834 F.2d 408 (4th Cir. 1987), 86-5166, United States v. Parker

Docket Nº:86-5166.
Citation:834 F.2d 408
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Russell Thomas PARKER, Defendant-Appellant.
Case Date:December 03, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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834 F.2d 408 (4th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Russell Thomas PARKER, Defendant-Appellant.

No. 86-5166.

United States Court of Appeals, Fourth Circuit

December 3, 1987

Argued Oct. 7, 1987.

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John Palmer Fishwick, Jr., for defendant-appellant.

Jennie L. Montgomery, Asst. U.S. Atty. (John P. Alderman, U.S. Atty., on brief), for plaintiff-appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WINTER, Chief Judge, and WILKINS, Circuit Judge.

POWELL, Associate Justice:

This case presents the question whether certain testimony by the appellant's wife concerning statements made to her by appellant should have been excluded as inadmissible under the confidential marital communications privilege. We think these statements were properly admitted. Moreover, we find that other arguments advanced by appellant do not present substantial questions. Accordingly, we affirm.


Appellant Russell Thomas Parker was indicted by a federal grand jury in the Western District of Virginia on February 20, 1986. A superseding indictment was returned against him on March 20, 1986. He was charged with various crimes including kidnapping, possession of a sawed-off shotgun, carrying a firearm in the commission of a felony, and transportation of a firearm interstate to commit a felony. 1 On September 11, 1986 a jury convicted him of kidnapping and the three related firearm charges. The district court denied appellant's motion for a new trial on November 5, 1986, and appellant filed a timely notice of appeal.

At trial the Government argued that in October 1982 appellant kidnapped Billy Walters for the purpose of murdering him. Walters was an eighteen-year-old man who lived part of the time in the Parker's trailer. The Government's theory was that appellant and Walters had robbed a convenience store together, and that Parker kidnapped and killed Walters to prevent him from testifying against him. The evidence presented against Parker at trial was that, with the help of his wife Barbara, he tricked Walters into accompanying them across state lines to North Carolina 2 where he shot and wounded him. Parker and his wife then took Walters back into Virginia where Parker killed him with a hammer. 3

Barbara Parker testified against appellant as to statements he made to her concerning his intentions towards Walters, and other instructions he gave her in furtherance of his plan to kidnap and murder Walters. Appellant claims these were confidential communications protected by the confidential marital communications privilege ("marital privilege"), and should not have been admitted in evidence. He argues that the "joint criminal participation" exception to the marital privilege does not apply in this case because appellant's wife was neither a co-defendant nor a joint participant. He further asserts that, even if this exception applies, it must be narrowly construed. The Government asserts that all the communications testified to by Barbara Parker fell within the joint criminal participation rule, and therefore none of them was protected by the marital privilege.

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Information that is privately disclosed between husband and wife in the confidence of the marital relationship is privileged. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951). 4 Marital communications are presumptively confidential. Id. This Circuit has held, however, that "where marital communications have to do with the commission of a crime in which both spouses are participants, the conversation does not fall within the marital privilege...." United States v. Broome, 732 F.2d 363, 365 (4th Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 116 (1984). 5 This holding reflects a balancing between the public interests in fostering open and honest communications between husband and wife and according a sufficient degree of privacy to marital relationships, on the one hand, and the revelation of truth and the attainment of justice, that also are in the public interest, on the other. As the Second Circuit recently explained, this exception reflects the belief that "greater public good will result from permitting the spouse of an accused to testify willingly concerning their joint criminal activities than would come from permitting the accused to erect a roadblock against the search for truth." United States v. Estes, 793 F.2d 465, 468 (2d Cir.1986).

Much of Barbara Parker's testimony concerning the appellant consisted of describing his conduct or testifying to statements made by him in the presence of Billy Walters. The marital privilege, generally, extends only to utterances, and not to acts. Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361, 98 L.Ed. 437 (1954); United States v. Estes, 793 F.2d at 467. If the conduct was not intended to convey a confidential message then it is not covered by the privilege. See, e.g., United States v. Estes, 793 F.2d at 467; United States v. Robinson, 763 F.2d 778, 783 (6th Cir.1985); United States v. Smith, 533 F.2d 1077, 1079 (8th Cir.1976). Nor...

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