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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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). 
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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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. 

1994). 23 

 

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

20

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. 

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

21

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

22

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

23

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

24

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.