U.S. v. Jarvison

• Decision Date: 23 May 2005
• Docket Number: No. 04-2093.,04-2093.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ben JARVISON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

409 F.3d 1221

UNITED STATES of America, Plaintiff-Appellant, v. Ben JARVISON, Defendant-Appellee.

No. 04-2093.

United States Court of Appeals, Tenth Circuit.

May 23, 2005.

Marron Lee, Assistant United States Attorney (David C. Iglesias, United States Attorney with her on the brief), Albuquerque, NM, for the Plaintiff-Appellant.

Robert J. Gorence, Robert J. Gorence & Associates, P.C., Albuquerque, NM, for the Defendant-Appellee.

Before KELLY, ANDERSON, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

In this interlocutory appeal involving a claim that the defendant, Ben Jarvison, is not validly married, the United States contests the district court's exclusion of testimony on the basis of the spousal testimonial privilege. As part of the underlying child sexual abuse prosecution, the United States sought to compel the testimony of Esther Jarvison who they contend observed the abuse and could testify as to statements concerning the abuse made to her by both the defendant Ben Jarvison and the alleged victim. After determining that the Jarvisons had a valid marriage, the district court denied the government's motion to compel Esther's testimony. On appeal, the government argues that the district court erred in refusing to compel Esther's testimony on the basis of the spousal testimonial privilege, and in the alternative invites us to create a new exception to the spousal testimonial privilege for child abuse cases. Exercising jurisdiction under 18 U.S.C. § 3731, we AFFIRM the district court's order denying the government's motion to compel Esther Jarvison's testimony and decline the government's invitation to create a new exception allowing courts to compel adverse spousal testimony in cases involving allegations of child abuse.

I

This appeal centers around Esther Jarvison's ("Esther") refusal to testify against Ben Jarvison ("Jarvison") in a criminal case in which Jarvison is accused of sexually abusing their granddaughter, Jane Doe. After the government indicted Jarvison for aggravated sexual abuse of a minor child in Indian Country, it attempted to compel Esther to testify against Jarvison. Esther, an 85-year-old Navajo woman who speaks quite limited English, and Jarvison, who is 77 years old, are residents of the Navajo Indian Reservation and enrolled members of the Navajo Tribe. Jarvison also speaks only limited English, and communicates mostly in Navajo. The testimony proffered by the government involves statements allegedly made by Esther to Federal Bureau of Investigation ("FBI") and Navajo Police investigators in an untaped, English-language interview. The government contends that Esther stated that she observed the child touch Jarvison's penis "over his pants," that Jane Doe allegedly told Esther that Jarvison had touched her private parts, and that Jarvison told Esther that the child had touched him over the crotch of his pants and he had told her not to do so.¹ Esther denies that she made such statements.

As part of its pretrial preparations, the government served Esther with a subpoena to compel testimony two days before a pretrial hearing in this case. During the hearing, Esther emphatically stated that she did not want to testify against her husband and that she and Jarvison had married in a traditional Navajo ceremony in Coyote Canyon within the Navajo Reservation on June 25, 1953. The district court found that the Jarvisons had a valid marriage based on this 1953 traditional Navajo ceremony, and concluded that the spousal testimonial privilege applied under Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980).

Before the district court, the government argued that the marriage was not valid because: (1) Esther had not testified to every element of a "traditional ceremony" under the Navajo Code; (2) the Jarvisons had not recorded the traditional marriage with the Navajo tribal government; and (3) an intervening relationship with Esther's daughter had extinguished any marriage. The government's proffer included proposed evidence that the Jarvisons lived together from 1953 until 1965, at which point Esther moved out upon Jarvison's commencement of a sexual relationship with Esther's daughter from a prior marriage. Jarvison had two children with Esther prior to 1965, and four children with the daughter over the next fifteen years. In 1980, the relationship with the daughter ended, and Esther moved back in with Jarvison. Over the ensuing years, Esther and Jarvison separated and reconciled multiple times, and in 2000 began to live together again on a full-time basis. The documents submitted by the government reflect that in 2002, when the alleged sexual abuse occurred, Esther was living with Jarvison and was still cohabiting with him in 2003 when interviewed by the FBI and Navajo Police about the alleged abuse. These FBI statements relied upon by the government state that "[Esther] JARVISON and BEN have been married for over 50 years."

The court allowed the government to present a witness from the Navajo Vital Records Office to testify to certain records on Jarvison maintained by the Navajo Nation that stated "no" in the block marked "married," but did list Esther as Jarvison's "wife." These documents also listed all of Jarvison's children as Esther and Jarvison's. After the court denied its motion to compel Esther's testimony on the basis of the existence of a valid marriage and the spousal testimonial privilege under Trammel, the government requested reconsideration and moved to supplement the record with additional documentary evidence to show that no valid marriage had ever occurred. These two exhibits consisted of the two investigatory reports made in 2003. The court admitted the documents but found they contained nothing that would cause it to reexamine its conclusion that the Jarvisons were married and that spousal testimonial privilege applied.² This interlocutory appeal by the government followed.

II

When reviewing a district court decision to exclude evidence, we review the district court's decision for an abuse of discretion. United States v. Wittgenstein, 163 F.3d 1164, 1172 (10th Cir.1998). Although we review legal issues de novo, United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990), we must accept the court's factual findings unless we conclude they were clearly erroneous. Manning v. United States, 146 F.3d 808, 812 (10th Cir.1998). A finding of fact is not clearly erroneous unless "it is without factual support in the record," or unless the court "after reviewing all the evidence, is left with a definite and firm conviction that the district court erred." Id. We view the evidence on appeal in the light most favorable to the district court's ruling, giving due regard to the district court's opportunity to judge witness credibility, and must uphold any district court finding that is permissible in light of the evidence. Id. at 813.

The United States contends that the district court erred in determining that the Jarvisons were married under traditional Navajo law, and that even if married, the marriage was a sham or moribund and was created solely to avoid testifying. The second argument—that the marriage was a sham or moribund and was created solely to avoid testifying—was not raised or argued below before the district court in either the government's original motion or motion to reconsider. Accordingly, we decline to address it for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); In re Walker, 959 F.2d 894, 896 (10th Cir.1992).³

A

Our analysis of the district court's conclusion that the Jarvisons had a valid marriage requires us first to examine what law would apply to the question of a marriage between two Navajo tribal members who live completely within the boundaries of the Navajo Reservation. The district court implicitly evaluated the marriage under Navajo law stating that: "The Court is of the opinion that a marriage legal in the Navajo Nation 50 years ago is still legal." It is often assumed without discussion by courts that, in cases arising on an Indian Reservation within a State, the substantive law of the State is controlling in such situations. Louis v. United States, 54 F.Supp.2d 1207, 1209-10 (D.N.M.1999). However, because the Navajo Nation retains sovereign authority to regulate domestic relations laws, including marriage of its Indian subjects, Navajo law is dispositive as to the validity of the marriage in question. See Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ("Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members"); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) ("Although no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations."); Cheromiah v. United States, 55 F.Supp.2d 1295, 1305 (D.N.M.1999) (examining the sovereignty retained by Indian tribes and law of the place in Federal Torts Claims Act case); Jim v. CIT Financial Services Corp., 87 N.M. 362, 533 P.2d 751, 752 (N.M.1975) (recognizing that laws of the Navajo Tribe are entitled by Federal law to full faith and credit in the courts of New Mexico because the Navajo Nation is a "territory" within the meaning of 28 U.S.C. § 1738); Halwood v. Cowboy Auto Sales, Inc., 124 N.M. 77, 946 P.2d 1088, 1090 (1997) (same). The government assumes that New Mexico law is the applicable law by which to measure the validity of the marriage, but discusses Navajo law because New Mexico recognizes valid common law marriages from other jurisdictions.

Both Esther and Ben Jarvison are subject to Navajo Nation laws regarding marriage and domestic relations. Because domestic relations are considered by the Tribe as being at the core of...