United States v. Neal

• Decision Date: 25 February 1982
• Docket Number: Crim. A. No. 81-CR-236.
• Parties: UNITED STATES of America, Plaintiff, v. Jake Keller NEAL, Defendant.
• Court: U.S. District Court — District of Colorado

532 F. Supp. 942

UNITED STATES of America, Plaintiff, v. Jake Keller NEAL, Defendant.

Crim. A. No. 81-CR-236.

United States District Court, D. Colorado.

February 25, 1982.

Robert N. Miller, U. S. Atty., Denver, Colo., for plaintiff.

Michael G. Katz, Federal Public Defender, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

The United States (hereafter, "the government") has indicted the defendant Jake Keller Neal charging one count of bank robbery and homicide in violation of 18 U.S.C. § 2113(a) and (e). Neal is accused of having robbed the Midland Federal Savings and Loan Office at 295 West Hampden Avenue, Englewood, Colorado, of $14,100 on April 29, 1981. A female teller assaulted during the robbery died from her injuries a few days later.

On December 10, 1981, in the course of seeking evidence to implicate the defendant in this crime, an FBI agent listened to and tape recorded three telephone conversations between Neal and his wife Marcia. A promise of immunity from prosecution was used to obtain Mrs. Neal's consent to the telephone monitoring and tape recording. In this effort to induce the defendant to incriminate himself, his wife asked him questions suggested to her by the FBI agent. The questions were apparently designed to bait the defendant to respond with incriminating answers.

No warrant was sought for this action. The decision to monitor and record the conversations apparently was made by an FBI field agent. There is no evidence that any authorization was sought or obtained from the agent in charge of the Denver FBI office, the United States Attorney, or any other Justice Department official. Nor is there any evidence that the FBI agent did not act in good faith.

Defendant Neal, invoking the marital communications privilege, moves to prevent the government from introducing at his trial any evidence of the contents of those three conversations. The parties agree that if the proposed evidence is to be admitted at the trial, it would have to be introduced through one or more of three means: (1) testimony of the defendant's wife, Marcia Neal; (2) testimony of the government agent who listened to the conversations, or (3) playing the tape recordings to the jury.

At a hearing on the defendant's motion to suppress this evidence, his wife described the circumstances under which the government obtained her consent to listen to and record the telephone calls. Both parties submitted briefs and oral argument. I took the motion under advisement after asking counsel to submit supplemental briefs on the possible applicability of United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). Those briefs have been filed and reviewed.

Pursuant to the parties' joint written request, I have listened to tape recordings of the conversations at issue. In the conversations Mrs. Neal's tone is that of a frightened, dependent wife confiding in her husband her fears that the police are upon her and seeking his advice and reassurance. The husband changed phones during the calls, lowered his voice in an apparent effort to avoid being heard by anyone but his wife, and generally demonstrated great reluctance to respond to his wife's "planted" inquiries. The overall character of the monitored conversations was set by the wife's opening question in the first call when she asked her husband, "Is there somewhere I can talk to you without anybody bothering us?"

I. Issues.

The issues presented by this motion are whether the marital communications privilege: (1) precludes testimony by Marcia Neal of her husband's statements to her in the three telephone conversations; (2) prevents any government agent who overheard the conversations from testifying about them; or (3) prohibits introducing the tapes into evidence at trial.

At the outset it is essential to state what is not here at issue. Only the defendant husband is here asserting the marital communication privilege. His wife, in exchange for immunity from prosecution, has agreed to cooperate in the investigation and prosecution of her husband and to testify against him. Thus she does not assert her marital communication privilege. It is only the defendant husband's statements to her, sought to be used against him as admissions, that are in issue.

Nor has the wife claimed her broader right to refuse to take the stand at all against her husband. That distinct right is hers alone to exercise or waive as she chooses. Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). Thus her right to testify to what she observed, or to what she knows about the events in question, through sources other than privileged communications from her husband, is not here involved. The narrow issue, therefore, is whether the husband's privilege to communicate in confidence with his wife entitles him to suppress his statements to her in the three December 10, 1981 phone conversations. Apparently, this is a question of first impression in the federal courts.

II. Applicable law.

Testimonial privileges in federal courts are governed by F.R.E. 501, which provides in part:

"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 ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience."

Prior to adoption of Rule 501 in its present form, the Supreme Court had approved and sent to Congress a rule expressly setting out the recognized evidentiary privileges, including that protecting husband-wife communications. The Senate Judiciary Committee, while not including in the Rules the Supreme Court's list of testimonial privileges, took pains to disclaim any intention of disapproving the husband-wife privilege, or the other privileges contained in the Supreme Court's version of the rule. 10 Moore's Federal Practice § 501.015. Rather, the Committee expressed in this rule its preference "that the recognition of a privilege based on a confidential relationship ... should be determined on a case-by-case basis." Id. Thus we must refer to case law.

The Supreme Court has long recognized the common law privilege against disclosure of communications between spouses. See Trammel v. United States, 445 U.S. at 51, 100 S.Ct. at 912; Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951); Wolfle v. United States, 291 U.S. 7, 13, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934). In fact, this privilege is the second oldest testimonial privilege recognized at common law. VIII Wigmore on Evidence, § 2333 (McNaughton rev. 1961) (hereafter, "Wigmore").

"The essence of the privilege is to protect confidences only.... The purpose is to insure subjectively the unrestrained privacy of communication, free from any fear of compulsory disclosure. It follows that if the communication is not intended to be a private one the privilege has no application to it." Wigmore, § 2336 (emphasis in original).

Marital confidences are considered "so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails." Wolfle, 291 U.S. at 14, 54 S.Ct. at 280. An interspousal communication is presumed to be confidential, although that presumption may be overcome by proof that it was not intended to be private. Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361, 98 L.Ed. 435 (1954).

Such testimonial privileges, however,

"contravene the fundamental principle that `the public has a right to every man's evidence.' Thus, they must be strictly construed and accepted `only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Trammel, 445 U.S. at 50, 100 S.Ct. at 912 (citations omitted).

In carrying out the duty imposed by Rule 501 to consider each case of confidential communication privilege on a case by case basis, courts cannot be oblivious to the effects of their decisions on related privileges. The task before me would be less difficult were I free to apply one rule of evidence law to admit such evidence in emotion-laden murder cases, and a different rule to enforce the privilege in cases involving lesser crimes. Indeed, weighing the public interest in convicting criminals against the public interest in protecting the sanctity of marital privacy against prying government investigators, it may be that more serious crimes should weigh more in the balance, thus justifying application of different rules to different kinds of crime.

Thus, for example, if this issue had arisen in a run-of-the-mill income tax case, it would seem simpler. If, in such a case, the government had promised a wife not to pursue her liability on a joint tax return in exchange for her cooperating to ensnare her husband through phone calls like these, the legal issues might have been seen unobscured by feelings naturally stirred in a murder case. Emotions, however, cause hard cases to make bad law. Absent some contrary guidance from the Supreme Court, I must apply in this case the same rule to be applied in all cases — of all types.

Over at least the past decade, the circle of privacy surrounding each of us has drawn smaller with each new governmental incursion and each new technological advance. Courts have sought to preserve inviolable some small island of privacy as a refuge for the human spirit where government may not intrude. Here the question is whether one such sanctuary, protected by the common law for centuries, shall be breached, rendering the secrets told to wives by husbands fair game for government investigators.

The issue is whether in our free society the government may, by...