Singleton v. U.S., No. 99-14867

• Decision Date: 08 August 2001
• Docket Number: No. 99-14867
• Citation: 260 F.3d 1295
• Parties: (11th Cir. 2001) DONNA SINGLETON, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1295

260 F.3d 1295 (11th Cir. 2001)

DONNA SINGLETON, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

No. 99-14867

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

August 8, 2001

Appeal from the United States District Court for the Southern District of Alabama.

Before CARNES and MARCUS, Circuit Judges, and PROPST^*, District Judge.

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 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 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 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 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 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...