Nationwide Life Ins. Co. v. Richards

• Decision Date: 28 August 2008
• Docket Number: No. 06-56562.,06-56562.
• Citation: 541 F.3d 903
• Parties: NATIONWIDE LIFE INSURANCE COMPANY, Plaintiff-Counterdefendant, v. Angelina RICHARDS, Defendant-Counterclaimant Appellant, and Keith Richards, Guardian Ad Litem for Bryce Richards and Kendall Richards, Defendant-Crossclaimant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

541 F.3d 903

NATIONWIDE LIFE INSURANCE COMPANY, Plaintiff-Counterdefendant, v. Angelina RICHARDS, Defendant-Counterclaimant Appellant, and Keith Richards, Guardian Ad Litem for Bryce Richards and Kendall Richards, Defendant-Crossclaimant-Appellee.

No. 06-56562.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2008.

Filed August 28, 2008.

Richard L. Garrigues (argued) and Varoujan Nalbandian, Torrance, CA, for the appellant.

Richard E. Haskin (argued), Gibbs, Giden, Locher & Turner LLP, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV 02-7583 CAS.

Before: KIM McLANE WARDLAW and SANDRA S. IKUTA, Circuit Judges, and JEREMY FOGEL, District Judge.^*

FOGEL, District Judge:

Nationwide Life Insurance Company ("Nationwide") brought this non-statutory interpleader action to resolve conflicting claims to the proceeds of a one million dollar insurance policy written on the life of Bryan Richards ("Bryan"), who was murdered on December 21, 2001. Bryan's wife, Angelina Richards ("Angelina"), appeals the district court's judgment against her and in favor of Bryan's brother, Keith Richards ("Keith"), in his role as guardian ad litem for Bryce and Kendall Richards ("Bryce" and "Kendall"), the two minor children of Bryan and Angelina. Following a bench trial, the district court made a factual determination that Angelina conspired in, aided, and abetted Bryan's murder, and thus is disqualified from receiving any proceeds of the life insurance policy under California law. Angelina asserts error in the district court's treatment of her pretrial assertion of the Fifth Amendment privilege against self-incrimination and in its admission of the deposition testimony of witness Gerald Strebendt. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

Angelina and Bryan married in 1998. In 2001, Bryan obtained a life insurance policy from Nationwide in the amount of one million dollars, effective in September of that year. The policy names Angelina as the primary beneficiary and names Bryce and Kendall as alternate beneficiaries. Bryan was murdered on December 21, 2001 by means of non-ligature manual strangulation. A state court jury subsequently convicted Rafiel Torre ("Torre") of the murder; Torre's appeal of that conviction is pending.

Angelina sought an advance on the policy proceeds within days after Bryan's death, made a formal claim for the proceeds on January 30, 2002, and received a $50,000 advance on March 5, 2002. On September 27, 2002, pursuant to Rule 22 of the Federal Rules of Civil Procedure, Nationwide filed its complaint in interpleader in the district court. The complaint names Angelina, Bryce and Kendall as defendants. Keith subsequently was appointed guardian ad litem for Bryce and Kendall.

Angelina filed a cross-claim against Keith and a counter-claim against Nationwide, seeking a declaration that she is entitled to the proceeds as the primary named beneficiary under the policy. Keith filed a cross-claim against Angelina, seeking a declaration that Bryce and Kendall are entitled to the proceeds, and seeking return of the $50,000 that Nationwide advanced to Angelina. Keith asserted that Angelina conspired in Bryan's murder, thus disqualifying herself from receiving any proceeds of the policy, and that as a result the policy benefits are payable to Bryce and Kendall as the alternate named beneficiaries.¹ Nationwide deposited the policy proceeds into the district court's registry and was granted judgment in interpleader.

The district court conducted a bench trial and thereafter issued Findings of Fact and Conclusions of Law ("FFCL") in which it determined that Angelina did conspire in, aid, and abet Bryan's murder, and thus is disqualified from receiving any proceeds from the policy. The district court entered judgment against Angelina and for Keith as guardian ad litem for Bryce and Kendall. The FFCL contain a lengthy narrative describing the events leading up to Bryan's murder and the evidence presented at trial, summarized as follows:

Angelina met Torre at a nightclub in July or August 2001. Torre competed professionally in hand-to-hand mixed martial arts and also was a martial arts instructor. Sometime thereafter, Angelina and Torre became lovers. Angelina testified at trial that her relationship with Torre did not become romantic until after Bryan's death. Several other witnesses testified that by the fall of 2001 Angelina's marriage was strained, that Bryan spoke of divorcing her, and that Angelina and Torre were seen together regularly, acting in a manner that suggested they were having an affair. In September 2001 Angelina loaned Torre $10,000, and in October 2001 she co-signed Torre's lease for commercial space to start a martial arts studio. The property manager testified that Bryan was not a party to the negotiations or the lease, and that Angelina and Torre never mentioned Bryan. Angelina testified that she and Bryan had problems but were committed to staying married.

At approximately 11:00 p.m. on December 21, 2001, Angelina called Keith's wife, Lisa Richards ("Lisa"), and stated that she did not know where Bryan was. Angelina called the police the following morning, December 22, to report Bryan missing. Angelina also called Keith and told him that Bryan had planned to go to a warehouse to pick up Christmas gifts stored there. Angelina asked Keith to check the warehouse. Keith did so, but found no evidence that Bryan had been there recently. Sometime on the afternoon of December 22, Bryan's brothers, Keith and Matthew Richards ("Matthew"), visited Angelina at home. Angelina was drinking wine with a female friend. Keith testified that he noticed Bryan's insurance policy binder on the kitchen table; that he asked Angelina if she had found Bryan's life insurance policy, and she said that she had not; and that later that evening the policy binder was moved to the top of the washing machine in the laundry room, where it was partially hidden under a pile of clothes.

Keith testified that at some point he asked Angelina where Bryan's white utility truck was, and that Angelina said Torre had it. Bryan had let Torre drive the truck in the past. At Keith's request, Angelina called Torre and asked him to bring the truck to the house. When Torre arrived, Matthew looked in the truck's lock box for Bryan's Glock handgun, which normally was kept there, but the gun was gone. Keith testified that while he and Matthew were outside near the truck, Angelina and Torre spoke to each other in the doorway of the house. Torre left with Bryan's utility truck, after which Angelina stated for the first time that Bryan had gone to the store to buy firewood. According to Keith, Angelina asked him to search for Bryan at nearby grocery stores. Keith and Matthew left the house at about 9:00 p.m. to do so. Approximately twenty minutes later, they discovered Bryan's other pick-up truck in the parking lot of a nearby Albertson's market. Bryan's body was in the bed of the truck. He had been strangled.

On the following morning, December 23, sheriff's detectives interviewed Angelina, other members of Bryan's family, and Torre. When asked about life insurance, Angelina stated that Bryan had life insurance but that she did not know the amount of the death benefit. Angelina told the detectives that at one time Bryan had been involved with a man named Thomas Esparza ("Esparza") in a scheme involving the receipt and sale of stolen medical equipment, and that both Bryan and Esparza had been convicted of crimes arising out of that scheme. Angelina stated that after his release from prison earlier in the year, Esparza frequently had called the Richards' home, had attempted to extort money from Bryan, and had argued with Bryan. Torre likewise told the detectives about Bryan's conflict with Esparza. Neither Angelina nor Torre told the detectives about their relationship.

Sometime later that day, or within a few days, Angelina spoke with the insurance agent who sold Bryan the policy, Phil Beh ("Beh"), and inquired whether the death benefit was $500,000 or $1,000,000. Beh testified that Angelina called him, while Angelina testified that Beh called her. Beh further testified that he and Angelina spoke several times in the days after Bryan's death, and that Angelina asked for an advance on the policy's benefits. Beh characterized the promptness of Angelina's inquiry as surprising, atypical and odd. Beh also testified that Angelina was calm and unemotional during their conversations. Angelina made a formal claim for the policy proceeds on January 30, 2002, and received a $50,000 advance on March 5, 2002. Six days later, on March 11, Angelina purchased a vacation package to Cancun, Mexico for herself and Torre. Witnesses testified that Torre constantly was at Angelina's home beginning approximately two weeks after Bryan's death.

Lisa testified that she and Matthew's wife, Linda Richards ("Linda"), invited Angelina out for the evening of February 16, 2002, Bryan's birthday. According to Lisa, Angelina stated on that occasion that Bryan was a drug dealer, that the sheriff's department had recovered the drug "ecstacy" in Bryan's pick-up truck, and that there was an ongoing investigation into a possible link between Bryan's drug activities and his death. Sheriff's detectives testified that no drugs were found in Bryan's truck and that they never suspected Bryan of dealing drugs.

A. Deposition Testimony Of Gerald Strebendt

Gerald Strebendt ("Strebendt"), a close personal friend of Torre, did not testify in person at the trial. The district court admitted his prior deposition testimony over Angelina's objection. The court found that Strebendt resided in North Bend, Oregon, and thus that his deposition testimony was admissible under former Rule 32(a)(3)(B) of the Federal...