upon a female under sixteen years of age
     (three specifications), in violation of Article 134,
     Uniform Code of Military Justice, 10 U.S.C. § 934
     [hereinafter UCMJ]. The military judge sentenced appellant
     to a dishonorable discharge, confinement for three years,
     forfeiture of all pay and allowances, and reduction to
     Private E-1. The convening authority waived automatic
     forfeitures required by Article 58b, UCMJ, for six months
     and directed payment to appellant’s spouse. After the six-
     month waiver of forfeitures had elapsed, the convening
     authority approved the sentence as adjudged.

United States v. Shelton, 59 M.J. 727, 728 (A.F. Ct. Crim. App.
2004). The lower court affirmed the findings and the sentence.
Id. at 736.

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United States v. Shelton, No. 04-0359/AR


Appellant may have sexually abused his stepdaughter.   Rev.

Dennis was a civilian, ordained Protestant minister, and head

minister at the New Testament Christian Church.    Appellant and

his wife had been attending this church for approximately two

years, but they had known Rev. Dennis since 1993.   They had met

Rev. Dennis during a previous assignment, and he had provided

counseling and assistance on a variety of subjects, including

family finances, budgeting, and other personal family matters.

Rev. Dennis agreed to meet with Appellant to discuss this

serious allegation of sexual abuse.   As a result, Appellant’s

wife told him to go to the pastor’s office at their church the

following evening to speak to Rev. Dennis.

     When Appellant arrived at the church office for his

appointment, another pastor, Rev. Virgo, was waiting with Rev.

Dennis.    In a private conference, Appellant met with both

pastors, but Rev. Dennis exclusively controlled the counseling

session.   Rev. Virgo was present because it was the church

custom to have another person present during this type of

counseling.   Appellant’s contact with the two pastors began with

one of them saying a brief prayer asking for God’s wisdom and

guidance in counseling before the session began.

     Rev. Dennis testified that he then said to Appellant, “Your

wife told me something and I want to know if you did it because

it’s serious and you can go to jail for it . . . .”    Rev. Dennis


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United States v. Shelton, No. 04-0359/AR


also told Appellant, “You claim to be a Christian, Christians

don’t tell lies, so I need to know.”      Appellant claims that Rev.

Dennis told him to tell the truth because God would judge him

for lying but would have mercy on him if he told the truth.

Despite these different versions of what Rev. Dennis said, there

is no disagreement that Appellant confessed to sexual abuse.

But the record does not reveal the specifics of Appellant’s

admission of child sexual abuse.       Rev. Dennis recalled Appellant

lamenting, “I believe it’s too late.      I don’t think God can help

me any longer.”   Rev. Dennis consoled Appellant by assuring him,

“God can help you with this.”

     After Appellant regained his composure, Rev. Dennis asked

Appellant to get his wife and bring her to join them.      Rev.

Dennis assured him that there was still hope to work through

this crisis but that Appellant needed to start by telling the

truth.   Appellant went to his house and immediately drove his

wife to the church office.

     There Appellant and his wife joined Rev. Dennis and Rev.

Virgo.   Appellant claimed that he sat silently while Rev. Dennis

told Appellant’s wife that Appellant had done as she suspected.

But Rev. Dennis did not say expressly that Appellant had

molested his stepdaughter or give any details.      Rev. Dennis

testified that Appellant told his wife, “I did it.      I did it.

I’m wrong.   I did it.”


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United States v. Shelton, No. 04-0359/AR


     At the conclusion of the consultation, Rev. Dennis told

Appellant and his wife that the laws of Washington state

required that he report the child sexual abuse.    It does not

appear in the record that Rev. Dennis ever made this report.6

     A couple of weeks after Appellant’s counseling session with

Rev. Dennis, Appellant’s wife saw Rev. Dennis at church.    Rev.

Dennis told her that she should report the child sexual abuse

and that he would report it if she did not.   Eventually,

Appellant’s wife contacted Ms. Sandi Doyle, a social worker, and

told Ms. Doyle about her daughter’s accusations.   Investigation

into this case continued with involvement of the Criminal

Investigation Division (CID).    Appellant complied with an order

to report to the CID office.    After being properly advised of

his rights, Appellant told an investigator essentially the same

thing he had told Rev. Dennis -- that he had inappropriate

contact with his stepdaughter.   But CID’s contact with Rev.

Dennis was initially futile as Rev. Dennis refused to speak to

Ms. Doyle or CID without the express written consent of

Appellant or his wife.   Rev. Dennis never provided a pretrial

statement to CID.   As the investigation continued, Appellant


6
  Even if Appellant’s communications to Rev. Dennis were
confidential under Washington state law and he could not testify
as to the contents of Appellant’s statements in court, Rev.
Dennis was not prohibited from voluntarily reporting Appellant’s
admissions to protect an abused child. State v. Glen, 62 P.3d
921, 928 n.7 (Wash. Ct. App. 2003).

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United States v. Shelton, No. 04-0359/AR


made incriminating statements to Ms. Doyle and later to a

psychotherapist, Mr. Michael Comte.    In the latter statement,

Appellant presented a detailed explanation of his sexual

interest in his stepdaughter.    The investigation eventually

resulted in Appellant being charged with three specifications of

indecent acts upon his minor stepdaughter.

        Prior to the commencement of the court-martial, Appellant

negotiated a pretrial agreement in which he agreed to

conditionally plead guilty to all three offenses.    The term of

the pretrial agreement most relevant to this appeal permitted

Appellant to attempt to exclude from the court-martial any

evidence relating to Appellant’s conversation with his pastors

and to preserve this issue for appellate review.    It provided in

part:

        [2]b. I understand that this is a conditional guilty
        plea under R.C.M. 910(a)(2), and that I reserve the
        right to appeal any adverse determinations made by the
        military judge of any of the pretrial motions made at
        my court-martial. I understand that if I prevail on
        further review or appeal, I shall be allowed to
        withdraw my pleas of guilty.

        When the court-martial began, Appellant took action to

preserve issues for appellate review and attempted to avail

himself of this term in the pretrial agreement.    Trial defense




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United States v. Shelton, No. 04-0359/AR


counsel made pretrial motions7 including a motion to suppress

evidence resulting from his confidential communication to Rev.

Dennis.

     After an evidentiary hearing where Appellant and Rev.

Dennis presented conflicting testimony regarding the nature and

substance of the conference at the church, the military judge

denied the defense motion and explained his ruling on the

record.   Almost nine months later, on September 5, 2000, the day

he authenticated the record of trial, the military judge made

his formal written ruling on the motion to suppress.

     In both the record of his oral explanation and the later

written ruling, the military judge stated that he chose to

believe Rev. Dennis’s recollection of events rather than

Appellant’s.   It is the testimony of Rev. Dennis that is the

primary basis for the military judge’s finding of historical

facts.    Reflecting the testimony of Rev. Dennis, the military

judge’s historical findings of fact detailed the religious

context in which Appellant made his statements.   This included

the following:   Appellant made the statements to his pastor, the

counseling session began with prayer, and “[t]his church was a

focal point in the Sheltons[’] social, spiritual, and community

lives.”

7
  The defense also made a motion to compel discovery of documents
removed from the CID file. That motion related to Issue II,
which we do not address at this time.

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United States v. Shelton, No. 04-0359/AR

     In his conclusions, the military judge made four distinct

points:   (1) that Appellant did not speak to Rev. Dennis in his

capacity as a clergyman or spiritual advisor; (2) that Appellant

did not intend his statement to Rev. Dennis be confidential; (3)

that Appellant did not make his statements as a matter of

conscience; and (4) that Appellant did not make his statements

as a formal act of religion.

     After losing his pretrial motions, Appellant pled guilty

under the provisions of the pretrial agreement.   During the Care

inquiry,8 the military judge reviewed the terms of the pretrial

agreement with Appellant and specifically addressed Appellant’s

conditional guilty plea.   The military judge offered the

following illustration of the effect of the conditional guilty

plea provision:

     So let’s say that the appellate court says that I’m
     all wrong about this privilege business, the motion,
     in other words, that we discussed yesterday, and they
     say that I am wrong and it should be reversed, then by
     the terms of this paragraph 2a -- 2b, I should say,
     when you’ve got -- or I get that notice, if it ever
     comes, then you can say hey, I changed my mind, I want
     to plead [not] guilty and withdraw your plea of
     guilty.

Satisfied that Appellant’s plea was provident, the military

judge accepted Appellant’s guilty plea, found him guilty of all

offenses, and later sentenced Appellant for his offenses.


8
  The military judge conducted the providence inquiry required by
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).

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United States v. Shelton, No. 04-0359/AR

                            DISCUSSION

            1.   Applicability of the clergy privilege

     Appellant claims that he confided in Rev. Dennis, his

spiritual advisor, searching for help and solace for his abusive

behavior of his stepdaughter.   He alleges that the military

judge erred by admitting testimony related to his disclosures to

Rev. Dennis in violation of the clergy privilege of M.R.E. 503.

Since Appellant is attempting to claim the clergy privilege, he

has the burden of establishing that his conversation was

privileged under M.R.E. 503.9

     In the military justice system, the clergy privilege has

been recognized since at least 1949.10   But the present privilege

in M.R.E. 503 was adopted in 1980 in conjunction with the

President’s issuance of the Military Rules of Evidence.11

     This Court has recognized the importance of the clergy

privilege stating, “Military law is not insensitive to the needs

of servicemembers for [clergy] and spiritual guidance, and it




9
   See United States v. Napoleon, 46 M.J. 279, 285 (C.A.A.F.
1997); R.C.M. 905(c).
10
    See Manual for Courts-Martial, United States para. 151(b)(2)
(1969 rev. ed.) (MCM); MCM para. 151(b)(2) (1951 ed.); Manual
for Courts-Martial, U.S. Army para. 137b (1949 ed.). Earlier
manuals were silent as to the clergy privilege. See United
States v. Coleman, 26 M.J. 407, 409 n.3 (C.M.A. 1988).
11
    See Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-39 (2005 ed.)
[hereinafter M.R.E. Drafters’ Analysis].

                                11
United States v. Shelton, No. 04-0359/AR

has long recognized the ‘penitent and clergyman’ privilege.”12

The privilege reflects respect for the traditional confidential

nature of relations between clergy and servicemembers.13

     M.R.E. 503(a) expressly recognizes a clergy privilege and

provides:   “A person has a privilege to refuse to disclose and

to prevent another from disclosing a confidential communication

by the person to a clergyman or to a clergyman’s assistant, if

such communication is made either as a formal act of religion or

as a matter of conscience.”14   M.R.E. 503(c) broadly extends the

privilege to allow either the communicant or the clergy member

to claim the privilege.15




12
   Coleman, 26 M.J. at 409.
13
   See United States v. Henderson, 11 C.M.A. 556, 564, 29 C.M.R.
372, 379-80 (1960) (explaining a chaplain’s reason for refusing
to disclose a communication with a servicemember). See
generally Isham, 48 M.J. at 605 (discussing the ethical duty of
chaplains to hold in confidence privileged communications).
14
   “Furthermore, this privilege is recognized in paragraph 4-4 of
Army Regulation 165-1, Chaplain Activities in the United States
Army (26 May 2000) (superseding 27 Feb. 1998), and paragraph 3-8
of Army Regulation 608-18, The Family Advocacy Program (1
September 1995).” Benner, 57 M.J. at 212.
15
   This is not the only privilege available for a servicemember
to obtain confidential counseling. In M.R.E. 513 the President
adopted a psychotherapist-patient privilege for the military
justice system. “The rule allows a patient the privilege to
refuse to disclose, or allow another to disclose, a confidential
communication between the patient and a psychotherapist.”
United States v. Clark, 62 M.J. 195, 199 (C.A.A.F. 2005). This
rule is “‘based on the social benefit of confidential counseling
recognized by Jaffee [v. Redmond, 518 U.S. 1 (1996)], and
similar to the clergy-penitent privilege.’” Id. (quoting M.R.E.
Drafters’ Analysis app. 22 at A22-44 (2000 ed.)).

                                 12
United States v. Shelton, No. 04-0359/AR

     This Court has addressed the evidentiary foundation of this

privilege in a variety of cases.16    M.R.E. 503 has three

components pertinent to the present case:    (1) the communication

must be made either as a formal act of religion or as a matter

of conscience; (2) it must be made to a clergyman in his

capacity as a spiritual advisor or to his assistant in his

official capacity; and (3) the communication must be intended to

be confidential.   We must evaluate whether Appellant has

established these three criteria necessary to claim the

privilege.

     The focus of our analysis is the ruling of the military

judge.   When reviewing a decision of a Court of Criminal Appeals

on a military judge’s ruling, “we typically have pierced through

that intermediate level” and examined the military judge’s

ruling, then decided whether the Court of Criminal Appeals was

right or wrong in its examination of the military judge’s

ruling.17

     We review a military judge’s decision to admit evidence for

an abuse of discretion.18   Whether a communication is privileged




16
   See, e.g., Napoleon, 46 M.J. at 283-85; Coleman, 26 M.J. at
409-10.
17
   See United States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996).
18
   United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003)
(citing United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.
2000)).

                                 13
United States v. Shelton, No. 04-0359/AR

is a mixed question of fact and law.19   We will give the military

judge’s findings of fact deference, reversing such findings only

if they are clearly erroneous, while we review the legal

conclusions de novo.20

     Although the clergy privilege, like all privileges must be

strictly construed,21 it is legal error when the privilege is

misconstrued.22   Applying the three criteria of M.R.E. 503, we

conclude that the military judge erred as a matter of law in

concluding that Appellant’s communication with Rev. Dennis was

not a matter of conscience.

     Our application of the law to the facts of this case begins

with the threshold for claiming the privilege, that is, whether

Appellant confided in Rev. Dennis “either as a formal act of

religion or as a matter of conscience.”23   For purpose of our

analysis, we will assume that Appellant did not confess “as a

formal act of religion.”   But this concept is distinguishable

from whether Appellant confessed as “a matter of conscience.”24

An “act of religion” must comply with the particular tenets of a

19
   Id. at 335-36.
20
   Id. at 336 (citing United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995)).
21
   Trammel, 445 U.S. at 50.
22
   See Napoleon, 46 M.J. at 284-85.
23
   M.R.E. 503(a) (emphasis added).
24
   See generally Isham, 48 M.J. at 605-06 (holding that the
appellant’s discussion with the chaplain concerned a matter of
conscience); United States v. Richards, 17 M.J. 1016, 1019-20
(N.M.C.M.R. 1984) (finding an appellant’s admissions involved a
“matter of conscience”).

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United States v. Shelton, No. 04-0359/AR

faith, but a “matter of conscience” is privately held within a

person.

     The military judge erred by not focusing on the religious

context under which Appellant’s statements were made.    Most

importantly, Rev. Dennis used the authority of his religion to

induce Appellant to confess.    Rev. Dennis testified about the

religious atmosphere surrounding their conversations.    Rev.

Dennis testified that he began the counseling session with a

prayer to ask for God’s guidance.     Rev. Dennis admitted that he

told Appellant, “You claim to be a Christian, Christians don’t

tell lies. . . .”   Also, at the end of their meeting before

Appellant’s wife joined them, Rev. Dennis told Appellant that

“God can help you with this.”   Rev. Dennis testified that

“[Appellant’s] attitude has always been one that has accepted

his guilt and what he has done and [he was] really crying out

for help.”   Rev. Dennis further explained that he was trying to

give Appellant “some kind of avenue of hope as a pastor in

counseling so that he would not hurt himself.”

     These facts establish the religious context under which

Appellant made his statements to Rev. Dennis.    These

circumstances burdened Appellant’s conscience, and following the

advice of his pastor, Rev. Dennis, Appellant confessed.    We note

that the past secular discussion between Appellant and Rev.

Dennis related to financing, budgeting, and family matters.     But


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United States v. Shelton, No. 04-0359/AR

there is nothing in the record to establish that these

counseling sessions were as spiritually charged as the

counseling involved in the present case.    The mere prior

counseling contact between Rev. Dennis and Appellant on other

matters does not preclude a conclusion that, in the present

instance, Appellant’s communication with Rev. Dennis was a

matter of conscience.   Accordingly, we conclude that the

military judge erred in failing to find that Appellant confessed

to Rev. Dennis as a matter of conscience.

     We further hold that the communication was “made to a

clergyman in his capacity as a spiritual advisor” as required by

M.R.E. 503.   Respecting all the faiths in our increasing

pluralistic society, this Court has recognized that the scope of

privileged protection in M.R.E. 503 is a large circle.   We have

stated:

     [M.R.E.] 503(b)(1) defines “clergyman” as “a minister,
     priest, rabbi, chaplain, or other similar functionary of a
     religious organization, or an individual reasonably
     believed to be so by the person consulting the clergyman.”
     [M.R.E.] 503 is similar to proposed Fed. R. Evid. 506,
     which was not adopted. The Advisory Committee Note on the
     proposed federal rule indicates that “clergyman” was
     intended to mean a person “regularly engaged in activities
     conforming at least in a general way with those of a
     Catholic priest, Jewish rabbi, or minister of an
     established Protestant denomination.” 25

25
  Napoleon, 46 M.J. at 284 (citing 2 Stephen A. Saltzburg &
Michael M. Martin, Federal Rules of Evidence Manual § 601-02
(5th ed. 1990), and Stephen A. Saltzburg, Lee D. Schinasi &
David A. Schlueter, Military Rules of Evidence Manual § 557 (3d
ed. 1991)).

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United States v. Shelton, No. 04-0359/AR

     There is no dispute between the parties that Rev. Dennis

qualifies as a “clergyman” under M.R.E. 503(b)(1), as he is an

ordained minister and head pastor of the New Testament Christian

Church.   Appellant attended Rev. Dennis’s church for

approximately two years, recognized him as his pastor, and

talked to him at the church in his capacity as a clergyman.

Again, we consider the circumstances of Rev. Dennis beginning

the meeting with prayer, the fact that the counseling session

occurred at the church, and the religious atmosphere and

spiritual language of the meeting as critical facts establishing

that Appellant’s communication with Rev. Dennis was in the

clergy’s official capacity.

     Finally, the record establishes that Appellant intended his

communications to be confidential.    This Court focuses on

Appellant to make this determination.26    At the motion hearing,

Appellant asserted that he intended that the conversation remain

confidential.   He testified that he did not want his wife to

know what he revealed to Rev. Dennis.     Appellant explained that

since Rev. Dennis was “the spiritual leader of our church and .

. . he wanted to talk to my wife, I -- I didn’t see why I should

tell him no, not to meet with her.”




26
  Coleman, 26 M.J. at 409 (agreeing with United States v.
Moreno, 20 M.J. 623, 627 (A.C.M.R. 1985).

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United States v. Shelton, No. 04-0359/AR

     We acknowledge that Rev. Dennis testified that he had told

his congregation that he would not keep confidential

confessional communications regarding child abuse.    But whether

or not Appellant was present when Rev. Dennis made these

statements is not as important as the religious context

established by Appellant’s private meetings with Rev. Dennis.

The specific circumstances of these private meetings support

Appellant’s reasonable expectation that the counseling was

indeed confidential.

     Moreover, Rev. Dennis told Appellant that it was important

that his wife be present and that Appellant needed to tell his

wife because he had lied to her.     Rev. Dennis also instructed

Appellant, “You need to stand up and tell her the truth of what

happened.”   Appellant followed the advice of his spiritual

advisor.   Since Rev. Dennis believed that Appellant’s wife’s

presence was necessary for his redemption, Appellant brought his

wife into the room where she learned that Appellant had been

sexually abusing his stepdaughter.    And, “[a]s is the case with

the attorney-client privilege, the presence of third parties,

[which is] essential to and in furtherance of the communication,

does not vitiate the clergy-communicant privilege.”27




27
  In re Grand Jury Investigation, 918 F.2d 374, 377 (3d Cir.
1990).

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United States v. Shelton, No. 04-0359/AR

        We need not presently define the precise parameters of

preserving this privileged communication made in the presence of

third parties.        It is sufficient here to conclude that this

privilege is preserved where there is a “relationship by blood

or marriage” as well as a “commonality of interest” between the

accused and the third party present during the privileged

communications.28       Both these factors are present here as the

third party present was Appellant’s wife who had played the

pivotal role of sending Appellant to Rev. Dennis in the first

instance.

        Finally, we observe there was only a short break in time

between Appellant’s first statement to Rev. Dennis and

Appellant’s second statement, made in the presence of

Appellant’s wife.       We view the time for Appellant to obtain his

wife and return to the church and continue his conversation with

Rev. Dennis so short that it did not affect Appellant’s

expectation of confidentiality in the counseling session with

his pastor.

        In summary, we conclude that the record establishes the

three-prong evidentiary foundation for the clergy privilege in

this case.     Appellant communicated his guilt to Rev. Dennis,

Appellant’s pastor.       Appellant’s communication was made as a

matter of conscience, and Appellant intended their communication

28
     Id. at 385-88.

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United States v. Shelton, No. 04-0359/AR

to remain confidential.     Because M.R.E. 503 grants Appellant a

right to keep this privileged conversation confidential, we

conclude that the military judge abused his discretion by ruling

that Appellant’s statements to his pastor were not privileged

and would be otherwise admissible evidence.

        As we conclude that the military judge made an evidentiary

error, normally we would now address whether this error was

harmless.29     In doing so we would consider other evidence that

implicated Appellant, including his incriminating statements to

both the social worker, Ms. Doyle, and the psychotherapist, Mr.

Comte.     But that avenue of analysis is not presently open

because of the context of this error in the trial proceedings.

We now address the impact of this error on Appellant’s

conditional guilty plea.

         2.   Impact of the error regarding privilege on Appellant’s
                         conditional guilty plea

        R.C.M. 910(a)(2) permits an accused to enter a conditional

plea of guilty, which reserves “the right, on further review or

appeal, to review of the adverse determination of any specified

pretrial motion.”

        Consistent with the procedural rule, Appellant’s pretrial

guilty plea agreement specifically reserved “the right to appeal




29
     Kotteakos v. United States, 328 U.S. 750, 765 (1946).

                                   20
United States v. Shelton, No. 04-0359/AR

any adverse determinations made by the military judge of any of

the pretrial motions made at [his] court-martial.”

     Appellant availed himself of the R.C.M. 910(a)(2) procedural

rule and the express terms of his pretrial agreement.   Appellant

conditionally pled guilty to the charges.   By doing so,

Appellant preserved his right to challenge the ruling of the

military judge notwithstanding his guilty plea.

     R.C.M. 910(a)(2) also states, “If the accused prevails on

further review or appeal, the accused shall be allowed to

withdraw the plea of guilty.”   Reflecting this provision, the

pretrial agreement further stated, “I [Appellant] understand

that if I prevail on further review or appeal, I shall be

allowed to withdraw my pleas of guilty.”

     The military judge’s denial of the defense’s motion to

suppress Rev. Dennis’s statements was a determination adverse to

the defense and therefore covered by the terms of the

conditional guilty plea.30   As we conclude that the military




30
  The military judge’s explanation to Appellant made clear that
Appellant would have the option of withdrawing from his guilty
plea if the military judge’s ruling on the privilege was
reversed on appeal. We note that the lower court assumed “that
if the defense had succeeded in suppressing any of [the
evidence], appellant could have withdrawn his guilty plea.”
Shelton, 59 M.J. at 728.

                                 21
United States v. Shelton, No. 04-0359/AR

judge erred in denying the defense’s motion, Appellant is

entitled to the opportunity to withdraw his plea of guilty.31

This is the only appropriate remedy available to address the

military judge’s erroneous evidentiary ruling in the context of

a conditional guilty plea.   In United States v. Barror,32 we

explained that the necessity of this remedy arises from the

government relying on an appellant’s conditional guilty plea to

satisfy its burden:

     Of course in the instant case, since appellant candidly
     confessed his guilt to the offense after losing the motion,
     we are not, ultimately, concerned about the reliability of
     [the victim]’s statement. Rather, what is at stake is the
     ability of an accused to put the Government to its burden
     of proving him guilty, beyond a reasonable doubt, using
     only legally competent evidence. As the evidence available
     to the Government did not meet that criterion, appellant is
     entitled, in accordance with his agreement with the
     Government and under the provisions of the Manual, to
     withdraw his plea of guilty.33

     As this precedent illustrates, R.C.M. 910(a)(2) preserves

and protects the Appellant’s right to make the Government prove

its case with admissible evidence.34   Honoring this fundamental


31
   See United States v. Barror, 23 M.J. 370, 373 (C.M.A. 1987)
(holding that the military judge erred in denying the defense’s
motion to suppress the victim’s pretrial statement, upon which
the appellant’s guilty plea was conditioned, and allowing the
appellant to replead to the affected specification in the event
of a rehearing).
32
   Id.
33
   Id. at 373 (emphasis added).
34
   Our reliance on Barror in no way suggests that Appellant must
establish that the Government relied on his privileged statement
to prove his guilt. Appellant entered a conditional guilty
plea, and the condition occurred. As a matter of law, in the

                                22
United States v. Shelton, No. 04-0359/AR

right, we afford Appellant his bargained for right to withdraw

his pleas of guilty and obtain a rehearing.   And we do so

without addressing whether or not the military judge’s error

might have been harmless had there been an evidentiary

proceeding in a contested case.35

                             DECISION

     For all of the reasons above, the decision of the United

States Army Court of Criminal Appeals is set aside.   The record

of trial is returned to the Judge Advocate General of the Army

for further proceedings consistent with this opinion.




context of this conditional guilty plea, Appellant was entitled
to withdraw his guilty plea when Appellant prevailed in his
appellate challenge to the evidentiary ruling.
35
   The reasoning of Barror, 23 M.J. at 373, focusing on the
government’s burden of proof, explains why in this case it would
be inappropriate to inquire into whether Appellant’s subsequent
statements to Ms. Doyle and Mr. Comte are sufficiently
attenuated to be admissible. Cf. Oregon v. Elstad, 470 U.S. 298
(1985).

                                23
United States v. Shelton, No. 04-0359/AR


     CRAWFORD, Judge (dissenting):

     Appellant’s communications with his pastor were not

protected under the clergy privilege.     And, even if they were,

his subsequent confessions to law enforcement and social work

personnel were totally independent of the statements to the

pastor.   Thus, I respectfully dissent from the majority’s

misapplication of Military Rule of Evidence (M.R.E.) 503, Manual

for Courts-Martial, United States (2005 ed.) (MCM),1 and assuming

there was a violation of M.R.E. 503, its failure to follow

precedent of the Supreme Court and this Court concerning the

attenuation of any taint.

                             BACKGROUND

     Appellant’s wife became suspicious of Appellant when her

daughter told her “Daddy says . . . no more tongue in teeth”

when kissing.   Later, the child was behaving oddly and told her

mother that Appellant “pointed down there and asked her to kiss”

him on his genitalia area.   When his wife confronted Appellant,

he denied it.   Mrs. Shelton then told Appellant she was going to

call their pastor, Reverend (Rev.) Dennis.    Shortly after the

confrontation, Mrs. Shelton called Rev. Dennis for guidance.

     Rev. Dennis told Mrs. Shelton to tell Appellant he wanted

to talk to him and to have Appellant come to see him the

1
  The current versions of all MCM provisions cited are identical
to the ones in effect at the time of Appellant’s court-martial
unless otherwise indicated.
United States v. Shelton, No. 04-0359/AR


following evening at 8:00 p.m.   Rev. Dennis’s purpose was to

find out the truth about the allegations.   Mrs. Shelton told

Appellant about the meeting and he arrived as directed.

Appellant acknowledged he was not seeking a meeting with Rev.

Dennis and that he was responding to Rev. Dennis’s direction.

     Although not certain of the purpose of the meeting,

Appellant suspected it was to discuss the allegations his wife

raised with him regarding his stepdaughter.    Appellant realized

that ultimately he would have to tell his wife what had happened

with his stepdaughter, but it was not his plan to tell her at

that time.    Appellant also did not plan on admitting his

misconduct to Rev. Dennis at the meeting.   Appellant testified

he went to the meeting because his pastor “asked to meet with

[him] and [he] always went if [his] pastor ever wanted to meet

with [him].   He acknowledged he could have chosen not to go to

the meeting, however, he thought it would have been

disrespectful to Rev. Dennis not to respond.

     The meeting took place in a two-bedroom house located on

the church property and routinely used as a nursery.   Rev.

Dennis also used this building for meetings with church members.

The area used for the meeting was set up similar to a living

room with sofas.   Rev. Dennis was dressed in slacks, a dress

shirt, and jacket, which was typical attire for him when not

presenting a sermon.


                                  2
United States v. Shelton, No. 04-0359/AR


        When Appellant entered the room, Rev. Virgo was in the room

with Rev. Dennis.2    Rev. Dennis did not introduce Rev. Virgo to

Appellant and Appellant did not question his presence.

According to Appellant, it was common practice for another

preacher to be present in counseling sessions.

        The meeting started with Rev. Virgo leading the three men

in a prayer.    Immediately after the prayer, Rev. Dennis got to

the point of the meeting.    He told Appellant that his wife had

called him and said that something very serious had happened at

home.    Rev. Dennis told Appellant that he wanted to know the

truth and that God would judge Appellant if he lied.    Appellant

readily admitted he had engaged in inappropriate conduct with

his stepdaughter and had fantasies of taking the contact with

his stepdaughter to another level.     Rev. Dennis told Appellant

his conduct was wrong and that he could go to jail for this.

        Rev. Dennis then told Appellant that he needed to tell his

wife the truth about what had occurred with his stepdaughter.

There was no discussion about why Appellant’s wife needed to

know the truth.    He told Appellant to go get his wife and bring

her back to the meeting.    Appellant left the meeting, went to




2
  Rev. Dennis routinely trained young, inexperienced preachers in
his church and had them present during meetings or other church
functions. Rev. Virgo was one of the young preachers Rev.
Dennis trained.

                                   3
United States v. Shelton, No. 04-0359/AR


his home to pick up his wife, and returned to the meeting within

fifteen to twenty minutes.

        Appellant and his wife sat down in the room with Rev.

Dennis and Rev. Virgo.     Rev. Dennis told Appellant “you need to

talk to her.    Tell her exactly what happened.”       Appellant

responded, “I did it.    I did it.       I’m wrong.   I did it.”   He

also stated, “that’s not the way I want to be . . . .”         It

appears that neither Rev. Dennis nor Appellant repeated the

details of Appellant’s initial confession of his actions and

fantasies to Appellant’s wife.

        During the conversations with Appellant, Rev. Dennis told

the parties present that the situation was serious, it needed to

be reported, something had to be done, and Appellant could go to

jail.    At no time did Appellant object to or oppose reporting

his misconduct.    Rev. Dennis told the Sheltons during the

meeting that state law required clergy to report any type of

crime against children.3    At the conclusion of the meeting, Rev.

Dennis proceeded to address what to do next.          He expressed

concern for the safety of Appellant’s stepdaughter and

recommended that Mrs. Shelton leave the home with her children.

Mrs. Shelton said she would keep her daughter away from


3
  Clergy are not mandated reporters of child abuse in the state
of Washington. Wash. Rev. Code Ann. § 26.44.030 (West 2003).




                                     4
United States v. Shelton, No. 04-0359/AR


Appellant.    The entire meeting process, including the time it

took for Appellant to go home and pick up his wife, lasted

approximately one hour and fifteen minutes.    The Sheltons left

the church at 9:00 p.m. or 9:15 p.m.

     Even though Appellant did not want his wife to know about

his actions at that time, he left the meeting, picked up his

wife and brought her back to the church to talk to Rev. Dennis.

Appellant said he knew his admissions would not be held

confidential “when [Rev. Dennis] told my wife, and then the

meeting afterwards he informed me and my wife that according to

the bylaws that -- that he would have to tell the proper

authorities.”   He also testified he was not using Rev. Dennis

“to come clean” with his wife or to turn himself in for his

misconduct.   When Appellant decided to meet with Rev. Dennis, he

did not plan or intend to acknowledge or talk about his actions

with his stepdaughter.4   Rev. Dennis confronted Appellant about

the allegations raised by Appellant’s wife and Appellant

confessed.

     Approximately two weeks later, Rev. Dennis saw Appellant’s

wife at church and asked if she was going to report what


4
  Appellant testified that   “when I first went there I did not --
I did not want to tell him   anything. I was not going to tell
him anything, but after he   made the statement to me I thought
about it real quick and --   and that was when I decided to go
ahead and tell him.”



                                  5
United States v. Shelton, No. 04-0359/AR


happened.   Rev. Dennis told her he was obligated to report it to

the proper authorities and advised her to do the same.   Rev.

Dennis never reported Appellant’s misconduct to authorities.      On

June 24, 1999, Appellant’s wife contacted Ms. Sandi Doyle, a

social worker at Fort Lewis.    Appellant’s wife told Appellant

she had contacted Social Work Services.    Ms. Doyle contacted the

Criminal Investigative Division (CID), which contacted

Appellant’s chain of command.   On June 24, 1999, Appellant was

ordered to report to CID.   After a proper rights advisement,

Appellant made a sworn statement admitting his misconduct with

his stepdaughter.5   The following day, Appellant went to Social

Work Services to meet with Ms. Doyle for an appointment.

Appellant talked about his actions in general terms with Ms.

Doyle.   She then set up an appointment for him with Mr. Michael

Comte, a psychotherapist.   Appellant discussed with Mr. Comte

the details of his misconduct and fantasies.   By the time the

appointment was set up with the psychotherapist, Appellant

wanted to meet with Mr. Comte to get assistance for himself.

5
  Special Agent (SA) Proctor of the Fort Lewis CID interviewed
Appellant on June 24, 1999, after receiving a call from Ms.
Doyle from Social Work Services. She told CID she had
information that indicated Appellant may have committed indecent
acts with his stepdaughter. SA Proctor did not interview or
talk to Mrs. Shelton prior to his interview with Appellant. SA
Proctor advised Appellant of his Article 31(b), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 831(b) (2000), rights prior
to questioning Appellant. Appellant waived his rights and
rendered a sworn statement admitting misconduct with his
stepdaughter.

                                  6
United States v. Shelton, No. 04-0359/AR


Appellant acknowledged that his communications to Mr. Comte were

not connected to what he had said to CID.

                             DISCUSSION

       M.R.E. 503(a) provides that the holder of a privilege may

“prevent another from disclosing a confidential communication by

the person to a clergyman . . . if such communication is made

either as a formal act of religion or as a matter of

conscience.”    M.R.E. 503(b) defines “clergyman” and then

expressly limits the term “confidential communication.”

“[C]ommunication is ‘confidential’ if made to a clergyman in the

clergyman’s capacity as a spiritual advisor . . . and is not

intended to be disclosed to third persons other than those to

whom disclosure is in furtherance of the purpose of the

communication or to those reasonably necessary for transmission

of the communication.”    M.R.E. 503(b)(2).

       This Court has adopted the three-prong test identified in

United States v. Moreno, 20 M.J. 623, 626 (A.C.M.R. 1985),6 to

determine whether communication to a clergy is privileged and

thus, protected from disclosure.       One claiming the clergy

privilege must establish:

       (1) the communication must be made either as a formal
       act of religion or as a matter of conscience;
       (2) it must be made to a clergyman in his capacity as
       a spiritual advisor or to his assistant in his
       official capacity; and

6
    United States v. Coleman, 26 M.J. 407, 409 (C.M.A. 1988).

                                   7
United States v. Shelton, No. 04-0359/AR


     (3) the communication must be intended to be
     confidential.7

Applying this analysis to the facts in this case, I would not

hold that a clergy privilege existed.8    Specifically, I would not

conclude that Appellant confessed his actions and fantasies to

Rev. Dennis and Rev. Virgo and subsequently to his wife as a

matter of conscience or that Appellant “intended” the

communication to be “confidential.”9

                      A MATTER OF CONSCIENCE

     Appellant’s confessions to Rev. Dennis, Rev. Virgo, and

Mrs. Shelton do not amount to a “matter of conscience.”    The

clergy “privilege recognizes the human need to disclose to a

spiritual counselor, in total and absolute confidence, what are

believed to be flawed acts or thoughts and to receive priestly

consolation and guidance in return.”     Trammel v. United States,

445 U.S. 40, 51 (1980).

     The facts in this case do not support a finding that

Appellant was seeking out Rev. Dennis for any kind consolation

or guidance.   Appellant did not request a meeting.   Rev. Dennis

told Appellant to come to see him.     Rev. Dennis set up the


7
  Moreno, 20 M.J. at 626 (emphasis added).
8
  I take issue with the majority’s findings in regard to prongs
one and three of the Moreno test. I do not dispute that Rev.
Dennis qualifies as clergyman and served as a spiritual advisor.
9
  I agree with the majority that the facts do not support a
finding that Appellant’s communication was a “formal act of
religion.” Thus, I will not address this factor.

                                 8
United States v. Shelton, No. 04-0359/AR


meeting to find out the truth of the allegations raised by Mrs.

Shelton and to determine if the safety of Appellant’s

stepdaughter was an issue.   Mrs. Shelton was the one seeking out

Rev. Dennis’s assistance, not Appellant.   Moreover, Rev. Dennis

sought out Appellant.   This is not a situation where a penitent

is seeking to confess his sins to obtain forgiveness or

guidance.   In sum, these facts do not amount to an individual

seeking to talk to a member of the clergy “as a matter of

conscience.”

     Appellant claimed he confessed because he did not “want the

judgment of God” on him and he was hoping Rev. Dennis would

“tell [him] how [he could] get back in favor with God, and maybe

could even tell [him] someplace [he] could go to find help.”

However, Appellant’s actions, or lack of actions, do not support

Appellant’s assertion that he was seeking consolation or help

for repentance.   During the meeting, and during the days

following the meeting, Appellant did not ask for a subsequent or

follow-up meeting for consolation or counseling with Rev. Dennis

or other members of the clergy, nor did he seek or ask about

referrals to other professionals who could help him.    Further,

during the meeting, Appellant did not ask for prayer for himself




                                 9
United States v. Shelton, No. 04-0359/AR

or his family.10   He also did not ask God for forgiveness through

prayer or through Rev. Dennis.   He did not ask his wife for

forgiveness or promise to try to get help in dealing with his

conduct and proclivities.

     Appellant was not “in need.”     If anyone was seeking help or

consolation, it was Appellant’s wife.    Mrs. Shelton was seeking

help from Rev. Dennis to find out the truth from Appellant

regarding her daughter’s statements and actions.

     None of the reasons for the applicability of the clergy

privilege is present in this case.    Appellant was not seeking

help or consolation from Rev. Dennis.    As the military judge

correctly concluded, “the [Appellant’s] motivation in agreeing

to meet [Rev.] Dennis was not for the purpose of seeking the

clergyman’s spiritual guidance or as a matter of conscience.”

        COMMUNICATION MUST BE INTENDED TO BE CONFIDENTIAL

     The totality of the circumstances surrounding the

disclosure do not support Appellant’s assertion that the

conversation with Rev. Dennis was intended to be “confidential.”

I agree that “[w]hether a communication is confidential will

depend on the intent of the person making the communication,”

however, a military judge or court must look at the



10
  According to Appellant, the Bible says that “one part of
forgiveness is that we have to confess our sins while in praying
to Jesus . . . .”

                                 10
United States v. Shelton, No. 04-0359/AR

“circumstances, timing, and location of the communication” to

determine the actual intent of that person.11

     From the beginning, Rev. Dennis made it very clear the

situation was serious and needed to be reported.     He told both

Appellant and his wife that Appellant could go to jail for his

actions towards his stepdaughter.    He also told Appellant he

needed to tell his wife the truth and he directed Appellant to

go pick her up and bring her back to the meeting.     Appellant

left the meeting, went home to pick up his wife, and returned to

the meeting within fifteen to twenty minutes.     Appellant never

disputed or openly argued against “reporting” the situation or

to “telling” his wife.   Appellant never asked that Rev. Dennis

not involve anyone else in the situation.12     It is unreasonable,


11
   2 Stephen A. Saltzburg et al., Military Rules of Evidence
Manual § 502.02, at 5-25 (5th ed. 2003). See also id. § 503.01,
at 5-37 (“[T]he definition [of confidential communications]
turns on the penitent’s intent and is broad enough to include
oral and written statements if made to the clergyman in
confidence for the purpose of seeking spiritual counseling. If
the statements were made for non-spiritual purposes, the
privilege does not exist.”).
12
   Rev. Dennis testified that he “taught” all church members in
open meetings that if they came to him with a matter they wanted
him to keep confidential, they had to state that to him. He
also specifically told the members of his church that there
would be no confidentiality if a crime was committed. Appellant
and his wife had been members of Rev. Dennis’s church for more
than two years. The Sheltons also attended a church pastored by
Rev. Dennis at a previous duty assignment in Georgia. Appellant
and Mrs. Shelton testified at the Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), session that they did not recall being told
prior to the meeting that if a member revealed a crime to Rev.
Dennis, he would not consider the communication confidential.

                                11
United States v. Shelton, No. 04-0359/AR

based on what was being said and done during the meeting to

conclude that Appellant perceived his statements acknowledging

misconduct amounted to “a confidential disclosure” to a member

of the clergy.    The fact that Appellant readily went to pick up

his wife and returned to Rev. Dennis’s office with her so that

he could “tell” her the truth is inconsistent with Appellant’s

assertion that he believed his confession would not be disclosed

or kept secret.   Even assuming Appellant expected his

conversation with Rev. Dennis and Rev. Virgo to be held in

confidence, once he told his wife and allowed Rev. Dennis to

tell his wife about his confessed misconduct, there was no

longer a realistic expectation of privacy.

     If Appellant expected or intended confidentiality, he did

not say so at the time and never responded to what was being

said to him by Rev. Dennis.   It is clear from Rev. Dennis’s

comments and actions that he did not intend to keep this

information confidential.   Appellant never questioned or

challenged this intent.   Conveniently, at the Article 39(a),



They also claimed they did not recall being told that they had
to request the communication be held in confidence before they
could expect confidentiality. Both recall Rev. Dennis
discussing with them at the meeting that “by law” he was
required to report the incident to authorities. There is some
confusion in the testimony and in the military judge’s findings
as to whether Rev. Dennis believed he was required to report
child abuse “by state law” or based on the “by-laws” of the
church. Rev. Dennis’s testimony clarifies that he is referring
to state law and not church “by-laws.”

                                 12
United States v. Shelton, No. 04-0359/AR

UCMJ, session, Appellant testified that he believed his

confession would be confidential.      This Court now finds that

testimony more credible than the military judge’s findings

regarding Appellant’s and Rev. Dennis’s credibility.13     Contrary

to Appellant’s assertions at trial and the findings by the

majority, the facts do not support the conclusion that Appellant

was seeking to make his admission of wrongdoing confidential.

     In addition, Appellant failed to establish that the

presence of Rev. Virgo, and subsequently his wife, during his

communications with Rev. Dennis were essential to, or in

furtherance of, the purpose of the communication to a clergy

member.   Generally, the existence and applicability of the

clergy privilege is undermined by the presumption “that

communications that take place in the presence of third parties

are not confidential.”   In re Grand Jury Investigation, 918 F.2d

374, 385 n.15 (3d Cir. 1990).14   Although the privilege may exist


13
   On the credibility issue, the military judge believed Rev.
Dennis, rather than Appellant, and found that the “discussion[s]
between [Rev. Dennis] and the accused were not meant to be
confidential . . . .” See United States v. Martinez, 38 M.J.
82, 86 (C.M.A. 1993) (military judges are in the unique position
to decide the appropriate weight to give to the testimony of
witnesses and when “the military judge expresses special
influence of that unique viewpoint on his judgment,” that should
weigh heavily in the appellate court’s determination).
14
   “[I]n a situation where numerous persons, each seeking
individual spiritual guidance, choose to meet as a group with a
clergy member, a privilege does not exist unless, upon
independent scrutiny, the ‘essentiality and in furtherance’ test
is met.” In Re Grand Jury Investigation, 918 F.2d at 386 n.19.

                                  13
United States v. Shelton, No. 04-0359/AR

even if third persons are present or later hear the

communication, the disclosure must be “in furtherance of the

purpose of the communication or to those reasonably necessary

for the transmission of the communication.”   M.R.E. 503(b)(2).

The burden of proof to establish the existence of the privilege

and to rebut the presumption is on the party asserting the

privilege.   In re Grand Jury Investigation, 918 F.2d at 385.

     In this case, a third person, Rev. Virgo, was present

during Appellant’s initial confession to Rev. Dennis and during

Appellant’s admission to his wife.    Appellant did not know Rev.

Virgo and was not introduced to him at the time of the meeting

as someone who needed to be present in order to facilitate the

process or the communication.   No one asked Appellant’s

permission to have Rev. Virgo present during his discussion with

Rev. Dennis and Appellant did not voice an objection to having a

person he did not know present during his conversation.

Although Rev. Virgo apparently led the group in prayer as the

meeting began, he did not participate in the questioning of

Appellant or any counseling.    He simply served as a witness to

what was transpiring.   Appellant had no expectation of receiving

anything, including consolation from Rev. Virgo.   Rev. Virgo did

not further the purpose of the communication and his presence

was not reasonably necessary for the transmission of the

communication.


                                 14
United States v. Shelton, No. 04-0359/AR

     After Appellant confessed to Rev. Dennis in the presence of

Rev. Virgo, Rev. Dennis told Appellant to go get his wife and

bring her back.   Rev. Dennis also told Appellant he should tell

his wife the truth about what he did to his stepdaughter.

Appellant brought his wife back to the meeting with Rev. Dennis

and Rev. Virgo.   At that time, Appellant acknowledged that he

acted inappropriately with his stepdaughter.    Making Appellant

tell his wife the truth was not in “furtherance of the purpose

of the communication” and was not “reasonably necessary for the

transmission of the communication.”    See M.R.E. 503(b)(2).

Telling his wife “the truth” was also not necessary for

consolation or to help Appellant.     And, contrary to the

assertion of the majority, telling his wife was not necessary

for Appellant’s “redemption.”   There were no follow-up meetings

or counseling sessions scheduled for Appellant individually, or

with his wife.    There were no recommendations or referrals to

mental health professionals.    Rev. Dennis made Appellant tell

his wife the truth to confirm her suspicions about Appellant.

Presumably, he also made Appellant tell his wife to prevent

Appellant from committing additional misconduct with his

stepdaughter and to protect her.15    There was no other purpose



15
  Arguably, the purpose of the communication to Mrs. Shelton was
necessary to protect Appellant’s stepdaughter from further harm
and exposure to Appellant. However, protection of Appellant’s

                                 15
United States v. Shelton, No. 04-0359/AR

for communicating Appellant’s misdeeds to Mrs. Shelton.    In

short, telling Mrs. Shelton was not to help Appellant in any

way.16   Appellant failed to demonstrate that the communications

to Rev. Virgo or his wife were in furtherance of the purpose of

the communication or that their presence was necessary for the

transmission.

                MILITARY JUDGE’S ESSENTIAL FINDINGS

     The majority believes the military judge erred in

concluding that Appellant’s communication with Rev. Dennis was

not “a matter of conscience.”   The majority opinion determined

that the military judge abused his discretion because he

“misconstrued” the clergy privilege and gave more weight to Rev.

Dennis’s opinions versus the opinions of Appellant.17

     The military judge did look at Appellant’s “opinion” and

determined whether Appellant intended for the communication to

be a confidential “matter of conscience.”   The military judge,

however, did not limit his factfinding merely to Appellant’s


stepdaughter could have been accomplished without having
Appellant confess his actions to his wife.
16
   Compare United States v. Isham, 48 M.J. 603, 607-08 (N-M. Ct.
Crim. App. 1998) (Court concluded that the appellant agreed to
disclosure by “a” chaplain for the limited purpose of getting
help for the appellant and preventing him from carrying out
threats to harm himself and others. The disclosure was for a
limited purpose of getting the appellant help and not for
disclosure at a court-martial.).
17
   Appellate courts presume that military judges know the law and
apply it correctly. United States v. Raya, 45 M.J. 251, 253
(C.A.A.F. 1996); United States v. Prevatte, 40 M.J. 396, 398
(C.M.A. 1994).

                                 16
United States v. Shelton, No. 04-0359/AR

words.    He looked at the credibility of the witnesses and the

“circumstances, timing, and location of the communication” to

make “independent conclusions” regarding the existence of the

privilege.     He also looked at what was being said and done at

the time of the communication to determine Appellant’s actual

intent.   If Appellant disagreed, or truly intended not to have

his confession disclosed, he should have at least said something

to that effect.    The majority relies on Appellant’s spoken words

during the motion hearing and what they perceive as a coercive

“religious atmosphere” to determine the actual intent of

Appellant.18

     The majority finds that Appellant confessed to Rev. Dennis

“as a matter of conscience” by focusing on the “religious

atmosphere” surrounding the conversations, as well as Rev.

Dennis’s use of God to cause Appellant to feel guilt and shame

and thus confess.    Accordingly, the majority equates this

potentially “coercive” environment to Appellant having an intent

to confess his actions and fantasies “as a matter of




18
  Anderson v. Bessemer City, 470 U.S. 564, 574 (1985) (If the
military judge’s “account of the evidence is plausible in light
of the record viewed in its entirety, [we] may not reverse it
even though convinced that had [we] been sitting as the trier of
fact, [we] would have weighed the evidence differently. Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).

                                  17
United States v. Shelton, No. 04-0359/AR

conscience.”19   In his findings, the military judge clearly

looked at and considered Appellant’s intent as to why he

selected this moment in time to confess and whether he was

seeking consolation, assistance, or forgiveness from his God.20

The military judge’s findings are correct.   Appellant did not

seek to confess his misconduct as a “matter of conscience” or as

“a formal act of religion.”   Appellant never spoke up or took

any actions to demonstrate a different conclusion as to his

“intent.”

     In its opinion, the majority comments that the military

judge prepared his “formal written ruling” on the motion to

suppress nine months after the trial.   The majority seems to

infer that the military judge acted inappropriately by

submitting his written findings after the trial.   After this

lengthy verbatim record was prepared and given to the military




19
   The military judge was not asked to determine whether
Appellant’s confession was involuntary based on the cohercive
“religious atmosphere,” however, and the majority seems to have
raised and resolved the issue on behalf of the defense under the
guise of the clergy privilege.
20
   The military judge stated in his findings on the motion: (1)
that Appellant did not intend for the communications to be
confidential; (2) that had he intended that the communications
be confidential he would not have spoken with Rev. Virgo present
or brought his wife back to Rev. Dennis’s office; (3) that
Appellant’s motivation in agreeing to meet Rev. Dennis was not
for the purpose of seeking spiritual guidance or as a matter of
conscience; and (4) that Appellant never asked for spiritual
guidance, absolution, or God’s forgiveness.

                                 18
United States v. Shelton, No. 04-0359/AR

judge, he prepared his factual findings.21   See 1 Francis A.

Gilligan & Fredric I. Lederer, Court-Martial Procedure § 14-

64.30, at 584 n.245 (2d ed. Supp. 2004).22

     How rulings are entered in trials by courts-martial
     varies according to the circumstances of the case,
     local resources, and local practice. Most rulings on
     simple evidentiary objections are entered orally on
     the record at the time the objection is made. As to
     motions to suppress and motions in limine, some
     military judges enter their ruling and essential
     findings orally or in writing on the record
     contemporaneously. Others enter their ruling orally,
     followed by written essential findings. In any case,
     in view of the Rules for Courts-Martial . . . , divers
     local practices and customs, and the absence of any
     trial court rules before us, we cannot lay down any
     hard and fast rule on how rulings on suppression
     motions are made at trial. Instead, we must give
     weight to the local practice and to the intentions of
     the military judge as manifested by his action on the
     record of the particular case.

United States v. Flores-Galarza, 40 M.J. 900, 906 (N.M.C.M.R.
         23
1994).

21
   R.C.M. 905(d) (“Where factual issues are involved in
determining a motion, the military judge shall state the
essential findings on the record.”). See also United States v.
Doucet, 43 M.J. 656, 659 (N-M. Ct. Crim. App. 1995) (Although
the court urged the importance of entering essential findings
contemporaneously with the ruling, the court noted that “[t]he
usual remedies for a failure [of the military judge] to enter
the required essential findings are a rehearing or return of the
record of trial to the military judge for entry of the essential
findings.”).
22
   See also R.C.M. 905(f) (permitting reconsideration by the
military judge of any ruling, other than one of “not guilty,”
prior to authentication of the record of trial); United States
Army, Trial Judiciary Standard Operating Procedure, Chap. 18,
para. 11 (May 1, 2003) (explaining that “[i]f special or
essential findings are made in a memorandum format, the
memorandum must be appended to the record of trial as appellate
exhibit before authentication.”)

                                19
United States v. Shelton, No. 04-0359/AR

       Our justice system places a lot of responsibility and trust

in our military judges.    Unless the evidence shows otherwise, we

should not assume military judges will take the opportunity to

prepare essential findings after a ruling as a post hoc

rationalization for the ruling.    In light of the fact that a

military judge can reconsider his findings on all motions except

findings of not guilty before authentication of the record, we

cannot overreact to military judges who pen their findings after

trial but before authentication.       The majority seems to overlook

the fact that the military judge made his ruling on the record

and summarized the basis for his ruling at that time.      Since

this motion was the focus of the conditional plea, it is likely

the military judge wanted to put his findings in a more formal

format.    The critical point, however, is that the military judge

made his essential findings of fact before authentication of the

record.



23
     But cf. Flores-Galarza, 40 M.J. at 906 n.9.

       [T]he most important value of making essential findings
       contemporaneously with the ruling is the discipline it
       affords the decision maker and the integrity it brings to
       the decision-making process. If essential findings are
       prepared after the ruling, they may become nothing more
       than a post hoc rationalization. Hence, the far better
       practice is to enter the ruling and essential findings
       contemporaneously.

Id.



                                  20
United States v. Shelton, No. 04-0359/AR

     Additionally, I notice a disturbing trend by the majority.

In United States v. McNutt,24 this Court considered as fact what

the court below considered arguendo.   In United States v.

Harvey, __ M.J. __ (1) (C.A.A.F. 2006) (Crawford, J.,

dissenting), this Court converts what purports to be a statement

of counsel into evidence to reach its conclusion.    Finally, in

United States v. Warner,25 this Court considered a very lengthy

appellate exhibit as facts, and yet, this Court now implies that

it was somehow improper for the military judge to see the record

before making his formal findings.

                           ATTENUATION

     Assuming that the clergy privilege applies in this case,

the parties recognized at trial that Appellant made additional

statements to others regarding the abuse of his stepdaughter.

The defense argued at trial that these statements should also be

excluded because they were “made only because there had been a

breach of the clergyman-penitent privilege. . . .”   The defense

motion that Appellant’s conditional plea sought to preserve

clearly extended to suppression of “any and all evidence seized,

collected, and developed as result of the breach of his

confidential communication to his pastor. . . .”    Nevertheless,

the issue before the military judge, the CCA, and this Court,

24
   62 M.J. 16, 24-25 (C.A.A.F. 2005) (Crawford, J., concurring in
part and dissenting in part).
25
   62 M.J. 114, 124 (C.A.A.F. 2005) (Crawford, J., dissenting).

                               21
United States v. Shelton, No. 04-0359/AR

does not preclude the conclusion that the “evidentiary error”

regarding the privileged communication was harmless since

Appellant’s statements to the CID agent and the psychotherapist

were attenuated and prove Appellant’s guilt.   See Moreno, 20

M.J. at 627 (“An error not of constitutional dimension may be

found harmless if the fact finder was not influenced by it or if

the error had but a slight effect on the resolution of the

issues in the case.”).

     As evidenced by the facts in the record of trial,

Appellant’s subsequent statements were attenuated from the

initial confession to Rev. Dennis and Appellant’s wife.

Seventeen days after Appellant spoke to Rev. Dennis, he made a

sworn statement to CID after being properly advised of his

rights and waiving them.   At the time of this statement, he was

not bullied or threatened in any way.

     In the past, a conditional plea did not preclude this Court

from examining any derivative evidence or a secondary basis for

affirming the ruling on the motion.   See, e.g., United States v.

Robinson, 58 M.J. 429, 432-34 (C.A.A.F. 2003) (in a conditional

plea case, the Court went beyond the question of probable cause

and examined a secondary basis in upholding the investigative

stop -- reasonable suspicion); United States v. Lichtenhan, 40

M.J. 466, 469-70 (C.M.A. 1994) (in a conditional plea case, this

Court held that the subsequent statement to the Naval


                                22
United States v. Shelton, No. 04-0359/AR

Investigative Service was admissible and not tainted by the

prior, unwarned statement).    The majority’s reliance on United

States v. Barror, 23 M.J. 370 (C.M.A. 1987), is also misplaced.

In that case, this Court concluded that the government’s only

significant evidence of the appellant’s guilt was not admissible

and, as a result, the government had no other “legally competent

evidence” available to establish the appellant’s guilt.    Id. at

373.   In this case, there were at least three other statements

by Appellant to three different individuals.26   These statements

were made by Appellant seventeen days after his statements to

his wife and Rev. Dennis and, thus, any potential taint had

dissipated.   In addition, the Government had the statements by

Appellant’s stepdaughter to Mrs. Shelton and Mrs. Shelton’s

observations of her conduct.   With this other evidence, the

Government could meet its burden of proving Appellant’s guilt

with “legally competent evidence.”

       Once again, however, this Court selectively decides when it

wants to follow its own precedent.    See United States v. Aleman,

62 M.J. 281, 284-85 (C.A.A.F. 2005)(Crawford, J., dissenting).

In the past, this Court has evaluated the prejudice from

erroneous evidentiary rulings by “weighing (1) the strength of

the Government’s case, (2) the strength of the defense case, (3)

26
  Appellant made some general admissions to the social worker,
Ms. Doyle. He also made detailed admissions to SA Proctor of
CID and to Mr. Comte, the psychotherapist.

                                 23
United States v. Shelton, No. 04-0359/AR

the materiality of the evidence in question, and (4) the quality

of the evidence in question.”   United States v. Kerr, 51 M.J.

401, 405 (C.A.A.F. 1999).   The other “legally competent

evidence” in this case clearly supports the Government’s burden

of proof and a finding of guilty on the affected specifications

and charge.

                            CONCLUSION

     Because I would resolve that question in favor of the

military judge’s ruling regarding the application of the clergy

privilege, I would hold that Appellant did not prevail, that his

plea was provident, that Appellant may not withdraw his plea,

and that the findings and sentence should be affirmed.




                                24
