                           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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United States v. Custis, No. 07-0188/AF


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.

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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).

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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”).

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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.


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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).

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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
United States v. Custis, No. 07-0188/AF

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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United States v. Custis, No. 07-0188/AF

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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United States v. Custis, No. 07-0188/AF

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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United States v. Custis, No. 07-0188/AF

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.



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United States v. Custis, No. 07-0188/AF

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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United States v. Custis, No. 07-0188/AF

     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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United States v. Custis, No. 07-0188/AF

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
