United States v. Long
| Decision Date | 24 October 1972 |
| Docket Number | No. 72-1128.,72-1128. |
| Citation | 468 F.2d 755 |
| Parties | UNITED STATES of America, Appellee, v. DeLayne Elmer LONG, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Leonard F. Watkins, Jr., Russell Shultz, Wichita, Kan., for appellant.
Gary Wenell, Asst. U. S. Atty., Sioux City, Iowa, Evan L. Hultman, U. S. Atty., Robert L. Sikma, Asst. U. S. Atty., for appellee.
Before MATTHES, Chief Judge, LAY and HEANEY, Circuit Judges.
Defendant, DeLayne Elmer Long, was charged and convicted for the interstate transportation and sale of stolen cattle. Two separate indictments were filed. The first indictment contained two counts charging that 58 head of cattle allegedly stolen from Dalhart, Texas, on July 30, 1970, were transported by the defendant to Waverly, Iowa, and sold by him on August 4, 1970. The second indictment charged that 28 head of cattle, stolen in Mena, Arkansas, on January 24, 1971, were transported by the defendant to Waverly, Iowa, on January 26. The two cases were consolidated for trial. Defendant was found guilty on each count and given a three year concurrent sentence. He appeals on two basic grounds:1 (1) that certain government exhibits were not produced before trial, pursuant to the court's order under Federal Rule of Criminal Procedure 16(b), in order to allow the defendant's pretrial investigation, and (2) that certain testimony and exhibits produced by defendant's former wife should have been excluded as confidential communications under a common law husband-wife privilege. We find no merit to these contentions and affirm the judgments of convictions.
Although the trial court indicated its disapproval for the government's failure to disclose to the defendant that some of the government's witnesses would utilize documentary evidence, the court nevertheless overruled the defendant's motion to suppress the exhibits. On the eve of trial the court did require the government to disclose the names of all of the witnesses and the essence of their testimony. The documentary exhibits included photographs and various documents including bills of sale relating to the various cattle involved. The court held that defendant was not materially prejudiced in the late disclosure of these items. Defendant acknowledged that he delivered the cattle to the Waverly Sales Barn on the two occasions and he was given, before trial, the bill of sale pertaining to the August 4 delivery involving the 58 head of cattle allegedly stolen in Texas. The two indictments informed him of the date of the theft as well as the location from which the cattle were originally taken. The photographs were taken of the cattle after he himself delivered them to Waverly. The late disclosure of the exhibits did not inhibit defense counsel from making a thorough investigation of the facts. We find no prejudicial error in the trial court's ruling.
Defendant does not challenge the sufficiency of the evidence. The cattle stolen from Arkansas were described by weight and color, and the evidence disclosed that a number was attached to each animal at the Sales Barn in Waller, Arkansas, on January 23, 1971. These descriptions and numbers matched the markings on the cattle delivered by the defendant in Waverly, Iowa, on January 26. The defendant, without explanation, admitted that the match-up was "no coincidence." The defendant, although claiming he was acting on behalf of other owners, sold the cattle on both occasions in his name. Although the evidence connecting the cattle stolen in Texas with those delivered by the defendant in July is not as convincing as the evidence identifying the Arkansas shipment in January, there were still strong circumstances pointing to the guilty knowledge of the defendant.
Defendant urges, however, that the trial court committed prejudicial error in not excluding his former wife's testimony concerning his confidential disclosure that he was going to Arkansas at the precise time that the cattle were taken. Mrs. Long's testimony reveals that this communication was given to her by the defendant as a personal matter. Cf. Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951). The law presumes that communications between husband and wife are intended to be confidential, and the burden rests with the government to rebut that presumption. See Blau v. United States, supra at 333, 71 S.Ct. 301.2 Assuming that the district court erred in failing to exclude Mrs. Long's testimony, we, nevertheless, find this evidence to be harmless...
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...§ 2337." See also, Tabbah v. United States, 217 F.2d 528 (5th Cir. 1954) (statements not intended to be confidential); United States v. Long, 468 F.2d 755 (8th Cir. 1972) (utterances); Grulkey v. United States, 394 F.2d 244 (8th Cir. 1968) (spouse as The only privacy interests the defendant......
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...United States v. Termini, 267 F.2d 18, 20 (2d Cir.), cert. denied, 361 U.S. 822, 80 S.Ct. 68, 4 L.Ed.2d 66 (1959); United States v. Long, 468 F.2d 755, 757 n. 3 (8th Cir.1972). Testimony concerning a spouse's conduct can be precluded upon the spouse's challenge only in the rare instances wh......
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