U.S. v. Westmoreland, 01-3870.

• Decision Date: 03 December 2002
• Docket Number: No. 01-3870.,01-3870.
• Citation: 312 F.3d 302
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guy J. WESTMORELAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 302

312 F.3d 302

UNITED STATES of America, Plaintiff-Appellee, v. Guy J. WESTMORELAND, Defendant-Appellant.

No. 01-3870.

United States Court of Appeals, Seventh Circuit.

Argued September 12, 2002.

Decided December 3, 2002.

Rehearing and Rehearing En Banc Denied January 10, 2003.

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Thomas Edward Leggans (argued), Office of the U.S. Atty., Crim. Div., Fairview Heights, IL, for Plaintiff-Appellee.

N. Scott Rosenblum (argued), St. Louis, MO, for Defendant-Appellant.

Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Guy J. Westmoreland was indicted on five counts of a six-count multi-defendant indictment. He was charged with: causing the death of a person through use of a firearm during a drug trafficking crime; use of interstate commerce facilities to commit murder for hire; conspiracy to commit murder for hire; tampering with a witness by committing murder; and causing the death of a witness through use of a firearm. On June 28, 2001, a jury found Mr. Westmoreland guilty on all five counts.

Mr. Westmoreland previously had been convicted of conspiracy to distribute a controlled substance.¹ On October 25, 2001, the district court imposed sentences with respect to both convictions. Mr. Westmoreland was sentenced to 240 months' imprisonment on the previous drug conviction and to a term of life imprisonment without the possibility of parole on counts 2-6 of the later conviction. On October 26, 2001, Mr. Westmoreland filed a timely notice of appeal from his second conviction. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

Beginning in the spring of 1997, Mr. Westmoreland was a partner of Richard Abeln ("Abeln") in a drug distribution business. The two confederates used Abeln's plane to import nine kilograms of cocaine and about ninety pounds of marijuana from Texas to a small airport in Illinois. In early January 1998, they were arrested for the murder of Abeln's wife, Debra Abeln. Some months before, Abeln had decided to terminate his marriage; but, because he did not wish to split the assets of his $17 million trucking business with his wife, he decided to have her killed.

A few months later, Mr. Westmoreland happened to mention that he could have someone killed for $1,000. Abeln approached Mr. Westmoreland about such a possibility; after initially declining, Mr. Westmoreland agreed. Abeln testified that, to encourage Mr. Westmoreland to participate in the scheme, he had told Mr. Westmoreland that his wife had discovered their drug business and was going to inform law enforcement authorities.

Mr. Westmoreland recruited Deandre Lewis ("Lewis") to commit the murder. Abeln and Mr. Westmoreland agreed that the murder would occur on December 27, 1997, at a local airport and that it would be staged as a robbery gone bad. Lewis drove to the airport in a blue Dodge pickup truck provided by Mr. Westmoreland. On the pretext of changing a plane part, Abeln drove his wife to the airport; their twelve-year-old son, Travis, accompanied them. Upon their arrival, Lewis approached the car, demanded Mrs. Abeln's jewelry, then pulled her from the car and fired two shots from a double-barreled shotgun into her chest. She died at the scene.

At the time of the murder, Mr. Westmoreland was on vacation with his family in Florida; but, upon his return, he helped Lewis dispose of the jewelry. After his arrest on January 6, 1998, Mr. Westmoreland directed the destruction of evidence from his jail cell, including the removal of marijuana from a pinball machine at the Westmoreland's house. Tr.VIII at 135. Mr. Westmoreland's wife and sister proceeded to remove the drugs and destroy cocaine packaging. Id. at 137-39. Additionally, Mr. Westmoreland ordered his wife to arrange for the destruction of the murder vehicle, the blue Dodge pick-up truck, which directions his wife followed by having the truck crushed. Id. at 140-44.

II DISCUSSION

In this appeal, Mr. Westmoreland asks that we review several evidentiary issues that arose in the course of the proceedings in the district court.

A.

The district court admitted Mr. Westmoreland's statement to his wife, Bronnie Matthews, that he had supplied Abeln with the phone number of a hit-man.² The court based its ruling on the Government's representation that Mr. Westmoreland had repeated the statement to his parents and therefore the marital communications privilege was not applicable. Ms. Matthews later testified that her husband had not repeated the statement. Consequently, Mr. Westmoreland moved to strike the previously admitted statement and further moved for a mistrial. The district court denied the motions on the ground that the statement was admissible under the "joint participant" exception to the marital privilege.

We review the trial court's resolution of a marital privilege issue for an abuse of discretion. United States v. Lea, 249 F.3d 632, 641 (7th Cir.2001). The marital communications privilege is well-established in the federal courts. See Blau v. United States, 340 U.S. 332, 333-34, 71 S.Ct. 301, 95 L.Ed. 306 (1951). As early as its decision in Stein v. Bowman, 38 U.S. (13 Pet.) 209, 223, 10 L.Ed. 129 (1839), the Court set forth the rationale that animates the privilege:

This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.

The basic principles that govern the application of the privilege are well-settled in this circuit. See Lea, 249 F.3d at 641. Although the "cost of [this] privilege is a reduction in truthful disclosure," our society places a higher value on "uninhibited communication between spouses." Id. The privilege can be asserted by either spouse and applies to statements made in confidence by one spouse to another during a valid marriage. Id.³

Because the marital communications privilege places a limitation on truthful disclosure, we have recognized an exception to the privilege when spouses are joint participants in the underlying offense. See United States v. Short, 4 F.3d 475, 478 (7th Cir.1993). The reason for this limitation is straightforward. "[W]e do not value criminal collusion between spouses, so any confidential statements concerning a joint criminal enterprise are not protected by the privilege." Id. Other circuits similarly have held that conversations about ongoing or future criminal activity that the spouses are undertaking jointly are not protected by the marital communications privilege. See United States v. Ammar, 714 F.2d 238, 257 (3d Cir.1983) (collecting cases).

In this case, Mr. Westmoreland revealed his participation in the murder before his wife undertook any actions that made her an accessory-after-the-fact.⁴ Mr. Westmoreland submits that, when the communication is made to the spouse before the spouse joins in the criminal activity, the marital privilege ought to shield the communication, at least when, as here, the spouse later becomes a mere accessory-after-the-fact and not a participant in the underlying crime. We have not had occasion to decide this precise issue.

We turn to the decisions of our colleagues in circuits that have dealt with similar situations. The Second Circuit has considered whether the marital communications privilege should apply to a statement made in confidence to a spouse who later became an accessory-after-the-fact. See United States v. Estes, 793 F.2d 465, 466 (2d Cir.1986). As in our case, in Estes, the defendant spouse had informed his wife that he had participated in criminal activity. The Second Circuit held that this statement was not made in the course of ongoing joint criminal conduct. See id. Until that communication was made to her, reasoned the court, the defendant's wife did not know that an illegal act had taken place. "The communication to her of that knowledge was a necessary precursor to her involvement and therefore could not have been made as part of an ongoing joint criminal activity." Id. Notably, the court contrasted this initial statement with later conversations that took place after the wife had begun to participate in the criminal activity as an accessory-after-the-fact. These later conversations, opined the Second Circuit, would not be privileged. See id. at 467.

The Tenth Circuit, addressing the same issue in United States v. Neal, 743 F.2d 1441 (10th Cir.1984), appears to have concluded that the marital communications privilege does not apply to a spouse who "actively participated as an accessory-after-the-fact." Id. at 1446. Although the contours of the court's holding are not entirely clear, it appears that the court took the view that later conversations and acts that took place when the spouses were engaged in joint criminal activity would bring the earlier initial conversation into the coverage of the exclusion. Id. at 1446-47.

In Short, we suggested, albeit in dicta, that the approach of the Second Circuit was most compatible with the purposes of the marital communications privilege. Now-Chief Judge Flaum wrote that the privilege well "might ... protect disclosures made before the spouse becomes a joint participant in the crime" by aiding and abetting the principal. Short, 4 F.3d at 479; see also Ammar, 714 F.2d at 258 (noting that, although the marital testimonial privilege is designed to protect the marriage at the time of trial, the marital communications privilege attaches at the time the communication is made). He pointed out that the privilege is intended to preserve the confidentiality of...