U.S. v. Lilley, 77-1917

• Decision Date: 09 August 1978
• Docket Number: No. 77-1917,77-1917
• Citation: 581 F.2d 182
• Parties: 3 Fed. R. Evid. Serv. 293 UNITED STATES of America, Appellee, v. Camille T. LILLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 182

581 F.2d 182

3 Fed. R. Evid. Serv. 293

UNITED STATES of America, Appellee, v. Camille T. LILLEY, Appellant.

No. 77-1917.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1978.

Decided Aug. 9, 1978.

John H. Moosbrugger, Mack, Moosbrugger, Leonard, Ohlsen & Dvorak, Grand Forks, N. D., for appellant.

Gary Annear, Asst. U. S. Atty., Fargo, N. D. (argued), for appellee; James R. Britton, U. S. Atty., Fargo, N. D., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, HENLEY, Circuit Judge, and LARSON, Senior District Judge. ^*

HENLEY, Circuit Judge.

Appellant, Camille T. Lilley, was indicted for obstructing correspondence in violation of 18 U.S.C. § 1702 (Count I), forging an endorsement on a check drawn on the United States Treasury in violation of 18 U.S.C. § 495 (Count II), uttering and publishing as true said forged check in violation of 18 U.S.C. § 495 (Count III), and aiding and abetting each of the above three offenses in violation of 18 U.S.C. § 2. Appellant was tried by jury in the United States District Court for the District of North Dakota. She was found guilty on Counts I and III but not guilty on Count II. From judgments of conviction and concurrent sentences of one year on each count Ms. Lilley appeals.

Appellant and her husband, George L. Lilley, were charged with the offenses listed above as a result of the cashing of a Federal Treasury Check which constituted an income tax refund to Clayton W. Meeks. Mr. Lilley's case was disposed of prior to trial by a plea of guilty to the forgery charge (Count II), dismissal of the other charges against Mr. Lilley and a sentence of probation. At trial appellant contended that her husband intercepted, forged and negotiated the check. The government contended that appellant intercepted the check, aided and abetted the forgery and cashed the check.

On appeal appellant asserts three grounds for reversal. She contends, first, that the admission of the testimony of Agent Buchholz concerning statements made by Mr. Lilley to the Agent and subsequently related by the Agent to appellant violated the marital privilege and also that the testimony constituted hearsay; second, that it was improper for the trial court to allow Mr. Lilley to testify over appellant's objection that such testimony violated appellant's marital privilege; and, third, that the evidence was insufficient to sustain the convictions.

The testimony adduced at trial as relevant to the issues raised on appeal may be summarized as follows. Douglas Buchholz, a Special Agent of the United States Secret Service, testified that he was the case agent in charge of investigating the Meeks check incident. According to Buchholz, on August 24, 1977 he interviewed appellant since Mr. Meeks had noted that appellant and her husband had been residing at the address to which the Meeks check had been sent. Agent Buchholz obtained a handwriting sample from appellant and asked her if she knew anything about the Meeks check. Appellant stated she knew nothing about the check but that she thought her ex-husband, George Lilley, might be involved. ¹ Agent Buchholz told appellant the check had been cashed at a music store in Grand Forks and that a guitar had been purchased with it. Appellant responded that Mr. Lilley played the guitar. Later appellant advised the authorities of Mr. Lilley's address.

On September 1, 1977 Agent Buchholz sought out Mr. Lilley, advising Mr. Lilley that he was investigating a forged endorsement on a check belonging to Clayton Meeks. Agent Buchholz testified that Lilley said he had been at the Forx Hotel in Grand Forks, North Dakota, when appellant had brought the Meeks check to him and asked him to sign it, indicating that he would not get in trouble because she was entitled to the money from the check for the support of her child by Mr. Meeks. Mr. Lilley stated appellant took his hand and helped him to write the signature, Clayton Meeks, on the back of the check, and Mr. Lilley and appellant then went to Scott's Music Store where appellant cashed the check. Lilley stated that he had been drinking during these events. Agent Buchholz then arranged a second interview with appellant. He related to appellant the information which Mr. Lilley had given. In response, appellant furnished a written statement saying she wanted to tell Agent Buchholz the way she recalled it happened. Appellant's written statement which was read into evidence was as follows:

In the spring of 1977 I had my mail sent to Pamela Yahola is how I pronounce it 423 Seward No. 3, Grand Forks, North Dakota. She advised by phone the Clayton Meeks' check was there. I advised her to send it back to Idaho, which wasn't done. When I returned from Jamestown State Hospital, she gave me my mail. This check was not there. George was there she was referring to George Lilley had gone through my mail. George came to my place, asked me to help him pick out some rings for Lillian Olson. We had something to drink and above that, parentheses, has 'whiskey' which she bought. Then he left asked me later at McGuire's Bar to assist him in purchasing drinks. He couldn't cash his check so he steered me over to several shops. Then he decided to buy a guitar. Then we departed as I felt I had enough to drink. I never seen George until the next day, approximately 10:00 a. m. As I recall, he signed the check at a music shop. I never received any money of the Clayton Meeks' check.

Mr. Lilley, testifying for the government on rebuttal, related that while he was staying at the Forx Hotel appellant visited him and asked him to sign a check and said it would be all right because she had it coming for her child. Mr. Lilley testified he had been drinking heavily and must have signed the check because she (appellant) had his hand on something. Mr. Lilley remembered going to a music store to buy a guitar but could not remember who gave the check to the salesman. He could not remember whose possession the check was in when he and appellant entered the music store, nor did he remember a check being issued at the music store for the difference between the price of the guitar and the amount of the forged check.

Appellant testified on her own behalf as follows. While in the Jamestown alcoholic treatment facility she was advised by her daughter, Pamela Yahola, that an income tax refund check had arrived addressed to Clayton Meeks. Appellant first advised her daughter to put the check back in the mail box but later changed her mind and asked Ms. Yahola to keep the check so the appellant could take it to the Welfare Office and hopefully get some of the proceeds for her child by Mr. Meeks. On April 7, 1977 appellant went to Ms. Yahola's apartment to pick up her mail. Mr. Lilley was at the Yahola residence when appellant arrived. Ms. Yahola gave appellant a large envelope containing appellant's mail, but the Meeks check was not in the envelope. On April 9, 1977 Mr. Lilley came to appellant's apartment and asked appellant to go downtown with him to help him pick out some rings for his girlfriend. Appellant went with Mr. Lilley. Mr. Lilley attempted to cash an income tax refund check at a jewelry store but was unsuccessful. He later tried to cash the same check at a bar but was again unsuccessful. Mr. Lilley and appellant happened to come across a music store and Mr. Lilley suggested that they go in. Mr. Lilley decided to purchase a guitar and took the guitar to the front of the store. Appellant remained toward the back of the store. Mr. Lilley was told the store couldn't cash the Meeks check but that they could take it in payment for the guitar and issue Mr. Lilley a check for the difference which Mr. Lilley could cash at any Piggly Wiggly store. Mr. Lilley endorsed the Meeks check and got a check for $200.00 change from the music store which he put in his pocket. Mr. Lilley carried the guitar as he and appellant left the music store. Appellant never received any part of the proceeds from the $200.00 check. Shortly thereafter appellant began to suspect that the tax refund check cashed by Mr. Lilley had been the Meeks check. Appellant testified she did not take, sign, pass or receive any of the proceeds from the Clayton Meeks check.

We reverse appellant's conviction on both counts.

The testimony of Agent Buchholz concerning appellant's reaction to the agent's recitation of Mr. Lilley's statement incriminating appellant should have been excluded.

Counsel for appellant makes a strong argument that the marital privilege includes a prohibition against a third person relating a statement made by one spouse against the other which that spouse would not be allowed to relate if called as a witness, citing Peek v. United States, 321 F.2d 934 (9th Cir. 1963). Even if it be true that the evidence should have been excluded on this ground had a proper objection been made, we have searched the record in vain for an objection to Agent Buchholz's testimony based on marital privilege. Thus, we do not reach the issue of marital privilege as it relates to Agent Buchholz's testimony. However, we hold that the testimony should have been excluded as hearsay, and we note that repeated objections were made on this ground.

It is clear that the testimony of Agent Buchholz concerning statements made by Mr. Lilley to Agent Buchholz and repeated by the agent to appellant fall within the definition of hearsay set out in Fed.R.Evid. 801(c). The government argues that Agent Buchholz's testimony was properly admitted under Fed.R.Evid. 801(d) (2)(B) which provides:

(d) Statements which are not hearsay. A statement is not hearsay if

(2) Admission by party-opponent. The statement is offered against a party and is (B) a statement of which he has manifested his adoption or belief in its truth . . . .

It is well established that, as a general rule, when an accusatory statement is made in the defendant's presence and hearing, and he understands it and has an opportunity to...