United States v. Donna Singleton , 260 F.3d 1295 ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
__________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 8, 2001
No. 99-14867 THOMAS K. KAHN
__________________________ CLERK
D.C. Docket No. 99-CR-57-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNA SINGLETON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Alabama
__________________________
(August 8, 2001)
Before CARNES and MARCUS, Circuit Judges, and PROPST*, District Judge.
* Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
PER CURIAM:
Donna Singleton (appellant) was indicted on three counts of making false
statements to a federally-insured credit union (Title 18 U.S.C. §1014). The jury
convicted her on June 30, 1999 of all three counts. She raises two issues on
appeal. She contends: (1) that the district court erred by refusing to apply the
marital communications privilege to a conversation between the appellant and her
then-husband Cedric Singleton (Cedric); and (2) that the district court erred by
allowing the jury to consider the testimony of witness Sonya White concerning
alleged statements of the appellant, when White was ambivalent as to whether she
had heard the statements directly from the appellant or whether she heard other(s)
quote the appellant.
Facts1
The appellant and Cedric began living together in 1992 and were married in
January 1995. The marriage was a rocky one involving, during the marriage,
allegations of adultery by both partners and physical altercations. Prior to
December 1996, appellant filed charges of domestic abuse against Cedric, which
resulted in his being jailed. The parties separated in December 1996 after another
1 The underlying facts with regard to the commission of the three offenses are not
directly at issue. We will summarize the facts related to the stated issues. Additional facts will
be stated, infra, with regard to a motion in limine hearing regarding the marital communications
privilege.
2
physical altercation involving appellant’s boyfriend, Earl Davis. A petition for
divorce was filed by appellant in September 1997. The divorce became final in
May 1998.
In December 1997, Cedric was visiting his daughter at appellant’s residence.
While there, he searched for papers related to a prior divorce from another woman,
and found documents that indicated that appellant had filed the false loan
applications for which she was eventually convicted. In January 1998, he took the
documents to the FBI. He agreed with the FBI to wear a recording device and to
tape a conversation with appellant. Cedric met the appellant at a restaurant on
January 29, 1998. During the taped conversation, appellant made incriminating
statements. After the taped conversation, the FBI questioned appellant and
obtained her consent to search her residence, where other incriminating evidence
was found.
Over the appellant’s objection, the taped conversation with Cedric and
testimony concerning it were admitted at trial. The prosecution also called Sonya
White as a witness. White testified that appellant told her that appellant had
obtained loans based upon false documents. She also stated, however, that she
may have heard about the loans from other co-worker(s). In her own testimony at
the trial, the appellant first denied that she had falsified the loan documents, but, on
3
cross-examination, recanted and acknowledged that she had forged, altered, and
submitted inaccurate loan applications, supporting documents, and income
statements.
Marital Privilege
Appellant’s first issue is one of first impression in this circuit. It arises out
of the admission into evidence of the conversation taped while the Singletons were
married, but separated, and testimony concerning it. There are two recognized
types of marital privilege: the marital confidential communications privilege and
the spousal testimonial privilege. Trammel v. United States, 445 U.S. 40, 50-51
(1980). The marital privilege asserted by the appellant is marital communications
privilege, which has been recognized by this court. United States v. Entrekin, 624
F.2d 597, 598 (5th Cir. 1980); United States v. Mendoza, 574 F.2d 1373, 1379 (5th
Cir. 1978).2 The threshold issue in this case is whether the marital
communications privilege applies to communications made while the spouses,
although still technically married, are living separate lives with no reasonable
2 Unlike the testimonial privilege, the communications privilege generally survives a
terminated marriage. Pereira v. United States, 347 U.S. 1, 6 (1953). The unanimous rulings of
other circuit courts, however, have held that marital communications made while the parties are
legally married but permanently separated are not privileged. The adverse spousal testimonial
privilege is sometimes referred to as spousal incompetency. It can be asserted only by the
witness-spouse. The marital communication privilege, when available, can be asserted by a
defendant to prevent his or her spouse from testifying concerning the communication and to
exclude related evidence.
4
expectation of reconciliation (in other words, the couple is “permanently
separated”). The appellant, while recognizing that no circuit court has so held,
argues that this court, in a case of first impression, should “adopt a bright-line rule
that the marital privilege lasts until the marriage formally ends” with a divorce
decree. The appellant’s justification for this argument is that, “[t]his standard
would avoid the intrusive inquiries that were posed to the appellant and her
estranged husband in this case.” Appellant also argues that such a rule would
“create predictability around the duration of the privilege” and would avoid
discouraging “communication between couples exploring reconciliation.”
The appellant’s “bright-line” argument has not been accepted by any circuit
court that has considered the availability of the marital communications privilege
for a conversation taking place when the spouses are permanently separated.
Further, contrary to the appellant’s argument, other courts of appeal do not appear
to “have struggled to fashion solutions to the problem of determining whether the
marital privilege survives through separation.” In United States v. Byrd, 750 F.2d
585, 591-94 (7th Cir. 1984), the Seventh Circuit stated:
“We refuse to extend the communications privilege to
permanently separated couples on the theory that a guaranteed
protection of confidentiality at this stage might save some troubled
marriages. Cf. Appeal of Malfitano, 633 F.2d 276, 278 (3d Cir. 1980)
(declined to uphold “joint participants in a crime” exception to the
testimonial privilege on the theory that the protection of the privilege
5
may tend “to help future integration of the spouse back into society”).
Such a purpose is too speculative to justify a privilege that can
severely hamper the truth finding process essential to a criminal trial.
Moreover, this circuit has interpreted strictly the ‘valid marriage’
requirement in the testimonial privilege context. See United States v.
Van Drunen, 501 F.2d 1393, 1397 (7th Cir.), cert. denied, 419 U.S.
1091, 95 S.Ct. 684, 41 L. Ed 2d 684 (1974); United States v. Clark,
712 F.2d 299, 302 (7th Cir. 1983) (both holding that the privilege
does not protect communications that occur prior to marriage). See
also United States v. Pensinger, 549 F.2d 1150, 1151 (8th Cir. 1977);
Volianitis v. Immigration & Naturalization Service, 352 F.2d 766,
768 (9th Cir. 1965) (same). Cf. United States v. Lustig, 555 F.2d 737(9th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L. Ed.
2d 795 (1978) (neither the marital communications privilege nor the
testimonial privilege applies where the marriage is not valid under
state law, though the couple have lived together as man and wife for
years). We, too, therefore, strictly interpret that portion of the
privilege’s requirement and hold that only communications that take
place during a valid marriage between couples still cohabiting
pursuant to that marriage are protected by the privilege.
Arguably, the fact of separation at the time of the
communications rebuts the presumption of confidentiality that is a
requirement of the exercise of the privilege. The presumption has
been justified by courts on the grounds that communications within a
marriage are intended to be private, yet are often made without a
request for secrecy. Thus the difficult matter of proving the intent to
keep the communications confidential is avoided by the presumption.
See generally, State v. Smith, 384 A.2d 687, 692 (Me. 1978); Blau v.
United States, 340 U.S. 332, 71 S. Ct. 301, 95 L. Ed. 306 (1951); note,
supra, 56 IND. L.J. at 128-29, 133-34. We do not, however, base our
holding today on the premise that communications made during a
permanent separation lose the presumption of confidentiality. Such a
holding would only involve courts in the difficult assessment of the
intent of the communications, which the defendant would raise to
reassert confidentiality once the presumption had been rebutted by the
government’s proof of the spouses’ separated status. We decline to
involve courts in this burdensome task. Our holding today is more
6
categorical and looks to the purpose of the privilege. We hold that
society’s interest in protecting the confidentiality of the relationships
of permanently separated spouses is outweighed by the need to secure
evidence in the search of truth that is the essence of a criminal trial,
and that proof of permanent separated states at the time of the
communication between the defendant and the defendant’s spouse
renders the communications privilege automatically inapplicable.”
In United States v. Porter, 986 F.2d 1014, 1018-19 (6th Cir. 1993), the court
stated:
“Courts have recognized certain exceptions to the [marital
communications] privilege. . . . While the privilege is said to apply to
confidential communications made during marriage, an exception to
the privilege has been recognized by the Second, Seventh, Eighth and
Ninth Circuits where the evidence consists of statements made by one
spouse after the spouses have permanently separated, even though
they may not have been legally divorced. In re Witness Before
Grand Jury, 791 F.2d 234, 238-39 (2d Cir. 1986); United States v.
Fulk, 816 F.2d 1202, 1205 (7th Cir. 1987); United States v. Byrd, 750
F.2d at 593; United States v. Frank, 869 F.2d 1177, 1179 (8th Cir.),
cert. denied, 493 U.S. 839, 110 S. Ct. 121, 107 L. Ed. 2d 82 (1989);
United States v. Roberson, 859 F.2d 1376, 1381 (9th Cir. 1988).
. . . Therefore, joining all other circuits which have faced this
issue we hold that the privilege is inapplicable where the spouses have
permanently separated . . . .”
In United States v. Frank, 869 F.2d 1177, 1179 (8th Cir. 1989), the court
stated:
“Finally, Frank argues the district court committed error in
admitting evidence of Patricia’s conversations with him because the
conversations were confidential communications protected by the
marital privilege. See Fed. R. Evid., 501. Frank contends the mere
fact the couple was still legally married when the conversations
7
occurred entitled him to claim the privilege. We disagree.
We recognize that privileges are disfavored because they
impede the search for truth. See United States v. Nixon, 418 U.S.
683, 710, 94 S. Ct. 3090, 3108-09, 41 L. Ed. 2d 1039 (1974). Taking
into account the Franks’ permanent separation and their defunct
marriage, we agree with the district court that Frank was not entitled
to invoke the privilege. See United States v. Roberson, 859 F.2d
1376, 1378-82 (9th Cir. 1988); United States v. Fulk, 816 F.2d 1202,
1204-05 (7th Cir. 1987); In re Witness Before Grand Jury, 791 F.2d
234, 238-39 (2d Cir. 1986); United States v. Byrd, 750 F.2d 585,
589-94; (7th Cir. 1984). The district court did not commit error in
admitting this evidence.”
In United States v. Roberson, 859 F.2d 1376, 1378-82 (9th Cir. 1988), the
court stated:
“As the Byrd court concluded as to permanently separated
couples, society has little interest in protecting the confidentiality of
separated couples whose marriage has failed by the time of the
communication. See Id. at 593. The need for truth outweighs this
interest. Id.”
For similar holdings as to the permanent separation exception to the marital
communication privilege see: United States v. Murphy, 65 F.3d 758, 761-62 (9th
Cir. 1995); United States v. Jackson, 939 F.2d 625, 626 (8th Cir. 1991); and In re
Witness Before Grand Jury, 791 F.2d 234, 236-39 (2d Cir. 1986).
We agree with the other circuits which have determined that the privilege is
not available when the parties are permanently separated; that is, living separately
with no reasonable expectation of reconciliation. Our decision is bolstered by the
8
factors generally applicable to privilege assertions, and more particularly, to
marital privilege assertions. The general issue of evidentiary privilege in criminal
cases is governed by the first sentence of Rule 501 of the Federal Rules of
Evidence, which states: “Except as otherwise required by the Constitution of the
United States or provided by Act of Congress or in rules prescribed by the
Supreme Court pursuant to statutory authority, the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience.” The Supreme Court has held
that privileges must be narrowly construed because they impede the search for
truth. United States v. Nixon, 418 U.S. 683, 710 (1974); See also United States v.
Chapman, 866 F.2d 1326, 1333 (11th Cir. 1989). While the confidentiality of
communications during a valid marriage is presumed,3 there is no reasonable basis
for asserting the privilege when the marriage is “moribund.”4 If the spouses are
permanently separated at the time of the communication, the reasonableness of the
expectation of the spouse who asserts the privilege that the communication will be
3 Blan v. United States, 340 U.S. 332, 333 (1951).
4 Compare, United States v. Cameron, 556 F.2d 752, 756 (5th Cir. 1977) (spousal
testimonial privilege).
9
kept confidential is diminished. There is also less societal interest in protecting the
marital relationship of permanently separated spouses, especially when such
protection would operate to “severely hamper the truth finding process essential to
a criminal trial.” Byrd, 750 F.2d at 593. The need for a search for truth in judicial
proceedings weighs against construing the privilege any more broadly than
necessary to achieve its ends. In re Grand Jury Proceedings, 664 F.2d 423, 429-30
(5th Cir. 1981, Unit B). In Cameron, supra, the old Fifth Circuit rejected, albeit in
a testimonial privilege case, the argument that the privilege should be available in
“moribund” marriages. 556 F.2d at 756. There is no reasonable distinction to be
made in the case of a marital communication privilege assertion.
Having determined that the marital communication privilege is not available
in cases of permanent separation prior to divorce, we next consider the factors that
should be considered by district courts in determining whether there was a
permanent separation at the time of the communication. A district court should
focus upon the following three objective factors as especially important: (1) Was
the couple cohabiting?; (2) if they were not cohabiting, how long had they been
living apart?; and (3) had either spouse filed for divorce? A district court may, of
course, consider other objective evidence of the parties’ intent or lack of intent to
reconcile. See Cameron, 556 F.2d at 756 (finding permanent separation in
10
testimonial privilege case where there was “a great disparity between the amount
of time that the couple cohabited and the time that one of the other chose not to
live together,” and where one of the spouses already entered into “a more
permanent living arrangement with another partner than with his spouse”). A court
also may (not must) consider testimony by the spouses themselves regarding their
subjective intent, but simply because one or both spouses testifies that the couple
intended to stay married and that the communications at issue were thought by
them to be protected, the communications need not be deemed privileged where
objective factors undermine the credibility of that testimony.
The trial judge conducted a hearing outside the presence of the jury
concerning the state of the Singletons’ marital relationship at the time of the taped
conversation. Once the Government opposed the allowance of the privilege, the
burden of proof was on the appellant to prove by a preponderance of the evidence
that she and Cedric were not permanently separated at the time of the subject
communication. See In re Grand Jury Subpoena, 831 F.2d 225, 227 (11th Cir.
1987); and In re Certain Complaints Under Investigation, 783 F.2d 1488, 1520
(11th Cir. 1986). We review a district court’s ruling on a claim of evidentiary
privilege only for abuse of discretion. See, e.g., United States v. United Kingdom,
238 F.3d 1312, 1319 (11th Cir. 2001). Factual findings of a district court are
11
reviewed only for clear error. See United States v. Kuku, 129 F.3d 1435, 1438
(11th Cir. 1997). See also, Roberson, 859 F.2d at 1382 (applying clearly
erroneous standard to this issue); City of Tuscaloosa v. Harcros Chem. Corp., 158
F.3d 548, 556 (11th Cir. 1999) (“The factual findings of the district court that
underlie its decisions regarding the admissibility of the purported hearsay evidence
-- such as its findings regarding whether a statement was made in furtherance of a
conspiracy, or whether a particular document is a regular business record – are
reviewed for clear error.”)
The following evidence was presented to the district court: (1) the appellant
alleged, in a divorce action complaint filed in September 1997, that Cedric had
abandoned her in December 1996; (2) during the marriage Cedric had accused
appellant of having affairs with her co-worker(s) and contractor(s) based on
documents he found; (3) the appellant, at the time of the taped conversation, was
living with Earl Davis, a co-worker; (4) the Singletons had a physical altercation
shortly before their December 1996 separation; (5) after December 1996, Cedric
lived with appellant’s cousin, his own brother, and a former wife named Stephanie;
(6) appellant stayed at Cedric’s brother’s house three or four times while Cedric
was there; (7) Cedric spent one night, possibly two nights, at appellant’s house
after December 1996 (on one of the occasions, her boyfriend showed up; there was
12
an altercation, and Cedric left); (8) in 1997, there was another altercation involving
appellant, Earl Davis, and Cedric, in which knives were drawn; (9) the appellant
and Cedric continued to trade accusations of infidelity throughout the separation;
(10) the spouses had tried marriage counseling around March 1997, and did not
thereafter reconcile; (11) the spouses discussed reconciliation in the taped
conversation, but appellant also told Cedric that she would shoot him if she had a
gun, and several times during the taped conversation, appellant told Cedric that she
hated him; (12) appellant also told Cedric, “It’s ‘cause I hate your ass and this is
how I feel about you Cedric. I don’t feel nothing nice for you any damn more;”
and (13) Cedric testified that, at the time of the taped conversation, reconciliation
was unlikely.
We conclude that the district court did not clearly err by finding that the
Singletons were permanently separated at the time of the communication and that it
did not abuse its discretion in denying the privilege to the appellant.
Testimony of Sonya White
The defendant did not object to the testimony of Sonya White, who, the
Government has acknowledged, was ambivalent during her testimony. The jury
could, of course, weigh her testimony. Even assuming, however, that the
testimony should have been stricken, it was not plain error to fail to do so. Any
13
perceived equivocation arguably could have been weighed in appellant’s favor.
Further, the evidence, including appellant’s own testimony, strongly suggested
guilt. There was certainly neither “egregious error,” nor any error that would result
in a “miscarriage of justice.” United States v. Williford, 764 F.2d 1493, 1502
(11th Cir. 1985).
Summary
We reject appellant’s argument that we should establish a bright-line rule of
termination of marriage before the marital communication privilege can be denied.
We conclude that the district court did not abuse its discretion in concluding that
the parties were permanently separated and that appellant was not entitled to assert
the marital communications privilege. Finally, we conclude that there was no error
in admitting, or in failing to strike, the testimony of Sonya White.
The judgment of the district court is AFFIRMED.
14