U.S. v. James, CR. AMD 01-0345.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation164 F.Supp.2d 718
Docket NumberNo. CR. AMD 01-0345.,CR. AMD 01-0345.
PartiesUNITED STATES of America v. Shaun L. JAMES
Decision Date12 October 2001

Page 718

164 F.Supp.2d 718
Shaun L. JAMES
No. CR. AMD 01-0345.
United States District Court, D. Maryland.
October 12, 2001.

Paul A. Marone, Special Assistant U.S. Attorney, Office of Chief Counsel/SJA, Aberdeen Proving Ground, MD, for Plaintiff.

Page 719

Alexander Sasha Natapoff, Federal Public Defender, Baltimore, MD, for Defendant.


DAVIS, District Judge.

This is an appeal from a judgment of conviction and sentence imposed by a United States Magistrate Judge. This court has jurisdiction pursuant to 18 U.S.C. § 3402, Fed.R.Crim.P. 58(g)(2) and D.Md.R. 302(1). The issues are fully briefed and no hearing is needed. For the reasons set forth herein, I shall affirm the judgment.

I. Introduction

On December 12, 1998, appellant Shaun L. James (appellant or James) was arrested and charged pursuant to 18 U.S.C. § 113(a)(4)1 with assaulting his wife on a federal enclave, viz., Aberdeen Proving Ground, Maryland. The case came on for trial without a jury on August 19, 1999, before the Honorable Paul W. Grimm, United States Magistrate Judge. During the trial, the Government offered testimony of the arresting officer, Kevin Okun (officer Okun), regarding statements made by James's wife to the officer. The appellant objected on the grounds that the statements were inadmissible as (1) hearsay; (2) privileged; and (3) offered in violation of the Confrontation Clause of the Sixth Amendment.2 Magistrate Judge Grimm ultimately rejected all of these contentions, see United States v. James, 128 F.Supp.2d 291 (D.Md.2001), found James guilty, and sentenced James to imprisonment for a period of 30 days (fifteen weekends), followed by a three year period of supervised release. James raises three issues on appeal. He contends that: (1) the Magistrate Judge erroneously admitted Mrs. James's statements to officer Okun; (2) even if Mrs. James's statements were properly admitted, the verdict was not supported by sufficient evidence; and (3) the court deprived James of due process in that the Magistrate Judge lacked an independent recollection of the facts of the case at the time he rendered his verdict, which was announced after a prolonged delay of nearly two years after the evidence was taken, and that the Magistrate Judge substituted his own personal, extra-judicial assessment of the government's witness in reaching the verdict. As explained herein, each of these contentions lacks merit.

II. The Proceedings Below

A. The Testimony at Trial

On December 12, 1998, officer Okun responded to a 911 hangup from the payphone located at Patio Pizza on Rareton Avenue within Aberdeen Proving Ground, Maryland. When he arrived at that location, he witnessed a man, a woman and two children, later identified as James, his wife and their two children. According to officer Okun, it appeared that they were in the midst of an argument; James appeared to be quite upset. Officer Okun testified that he separated James and his wife and questioned James about the argument. According to officer Okun, James

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stated that he was in a "verbal altercation" with his wife "and that he had pushed her." Tr. at 7 (Transcript of Hearing, August 19, 1999) (hereinafter Tr. I).

Officer Okun stated that about five minutes after he arrived at the scene, he spoke to Mrs. James. He testified that Mrs. James appeared to be "very emotional and angry and upset." Tr. I at 25. Officer Okun noticed that her speech was very fast and broken and that her body was trembling. He testified that she told him that while she and her husband were in their vehicle and proceeding on Rareton Avenue, they became embroiled in an argument, "which led her to have James stop the car, and she then got out of the car and ... began to walk." Tr. I at 26. Mrs. James told him that James pulled the car over to where she was standing, got out of the car, continued their argument and hit her on the back of her head with his open hand. Mrs. James stated to officer Okun that she wanted to press charges against James. Consequently, officer Okun arrested James. About 15 to 20 minutes later, at the Aberdeen Proving Ground Police Station, Mrs. James refused to provide officer Okun with a sworn statement. She wished not to press charges against her husband.

James waived his right to decline to testify and took the stand in his defense. He stated that he and his wife were having an argument in their car. Mrs. James then got out of the car and walked over to a payphone. According to James, he then pulled the car up next to the payphone and got out of the car. James testified that he believed that before he pulled the car up to the payphone, Mrs. James had called 911 and then hung up the phone. James explained what happened next as follows: "My wife was fussing. She was pointing her hand in my face, and we was fussing and fussing and fussing, and I pushed the hand out of my face. We had zero arguments — when the police got there, we had zero argument [sic], not one word...." James specifically denied hitting his wife on the back of her head with an open hand.

B. Procedural History

At trial, as set forth above, the Government offered evidence of certain statements that Mrs. James voluntarily made to officer Okun at the time of the incident (i.e., Mrs. James told officer Okun during his interview of her at the scene that James had hit her on the back of the head and that she wanted to press charges). Defense counsel objected to these statements. Counsel asserted that if she were called to testify, Mrs. James (who was not present at the trial) would invoke her spousal testimony privilege; accordingly, counsel argued, any statements made by her to officer Okun were inadmissible.

The Magistrate Judge made certain preliminary determinations. First, he concluded that Mrs. James would indeed invoke the spousal testimony privilege were she to be called as a witness. Second, pursuant to Federal Rule of Evidence 104(a)3, he concluded that the Government had established that the statements made by Mrs. James to officer Okun qualified as "excited utterances" under Federal Rule of Evidence 803(2),4 and thus were admissible

Page 721

(despite their hearsay character) in the absence of some other ground of exclusion. As to the spousal privilege and Confrontation Clause issues, the Magistrate Judge required the parties to file legal memoranda; thus, he held those issues open for later determination.

Subsequently, in a published opinion, the Magistrate Judge concluded, relying on the common law purpose of the spousal testimony privilege and the decisions of various circuit courts of appeals,5 that the "spousal testimony privilege should not be extended to preclude the testimony of a third party concerning out-of-court statements made by the defendant's spouse where that testimony has sufficient indicia of reliability." James, 128 F.Supp.2d at 295-97. The court concluded, therefore, that the spousal testimony privilege was not violated by permitting the testimony of officer Okun as to Mrs. James's excited utterances. Id. at 296-97.

The Magistrate Judge then addressed the Sixth Amendment Confrontation Clause issue. The court first noted that the Confrontation Clause does not require exclusion of all statements made by witnesses who are not present, but rather permits hearsay statements to be admitted at trial when the statement has "adequate indicia of reliability." Id. at 297 (internal quotation marks omitted) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). The court explained that because of the "substantial guarantees of truthfulness" inherent in excited utterances, "[o]nce the court determines that an out-of-court statement qualifies as an excited utterance, the Confrontation Clause has been satisfied, and the out-of-court statements can be admitted." Id. (citing White v. Illinois, 502 U.S. 346, 356-57, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)). The court held that "the statements testified to by officer Okun have sufficient guarantees of trustworthiness to substitute for cross-examination and thus, their admission does not violate the Confrontation Clause." Id. at 298 (citing United States v. Brothers Construction Co. of Ohio, 219 F.3d 300, 309 (4th Cir.2000); Austin v. Smith, 914 F.Supp. 1245, 1247 (D.Md.1996), dismissed without op., 114 F.3d 1175 (4th Cir.1997)).

On April 26, 2001, upon the resumption of the proceedings, the Magistrate Judge found James guilty of assault. On June 21, 2001, upon the completion of a presentence investigation report, the Magistrate Judge sentenced James to imprisonment for 30 days (15 weekends), followed by a period of supervised release for three years with certain conditions. On June 27, 2001, James filed his timely Notice of Appeal.

Page 722

III. Standard of Review

The standard of review on appeal from a conviction entered by a Magistrate Judge is that the conclusions of law "are subject to de novo review, while his findings of fact are reviewed only for clear error, just as would be the case were the matter on appeal from a District Court bench trial to a Court of Appeals." United States v. Orme, 851 F.Supp. 708, 709 (D.Md.1994), aff'd without op., 51 F.3d 269 (4th Cir.1995). Clear error "is more than a difference of opinion between the original fact-finder and the appellate reviewer; to be clearly erroneous, a finding must leave the reviewer with a `definite and firm conviction that a mistake has been committed.'" Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

IV. Analysis

A. Spousal Testimony Privilege

James argues that the Magistrate Judge, in rejecting allegedly controlling precedent in the Fourth Circuit and applying the law of other circuits, erroneously concluded that the privilege against adverse spousal testimony does not cover out-of-court statements like that of Mrs. James. I disagree. The court correctly determined that...

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