             UNITED STATES NAVY-MARINE CORPS
                COURT OF CRIMINAL APPEALS
                     WASHINGTON, D.C.

                               Before
            K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                      Appellate Military Judges

                       UNITED STATES OF AMERICA

                                         v.

                         ANTHONY S. RIOS
                  CORPORAL (E-4), U.S. MARINE CORPS

                               NMCCA 201500139
         Review Pursuant to Article 62(b), Uniform Code of Military Justice,
                                 10 U.S.C. § 862(b)

Military Judge: LtCol E.H. Robinson, Jr., USMC.
Convening Authority: Commanding Officer, Headquarters
Regiment, 1st Marine Logistics Group, Camp Pendleton, CA.
For Appellant: Capt Cory Carver, USMC.
For Appellee: LT Ryan Aikin, JAGC, USN.

                              20 August 2015

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               PUBLISHED OPINION OF THE COURT
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HOLIFIELD, Judge:

     The appellee is currently facing trial by special court-
martial on numerous charges regarding larceny from the Marine
Corps Exchange (MCX) on Camp Pendleton, California. He is
charged with violations of Articles 81 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 881 and 921. He is alleged to
have conspired with his wife to commit larceny by using
merchandise receipts and price tags to obtain refunds in the
form of MCX store credit, and then using that credit to purchase
Visa gift cards. He is also alleged to have stolen two gift
cards thusly obtained. Among the evidence the Government seeks
to offer to prove the appellant’s guilt is Mrs. Rios’ testimony
regarding her husband’s involvement in the purportedly criminal
activity. Mrs. Rios’ attorney, however, informed the military
judge that his client intends to invoke her privilege (spousal
incapacity) under MILITARY RULE OF EVIDENCE 504(a), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). Accordingly, the Government
sought a preliminary ruling on whether the appellee’s wife could
be compelled to testify under the exception found in MIL. R. EVID.
504(c)(2)(D). The military judge ruled that the appellee’s wife
may validly invoke the privilege under MIL. R. EVID. 504(a), and
that the exception found at MIL. R. EVID. 504(c)(2)(D) in no way
limits that invocation. 1 The Government now appeals that ruling
under Article 62, UCMJ.

     We have thoroughly reviewed the record of trial and the
briefs submitted by the parties. Following that review and our
consideration of all the materials before us, we conclude that
the appeal is properly before us and find no error in the
military judge’s findings of fact and conclusions of law.

                            Spousal Privilege

     Issues of marital privilege involve mixed questions of law
and fact. While we review the former de novo, United States v.
McCollum, 58 M.J. 323, 335-36 (C.A.A.F. 2003), when reviewing
Article 62, UCMJ, appeals we are “bound by the military judge’s
factual determinations unless they are unsupported by the record
or clearly erroneous.” United States v. Gore, 60 M.J. 178, 185
(C.A.A.F. 2004).

     MIL. R. EVID. 504 contains two privileges. First, subsection
(a), under the heading “Spousal Incapacity,” simply states that
“[a] person has a privilege to refuse to testify against his or
her spouse.” Subsection (b), titled “Confidential
Communications Made During the Marriage,” provides, as a general
rule, that “[a] person has a privilege during and after the
marital relationship to refuse to disclose, and to prevent
another from disclosing, any confidential communications made to

1
  The appellant also challenges the military judge’s conclusion that the
Government failed to show that the appellee and his wife were “substantial
participants in illegal activity” within the meaning of MIL. R. EVID.
504(c)(2)(D). As we find that provision inapplicable in the present case,
this challenge is moot.
                                      2
the spouse of the person while they were husband and wife and
not separated as provided by law.”   The Rule also provides
several exceptions, discussed below. At issue is whether one of
these exceptions applies to Mrs. Rios.

Regulatory Construction

     “‘It is a well-established rule that principles of
statutory construction are used in construing the . . . Military
Rules of Evidence.’” United States v. Matthews, 68 M.J. 29, 36
(C.A.A.F. 2009) (quoting United States v. Custis, 65 M.J. 366,
370 (C.A.A.F. 2007)). The first step, then, is to look at the
plain language of the Rule; if its “language is plain, the sole
function of the courts . . . is to enforce it according to its
terms.” Id. (citations and internal quotation marks omitted).
“‘The inquiry ceases if the statutory language is unambiguous
and the statutory scheme is coherent and consistent.’” United
States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (quoting
Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002)).

     Here, both parties claim that the “plain language” of the
Rule supports their position. Of course, only one can be
correct. The text of MIL. R. EVID. 504(c) is as follows:

     “(c) Exceptions.

     (1) To Spousal Incapacity Only. There is no privilege
     under subdivision (a) when, at the time the testimony
     of one of the parties to the marriage is to be
     introduced in evidence against the other party, the
     parties are divorced or the marriage has been
     annulled.

     (2) To Spousal Incapacity and Confidential
     Communications. There is no privilege under
     subdivisions (a) or (b):

     (A) In proceedings in which one spouse is charged with
     a crime against the person or property of the other
     spouse or a child of either, or with a crime against
     the person or property of a third person committed in
     the course of committing a crime against the other
     spouse;


                                3
     (B) When the marital relationship was entered into
     with no intention of the parties to live together as
     spouses, but only for the purpose of using the
     purported marital relationship as a sham, and with
     respect to the privilege in subdivision (a), the
     relationship remains a sham at the time the testimony
     or statement of one of the parties is to be introduced
     against the other; or with respect to the privilege in
     subdivision (b), the relationship was a sham at the
     time of the communication; or

     (C) In proceedings in which a spouse is charged, in
     accordance with Articles 133 or 134, with importing
     the other spouse as an alien for prostitution or other
     immoral purpose in violation of 8 U.S.C. §1328; with
     transporting the other spouse in interstate commerce
     for immoral purpose or other offense in violation of
     18 U.S.C. §§ 2421-2424; or with violation of such
     other similar statutes under which such privilege may
     not be claimed in the trial of criminal cases in the
     United States district courts.

     (D) Where both parties have been substantial
     participants in illegal activity, those communications
     between the spouses during the marriage regarding the
     illegal activity in which they have jointly
     participated are not marital communications for
     purposes of the privilege in subdivision (b) and are
     not entitled to protection under the privilege in
     subdivision (b).

     First, we hold that, under a plain reading of MIL. R. EVID.
504, the exception contained in MIL. R. EVID. 504(c)(2)(D) does
not apply to the spousal incapacity privilege. The grammatical
structure of the Rule mandates that the clause ”There is no
privilege under subdivisions (a) or (b):” applies only to
subparagraphs (c)(2)(A), (B) and (C). See United States v. Ron
Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). Subparagraphs
(A) and (B) both end in a semi-colon, the word “or” appears
between paragraphs (B) and (C), and subparagraph (C) ends with a
period. Also, these three subparagraphs are meaningless but for


                                4
their relation to the introductory clause. 2 Paragraph (D),
however, is a complete sentence and can be read independently of
that clause.

     The Government, however, argues that the title of
subdivision (c)(2), “To Spousal Incapacity and Confidential
Communications,” means that the exception in subparagraph
(c)(2)(D) applies to both privileges. Yet, a plain reading of
that subparagraph shows such an interpretation would be absurd,
as the Government’s preferred interpretation could be restated
essentially as: “subparagraph (c)(2)(D) applies to both
privileges to the extent each involves marital communications
and the privilege in subdivision (b).” Obviously, subdivision
(a), spousal incapacity, involves neither.

     Finally, while the Government would have us read the first
clause of subparagraph (c)(2)(D) to stand alone, to do so would
ignore its obvious role as a conditional phrase applicable to
the remainder of the subparagraph. Such a reading would also
render the subparagraph’s remaining language superfluous. As we
must “‘give effect, if possible, to every clause and word,’”
Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United
States v. Menasche, 348 U.S. 538-39 (1955)), we decline to
dismiss the critical and clearly stated balance of the
exception’s language. 3

     Accordingly, as we find the applicability (and
inapplicability) of subparagraph (c)(2)(D) to be clear from a
plain reading of its language, we need inquire no further.




2
  Subparagraphs (c)(2)(A)-(C) and the introductory clause have remained
virtually unchanged as a cohesive provision since the Military Rules of
Evidence were promulgated in 1980. It was not until 13 December 2011, that
the President added subparagraph (c)(2)(D) to the Rule by Executive Order
13593.
3
  We are mindful of the appellant’s position that that this obligation “to
give effect” should also apply to the title of subsection (c)(2). We find,
however, a significant distinction between general heading language - that
existed before the addition of the exception in subparagraph (c)(2)(D) – and
the clear, specific text of the exception itself.


                                      5
Applying the Rule

     The military judge found that the appellee and his wife
were married at all times relevant to the proceedings. 4 We see
nothing in the record to question that finding. As the
appellee’s current spouse, Mrs. Rios may invoke her privilege to
refuse to testify against him. As we hold the language of
subparagraph (c)(2)(D) applies only to the privilege under
subdivision (b), and no other exception to the privilege under
subdivision (a) applies in this case, her ability to invoke the
spousal incapacity privilege is unaffected.

                                   Conclusion

     The Governments appeal is DENIED. The military judge's
ruling is affirmed and the record of trial is returned to the
Judge Advocate General for remand to the convening authority and
delivery to the military judge for further proceedings.

        Senior Judge BRUBAKER and Judge MARKS concur.


                                        For the Court



                                        R.H. TROIDL
                                        Clerk of Court




4
    Appellate Exhibit XVII at 2.
                                       6
