United States v. Pineda Mateo , 905 F.3d 13 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1857
UNITED STATES OF AMERICA,
Appellant,
v.
ERIC PINEDA-MATEO,
Defendant, Appellee,
and
YOVANNYS GUERRERO-TEJEDA,
Intervenor, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellant.
Jaye L. Rancourt, with whom Brennan Lenehan Iacopino & Hickey
was on brief, for intervenor-appellee.
Eduardo Masferrer, with whom Masferrer & Associates, P.C. was
on brief, for appellee.
September 18, 2018
TORRUELLA, Circuit Judge. We are called upon to decide
an issue of first impression in this circuit -- whether to
recognize a "joint participant" exception to the spousal
testimonial privilege. For the following reasons, we affirm the
district court's conclusion that recognition of such an exception
is not warranted.
I.
Before moving forward, a brief survey of the spousal
testimonial privilege and the rationales that have traditionally
undergirded it is in order.
A.
The spousal testimonial privilege is an evidentiary
privilege that protects a defendant's spouse from having to take
the witness stand to testify against the defendant. See United
States v. Breton, 740 F.3d 1, 9-10 (1st Cir. 2014). It has deep
and "ancient roots" in the history of the common law, and descends
"from two canons of medieval jurisprudence." Trammel v. United
States, 445 U.S. 40, 43-44 (1980). The first of these canons
involved the principle that "an accused was not permitted to
testify in his own behalf because of his interest in the
proceeding." Id. at 44. The second was "the concept that husband
and wife were one, and that since the woman had no recognized
separate legal existence, the husband was that one." Id. Based
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on these two rationales, the traditional rule mandated that "what
was inadmissible from the lips of the defendant-husband was also
inadmissible from his wife." Id.
These two rationales are now "long-abandoned," and the
modern justifications for the privilege focus instead on a pair of
distinct but related rationales: "fostering the harmony and
sanctity of the marriage relationship," id., and the broader
societal interest in "avoid[ing] the unseemliness of compelling
one spouse to testify against the other in a criminal proceeding,"
United States v. Yerardi, 192 F.3d 14, 18 (1st Cir. 1999) (citing
Trammel, 445 U.S. at 44-45, 52-53 & n.12); see also Hawkins v.
United States, 358 U.S. 74, 77 (1958) ("The basic reason the law
has refused to pit wife against husband or husband against wife in
a trial where life or liberty is at stake was a belief that such
a policy was necessary to foster family peace, not only for the
benefit of husband, wife and children, but for the benefit of the
public as well."). This latter rationale has been further
explained as stemming from "the 'natural repugnance in every fair-
minded person to compelling a wife or husband to be the means of
the other's condemnation.'" In re Grand Jury Subpoena, 755 F.2d
1022, 1028 (2d Cir. 1985) (quoting 8 Wigmore, Evidence § 2228, at
217).
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B.
Just as the rationales underlying the spousal
testimonial privilege have changed over time, the nature and
contours of the privilege have themselves evolved since the
privilege's common law origins.
In its traditional form, the spousal testimonial
privilege was, in fact, an absolute rule that completely barred a
spouse from giving any testimony in his or her defendant spouse's
case, even testimony that would support the defendant's cause.
Trammel, 445 U.S. at 43-44. This rigid rule "remained intact in
most common-law jurisdictions well into the 19th century." Id.
at 44 (citing 8 Wigmore, Evidence § 2333). That was the case
until 1933, when the Supreme Court softened the limitations of
this rule "so as to permit the spouse of a defendant to testify in
the defendant's behalf." Id.; see also Funk v. United States, 290
U.S. 371, 380-81 (1933). However, it was still the rule that
"either spouse could prevent the other from giving adverse
testimony." Trammel, 445 U.S. at 44 (citing Funk, 290 U.S. at
373).
The Supreme Court next considered the scope of the
spousal testimonial privilege in Hawkins v. United States, 358
U.S. 74 (1958). The defendant in that case sought to invoke the
spousal testimonial privilege to prevent his wife from voluntarily
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testifying against him. Id. at 74-75. Despite the Government's
invitation to draw a distinction between compelling a spouse's
testimony on one hand and allowing her to testify voluntarily on
the other, and the Court's acknowledgement of "the critical
comments that the common-law rule had engendered," the Court
nevertheless allowed the defendant to bar his wife from testifying
against him. Trammel, 445 U.S. at 46. Finding that "the law
should not force or encourage testimony which might alienate
husband and wife, or further inflame existing domestic
differences," the Court elected to maintain the "rule which bars
the testimony of one spouse against the other unless both consent."
Hawkins, 358 U.S. at 78-79.
The most recent occasion on which the Supreme Court has
addressed the scope of the spousal testimonial privilege is Trammel
v. United States, 445 U.S. 40 (1980). The Court was once again
confronted with a defendant who sought to assert the spousal
testimonial privilege to prevent his unindicted co-conspirator
wife from voluntarily testifying against him in his criminal trial.
Id. at 42-43. In that case, the Tenth Circuit had held that the
defendant's wife should be permitted to testify against her
husband, declaring an exception to the spousal testimonial
privilege when the "defendant husband . . . has jointly
participated in a criminal conspiracy with his wife." United
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States v. Trammel, 583 F.2d 1166, 1169 (10th Cir. 1978). Instead
of adopting the Tenth Circuit's approach, the Court found that
"[t]he ancient foundations for so sweeping a privilege have long
since disappeared," and held that "the existing rule should be
modified so that the witness-spouse alone has a privilege to refuse
to testify adversely[.] [T]he witness may be neither compelled
to testify nor foreclosed from testifying." Trammel, 445 U.S. at
52-53.
C.
The joint participant exception to the spousal
testimonial privilege the Government asks us to adopt, by contrast,
does not have anywhere near as long a history as the privilege
itself does. The first court to recognize an exception to the
spousal testimonial privilege for a witness accused of engaging in
a criminal conspiracy with his or her defendant spouse was the
Seventh Circuit in United States v. Van Drunen, 501 F.2d 1393 (7th
Cir. 1974). In recognizing such an exception, that court found
that doing so appropriately "limits the privilege to those cases
where it makes most sense, namely, where a spouse who is neither
a victim nor a participant observes evidence of the other spouses's
[sic] crime." Id. at 1397.
A few years later, the Tenth Circuit followed the Seventh
Circuit's lead in adopting the joint participant exception.
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Trammel, 583 F.2d at 1170-71. That court relied in substantial
part on the Seventh Circuit's reasoning in Van Drunen -- that the
goal of preserving the family "does not justify assuring a criminal
that he can enlist the aide of his spouse in a criminal enterprise
without fear that by recruiting an accomplice or coconspirator he
is creating another potential witness." Id. at 1169-70 (internal
quotation marks omitted) (quoting Van Drunen, 501 F.2d at 1396).
The other courts of appeals that have considered this
issue have reached differing conclusions. The Second, Third, and
Ninth Circuits have refused to recognize the joint participant
exception. See United States v. Ramos-Oseguera, 120 F.3d 1028,
1042 (9th Cir. 1997), overruled on other grounds by United States
v. Nordby, 225 F.3d 1053 (9th Cir. 2000); In re Grand Jury
Subpoena, 755 F.2d at 1026-28; Appeal of Malfitano, 633 F.2d 276,
278-80 (3d Cir. 1980). By contrast, the Seventh Circuit continues
to recognize such an exception even after the Supreme Court's
decision in Trammel. United States v. Clark, 712 F.2d 299, 300-
02 (7th Cir. 1983) (quoting Van Drunen, 501 F.2d at 1397).1
The Third Circuit based its rejection of the exception
on several inter-related grounds. First, that court disputed the
1 We have been unable to find, and the parties do not point to a
case in which the Tenth Circuit again applied the joint participant
exception to the spousal testimonial privilege after Trammel.
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premise that "there is no need in fact to protect" marriages where
the partners are involved in crime because those marriages
"disintegrate and dissolve." Malfitano, 633 F.2d at 278. The
court pointed out that "[t]he spouses in fact may be very happy,"
and "the fact that under Trammel the witness spouse is the holder
of the privilege completely satisfies any concern that the
privilege not be extended to marriages that in fact need no
protection." Id. Second, that court also disputed the proposition
that "marriages with partners that engage in crime should not be
protected." Id. (emphasis added). The court emphasized that the
assumption that "because of what may be an isolated criminal act,
the marriage has no social value whatsoever" might not be true in
all cases. Id.
Next, the court opined that it was "not confident that
courts can assess the social worthiness of particular marriages or
the need of particular marriages for the protection of the
privilege." Id. at 279. Given the difficulty that such
determinations would involve, the court stated that it "d[id] not
think that the court should 'condition the privilege . . . on a
judicial determination that the marriage is happy or successful
one.'" Id. (quoting United States v. Lilley, 581 F.2d 182, 189
(8th Cir. 1978)). Finally, the court observed that "[g]iven the
intimacy of marriage and the fact that conspiracy is a rather
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flexible concept, it will be quite easy to allege that the spouses
are partners." Id. Therefore, "recognition of an exception where
it can be said that both spouses are involved will tend to
undermine the marriage precisely in the manner that the privilege
is designed to prevent." Id.
The Second Circuit echoed some of the same concerns.
That court stated that it was "unable to accept the proposition
that a marriage cannot be a devoted one simply because at some
time the partners have decided to engage in a criminal activity."
In re Grand Jury Subpoena, 755 F.2d at 1026. Further, it also
based its conclusion, in part, on the importance of protecting the
marriage relationship from the "'natural repugnance in every fair-
minded person to compelling . . . the culprit to the humiliation
of being condemned by the words of his intimate life partner,'
forced from her by governmental compulsion." Id. at 1028
(citation omitted) (quoting 8 Wigmore, Evidence § 2228 at 217).
On the other side of the split is the Seventh Circuit,
which is the only circuit to have recognized a joint participant
exception to the spousal testimonial privilege post-Trammel.
Clark, 712 F.2d at 300-02. Relying heavily on its precedent, the
court reiterated that the spousal testimonial privilege should be
limited "to those cases where it makes most sense, namely, where
a spouse who is neither a victim nor a participant observes
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evidence of the other spouse's crime," id. at 301 (quoting Van
Drunen, 501 F.2d at 1397), and that the underlying goal of the
privilege to preserve the sanctity and harmony of the family
"do[es] not justify assuring a criminal that he or she could enlist
the aid of a spouse in a criminal enterprise without fear that by
recruiting an accomplice the criminal was creating another
potential witness," id. at 301 (citing Van Drunen, 501 F.2d at
1396). Further, the court stated that "the rehabilitative effect
of a marriage, which in part justifies the privilege, is diminished
when both spouses are participants in the crime." Id. at 301
(citing Van Drunen, 501 F.2d at 1397). Finally, the Seventh
Circuit determined that "a joint participants exception is
consistent with the general policy of narrowly construing the
privilege." Id.
II.
Having assayed the history of the spousal testimonial
privilege and the joint participant exception, we turn to the facts
of this case. Because this case has not yet proceeded to trial,
we draw the relevant facts from the Government's indictment. See,
e.g., United States v. Colombo, 852 F.2d 19, 21 (1st Cir. 1988)
(using the facts alleged in the indictment in reviewing the
district court's dismissal of an indictment).
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A.
On September 25, 2015, a confidential informant
attempted to call a drug dealer named "Tony." Yovannys Guerrero-
Tejeda ("Guerrero") -- who was recorded by law enforcement without
her knowledge -– and, in consultation with another individual
nearby (alleged to have been her husband, Eric Pineda-Mateo
("Pineda")), told the informant to raise $1,000 to pay part of a
prior drug debt before arranging another drug transaction.
Three days later, the informant called Guerrero again
and "arranged to purchase three fingers of heroin from Guerrero
and Pineda." On October 6, 2015, the informant and Guerrero
exchanged several more phone calls that were covertly recorded by
law enforcement, and arranged to meet at a New Hampshire mall for
a drug transaction. At this meeting, Guerrero gave the informant
a bag of heroin in exchange for $1,000 in cash. Two weeks later,
the informant arranged a second drug transaction with Guerrero and
Pineda, after which the informant attempted to set up a third
transaction. On November 16, 2015, Guerrero and Pineda appeared
together at the location where they had agreed to meet the
informant and were arrested by the New Hampshire state police and
others. In the car, which was registered to Pineda, the police
found twenty-five grams of fentanyl.
The Government alleged that the evidence established a
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conspiracy between Guerrero and Pineda throughout this series of
events. For example, during the recorded phone calls with the
informant, Guerrero repeatedly referred to "her husband" and
negotiated the transactions in concert with him. Additionally,
Pineda also appeared to be the person who acquired the heroin
subsequently sold to the informant. Furthermore, agents observed
both Guerrero and Pineda meeting with the informant in person to
conduct the second transaction, during which Guerrero and Pineda
spoke to each other in Spanish before speaking in English to the
informant. Finally, Guerrero and Pineda were arrested together
at the location of the planned third drug transaction.
B.
On December 2, 2015, a federal grand jury indicted
Guerrero for one count of conspiracy to possess with intent to
distribute and conspiracy to distribute heroin and fentanyl, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (Count 1), and two counts
of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1)
(Count 2 and 3). Pineda was indicted only on Count 1. Guerrero
subsequently pleaded guilty to all three counts against her in
April 2017, while Pineda elected to go to trial. Intending to
call her as a witness at trial, the Government subpoenaed Guerrero
and filed a motion in limine "seeking a determination, pursuant to
Federal Rule of Evidence 104(a), that her testimony is admissible."
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Guerrero subsequently moved to quash the subpoena on the grounds
that the spousal testimonial privilege prevented the Government
from compelling her to testify at her husband's trial. 2 In
response, the Government moved to compel Guerrero's testimony,
seeking to invoke an exception to the spousal testimonial privilege
"for a jointly participating spouse in a criminal conspiracy."3
After a hearing, the district court granted Guerrero's
motion to quash the subpoena and denied the Government's motion to
compel Guerrero's testimony at Pineda's trial. The district court
acknowledged the aforementioned circuit split as to the
recognition of the joint participant exception to the spousal
testimonial privilege, but ruled that "[t]he weight of authority"
counseled against the recognition of such an exception. The
Government then filed this interlocutory appeal of the district
court's order.
III.
The district court below based its conclusion in part on
2 Guerrero points out that "she was willing to forego possible
reductions in her sentence based upon substantial assistance in
order to maintain her adverse spousal testimonial privilege and
thereby protect her marriage." She further stated that even if
this court ruled against her, she would refuse to testify against
her husband and "would face civil contempt proceedings if
necessary."
3 The Government did not challenge the legality of the marriage
between Pineda and Guerrero before the district court.
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its reasoning that the Supreme Court implicitly rejected the joint
participant exception "by declining to adopt the Tenth Circuit's
approach" in Trammel. The Government challenges this finding on
appeal. Because a finding that Trammel does entirely foreclose
the recognition of a joint participant exception would be
dispositive in this appeal, we address that issue first.
The Government's principal contention is that Trammel
should not be read to foreclose the possibility of a joint
participant exception because the Supreme Court did not address
the joint participant exception recognized by the Tenth Circuit
below. Pineda and Guerrero defend the district court's reasoning
by arguing that "[d]espite the [G]overnment's invitation to adopt"
the joint participant exception, the Supreme Court chose to narrow
the privilege instead by vesting it only in the testifying spouse.
They contend that the district court correctly interpreted this
holding on the broader ground of overruling Hawkins as the Court's
rejection of that exception. We are not persuaded by Pineda and
Guerrero's arguments. Instead, we agree with the Government that
Trammel is not a categorical bar to the possibility of recognizing
a joint participant exception to the spousal testimonial
privilege.
Trammel, as the Government accurately points out, does
not discuss the joint participant exception on which the Tenth
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Circuit had rested its decision, let alone opine on its merits.
See Trammel, 445 U.S. at 41-53. We find it difficult to see how
the Supreme Court rejected an exception that it did not so much as
mention. In fact, the Court made clear that it granted certiorari
in that case "to consider whether an accused may invoke the
privilege against adverse spousal testimony so as to exclude the
voluntary testimony of his wife." Id. at 41-42. It is axiomatic
that the Supreme Court can grant a petition for a writ of
certiorari as to virtually any issue in a case it wishes to review,
and decide cases on any ground it feels is appropriate. See,
e.g., Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) ("[I]t is this
Court's prerogative alone to overrule one of its precedents."
(alteration in original) (citations omitted)); Vance v. Terrazas,
444 U.S. 252, 258 n.5 (1980) ("[C]onsideration of issues not
present in the jurisdictional statement or petition for certiorari
and not presented in the Court of Appeals is not beyond our power,
and in appropriate circumstances we have addressed them.").
Applying these principles has several consequences in
this case. First, because it is the Supreme Court's prerogative
to resolve cases on whatever grounds it believes appropriate, we
think that it would be wrong to interpret the Supreme Court's
decision to resolve the broader doctrinal question in Trammel as
implicitly rejecting the narrower ground for affirmance -- the
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joint participant exception. See Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 399 (1821) ("It is a maxim not to be disregarded,
that general expressions . . . are to be taken in connection with
the case in which those expressions are used. If they go beyond
the case, they . . . ought not to control the judgment in a
subsequent suit."). Second, we are not convinced that much weight
should be given to the fact that the Government had "invited" the
Trammel Court to approve the joint participant exception. Because
the Supreme Court's discretion extends not only to the grounds for
resolving a case but also to the specific issue(s) it reviews, we
think it unwise to read any dispositive meaning into the lack of
any discussion of the joint participant exception in the Trammel
opinion, or the Court's decision not to take up the Government's
"invitation" to recognize the joint participant exception. See
Maldonado Santiago v. Velázquez García, 821 F.2d 822, 828 (1st
Cir. 1987) (stating that interpreting the Supreme Court to have
overruled a line of precedent sub silentio would not "reflect . . .
a prudent reading of precedent"). The Supreme Court's silence on
this issue is just that -- silence.
The context in which Trammel was decided further
reinforces the conclusion that the Supreme Court did not implicitly
foreclose the joint participant exception. Prior to Trammel, the
Court had decided Hawkins, in which it held that a criminal
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defendant could assert the spousal testimonial privilege to
prevent his or her spouse from testifying against him, even when
the spouse was willing to do so. 358 U.S. at 77. In Trammel, the
defendant's only claim before the Tenth Circuit was that "the
admission of the adverse testimony of his wife, over his objection,
contravened [the Supreme] Court's teaching in Hawkins v. United
States . . . ." 445 U.S. at 43. The Tenth Circuit rejected this
argument, concluding that "[n]othing in Hawkins or any other
reported decision . . . prohibits the voluntary testimony of a
spouse who appears as an unindicted co-conspirator . . . ."
Trammel, 583 F.2d at 1168. In light of this background, therefore,
the conclusion that the Supreme Court did not implicitly reject
the joint participant exception makes sense. The Supreme Court
found the Tenth Circuit's decision in Trammel called for "a re-
examination of Hawkins," which is precisely what the Court did
without approving or disapproving the joint participant exception
recognized by the Tenth Circuit. Trammel, 445 U.S. at 42.
Absent guidance to the contrary from the Supreme Court
-- which we do not find in Trammel -- we decline to hold that
Trammel completely precludes the possibility of recognizing a
joint participant exception if the appropriate balancing analysis
weighs in its favor. For these reasons, the district court's
conclusion that the Supreme Court implicitly rejected the joint
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participant exception in Trammel is incorrect.
IV.
Having determined that Trammel does not squarely resolve
the question posed by this appeal, we now turn to the district
court's conclusion not to recognize such a joint participant
exception. We review the admission or exclusion of evidence over
claims of privilege for an abuse of discretion. In re Grand Jury
Subpoena, 662 F.3d 65, 69 (1st Cir. 2011). However, when the
issue presented is of a legal nature, those "[r]ulings on questions
of law are reviewed de novo." Id.
A.
Rule 501 of the Federal Rules of Evidence governs claims
of privilege in the federal courts. Swidler & Berlin v. United
States, 524 U.S. 399, 403 (1998). That Rule provides that "[t]he
common law -- as interpreted by United States courts in the light
of reason and experience -- governs a claim of privilege . . . ."
Fed. R. Evid. 501. It empowers the federal courts to "develop[]
rules of privilege on a case-by-case basis." United States v.
Gillock, 445 U.S. 360, 367 (1980). Furthermore, the Supreme Court
has instructed that a privilege should only apply in a particular
case if it "promotes sufficiently important interests to outweigh
the need for probative evidence." Univ. of Pa. v. EEOC, 493 U.S.
182, 189 (1990) (quoting Trammel, 445 U.S. at 51).
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The spousal testimonial privilege is one of the two
marital privileges recognized under the Federal Rules of Evidence.4
It "allows one spouse to refuse to testify adversely against the
other in criminal or related proceedings . . . ." Breton, 740
F.3d at 9-10. Unlike the marital communications privilege, which
either spouse may assert, id. at 10, "the witness-spouse alone has
a privilege to refuse to testify adversely; the witness may be
neither compelled to testify nor foreclosed from testifying."
Trammel, 445 U.S. at 53.
The Government contends that Rule 501's mandate for the
federal courts to develop the law of evidentiary privileges "in
light of reason and experience" requires us to weigh the
Government's need for evidence against the policy rationales that
underlie a claimed privilege. A proper balancing of these
interests, the Government further argues, justifies recognizing a
joint participant exception to the spousal testimonial privilege.
Specifically, the Government points to two features of
conspiracies that it claims enhances the need for the Government
4 The other recognized marital privilege is the marital
communications privilege, which "permits a defendant to refuse to
testify, and allows a defendant to bar his spouse or former spouse
from testifying, as to any confidential communications made during
their marriage." Breton, 740 F.3d at 10. The parties agree that
the marital communications privilege cannot be a basis for
excluding Guerrero's testimony here.
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to be able to gather evidence. First, the Government argues that
a "[c]ollective criminal agreement . . . presents a greater
potential threat to the public than individual derelicts,"
Callanan v. United States, 364 U.S. 587, 593 (1961), a danger that
it asserts is "peculiar." Not allowing the Government to abrogate
the privilege in this context "wrongly places the law on the side
of protecting conspiracies within a marriage," and therefore the
Government "has a particularly strong need for evidence so that it
can dismantle the conspiracy before it inflicts additional harms
on the public." Second, the Government points to the inchoate and
secretive nature of conspiracies. The Government emphasizes that
it often needs to obtain testimony of a co-conspirator in order to
subvert the conspiracy, and cites to the hearsay exception for
statements of a co-conspirator, Fed. R. Evid. 801(d)(2)(E), to
highlight the importance of access to this critical evidence in
conspiracy prosecutions.
On the other side of the scale, the Government argues
that society's interest in preserving marital harmony is
"diminished in the particular context of conspiracy prosecutions."
Married couples who conspire to commit crimes, the Government
urges, "have abused the marital privilege granted to them by the
state." Because "[i]t would be odd to permit a spouse to invoke
the spousal testimonial privilege . . . to protect a criminal
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conspiracy formed within the marriage that is harmful to the
state," the Government argues that the force of the public policy
behind the privilege is "at its nadir" in conspiracy cases.
The Government, however, never addresses the
"experience" side of Rule 501's equation in arguing for the
exception to the longstanding spousal testimonial privilege. This
Court has recognized the spousal testimonial privilege without the
joint-participant exception for many years, and yet the Government
never presents an argument as to how our experience with the
spousal testimonial privilege shows that we should now recognize
this exception when we did not in the past.5 See, e.g., Jaffee v.
Redmond, 518 U.S. 1, 6 (1996) (citing the unanimous agreement of
the 50 states and the "skyrocket[ing]" demand for counseling
services as evidence of how our "experience" with mental health
had changed such that the Court needed to recognize the
psychotherapist privilege). When reason, by itself, fails to
5 The Government does suggest in a footnote to its brief that the
treatment of the privilege in the states supports its position
that we should judicially carve out the joint-participant
exception to this privilege pursuant to Rule 501. But the
Government does not dispute that a substantial majority of the
states recognize the spousal testimonial privilege without carving
out such an exception. In fact, the Government's own account of
state practice reveals that only two of the thirty states that
recognize the privilege have adopted the exception it favors.
Moreover, as the Government acknowledged at oral argument, of the
states that have limited the privilege, an overwhelming number
have done so via legislation rather than through judicial means.
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provide an unequivocal interpretation, a court's experience with
the privilege weighs even more on its decision. See Swidler &
Berlin v. United States, 524 U.S. 399, 410 (1998) (noting that
where "[i]t has been generally, if not universally, accepted, for
well over a century, that the attorney-client privilege survives
the death of the client," the Court would need more than
"thoughtful speculation" to justify recognizing a new exception).
B.
It seems clear then that the interests the spousal
testimonial privilege is designed to serve continue to be quite
substantial. Compared to these interests, the Government's
asserted evidentiary interests on the other side of the scale are,
in our view, less hefty. The inchoate and secretive features of
conspiracies to which the Government alludes in support of its
argument are common to every conspiracy prosecution, and are not
alleviated or exacerbated by the fact that some or both members of
the conspiracy are married to each other. By the Government's
logic, the difficulties involved in prosecuting conspiracies would
outweigh the significant countervailing interests that underlie a
number of other evidentiary privileges as well, including, for
example, the Fifth Amendment privilege against self-
incrimination.6 The Fifth Amendment, of course, is a constitutional
6 Of course, the other half of the Government's argument under
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right, and not just a matter of common law as is the spousal
testimonial privilege. But given that both privileges are deeply
rooted in history, the interests that underlie the spousal
testimonial privilege are similarly significant.7
The force of the Government's argument as to the need
for evidence in this context is further undermined by its
acknowledgement that "[t]here are many types of evidence that a
court may consider to determine whether a couple was engaged in a
criminal agreement, without requiring testimony from the unwilling
spouse." The Government's tacit admission that there is no
shortage of other evidence (at least in the mine run of cases)
with which the Government can make the predicate showing necessary
to invoking its proposed joint participant exception belies its
claim that the need for evidence is particularly high in conspiracy
the balancing analysis is that the rationales underlying the
spousal testimonial privilege are significantly diminished in the
specific context of conspiracy prosecutions. As further explained
below, however, that argument is also unpersuasive.
7 The Government also briefly refers to the treatment of co-
conspirators' statements as non-hearsay, Fed. R. Evid. 801(d)
(2)(E), as evidence of the law's preference for "facilitat[ing]
the presentation of co-conspirator statements" in criminal trials.
This comparison is inapt. Rule 801(d)(2)(E) rests on a theory of
agency, "the underlying concept being that a conspiracy is a common
undertaking where the conspirators are all agents of each other
and where the acts and statements of one can be attributed to all."
Bourjaily v. United States, 483 U.S. 171, 188 (1987) (Blackmun,
J., dissenting). The rule does not manifest a legislative
preference for co-conspirator statements generally.
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cases. We are therefore not persuaded that the Government's need
to pierce the spousal testimonial privilege is cognizably greater
in cases where the spouses are alleged to have engaged in a
criminal conspiracy than in other cases.
The Government also contends that "the public policy in
favor of applying the privilege is weak in conspiracy cases." We
also find that argument unpersuasive. As the Third Circuit
observed, this argument seemingly assumes "that because of what
may be an isolated criminal act, the marriage has no social value
whatsoever," which "may not be true" in all cases. Malfitano, 633
F.2d at 278. In fact, "the marriage may well serve as a
restraining influence on couples against future antisocial acts
and may tend to help future integration of the spouses back into
society." Id. Likewise, the Second Circuit has stated that it
is "unable to accept the proposition that a marriage cannot be a
devoted one simply because at some time the partners have decided
to engage in a criminal activity." In re Grand Jury Subpoena, 755
F.2d at 1026. We agree in large part with the reasoning of these
two courts.
The Supreme Court once described a marriage as "a coming
together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred." Griswold v. Connecticut, 381 U.S.
479, 486 (1965). The Court recently underscored that "[n]o union
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is more profound than marriage, for it embodies the highest ideals
of love, fidelity, devotion, sacrifice, and family. In forming a
marital union, two people become something greater than once they
were." Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). In
light of these statements, we decline to engage in value judgments
about which marriages are worthy of protection and which are not,
and find that "reason and experience" counsels our refraining from
recognizing an exception that requires courts to make such
determinations.
In arguing that the interest in marital harmony is not
always paramount, the Government also points to "long-standing
criticism of the privilege by the Supreme Court, the States and
commentators." However, to the extent the Government is correct
that the spousal testimonial privilege is rightly criticized as
being too broad, we believe that this concern was squarely
addressed by the Supreme Court in Trammel. The Government, after
all, cites to Trammel itself for its criticism of the privilege's
breadth and capacity to impede a court's path to the truth. Yet,
when provided the opportunity to address this problem, the Supreme
Court chose to vest the privilege only in the testifying spouse
instead of opting for the narrower remedy of recognizing a joint
participant exception. As previously noted, this holding is not
conclusive that no joint participant exception should be
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recognized, but it does significantly undermine the Government's
claim that the law as it currently stands does not strike the
proper balance between protecting the marriage and the
Government's need for evidence in conspiracy cases.
We also decline the Government's invitation to follow
the Seventh Circuit's lead because we do not find persuasive the
two rationales on which the Seventh Circuit's view is based. As
to the first rationale, that the spousal testimonial privilege
"did not justify assuring a criminal that he or she could enlist
the aid of a spouse in a criminal enterprise without fear that
. . . the criminal was creating another potential witness,"
Clark, 712 F.2d at 301 (quoting Van Drunen, 501 F.2d at 1396), we
agree with the Second Circuit that Trammel addressed this concern
by vesting the privilege in only the witness spouse, see In re
Grand Jury Subpoena, 755 F.2d at 1026. Regarding the Seventh
Circuit's second rationale that "the rehabilitative effect of a
marriage, which in part justifies the privilege, is diminished
when both spouses are participants in the crime," Clark, 712 F.2d
at 301 (citing Van Drunen, 501 F.2d at 1397), we note that
"rehabilitation ha[s] never been regarded as one of the interests
served by the spousal privilege." In re Grand Jury Subpoena, 755
F.2d at 1026. Even if we were to accept that rehabilitation is
one of the privilege's underlying rationales, we do not find it to
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be necessarily true in all cases that a marriage in which the
spouses are parties to a criminal conspiracy prevents that marriage
from being one that would aid in rehabilitation. At the very
least, the uncertainty surrounding this principle persuades us
that the best course in this case is to decline the Government's
invitation to recognize the joint participant exception.
Notably, the Government fails to address how the
exception it seeks is consistent with the broader societal interest
behind the spousal testimonial privilege in avoiding the perceived
unseemliness of seeing a spouse being coerced to actively
contribute to the prosecution of his or her spouse. Even in cases
where the married couple is, in fact, using the marriage as a
shield to hide joint criminal activity and "abus[ing] the marital
privilege granted to them by the state," it is not apparent that
the broader concern about the appearance of the Government coercing
one spouse to testify against the other applies with any less
force.
Accordingly, the Rule 501 balancing analysis weighs in
favor of rejecting the joint participant exception.
C.
The Government suggests two additional reasons why it
believes it would be appropriate to recognize a joint participant
exception to the spousal testimonial privilege. First, the
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Government presents this case as an opportunity to "unify the law
governing the marital privileges," noting that every federal court
of appeals "has adopted a joint participant exception to the
martial communications privilege." Because both privileges are
rooted in the policy of promoting marital harmony, the Government
urges, "the outcome of the Rule 501 balance in the conspiracy
context should also be the same" for both privileges.
However, the importance of distinguishing between these
two privileges is evident in several respects, not least of which
is the manner in which each operates. The marital communications
privilege can be asserted by both spouses, see United States v.
Picciandra, 788 F.2d 39, 43 (1st Cir. 1986) (noting that the
marital communications privilege "prohibits one spouse from
adversely testifying to confidential communications made by the
other during their marriage"), in order to "ensur[e] that spouses
. . . feel free to communicate their deepest feelings to each other
without fear of eventual exposure in a court of law." Breton, 740
F.3d at 10 (quoting United States v. Brock, 724 F.3d 817, 820–21
(7th Cir. 2013) (citation omitted) (internal quotation marks
omitted)). The spousal testimonial privilege, by contrast, can
only be asserted by the testifying spouse, see Trammel, 445 U.S.
at 53, in order to protect him or herself from taking the witness
stand at all. See Trammel, 445 U.S. at 51 (noting that the spousal
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testimonial privilege's "protection is not limited to confidential
communications."). This is important because the universe of
testimony that a joint participant exception would make available
to the Government (where it otherwise would not be) is smaller and
narrower for the marital communications privilege than for the
spousal testimonial privilege. Thus, invoking a joint participant
exception to the spousal testimonial privilege would allow the
prosecutor to force the spouse to take the stand and make available
not only marital communications, but also a panoply of other
information -- the revealing of which may be detrimental to
marriage.
Furthermore, the joint participant exception to the
marital communications privilege is arguably less pernicious to
marital harmony than an equivalent abrogation of the spousal
testimonial privilege. To be sure, the Government's presentation
of communications between two spouses may very well be harmful to
the relationship. But, unlike when a prosecutor enters evidence
consisting of marital communications, piercing the spousal
testimonial privilege necessarily involves coercing a non-
defendant spouse to take the witness stand, face his or her spouse,
and put the nails in the defendant spouse's proverbial coffin.
Such a display undoubtedly also raises the unseemly spectre that
"undermine[s] the marriage precisely in the manner that the
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privilege is designed to prevent." Malfitano, 633 F.2d at 279.
The second argument offered by the Government is that
the already-established injured spouse exception 8 demonstrates
that the Trammel decision "does not mean that the spousal
testimonial privilege is a privilege that should have no
exceptions." The Government goes on to emphasize that in Breton,
we found that "the injured spouse exception is warranted, in part,
because of the peculiar need for evidence in cases involving
spouse-on-spouse or spouse-on-child crime." But, assuming as we
do that the underlying purpose behind the injured-spouse exception
is to protect the family, Wyatt v. United States, 362 U.S. 525,
529 (1960), it is difficult to see how that rationale has any
application to the joint participant exception the Government asks
us to adopt. All that this argument does for the Government is
bring us back to the Rule 501 balancing analysis, where it fails
to persuade us that the balance weighs in favor of recognizing the
joint participant exception.
V.
For all the foregoing reasons, we find that the
Government's interest in having the ability to compel the testimony
8 The Supreme Court recognized that, in the case of spouse-on-
spouse and spouse-on-child crime, there is a vital need for
evidence from the non-defendant spouse that justifies an exception
to the spousal testimonial privilege. Breton, 740 F.3d at 11.
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of a defendant's co-conspiring spouse are outweighed by the
significant policy concerns underlying the spousal testimonial
privilege. This time-honored evidentiary privilege is no less
deserving of protection when the witness whose testimony it seeks
to compel is alleged to be a co-conspirator than when he or she is
not. We therefore join the majority of our sister circuits that
have considered this issue and conclude that the balance of
interests mandated by Rule 501 weighs against recognizing the joint
participant exception to the spousal testimonial privilege. The
district court, therefore, did not abuse its discretion in denying
the Government's motion to compel Guerrero to testify against her
husband, and in granting Guerrero's motion to quash the
Government's subpoena.
We note, however, that our decision today does not
foreclose the possibility of a defendant's co-conspirator spouse
taking the stand to testify against the defendant in a conspiracy
case. As it often does in co-conspirator cases, the Government
remains free to attempt to persuade a defendant's co-conspirator
spouse to testify voluntarily against their defendant spouse. We
hold only that the Government cannot compel the non-defendant
spouse's testimony in conspiracy prosecutions absent the
availability of another exception to this privilege.
For these reasons, the decision of the district court is
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affirmed.
Affirmed.
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