U.S. v. Murphy, 94-10233

• Decision Date: 07 September 1995
• Docket Number: No. 94-10233,94-10233
• Citation: 65 F.3d 758
• Parties: 42 Fed. R. Evid. Serv. 1398, 95 Cal. Daily Op. Serv. 7077, 95 Daily Journal D.A.R. 12,085 UNITED STATES of America, Plaintiff-Appellee, v. Robert MURPHY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 758

65 F.3d 758

42 Fed. R. Evid. Serv. 1398, 95 Cal. Daily Op.

Serv. 7077,

95 Daily Journal D.A.R. 12,085

UNITED STATES of America, Plaintiff-Appellee, v. Robert MURPHY, Defendant-Appellant.

No. 94-10233.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 4, 1995.

Decided Sept. 7, 1995.

Michael J. Holston, Drinker, Biddle & Reath, Philadelphia, PA, for defendant-appellant.

Robert A. Bork, Assistant United States Attorney, Reno, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: BRUNETTI, THOMPSON and HAWKINS, Circuit Judges.

Opinion by Judge BRUNETTI; Concurrence by Judge HAWKINS.

BRUNETTI, Circuit Judge:

Robert Murphy appeals his conviction and sentence for violations of the Clean Air Act, 42 U.S.C. Secs. 7412-7413, and the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Sec. 9603, and for making false statements to government agents, in violation of 18 U.S.C. Sec. 1001. He claims that the district court improperly admitted the testimony of his former wife at trial. He also claims that the district court erroneously concluded that it lacked authority to depart downward from the Sentencing Guidelines pursuant to U.S.S.G. Sec. 5K1.1. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

FACTS AND PROCEEDINGS BELOW

In 1992, federal authorities began investigating the illegal disposal of asbestos at an apartment complex owned by Murphy in Reno, Nevada. Thomas Devins, who worked for Murphy at the complex, provided the authorities with a sworn statement admitting that he and Murphy had illegally disposed of asbestos. Soon after providing the statement, Devins fled to Florida. In January, 1993, when the investigation of the crime had been completed, Devins contacted Murphy and offered to get him "off the hook." Murphy in turn contacted the authorities and offered to assist in the apprehension of Devins.

His then attorney, Lawrence Semenza, negotiated a cooperation agreement with the authorities. Both sides agreed that if Murphy were prosecuted, no tape recordings of contact between Murphy and Devins would be used at trial. The government also agreed to inform the court of Murphy's assistance in apprehending Devins. However, the parties did not discuss the possibility of the government filing a motion pursuant to U.S.S.G. Sec. 5K1.1, which allows for departure from the Sentencing Guidelines based upon a defendant's substantial assistance to the authorities. Semenza testified before the district court that he did not believe discussion of a Sec. 5K1.1 was appropriate at that stage because Murphy had not yet been indicted. He testified that at the time he believed that the government would promise nothing more than what it had already promised in exchange for Murphy's cooperation.

As part of that agreement, the authorities taped several conversations between Devins and Murphy during which Devins offered Murphy a statement exonerating him in exchange for $75,000. On January 15, 1993, Devins faxed Murphy a proposed written statement. Murphy persuaded Devins to travel to Reno in order to exchange the statement for the money. On January 19, Devins met Murphy at a casino in Reno, but became suspicious of surveilling FBI agents and left the casino. On January 20, Devins called Murphy and arranged another meeting for later that day. Immediately after that meeting, FBI agents apprehended Devins, and he was ultimately convicted of crimes similar to Murphy's.

Soon thereafter, Murphy and the government initiated plea negotiations. The government proposed that Murphy plead guilty to one count and accept various Sentencing Guidelines enhancements. The government stated that if Murphy accepted the proposal, it would file a motion in the district court explaining that Murphy had provided substantial assistance in the investigation and prosecution of another person, and requesting that the court depart downward from the Sentencing Guidelines pursuant to Sec. 5K1.1. The government's proposal resulted in an offense level potentially as low as twelve. The government stated that if Murphy did not accept the proposal, it would not file a Sec. 5K1.1 motion. Murphy rejected the proposal because it required that he accept a two level enhancement for obstruction of justice. The negotiations continued, but no agreement was reached, and the entire case was set for trial.

Prior to trial, Murphy filed a motion in limine to prevent his former wife from testifying about an alleged admission of guilt that he made to her while they were still married. Murphy claimed that the marital communications privilege required exclusion of that testimony. The district court denied his motion.

A jury convicted Murphy of eighteen counts of various environmental crimes. The government did not move for a Sec. 5K1.1 departure, and the district court refused to grant such a departure upon Murphy's motion. The court found that Murphy did in fact provide substantial assistance to the government in the apprehension of Devins. However, the court concluded that absent a government motion, it lacked the authority to grant a departure, because the government had not violated Murphy's due process rights by refusing to file a motion.

The court determined that Murphy's total offense level was eighteen, and, pursuant to U.S.S.G. Sec. 3C1.1, added a two level enhancement for obstruction of justice. The total offense level of twenty yielded a sentencing range of thirty-three to forty-one months. The court sentenced Murphy to thirty-three months in prison. Murphy timely appeals.

ANALYSIS

I. Admissibility of the Testimony of Murphy's Former Wife.

Murphy argues that the testimony of his now former wife, Karen Kincannon, was inadmissible because she testified about statements that he made to her in confidence while they were still married. Federal Rule of Evidence 501 provides that the privilege of a witness is governed by the principles of the common law as interpreted by the federal courts. We recognize a marital communications privilege, but construe it narrowly because it obstructs the truth-finding process. United States v. Marashi, 913 F.2d 724, 730 (9th Cir.1990). That privilege does not apply if the couple was separated and the marriage was irreconcilable at the time of the communication. United States v. Roberson, 859 F.2d 1376, 1381 (9th Cir.1988). Separation and irreconcilability are questions of fact determined by the district court. Id.

In this case, it is undisputed that Murphy and Kincannon were separated when the relevant communication occurred. The district court found that the marriage was also irreconcilable at that time. Accordingly, it concluded that the privilege did not apply, and that the testimony was admissible. We review for an abuse of discretion a district court's decision on the admissibility of evidence that involves factual determinations. United States v. Wood, 943 F.2d 1048, 1055 n. 9 (9th Cir.1991).

Several factors guide a court's determination whether a marriage is irreconcilable. Those factors include the duration of the separation, the stability of the marriage at the time of the communication, whether a divorce action had been filed and the conduct of the parties since that filing, whether a property settlement had been proposed, and, finally, any statements by the parties regarding irreconcilability or the reasons for separation. Roberson, 859 F.2d at 1381.

In this case, the relevant communication occurred in the spring of 1992. At that time, Murphy and Kincannon had been separated for seven years. At the time of separation, Murphy told Kincannon that they would get back together once they finalized a postnuptial agreement. However, after they finalized such an agreement in 1987, the couple did not get back together, and Murphy told Kincannon that he did not want to be married to her. In April 1991, Murphy filed for divorce. After that time, the couple continued to work in the same office, occasionally socialized, and attended marriage counseling. However, Murphy persistently made it clear to Kincannon that he wanted to get divorced. Adjudication of the divorce was originally scheduled for March 1992, approximately the time of the relevant communication, but was delayed pending the settlement of a Federal Trade Commission charge against the couple's jointly held company. In December 1992, the divorce was finalized.

Virtually all of the Roberson factors support the district court's finding that this marriage was irreconcilable at the time of the communication. The district court did not abuse its discretion by concluding that the marital communications privilege did not apply and that Kincannon's testimony was therefore admissible.

II. Refusal to Depart Downward.

United States Sentencing Guidelines Sec. 5K1.1 provides:

Upon a motion of the government stating that the defendant has provided substantial assistance in the investigation of another person who has committed an offense, the court may depart from the guidelines.

A district court generally lacks the authority to grant a downward departure pursuant to this section absent a motion by the government. United States v. Shrewsberry, 980 F.2d 1296, 1297 (9th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 120, 126 L.Ed.2d 84 (1993). This section grants the government the discretion, but does not impose a duty, to move for a departure when the defendant has rendered substantial assistance. Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992). However, the government cannot refuse to file such a motion on the basis of an unconstitutional motive (e.g., racial discrimination), or arbitrarily (i.e., for reasons not rationally related to any legitimate governmental interest). United States v. Burrows, 36 F.3d 875, 884 (9th Cir.1994) (citing Wade, 504 U.S. at 185-86, 112 S.Ct. at 1843-44). If the government has...