U.S. v. Custis, 65 M.J. 366

Core Criminal Law Subjects: Crimes: Article 134 - Soliciting Another to Commit an Offense Pre-2019 offenses

1. 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

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. privileges should be construed narrowly, as they run contrary to a court’s truth-seeking function
2. whereas privileges evolve in other federal courts based on case law determinations, in the military system, the privileges and their exceptions are expressly delineated
3. MRE 510(a) provides that a person waives a 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; the overall substance of the conversation must be conveyed to the third party for there to be a waiver of the privilege

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. a military judge may not admit marital communications otherwise privileged under MRE 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 MRE 504(c)
2. the military judge abused his discretion when he erroneously relied on MRE 501(a)(4) for the authority to import a common law exception into the marital communication privilege codified in MRE 504(b); although 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 had support in the common law “joint crime participant” or “crime/fraud” exception to the common law marital communication privilege, the authority to add exceptions to the codified privileges within the military justice system lies not with CAAF or the courts of criminal appeal, but with the policymaking branches of government
3. MRE 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; MRE 504(b) provides a general privilege for confidential communications made during marriage: a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law; if an accused’s communications meet the requirements of MRE 504(b)(1), they are privileged unless they otherwise fall under an exception to that rule; specific exceptions to the marital privileges established in MRE 504(a) and (b) are delineated in MRE 504(c)
4. the President has authority to create a “crime/fraud” exception under MRE 504(c), as he has done in the attorney-client and psychotherapist-patient privileges; under the military justice 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
5. MRE 501(a)(4) does not provide authority to either the court of criminal appeals or CAAF to create an exception to the codified marital privilege by reference to the common law exception generally accepted in the United States federal courts; MRE 501(a)(4) provides authority for a person to claim a privilege as required by or provided for in the principles of common law generally recognized in the trial of criminal cases in the federal court pursuant to FRE 501 insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the code, the MREs, or the MCM; the plain language of MRE 501 addresses only a claim of privilege; it does not reference exceptions; nothing in the language of MRE 501 itself warrants reference to a common law exception to limit the privilege that is specifically established in MRE 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 MRE 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
6. appellant’s comment to his coworker that his wife had his back did not waive the marital communications privilege that attached to other privileged communications with his wife, where the comment did not relay either the actual privileged conversation between appellant and his wife or the substance of the privileged communications between appellant and his wife, 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

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. an appellate court presumes that a court-martial panel follows the instructions given by the military judge

Trial Stages: Appeals: Harmless / Prejudicial Error

1. error in admitting privileged communications between appellant and his wife was not harmless with respect to appellant’s conviction for soliciting the offense of obstruction of justice, where the wife’s testimony regarding her conversations with her husband 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 his wife’s help in this crime, as opposed to his wife who solicited appellant’s participation; given the pivotal importance of the privileged communications to the solicitation charge, the members may have been substantially influenced by the erroneously admitted evidence, so appellant’s solicitation conviction must be reversed
2. the evidentiary error in admitting privileged communications between appellant and his wife was harmless as to the other non-solicitation offenses where none of appellant’s remaining convictions turned on who instigated the other’s participation in the underlying obstruction offense; in light of the testimony of appellant’s wife as to both the actions she observed and the conduct in which she and appellant engaged in together, the erroneously admitted evidence did not have a substantial influence on the members with respect to those offenses
3. the evidentiary error in admitting privileged communications between appellant and his wife was harmless as to sentence where 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; where there is no reason to question that the panel did not do so in this case, the offense of solicitation to obstruct justice had no impact on appellant’s sentence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where the error in admitting privileged marital communications was not constitutional in nature, an appellate court, in testing for nonconstitutional harmless error, conducts a de novo review to determine whether this error had a substantial influence on the members’ verdict in the context of the entire case

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. it is a well established rule that principles of statutory construction are used in construing the MCM in general and the MREs in particular; when 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