U.S. v. Brown

• Decision Date: 19 January 1981
• Docket Number: No. 79-5171,79-5171
• Citation: 634 F.2d 819
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J. Marshall BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 819

634 F.2d 819

UNITED STATES of America, Plaintiff-Appellee, v. J. Marshall BROWN, Defendant-Appellant.

No. 79-5171.

United States Court of Appeals Fifth Circuit.

Jan. 19, 1981.

Rehearing and Rehearing En Banc Denied March 5, 1981.

Mark J. Kadish, Rhonda A. Brofman, Atlanta, Ga., for defendant-appellant.

Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GEE and RANDALL, Circuit Judges, and LYNNE ^*, District Judge.

RANDALL, Circuit Judge:

J. Marshall Brown was convicted on June 6, 1977, after a jury trial in the United States District Court for the Northern District of Georgia, of knowingly causing a fraudulently obtained check to be transported in interstate commerce in violation of 18 U.S.C. § 2314. During Brown's trial the court upheld, over his objection, a claim of marital privilege by James A. Heinritz, the state's chief witness, as a result of which the defense was unable to introduce certain testimony of Heinritz's former wife as to conversations that took place between them during their marriage. Although the court denied alternative motions for a mistrial and for a directed verdict of acquittal, offered because of the court's exclusion of Mrs. Heinritz's testimony, it entered an order sua sponte on July 11, 1977, in which it conditionally set aside the jury verdict of guilty. In particular, the court ordered that a judgment of acquittal be entered unless the court received, within thirty days, a waiver by Heinritz of his marital privilege; if the waiver was received, a new trial was to be held. The government appealed from this order. In United States v. Brown, 587 F.2d 187 (5th Cir. 1979), we held that the district court's order was beyond its power (insofar as it ordered a new trial after more than a month had passed without the filing of a motion for a new trial) and beyond its authority (insofar as it granted a judgment of acquittal despite the sufficiency of the evidence); we therefore vacated the district court's order and remanded the case for entry of judgment of conviction and sentencing. On February 27, 1979, the district court sentenced Brown to three years of probation with the special condition that he pay a fine of $5,000.

Because of the procedural posture of this case in the original appeal, we did not reach the merits of the evidentiary issue raised by Heinritz's claim of marital privilege. 587 F.2d at 190. But Brown now appeals his conviction in the district court; his argument-that the district court erred when it upheld Heinritz's claim of marital privilege-is now properly before us. In particular, Brown argues (1) that the privilege should have been denied because of Brown's Sixth Amendment right to confront the witnesses against him; (2) that the exercise of the privilege in this case violated his Fifth Amendment right to due process of law; and (3) that Heinritz waived the privilege. After reviewing the facts and considering these arguments in turn, we conclude that Brown's conviction should be affirmed.

I. THE FACTS

Brown and Heinritz were charged together in a one-count indictment for transporting a fraudulently obtained check in interstate commerce. At the time of the offense charged in the indictment, Brown was the president and owner, and Heinritz was the executive vice-president and manager, of two insurance agencies. In brief, the indictment alleged that the two had devised a scheme to finance an existing indebtedness on expired insurance policies by submitting a false application to an agency in the business of financing insurance premiums; the financing agency approved the application, and Heinritz picked up the check for the proceeds of the loan and returned it (across state lines) to the office of Brown's insurance companies. Heinritz pled guilty and, prior to his testimony in this case, was sentenced to a term of probation. ¹

Heinritz was the key witness in the government's case against Brown. Heinritz testified in some detail to the facts behind the formation and execution of the scheme alleged in the indictment, and to Brown's involvement in it. "The gist of Heinritz's testimony was that Brown had created the plan upon which Heinritz had acted, and that he had cooperated with Brown only out of a fear for his personal safety, an apprehension allegedly caused by threats made to him by Brown." United States v. Brown, supra, at 189.

In an attempt to impeach Mr. Heinritz, Brown called Mrs. Heinritz (Mr. Heinritz's former wife, who had been married to him during the events in question) to the stand. The prosecutor immediately requested a bench conference, and, along with defense counsel, held an off-the-record discussion with the court. Thereupon the jury was excused and the prosecutor and the defense counsel argued on the record whether Mr. Heinritz could validly claim a marital privilege in order to prevent his wife from testifying for the defense about private communications between them. Trial Transcript at 261-66. The court recessed for a time during this argument; on the basis of the discussion which took place after the recess, it appears that during the break the judge proposed, and the parties agreed, to allow the defense counsel to examine Mrs. Heinritz on the record but in the absence of the jury, after which the court was to inquire whether Mr. Heinritz wished to assert the privilege. In the event that the court upheld the privilege, this examination was to serve as an offer of proof. Trial Transcript at 264-66. After the testimony of Mrs. Heinritz, the court explained to Mr. Heinritz that the conversations to which his wife had testified were confidential marital communications and were therefore privileged, and asked him whether he wished to assert his privilege. Mr. Heinritz replied that, upon the advice of his attorney, he would in fact claim the marital privilege. Trial Transcript at 281.

Mrs. Heinritz's testimony-as taken in Brown's offer of proof-contains two statements which Brown sought to use to impeach the truthfulness of Mr. Heinritz's testimony against him. First, Mrs. Heinritz stated that her husband had told her that he had lied to the grand jury about an important part of his story. Both before the grand jury and during Brown's trial, Mr. Heinritz testified that he had had a change of mind after picking up the check from the premium financing agency and had decided to return it. He failed to return it, so he testified, only because of his fear of Brown. As Mr. Heinritz stated at trial:

(Brown) said to me, "where is that check from Agency Premium Services?" And I said, "It is in my desk," and he said, "Well, I want to see it." ... I hesitated because this meant that I wouldn't have the opportunity to do what I planned, was to type a short letter of transmittal and then return it to Atlanta .... So, I hesitated and Mr. Brown stated, "Don't just stand there. I want to see that check, and if you don't get it," he said, "I won't have the boys kill you, I'll have them break your knee caps so you will never walk again."

Trial Transcript at 65-66. Mr. Heinritz was later asked whether he had in fact told his wife that his testimony before the grand jury as to Brown's physical threat against him was perjured. He admitted having discussed the matter with her but denied having made such a statement. Trial Transcript at 144-45. According to Mrs. Heinritz, however, Mr. Heinritz had told her that the statement about Brown's threat was untrue. As she stated during the offer of proof:

THE WITNESS (Mrs. Heinritz): He (Mr. Heinritz) had flown to Atlanta in the morning and when he came back that night, it was late, after supper, perhaps ten o'clock. But I'm guessing. And he had been drinking, I presume that he had been drinking on the plane on the way back, and he came in and sat down and told me-I said, "Well, how did it go?" And he said he had lied before the Grand Jury.

Q. (By defense counsel): ... Did he characterize the lie to the Grand Jury as relating to a statement that Mr. Brown had threatened him?

A. Yes. In that particular, he said that he had lied.

The second statement which Brown sought to use to impeach Mr. Heinritz involves the purpose for which Mr. Heinritz had entered the federal government's Witness Protection Program. On cross-examination, defense counsel sought to get Mr. Heinritz to admit that he had told his wife that he had entered the program not for protection against Brown, but instead to make his story more believable. Mr. Heinritz's answer was, however, limited to the following:

THE WITNESS (Mr. Heinritz): ... I told my wife that a plea of guilty was required in order to enter the Witness Protection Program which would, in turn, strengthen the Government's case.

Q. (by defense counsel): Well, how did you think it would strengthen the Government's case? (Pause) Take your time, Mr. Heinritz.

A. By the mere fact that protection was afforded me.

Q. Because it would make Mr. Brown look like an evil man, right?

A. Mr. Brown is an evil man.

Trial Transcript at 222-23. Mrs. Heinritz's version of Mr. Heinritz's explanation to her of his reasons for entering the Witness Protection Program was somewhat closer to that suggested by defense counsel:

Q. (by defense counsel): Did there come a time, forward of that separation where you learned that Mr. Heinritz was going in to the program called the Witness Protection Program?

A. (Mrs. Heinritz): Yes.

Q. Did he discuss that with you?

A. Yes, he did.

Q. And what did he say about it and why he was going into it?

A. ... he said he didn't want to leave New Orleans-he is a native and he likes the City-and that he didn't want to leave New Orleans, but that he had to do it to make it look good, to make his story believable.

Trial Transcript at 272-73. In both cases, Mrs. Heinritz's statements impeach the truthfulness of Mr. Heinritz's testimony: the...