United States v. Durbin , 68 M.J. 271 ( 2010 )

UNITED STATES, Appellee
v.
James N. DURBIN, Technical Sergeant
U.S. Air Force, Appellant
No. 09-0380
Crim. App. No. 36969
United States Court of Appeals for the Armed Forces
Argued November 3, 2009
Decided January 20, 2010
ERDMANN, J., delivered the opinion of the court, in which BAKER,
STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
dissenting opinion.
Counsel
For Appellant: Captain Marla J. Gillman (argued); Major Shannon
A. Bennett (on brief); Colonel Nikki A. Hall and Colonel James
B. Roan.
For Appellee: Major Coretta E. Gray (argued); Colonel Douglas
P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
Bruce, Esq. (on brief).
Amicus Curiae for Appellant: Christopher M. Hamp-Lyons (law
student) (argued); Alistair E. Newbern, Esq. (supervising
attorney) and R. Andrew Free (law student) (on brief) -– for the
Vanderbilt Legal Clinic.
Military Judge: Bryan D. Watson
This opinion is subject to revision before final publication.
United States v. Durbin, No. 09-0380/AF
Judge ERDMANN delivered the opinion of the court.1
Technical Sergeant James N. Durbin was convicted of one
specification of possessing child pornography at a contested
general court-martial. The convening authority approved the
adjudged sentence of reduction to E-2, confinement for one year,
and a bad-conduct discharge. The United States Air Force Court
of Criminal Appeals affirmed the findings and the sentence.
United States v. Durbin, No. ACM 36969, 2008 CCA LEXIS 486, 2008
WL 5192441 (A.F. Ct. Crim. App. Dec. 10, 2008).
“A person has a privilege during and after the marital
relationship to refuse to disclose, and to prevent another from
disclosing, any confidential communication made to the spouse of
the person while they were husband and wife and not separated as
provided by law.” Military Rule of Evidence (M.R.E.) 504(b)(1).
The rule allows the privilege to be claimed by the spouse who
made the communication or the other spouse on his or her behalf.
However, where the privilege is claimed by one spouse on behalf
of the other, the spouse upon whose behalf the privilege is
claimed may waive the privilege. M.R.E. 504(b)(3).
1
We heard oral argument in this case at the Vanderbilt Law
School as part of the Court’s “Project Outreach.” See United
States v. Mahoney, 58 M.J. 326, 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.
2
United States v. Durbin, No. 09-0380/AF
We granted review to determine whether the military judge
erred when he ruled that Durbin could not prevent his wife from
testifying as to the statements she made during a marital
communication. We also granted review to determine if the Air
Force Court of Criminal Appeals erred when it found that the
military judge’s erroneous admission of evidence was harmless.2
Under the circumstances of this case, we hold that the
military judge properly allowed Ms. Durbin to testify as to her
statements made during the marital communication. We also agree
with the lower court’s conclusion that the admission of the
erroneous evidence was harmless and therefore affirm the Court
of Criminal Appeals.
BACKGROUND
Durbin’s wife was working late one night on a homework
assignment when she found pictures on her husband’s laptop
computer that she believed to be child pornography. Angry and
2
We granted review of the following issues:
I. WHERE THE MILITARY JUDGE FOUND THAT APPELLANT AND HIS WIFE
HAD A PRIVATE CONVERSATION WHILE MARRIED AND NOT SEPARATED,
WAS THE MILITARY JUDGE CORRECT THAT APPELLANT COULD CLAIM
THE PRIVILEGE UNDER MIL. R. EVID. 504 ONLY AS TO HIS
STATEMENTS DURING THAT CONVERSATION BUT NOT TO HIS WIFE’S
AS WELL.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN
FINDING THERE WAS NO HARM AFTER OVERTURNING THE MILITARY
JUDGE’S RULING THAT APPELLANT’S ACT OF SHOWING HIS WIFE
THAT HE HAD DELETED THE PICTURES HE SAID HE WOULD WAS NOT
COMMUNICATIVE AND THEREFORE NOT PRIVILEGED UNDER MIL. R.
EVID. 504.
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United States v. Durbin, No. 09-0380/AF
upset, Ms. Durbin went upstairs and woke her husband and asked
him to explain how the pictures got onto his computer. After
initially denying knowledge of the pictures, Durbin said that it
had been “a one-time thing.” Although Ms. Durbin did not ask
him to do so, Durbin said that he would delete the pictures and
subsequently took the laptop and sat down on the couch. Ms.
Durbin saw her husband move his hands over the laptop’s
touchpad, but did not look at the laptop’s screen while he
worked on the laptop.
As Durbin was sitting in front of the computer, he said
“[h]ere, I’ll delete them.” A short time later, in what Ms.
Durbin believed was an effort to appease her, Durbin turned the
laptop screen towards her and said “They’re deleted.” Ms.
Durbin told her husband that he needed to get professional help
and she asked him to move out of the house.
Prior to trial, the Government moved in limine to admit the
conversation between Durbin and his wife that occurred the night
she discovered suspected child pornography on his laptop
computer. Following a hearing on the motion in limine, the
military judge allowed Ms. Durbin to generally testify as to the
confrontation between the two of them, but did not allow her to
testify as to any verbal statements made by her husband. He
did, however, permit Ms. Durbin to testify about the actions
Durbin took with the laptop computer as described above.
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United States v. Durbin, No. 09-0380/AF
The Air Force Court of Criminal Appeals found that the
military judge did not abuse his discretion in allowing Ms.
Durbin to testify as to her statements, but that he did err in
permitting her to testify about the actions Durbin took with the
laptop computer. Durbin, 2008 CCA LEXIS 486, at *6-*9, 2008 WL
5192441, at *2-*3. The lower court went on to find that the
military judge’s error in admitting Ms. Durbin’s testimony about
Durbin’s actions with the laptop computer was harmless. Id. at
*9, 2008 WL 5192441, at *3.
DISCUSSION
We discussed the standard of review for marital privilege
issues in United States v. McCollum, 58 M.J. 323, 335-36
(C.A.A.F. 2003):
A military judge’s decision to admit or exclude
evidence is reviewed for an abuse of discretion.
United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.
2000); see United States v. Westmoreland, 312 F.3d
302, 306 (7th Cir. 2002) (“We review the trial court’s
resolution of a marital privilege issue for an abuse
of discretion.”). Whether a communication is
privileged is a mixed question of fact and law.
McElhaney, 54 M.J. at 131 (citing United States v.
Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). We
review a lower court’s legal conclusions de novo, but
we give a lower court’s factual findings more
deference, and will not reverse such findings unless
they are clearly erroneous. United States v. Ayala,
43 M.J. 296, 298 (C.A.A.F. 1995).
The party asserting the marital privilege has the burden of
establishing its applicability by a preponderance of the
evidence. Id. at 336.
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Ms. Durbin’s Statements From the Marital Communication
Durbin argues that Ms. Durbin’s statements that she was
allowed to testify to at trial occurred during a marital
communication and as such were privileged under M.R.E. 504. He
notes that the rule allows either spouse to claim the privilege
on behalf of the other. While he recognizes that the rule also
allows a spouse on whose behalf the privilege has been asserted
to waive the privilege, he argues that the military judge did
not make any ruling as to waiver and implies that without such a
ruling there was no waiver. According to Durbin, allowing Ms.
Durbin to testify as to her statements “eviscerated the marital
communications privilege and disclosed the nature of [Durbin’s]
statement to her.”
The Government responds that the military judge did not err
in allowing Ms. Durbin to testify as to her statements from the
marital communication on two bases: the communication was not
“confidential” as both spouses later discussed the incident with
others; and, while M.R.E. 504(b)(3) allows one spouse to claim
the privilege on behalf of the other spouse, it also allows the
spouse for whom the privilege is claimed to waive the privilege,
which Ms. Durbin did in this case by testifying.
In ruling on the motion in limine at trial, the military
judge stated:
[A]pplicable rules do not permit the Accused to
prevent his wife from revealing the content of her own
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United States v. Durbin, No. 09-0380/AF
statements. (“The privilege to prevent disclosure by
anyone of confidential communications is held by the
spouse who made them.” U.S. v. Vandyke, supra,
emphasis added.) As orally argued by the Defense
Counsel, there may be some extreme cases where, if a
witness spouse were allowed to testify as to her own
prior statements to her husband, it would serve to
destroy the purpose of the privilege (e.g., if the
witness spouse had a conversation with her husband
where she repeated her husband’s words and then later
testified to her own words -- the end result being
that her husband’s words nonetheless came before the
trier of fact). However, this is not such a case.
This Court finds that the statements by Ms. Durbin do
not sufficiently mirror the Accused’s such that the
Accused’s right to invoke the confidential
communication privilege pertaining to his own
statements is in any way diminished. This conclusion
is based upon the plain language of MRE 504(b).
M.R.E. 504(b)(3) provides in part:
Who may claim the privilege. The privilege may be
claimed by the spouse who made the communication or by
the other spouse on his or her behalf. The authority
of the latter spouse to do so is presumed in the
absence of evidence of a waiver . . . .
While the rule on its face allows either spouse to claim
the privilege on behalf of the other, it also allows the spouse
upon whose behalf the privilege was claimed to waive the
privilege. The rule requires “evidence” of a waiver. Certainly
the voluntary testimony of Ms. Durbin as to her statements made
during the marital communication constituted a waiver of the
privilege claimed on her behalf by her husband.
Despite this clear language of the rule, Durbin argues that
the rule should be construed to prohibit the disclosure of both
sides of the marital communication when the privilege is claimed
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United States v. Durbin, No. 09-0380/AF
by one spouse, citing several federal circuit court decisions.3
While the federal marital privilege protects both sides of a
marital communication, that privilege is based on federal common
law while the marital privilege in the military justice system
is created by M.R.E. 504.
M.R.E. 501 provides:
(a) A person may not claim a privilege with respect
to any matter except as required by or provided
for in:
. . . .
(3) These rules or this Manual; or
(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.
As the President has chosen to adopt a more restrictive marital
privilege for the military, the federal circuit court cases
interpreting federal common law are not relevant to our analysis
of that issue.
We agree with the analysis of the military judge and we
note his concern that in a situation where one spouse has
claimed the marital privilege and the other spouse’s statements
repeat or reveal the privileged statements of the claiming
3
United States v. Montgomery, 384 F.3d 1050, 1059 (9th Cir.
2004); United States v. Bahe, 128 F.3d 1440, 1442 (10th Cir.
1997).
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United States v. Durbin, No. 09-0380/AF
spouse, admission of those statements may violate the marital
privilege. We do not, however, have that situation here. Ms.
Durbin’s testimony as to her statements did not repeat nor
reveal any of her husband’s protected statements. As we find
that Ms. Durbin’s testimony as to her statements was authorized
under M.R.E. 504(b)(3), we need not address the Government’s
argument that the communication itself was not privileged.
Whether the Erroneous Admission of Evidence was Harmless
Error
The military judge allowed Ms. Durbin to testify as to
Durbin’s actions with the laptop computer the night she
confronted him with the pictures of child pornography. She
testified that she left one of the pictures of suspected child
pornography on the screen of the laptop when she went to wake up
Durbin. After she asked him for an explanation, she testified
that he sat on the couch and put the laptop on his lap. She
testified that she could see his hands moving over the touchpad
and he then turned the computer toward her so she could see the
screen and nothing was on the screen.
In his motion in limine ruling, the military judge held:
22. The Accused’s acts: Despite the Defense’s
arguments to the contrary, this Court finds that the
physical acts by the Accused on the evening in
question were not protected communications under MRE
504. Simply put, acts do not become privileged simply
by being done in the presence of a spouse. Upon
consideration of the facts and law on this issue, this
Court finds that the Accused’s acts of going to the
laptop computer and deleting certain data were neither
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United States v. Durbin, No. 09-0380/AF
communicative per se, nor manifested an intent by the
Accused to convey a private message to his spouse -–
the Accused’s affidavit notwithstanding. This
conclusion is based, in part, on the Court’s
evaluation of Ms. Durbin’s minimal motive to
fabricate, and the Accused’s substantial one.
Additionally, this Court personally evaluated the
credibility of Ms. Durbin, and finds her to be very
credible. See Martel, supra, and U.S. v. Peterson, 48
MJ 81 (CAAF 1998).
The Court of Criminal Appeals found that the military
judge’s ruling on this issue was clearly erroneous. Durbin,
2008 LEXIS 486, at *9, 2008 WL 5192441, at *3. The lower court
noted that while the acts of one spouse generally do not
constitute confidential communications with the other spouse,
they may do so if the acts are intended to convey a private
message to the other spouse. Id. at *7-*8, 2008 WL 5192441, at
*3 (citing and comparing United States v. Lustig, 555 F.2d 737,
748 (9th Cir. 1977) with United States v. Lewis, 433 F.2d 1146,
1151 (D.C. Cir. 1970)). Reviewing the military judge’s findings
of fact, the Court of Criminal Appeals held:
As the facts indicate, the appellant told Ms. GD that
he would delete the child pornography images from his
laptop computer after she confronted him about the
images. He then proceeded, as Ms. GD surmised, to
delete the images and showed Ms. GD the laptop screen.
Nothing could be clearer, given the context and timing
of the appellant’s actions, that by making the key
strokes and showing Ms. GD the laptop screen, he was
telling Ms. GD that he had deleted the images. His
actions were a confidential communication and the
military judge abused his discretion in admitting
evidence of such.
Id. at *8-*9, 2008 WL 5192441, at *3.
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United States v. Durbin, No. 09-0380/AF
On appeal to this court, Durbin argues that while the lower
court correctly found that the testimony concerning his actions
was erroneously admitted, it erred in finding that the error was
harmless. Assuming without deciding that Durbin’s actions with
the laptop computer were a communication protected by M.R.E. 504
and testimony concerning his actions was erroneously admitted,
such error was harmless. “We evaluate prejudice from an
erroneous evidentiary ruling by weighing (1) the strength of the
Government’s case, (2) the strength of the defense case, (3) 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) (citation omitted).
We agree with the Court of Criminal Appeals that the
Government’s case was very strong. The hard drives seized from
Durbin’s desktop and laptop computers contained thirty-two known
or suspected images of child pornography. Ms. Durbin testified
that she had earlier seen a folder full of child pornographic
images on the laptop computer. Testimony established that the
laptop computer was used almost exclusively by Durbin and the
other individuals who had access to the computer testified that
they did not view or download child pornography on either
computer. The evidence also established that Durbin’s Yahoo
e-mail logon had been used to search a Yahoo group website
entitled “young p0rn” and had conducted a search using the
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United States v. Durbin, No. 09-0380/AF
following terms: “preteen queens”; “sweet sexy preteens”;
“sweet young girls”; “young hotties”.
By contrast, Durbin’s case was markedly less substantial.
His case primarily consisted of attempting, through cross-
examination, to establish that other individuals who had access
to the computer may have accessed and retained the images.
Turning to the materiality and quality of the challenged
evidence, we conclude that even if Durbin’s actions with the
laptop could have been construed as an admission, we are
convinced that the testimony was not material to the
Government’s case. The incident was the subject of three
comparatively brief references in trial counsel’s twenty-nine
page findings and rebuttal arguments. Considering the other
evidence admitted establishing his guilt, this testimony did not
play a major role in the prosecution against Durbin. We
therefore conclude that even assuming it was error to admit this
testimony, the error was harmless and had no prejudicial impact
on Durbin’s substantial rights.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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United States v. Durbin, 09-0380/AF
EFFRON, Chief Judge (dissenting):
In the present appeal, the majority opinion would affirm
the decision of the court below. United States v. Durbin, __
M.J. __ (12) (C.A.A.F. 2010). For the reasons set forth below,
I respectfully dissent. The military judge erred in permitting
testimony by Appellant’s wife that impermissibly revealed
Appellant’s confidential communications, and the military
judge’s further error in permitting her to testify about his
communicative act constituted prejudicial error.
At trial, the prosecution introduced testimony by
Appellant’s wife that she confronted Appellant with the
accusation that she had found images of child pornography on his
computer. Appellant’s wife testified that she specifically
asked Appellant: “Could you explain this to me, please?” She
further testified as to portions of the ensuing two-way dialogue
between husband and wife, including Appellant’s communicative
acts and her comments to him.
Appellant’s wife testified pursuant to a ruling by the
military judge that the testimony at issue was not precluded by
the privilege for spousal communications under Military Rule of
Evidence (M.R.E.) 504(b). On review of Appellant’s conviction,
the Court of Criminal Appeals ruled that the military judge did
not err in permitting Appellant’s wife to testify as to the
statements she made during their interaction, but that the
United States v. Durbin, 09-0380/AF
military judge erred in permitting her to testify as to
Appellant’s nonverbal acts. United States v. Durbin, No. ACM
36969, 2008 CCA LEXIS 486, at *6-*9, 2008 WL 5192441, at *2-*3
(A.F. Ct. Crim. App. Dec. 10, 2008). The lower court further
held that the error was not prejudicial. Id. at *9, 2008 WL
5192441, at *3.
I. SPOUSAL PRIVILEGE UNDER THE MILITARY RULES OF EVIDENCE
Military Rule of Evidence (M.R.E) 504(b)(1) grants one
spouse the privilege “to prevent another from disclosing, any
confidential communication made to the spouse . . . while they
were husband and wife . . . .” One spouse may not waive another
spouse’s privilege without the privilege-claiming spouse’s
consent. United States v. McCollum, 58 M.J. 323, 339 (C.A.A.F.
2003).
Under M.R.E. 510(a), waiver occurs when a privilege-holder
discloses “any significant part of the matter or communication”
claimed as privileged. Waiver of the spousal privilege takes
place when the “‘overall substance of the conversation’ [between
spouses is] conveyed” to a third party. United States v.
Custis, 65 M.J. 366, 371 (C.A.A.F. 2007) (quoting United States
v. McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000)).
As noted in the majority opinion, testimony by a spouse
that describes a marital communication made by the testifying
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United States v. Durbin, 09-0380/AF
spouse that repeats or reveals a marital communication made by
the non-testifying spouse may waive the privilege. Durbin, __
M.J. at __ (8-9). This would apply, for example, to the
following dialogue between two spouses: the first spouse (the
privilege-claimant) initiates a conversation by saying, “I can’t
keep a secret any longer -- I did X, Y, and Z, and I’m guilty,”;
and the second spouse (the testifying spouse) responds by
saying, “Your willingness to acknowledge that you did X, Y, and
Z, and that you’re guilty is the first step to recovery.”
Consistent with the purpose of the privilege, the testifying
spouse could not testify at trial as to his or her own marital
communication because that would repeat the other spouse’s
confidential communication.
The privilege applies with equal force to testimony that
reveals the “overall substance” of confidential communications
even if not amounting to a literal word for word repetition of
the privilege-claimant’s remarks. For example, in the
hypothetical described in the preceding paragraph, the overall
substance of the confidential statement would be revealed if the
testifying spouse were to testify as follows: “I asked him to
explain his criminal conduct. We spoke about it. Then I asked
him to stop committing these crimes.” In the context of a
criminal trial, a factfinder could reasonably infer from such
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United States v. Durbin, 09-0380/AF
testimony that the privilege-claimant had been confronted with
an accusation of criminal conduct and had admitted guilt.
II. THE SIGNIFICANCE OF THE TESTIMONY FROM APPELLANT’S SPOUSE
The testimony from Appellant’s spouse revealed the “overall
substance” of Appellant’s confidential communications. The
members were well aware that the communication involved a
dialogue about the charged misconduct. Appellant’s spouse
testified that she began the dialogue by confronting him with an
accusatory question (“Could you explain this to me, please?”).
She further testified about his reactions “[a]fter we spoke.”
In the course of testifying about a dialogue in which she asked
Appellant to “explain” the presence of child pornography on his
computer, Appellant’s wife testified that he took and used the
laptop; that he showed her that the images were gone; and that
she commanded Appellant to seek counseling and leave the house.
Although as a general matter there may be any number of reasons
why a wife might ask a husband to seek counseling and leave the
marital home, the discussion here took place in the immediate
context of her discovery and Appellant’s conduct. In that
setting, it is quite likely that members of the panel inferred
that, during this conversation, Appellant admitted possessing
the images of child pornography and accepted responsibility for
them.
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Although the panel members might not have deciphered
Appellant’s exact words from the testimony by Appellant’s
spouse, a panel member could reasonably have inferred that
Appellant made an admission of guilt to his wife -- an admission
protected by a privilege. In this case, the testimony by
Appellant’s wife waived his privilege without his consent. The
military judge erred by permitting her to testify in a manner
that revealed his admission of guilt.
III. PREJUDICE OF ADMITTING THE COMMUNICATIVE ACT
The lower court held that other testimony by Appellant’s
wife -- that Appellant manipulated the laptop and showed her its
blank screen -- was a communicative act protected by spousal
privilege, but that the military judge’s erroneous admission of
this testimony did not prejudice Appellant. The majority
opinion would affirm. I respectfully disagree.
To determine “prejudice resulting from the erroneous
admission of evidence, we weigh ‘(1) the strength of the
Government’s case, (2) the strength of the defense case, (3) the
materiality of the evidence in question, and (4) the quality of
the evidence in question.’” McCollum, 58 M.J. at 342-43
(quoting United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999)).
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The Government had a strong, but not solid, case. At
trial, the prosecution acknowledged that the Government’s case
was based on “circumstantial evidence.” As such, the members
had to infer that Appellant, and not another laptop user,
downloaded and viewed the images of child pornography. The only
direct evidence that Appellant used the laptop while it
displayed images of child pornography is the evidence at issue
here -- the testimony of Appellant’s wife regarding Appellant’s
communicative act. The prosecution exploited that testimony,
arguing to the members that “you can infer from that that he
deleted [the images].”
The testimony of Appellant’s wife concerning his
communicative act constituted highly material evidence. While
questioning Appellant’s wife, trial counsel emphasized
Appellant’s actions, focusing on how “the accused physically
respond[ed] when [Appellant’s wife] asked him to explain” the
images. In rebuttal, trial counsel argued that Appellant’s
communicative act was “[the] last piece of evidence combined
with the circumstantial evidence in this case that shows the
accused wrongfully and knowingly possessed images of child
pornography.” The prosecution apparently believed that the
testimony from Appellant’s wife about Appellant’s communicative
act was so essential to proving guilt that trial counsel
characterized it as the “nail in the reasonable doubt coffin.”
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Once that “nail” is removed, we cannot have confidence that the
evidence did not have a “substantial effect” on the findings.
Custis, 65 M.J. at 371. Under these circumstances, we should
set aside the findings and authorize a rehearing.
7