U.S. v. Neal

• Decision Date: 04 September 1984
• Docket Number: No. 82-1803,82-1803
• Citation: 743 F.2d 1441
• Parties: 16 Fed. R. Evid. Serv. 979 UNITED STATES of America, Plaintiff-Appellee, v. Jake Keller NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1441

743 F.2d 1441

16 Fed. R. Evid. Serv. 979

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

No. 82-1803.

United States Court of Appeals, Tenth Circuit.

Sept. 4, 1984.

Robert N. Miller, U.S. Atty., Denver, Colo. (John O. Martin, Asst. U.S. Atty., Kansas City, Kan., with him on brief), for plaintiff-appellee.

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

Before BARRETT and LOGAN, Circuit Judges, and JENKINS, ^* District Judge.

BARRETT, Circuit Judge.

Jake Keller Neal (Neal) appeals from his jury conviction of killing a teller while robbing a savings and loan association in violation of 18 U.S.C.A. Secs. 2113(a) and 2113(e). Neal does not challenge the sufficiency of the evidence. His appeal is directed exclusively to the district court's rulings on the admissibility of his wife's testimony as an immunized government witness.

On April 28, 1981, the Midland Savings and Loan of Englewood, Colorado, was robbed of $14,136 and Carla Winberg, the night teller, was killed. At that time, Neal was employed by Midland as a security guard, a position he had held for some time. Neal's wife, Marcia, had also previously worked as a Midland teller.

In December, 1981, the Englewood Police Department received a call from Marcia's daughter, Yvonne, implicating Neal in the crime. Subsequent thereto, the police recontacted ¹ Marcia, who, upon being granted immunity, related Neal's commission of the crime. Shortly thereafter, Neal was arrested.

Prior to trial, the district court granted Neal's motion that certain conversations with Marcia be excluded on the basis that the introduction of the conversations would be in violation of the marital confidential communications privilege. 532 F.Supp. 942. The court conducted an in camera hearing on questions of preliminary admissibility of Marcia Neal's trial testimony. See R., Vol. II(A). In the course of this proceeding and at trial proper, Marcia Clara Neal testified under oath. The entire record of Marcia Neal's testimony discloses that: Marcia observed her husband leave their Denver home about 5:30 p.m. on April 28, 1981, (the evening of the robbery and killing) wearing gloves and drive away in his truck; Neal had completed his security guard shift at Midland at 5:00 p.m.; Neal did not return to the home until about 10:00 p.m. that evening, and shortly thereafter he entered their bedroom carrying a pink pillowcase containing a lot of money, including loose bills, wrapped coins, bills with rubber bands and bills with wrappers around them which Neal emptied from the pillowcase to the bed; the Neals were in debt and in need of money to support themselves and Mrs. Neal's two daughters by a prior marriage who lived with them; at that time Marcia and Neal conversed about where the money came from and Neal told Marcia where it came from [R., Vol. II(A), pp. 15, 17, 19, 32]; both sat on the bed as Marcia proceeded to separate the bills in proper denominations with Neal's help; during this time they conversed again about where the money came from; after a while the money was placed back in the pillowcase; a couple of days later, Neal and Marcia took the money out of the pillowcase, and again they talked about where the money came from; at Marcia's direction, they removed wrappers off of the coins and all bands from the currency and that evening Marcia burned them over a gas range in the home and Marcia washed the ashes down the drain; Marcia also burned a large number of $50.00 bills and some $100.00 bills equaling about $1,000.00 because she knew from her prior working experience as a teller at Midland that the $50.00 bills at Midland are marked for detection and she was fearful that passing the $100.00 bills would be too noticeable [R., Vol. III, pp. 42, 81, 82]; by the end of the month following the April 28, 1981, robbery Marcia had spent all of the money remaining after the burning; her expenditures included a $3,000.00 down payment on a mobile home, $1,048.00 for purchase of a color television set, a tool box worth $149.00, car repairs amounting to $386.83; many other like expenditures were made, all with Neal's knowledge from money removed from a coffee table where Neal placed the money while they resided in the home or from an envelope placed in a waterbed after the Neals moved into the mobile home and after most of the money had been expended [R., Vol. III, p. 55]; Marcia spent much of the money for food, clothing and some $2,000.00 for her boyfriend whom she commenced to see and confide in some time after the robbery [R., Vol. III, pp. 62-64]; Marcia knew that Neal was a suspect in the Midland robbery soon after it took place because she was interviewed by two detectives, whom she permitted to search the house about two weeks after the robbery and twice thereafter; it was Marcia's idea to spend all of the money so that it could not be detected [R., Vol. III, pp. 73, 83-85]; during the time Marcia was spending the money she was in contact with the police but she did not at any time advise them that she had spent or was spending the money [R., Vol. III, p. 85]; Marcia stated that the police suspected her when they learned of various purchases she had made, and in order to avoid the possibility of going to jail she cooperated with them in return for immunity from prosecution [R., Vol. III, pp. 86, 87]. Marcia testified on cross-examination that she lived with Neal for eight months after the robbery without revealing anything about the robbery or the money to anyone [R., Vol. III, p. 89]. At trial, Marcia, who had filed for divorce and was living with her boyfriend, was allowed to testify for the government over Neal's objection. As previously observed, she had been granted immunity by the government.

Marcia's trial testimony detailed the events following the robbery, including: observing $14,000 in cash on their bed on the evening of the robbery; the manner in which she spent the money, including $2,000 she spent on her boyfriend; her burning of the money wrappers and anything else in the house which pertained to the bank money; her burning of fifty-dollar bills which she, as a former employee of Midland, believed might be marked. In discussing her relationship with her boyfriend, Marcia testified:

Q. And, Mrs. Neal, what was the relationship between yourself and Mr. Dietz at that time?

A. Well, it started out as a working companion. He worked with me. He shared a shift with me, and we became very close, and I confided in him quite a bit, to the point that I told him about my problem, and hoping for some help to get out of my situation.

Q. And when you say you told him about your problem, what did you tell him your problem was?

A. I told him that my husband had robbed this Midland Savings and that he had killed this girl and that I was trying to get away.

[R., Vol. III at p. 64].

Neal's motion for a mistrial was denied. The district court, upon the request of Neal, declined to give the jury a cautionary instruction.

During repeated and vigorous cross-examination, Marcia acknowledged that: she was aware of the robbery on the evening it occurred but decided not to go to the police; she was repeatedly interviewed by the police but did not mention anything about receiving the money from her husband; she spent the money so it wouldn't be around because she couldn't bear to have it in her house; she cooperated with the police to avoid the possibility of going to jail; she was afforded immunity to testify; and by testifying she was doing what she had planned all along, that is, to get rid of Neal.

On appeal Neal contends that: (1) the court erred in allowing Marcia to testify about communicative acts in contravention of the marital privilege regarding confidential communications; (2) the court erred in ruling that he could be impeached if he testified by the use of prior statements in the nature of confidential communications excluded by the court in the government's case-in-chief; and (3) the court erred in refusing to grant a mistrial after Marcia testified that he had robbed the bank and killed a teller, inasmuch as this testimony was in violation of the court's own pretrial rulings prohibiting the introduction of evidence obtained from confidential communications.

We hold that Neal's contentions are without merit.

As noted, supra, the district court granted Neal's pre-trial motion to suppress and ruled that although Marcia could not testify relative to Neal's dumping the stolen money on their bed and his apparent conversation with her that he had robbed Midland and killed the teller, she could testify to discovering the money on their bed and the manner in which the money was counted, hidden, and spent. We regard the district court's ruling in this respect to have been taken out of an abundance of caution. The Government, during the in camera hearing, argued that because Neal and Marcia had been jointly involved in a "continuing" criminal episode, even though it may not have constituted a true conspiracy, that experience and reason dictated that the marital communications privilege should not apply to prevent Marcia's testimony about the conversations she had with her husband concerning his commission of the robbery at Midland [R., Vol. II(A), pp. 42-44]. The Government also contended that when Neal gave Marcia the money with knowledge she was going to spend it, he waived the marital communications privilege. The trial court declined to find a waiver but did state that, as a practical matter, the United States Supreme Court, in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) may have intended to eliminate the communication privilege altogether [R., Vol. II(A), p. 45]. The Court observed the practical difficulty of keeping the explanations and communications secret and confidential while permitting evidence about acts. The court said that, in effect,...