UNITED STATES, Appellee 

v. 

John H. CUSTIS, Airman First Class 

U.S. Air Force, Appellant 

No. 07-0188 

Crim. App. No. S30875 

United States Court of Appeals for the Armed Forces 

Argued October 15, 2007 

Decided December 5, 2007 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined. 

Counsel

For Appellant: Captain Timothy M. Cox, (argued); Lieutenant 

Colonel Mark R. Strickland, (on brief); Captain Chadwick A. 

Conn. 

For Appellee: Major Donna S. Rueppell, (argued); Colonel Gerald 

R. Bruce, Major Matthew S. Ward, and Captain Jefferson E. 

McBride (on brief). 

Military Judge: Kirk R. Granier 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Custis, No. 07-0188/AF 

2

Judge RYAN delivered the opinion of the Court. 

A special court-martial, composed of officer and enlisted 

members, convicted Appellant, contrary to his pleas, of 

conspiracy to obstruct justice, drunken operation of a vehicle,1

soliciting obstruction of justice, disorderly conduct, and 

obstruction of justice, in violation of Articles 81, 111, and 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 

911, and 934 (2000). The sentence adjudged by the special 

court-martial and approved by the convening authority included a 

bad-conduct discharge, reduction to the lowest enlisted grade, 

and confinement for thirty days. 

The threshold question before us is whether a military judge 

may admit marital communications otherwise privileged under 

Military Rule of Evidence (M.R.E.) 504(b) by reference to a 

common law exception generally recognized in the United States 

federal courts but not listed within the exceptions specifically 

enumerated under M.R.E. 504(c).2

 For the reasons set forth below 

 

1

 The panel acquitted Appellant of the specification of this 

offense related to the obstruction offenses, but convicted him 

of another specification of this offense for an incident that 

occurred months later. 

2 The granted issue states: 

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY 

DENYING THE DEFENSE’S MOTION TO SUPPRESS AND HOLDING THAT 

CERTAIN STATEMENTS MADE BY THE APPELLANT TO HIS WIFE DID 

NOT FALL WITHIN THE PRIVILEGE FOR CONFIDENTIAL MARITAL 

COMMUNICATIONS. 

65 M.J. 265 (C.A.A.F. 2007). 
United States v. Custis, No. 07-0188/AF 

3

we answer that question in the negative, reverse in part, and 

affirm the sentence. 

I. 

A. Factual Background 

In the early morning hours of April 24, 2004, the Minot Air 

Force Base Security Forces stopped Appellant, who was driving a 

car with a broken license plate light. Noting an odor of 

alcohol, Appellant’s slow responses, and his glassy eyes, the 

security forces conducted field sobriety tests. Appellant 

consented to a breathalyzer test, but failed to blow hard and 

long enough to give a testable sample of breath. 

 The security forces transported Appellant to the base 

hospital for a command directed blood alcohol test. Through 

fortuity, and unbeknownst to the security forces, the laboratory 

technician called in to take the blood sample from Appellant was 

his wife, Airman Starleeka Creque.3 Neither Appellant nor Airman 

Creque informed the security forces of this connection. Airman 

Creque drew two vials of blood from Appellant, covered the vials 

with tamper proof tape, and locked the vials in a secure box. 

Later that day Airman Creque collected supplies from the 

hospital to redraw Appellant’s blood at home. The next day she 

drew two new vials of blood from Appellant’s arm at their home. 

 

3

 Between the time of the offenses and trial, Appellant and 

Airman Creque were divorced and she changed her last name from 

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

4

She drew the second sample of blood from the same location on 

his arm as the first. She then took the new samples to the 

hospital, switched them with the two samples she had taken the 

day prior that were in the locked box, and gave the original 

samples to Appellant. 

The fact of the relationship between Appellant and the 

technician who drew his blood for the blood alcohol test was 

raised by the command. Unsurprisingly, the security forces 

became suspicious when the lab report indicated that no alcohol 

was found in Appellant’s blood sample. Investigators questioned 

Airman Creque several times about whether she had switched blood 

samples. After a dispute with Appellant, she admitted that she 

had switched them. 

B. Motion to Suppress and Procedural Background 

At issue in this case are the communications between 

Appellant and Airman Creque related to the facts above.4 Prior 

to trial, Appellant moved pursuant to M.R.E. 504(b) to exclude 

the testimony of Airman Creque concerning her confidential 

communications with him between April 24, 2004, and April 26, 

2004. The Government opposed the motion, arguing that because 

Appellant and his wife were engaged in a joint venture to 

 

4

 No one questions that the above factual descriptions of what 

Airman Creque did and observed were admissible, irrespective of 

M.R.E. 504(b). See Pereira v. United States, 347 U.S. 1, 6 

(1954) (noting that the marital communications privilege 

protects communications, not acts). 
United States v. Custis, No. 07-0188/AF 

5

obstruct a lawful investigation, the trial court should apply a 

federally recognized common law exception to the marital 

privilege pursuant to M.R.E. 501(a)(4). 

The military judge found that certain communications 

between Appellant and his wife during the two days they carried 

out their plan to switch his blood specimens were “intended . . 

. as private, marital communications between the two of them.” 

But the military judge did not grant the motion to exclude the 

communications pursuant to M.R.E. 504(b). Instead, after 

balancing the interests of the marital communication privilege 

in M.R.E. 504(b) against “the interests of justice,” the 

military judge found that “there is a greater need to protect 

the interests of . . . truth in criminal proceedings.”5 

Referencing M.R.E. 501(a)(4) and the common law exception to the 

marital privilege addressed in United States v. Smith, 30 M.J. 

1022 (A.F.C.M.R. 1990), aff’d on other grounds, 33 M.J. 114 

(C.M.A. 1991), the military judge concluded that “communications 

between spouses which are intended to perpetuate a fraud [on] 

the court, through joint criminal misconduct in the 

 

5

 Although we decide this case on the basis of the text of the 

Rule, we note that the military judge, after determining the 

requirements of M.R.E. 504(b) were met, erroneously applied a 

balancing test to the application of an exception to the 

privilege. Where applicable, the privilege is not subject to 

balancing. See United States v. McCollum, 58 M.J. 323, 340 

(C.A.A.F. 2003) (stating that communications protected by M.R.E. 

504(b) are “privileged unless they otherwise fall under an 

exception to that rule”). 
United States v. Custis, No. 07-0188/AF 

6

communications between husband and wife are not protected by 

[M.R.E.] 504(b).” 

At trial, over defense objection, Airman Creque testified 

as to the substance of her conversations with Appellant. She 

testified that they discussed the blood test at their home, and 

“how the [driving under the influence (DUI)] situation could be 

fixed.” She divulged that Appellant initiated the conversation 

in which he asked her if she was the only person working that 

evening, who else had access to the secure box, and how long the 

alcohol would remain in his system. She further testified that 

when she went to take the second blood sample, Appellant told 

her to make sure she used the same location as the first 

samples. 

As relevant to the granted issue, Appellant was convicted 

of conspiring with and soliciting Airman Creque to obstruct 

justice, and with obstructing justice himself, by interfering 

with the investigation of his alleged April 24, 2004, DUI. 

The Air Force Court of Criminal Appeals affirmed the 

findings and sentence, holding that a common law exception to 

the marital privilege not contained within the exceptions listed 

in M.R.E. 504(c) could nonetheless be applied to negate the 

codified marital communications privilege contained in M.R.E. 

504(b). United States v. Custis, No. ACM S30875, 2006 CCA LEXIS 

263, at *4-*5, 2006 WL 3085507, at *1 (A.F. Ct. Crim App. Oct. 
United States v. Custis, No. 07-0188/AF 

7

31, 2006) (unpublished). It further held that, even if the 

conversations between Appellant and his wife were privileged 

under M.R.E. 504(b) “the [A]ppellant would be no better off. . . 

. We find the evidence sufficient, even absent any mention of 

the conversations between the [A]ppellant and his wife, for a 

reasonable trier of fact to conclude” that Appellant was guilty 

of obstruction, as well as solicitation and conspiracy to commit 

obstruction. 2006 CCA LEXIS 263, at *4-*5, 2006 WL 3085507, at 

*1. 

II. Discussion 

 Appellant argues that the military judge abused his 

discretion because he erroneously relied on M.R.E. 501(a)(4) for 

the authority to import a common law exception into the marital 

communication privilege codified in M.R.E. 504(b). We agree. 

A. 

 Military Rule of Evidence 504 and the exceptions thereto 

reflect the policy judgments of the President regarding those 

communications between a husband and wife that are privileged 

and as to those communications that will be exempted from that 

privilege. Military Rule of Evidence 504(b) provides a general 

privilege for confidential communications made during marriage: 

(b) Confidential communication made during marriage. 

(1) General rule of privilege. A person has a 

privilege during and after the marital relationship 

to refuse to disclose, and to prevent another from 
United States v. Custis, No. 07-0188/AF 

8

disclosing, any confidential communication made to 

the spouse of the person while they were husband and 

wife and not separated as provided by law. 

“Because Appellant’s [communications] meet the requirements of 

M.R.E. 504(b)(1), they are privileged unless they otherwise fall 

under an exception to that rule.” McCollum, 58 M.J. at 340. 

Specific exceptions to the marital privileges established in 

M.R.E. 504(a) and (b) are delineated in M.R.E. 504(c). 

 No one questions the military judge’s finding that the 

communications at issue here were confidential marital 

communications that would, in the ordinary course, fall squarely 

within M.R.E. 504(b)(1). See McCollum, 58 M.J. at 336. And 

Appellant’s communications with his wife do not fall within any 

of the exceptions listed under M.R.E. 504(c) and no one argues 

that they do.6

 

 The military judge’s decision to deny Appellant’s motion to 

suppress otherwise privileged marital communications because the 

communications were made in furtherance of a crime has support 

in the common law “joint crime participant” or “crime/fraud” 

exception recognized by the Air Force Court of Criminal Appeals 

in Smith, 30 M.J. at 1025-27 (holding that marital 

communications made to further a crime were not privileged). 

Every federal circuit that has addressed the issue has found a 

 

6

 This case is thus inapposite to the issue addressed in United 

States v. Taylor, 64 M.J. 416, 417 (C.A.A.F. 2007). 
United States v. Custis, No. 07-0188/AF 

9

“joint crime participant” or “crime/fraud” exception to the 

common law marital communication privilege.7 

But the authority to add exceptions to the codified 

privileges within the military justice system lies not with this 

Court or the Courts of Criminal Appeal, but with the 

policymaking branches of government. See, e.g., Article 36(a), 

UCMJ, 10 U.S.C. § 836(a) (2000).8

 While we are aware of the 

principle that privileges should be construed narrowly, as they 

run contrary to a court’s truth-seeking function, Trammel v. 

United States, 445 U.S. 40, 50-51 (1980), that principle has no 

application to the issue at hand. To uphold the exception 

relied on by the military judge and the Court of Criminal 

Appeals in this case, we would need to create an exception to a 

 

7

 United States v. Westmoreland, 312 F.3d 302, 306-09 (7th Cir. 

2002); United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 

1998); United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th 

Cir. 1997), overruled in part, on other grounds, by United 

States v. Nordby, 225 F.3d 1053 (9th Cir. 2000); United States 

v. Evans, 966 F.2d 398, 401-02 (8th Cir. 1992); United States v. 

Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988); United States 

v. Parker, 834 F.2d 408, 412 n.7 (4th Cir. 1987); United States 

v. Estes, 793 F.2d 465, 467-68 (2d Cir. 1986); United States v. 

Picciandra, 788 F.2d 39, 43-44 (1st Cir. 1986); United States v. 

Sims, 755 F.2d 1239, 1240-44 (6th Cir. 1985); United States v. 

Neal, 743 F.2d 1441, 1445-46 (10th Cir. 1984); United States v. 

Ammar, 714 F.2d 238, 258 (3d Cir. 1983); United States v. 

Cooper, 85 F. Supp. 2d 1, 30 (D.D.C. 2000). 

8

 We do not question the authority of the President to create a 

“crime/fraud” exception under M.R.E. 504(c), as he has done in 

the attorney-client and psychotherapist-patient privileges. 

M.R.E. 502(d)(1); M.R.E. 513(d)(5). 
United States v. Custis, No. 07-0188/AF 

10

rule where none existed before, not interpret a privilege 

narrowly or an exception broadly. This we may not do. 

This Court has never held that an exception to a marital 

privilege not contained within M.R.E. 504(c) may be used to 

frustrate the privilege established by M.R.E. 504(b)(1). Our 

cases commend the opposite result. See McCollum, 58 M.J. at 342 

(determining whether an exception to a privilege should apply 

“is a legal policy question best addressed by the political and 

policy-making elements of the government”); United States v. 

Rodriguez, 54 M.J. 156, 160-61 (C.A.A.F. 2000) (recognizing that 

the scope and limitations on a privilege specifically delineated 

in the M.R.E. rests with the President, not this Court); United 

States v. Tipton, 23 M.J. 338, 342-43 (C.M.A. 1987) (rejecting 

application of an exception to a spousal privilege recognized in 

federal courts in favor of a strict application of the clear 

test provided by the rules, which provides “‘the certainty and 

stability necessary for military justice’” (quoting Stephen A. 

Saltzburg et al., Military Rules of Evidence Manual 215 

(1981))). 

We disagree that M.R.E. 501(a)(4) provides authority to 

either the Court of Criminal Appeals or this Court to create an 

exception to the codified marital privilege by reference to the 

common law exception generally accepted in the United States 
United States v. Custis, No. 07-0188/AF 

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federal courts. Military Rule of Evidence 501 provides in 

relevant part: 

(a) A person may not claim a privilege with 

respect to any matter except as required by or 

provided for in: 

 

. . . . 

 

 (4) The principles of common law generally 

recognized in the trial of criminal cases in the 

United States district courts pursuant to rule 

501 of the Federal Rules of Evidence insofar as 

the application of such principles in trials by 

courts-martial is practicable and not contrary to 

or inconsistent with the code, these rules, or 

this Manual. 

 It is a well established rule that principles of statutory 

construction are used in construing the Manual for CourtsMartial in general and the Military Rules of Evidence in 

particular. United States v. James, 63 M.J. 217, 221 (C.A.A.F. 

2006); United States v. Lucas, 1 C.M.A. 19, 22, 1 C.M.R. 19, 22 

(1951). “[W]hen the statute’s language is plain, the sole 

function of the courts -- at least where the disposition 

required by the text is not absurd -- is to enforce it according 

to its terms.” Hartford Underwriters Ins. Co. v. Union Planters 

Bank, N.A., 530 U.S. 1, 6 (2000) (citations and quotation marks 

omitted). 

 The plain language of M.R.E. 501 addresses only “a claim of 

privilege.” It does not reference exceptions. Nothing in the 

language of M.R.E. 501 itself warrants reference to a common law 
United States v. Custis, No. 07-0188/AF 

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exception to limit the privilege that is specifically 

established in M.R.E. 504(b)(1). 

 Additionally, the plain language of subpart (4) states that 

“principles of common law” may be relied on only when “not 

contrary to or inconsistent with . . . these rules.” As M.R.E. 

504(b) gives a husband-wife privilege without a “joint crime 

participant” or “crime/fraud” limitation, resorting to the 

common law to establish such an exception is both contrary to, 

and inconsistent with, the broader privilege provided by the 

President. The above points were unassailable when laid out by 

Senior Judge Everett years ago, and they remain no less true 

today. Smith, 33 M.J. at 119-20 (Everett, S.J., concurring in 

part); Tipton, 23 M.J. at 343-44. 

 Nor is this disposition, which differs from the conclusions 

of other federal courts, see supra note 7 and accompanying text, 

absurd. This Court, unlike other federal courts, has been 

provided with a comprehensive set of evidentiary rules with 

regard to privileges and the exceptions thereto. Compare Fed R. 

Evid. 501, with M.R.E. 501-13. This was based on a policy 

decision by the President to create clear and specific rules of 

privilege to apply within the military justice system. See

Manual for Courts-Martial, United States Analysis of the 

Military Rules of Evidence app. 22 at A22-37 (2005 ed.) 

(reasoning that “[u]nlike the Article III court system . . . , 
United States v. Custis, No. 07-0188/AF 

13

the military criminal legal system is characterized by its 

dependence upon large numbers of laymen, temporary courts, and 

inherent [geographic] and personnel instability . . . . 

Consequently, military law requires far more stability than 

civilian law”). 

As a consequence, whereas privileges evolve in other 

federal courts based on case law determinations, in the military 

system the privileges and their exceptions are expressly 

delineated. Compare Westmoreland, 312 F.3d at 308 (discussing 

underlying principles of the marital communications privilege 

when adopting a crime-fraud exception), with McCollum, 58 M.J. 

at 342 n.6 (determining that the “political elements of 

government” should make policy determinations with respect to 

privileges in the military system). Therefore, under our 

system, it is for the policymaking branches of government to 

weigh the utility of the marital communications privilege 

against the truth-seeking function of the court-martial and, if 

appropriate, make adjustments to the express exceptions. 

B. 

Nor do we agree with the Court of Criminal Appeals’ 

alternative grounds for affirming the conviction on all charges. 

First, we are not persuaded by the Court of Criminal 

Appeals’ legal conclusion that Appellant waived any privilege 

that would otherwise attach to his communications with his wife 
United States v. Custis, No. 07-0188/AF 

14

by telling a coworker that his wife “had his back.”9

 Custis, 

2006 CCA LEXIS 263, at *5 n.2, 2006 WL 3085507, at *1 n.2. 

Military Rule of Evidence 510(a) provides that a person “waives 

the privilege if the person discloses . . . any significant part 

of the matter.” “Voluntary disclosure applies only where the 

speaker elects to share a substantial portion of a privileged 

communication with a party outside of the privileged 

relationship.” McCollum, 58 M.J. at 338-39 (citing M.R.E. 

510(a)). “[T]he overall substance of the conversation” must be 

conveyed to the third party for there to be a waiver of the 

privilege. United States v. McElhaney, 54 M.J. 120, 132 

(C.A.A.F. 2000). 

Appellant’s comment to his coworker did not relay either 

the actual conversation between Appellant and his wife or the 

substance of the privileged communications between Appellant and 

his wife. M.R.E. 510(a). And the person to whom the comment 

was directed had no knowledge of the underlying conversation 

that might have given the comment in question special meaning. 

 

9

 The Government did not argue waiver, a factbound determination, 

at trial, see, e.g., In re Keeper of the Records (XYZ Corp.), 

348 F.3d 16, 23 (1st Cir. 2003) (stating that determining waiver 

of a privilege is an “evaluation [that] demands a fastidious 

sifting of the facts and a careful weighing of the 

circumstances”), and there are no findings by the military judge 

on the issue of waiver. 
United States v. Custis, No. 07-0188/AF 

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McElhaney, 54 M.J. at 132. Therefore, Appellant’s single 

comment to his coworker did not waive the privilege. 

Nor are we satisfied with the Court of Criminal Appeals’ 

conclusion that “the evidence [was] sufficient, even absent any 

mention of the conversations between the [A]ppellant and his 

wife, for a reasonable trier of fact to conclude” that Appellant 

was guilty. Custis, 2006 CCA LEXIS 263, at *4-*5, 2006 WL 

3085507, at *1. 

The error in admitting privileged communications in this 

case is not constitutional in nature. McCollum, 58 M.J. at 342. 

In testing for “nonconstitutional harmless error . . . we 

conduct a de novo review to determine whether this error had a 

substantial influence on the members’ verdict in the context of 

the entire case.” United States v. Harrow, 65 M.J. 190, 

200 (C.A.A.F. 2007) (citing Kotteakos v. United States, 328 U.S. 

750, 764-65 (1946)). Whether the evidence is factually 

sufficient to sustain a conviction is an altogether different 

question than whether an error had a substantial influence on 

the members’ findings. Compare United States v. Turner, 25 M.J. 

324, 325 (C.M.A. 1987) (discussing factual sufficiency), with

McCollum, 58 M.J. at 342-43 (discussing nonconstitutional 

harmless error). If we cannot say the error did not have a 

substantial effect on the verdict, we cannot call it harmless, 

and must grant appropriate relief. 
United States v. Custis, No. 07-0188/AF 

16

 In order to prove an Article 134, UCMJ, solicitation 

offense the Government must prove that the accused solicited 

another person to commit a certain offense, and that the accused 

did so with the intent that the person commit the offense. 

Manual for Courts-Martial, United States pt. IV, para. 105.b 

(2005 ed.). Here, Airman Creque’s testimony regarding her 

conversations with Appellant was clearly material to the 

members’ decision to find Appellant guilty of the solicitation 

specification. It was only those conversations that revealed 

that it was Appellant who initiated the conversation regarding 

the scheme to replace the blood tests, and evidence of those 

conversations that revealed it was Appellant who suggested that 

the blood be drawn from precisely the same place. There was no 

other evidence admitted to prove that it was Appellant who 

solicited Airman Creque’s help in this crime, as opposed to 

Airman Creque who solicited Appellant’s participation. Given 

the pivotal importance of the privileged communications to the 

solicitation charge, we cannot say the members were not 

substantially influenced by the erroneously admitted evidence. 

Appellant’s solicitation conviction is reversed. But none 

of Appellant’s remaining convictions turned on who instigated 

the other’s participation in the underlying obstruction offense. 

We conclude that the evidentiary error was harmless as applied 

to those convictions. In light of the testimony of Appellant’s 
United States v. Custis, No. 07-0188/AF 

17

wife as to both the actions she observed and the conduct in 

which she and Appellant engaged in together, we do not believe 

the erroneously admitted evidence had a substantial influence on 

the members with respect to those offenses. 

As to the sentence, we conclude that the error was 

harmless. The military judge found the charges of conspiracy to 

obstruct justice and solicitation to obstruct justice 

multiplicious for sentencing and instructed the members to 

consider them as one offense in determining an appropriate 

sentence. We presume that the panel followed the instructions 

given by the military judge. See United States v. Thompson, 63 

M.J. 228, 232 (C.A.A.F. 2006); United States v. Taylor, 53 M.J. 

195, 198 (C.A.A.F. 2000); United States v. Holt, 33 M.J. 400, 

408 (C.M.A. 1991). As we have no reason to question that the 

panel did so in this case, we conclude that the offense of 

solicitation to obstruct justice had no impact on Appellant’s 

sentence. 

III. Decision 

The decision of the United States Air Force Court of 

Criminal Appeals as to Charge III, Specification 1 

(solicitation to obstruct justice) is reversed, the finding 

as to this specification is set aside, and this 

specification is dismissed. The remaining findings and the 

sentence are affirmed.