United States v. Pineda-Mateo

• Decision Date: 18 September 2018
• Docket Number: No. 17-1857,17-1857
• Citation: 905 F.3d 13
• Parties: UNITED STATES of America, Appellant, v. Eric PINEDA-MATEO, Defendant, Appellee, and Yovannys Guerrero-Tejeda, Intervenor, Appellee.
• Court: U.S. Court of Appeals — First Circuit

905 F.3d 13

UNITED STATES of America, Appellant,

v. Eric PINEDA-MATEO, Defendant, Appellee,andYovannys Guerrero-Tejeda, Intervenor, Appellee.

No. 17-1857

United States Court of Appeals, First Circuit.

September 18, 2018

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellant.

Jaye L. Rancourt, with whom Brennan Lenehan Iacopino & Hickey, Manchester, NH was on brief, for intervenor-appellee.

Eduardo Masferrer, with whom Masferrer & Associates, P.C., Boston, MA was on brief, for appellee.

Before Torruella, Thompson, and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

We are called upon to decide an issue of first impression in this circuit—whether to recognize a "joint participant" exception to the spousal testimonial privilege. For the following reasons, we affirm the district court's conclusion that recognition of such an exception is not warranted.

I.

Before moving forward, a brief survey of the spousal testimonial privilege and the rationales that have traditionally undergirded it is in order.

A.

The spousal testimonial privilege is an evidentiary privilege that protects a defendant's spouse from having to take the witness stand to testify against the defendant. See United States v. Breton, 740 F.3d 1, 9-10 (1st Cir. 2014). It has deep and "ancient roots" in the history of the common law, and descends "from two canons of medieval jurisprudence." Trammel v. United States, 445 U.S. 40, 43-44, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The first of these canons involved the principle that "an accused was not permitted to testify in his own behalf because of his interest in the proceeding." Id. at 44, 100 S.Ct. 906. The second was "the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one." Id. Based on these two rationales, the traditional rule mandated that "what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife." Id.

These two rationales are now "long-abandoned," and the modern justifications for the privilege focus instead on a pair of distinct but related rationales: "fostering the harmony and sanctity of the marriage relationship," id., and the broader societal interest in "avoid[ing] the unseemliness of compelling one spouse to testify against the other in a criminal proceeding," United States v. Yerardi, 192 F.3d 14, 18 (1st Cir. 1999) (citing Trammel, 445 U.S. at 44-45, 52-53 & n.12, 100 S.Ct. 906 ); see also Hawkins v. United States, 358 U.S. 74, 77, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) ("The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well."). This latter rationale has been further explained as stemming from "the 'natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other's condemnation.' " In re Grand Jury Subpoena, 755 F.2d 1022, 1028 (2d Cir. 1985) (quoting 8 Wigmore, Evidence § 2228, at 217).

B.

Just as the rationales underlying the spousal testimonial privilege have changed over time, the nature and contours of the privilege have themselves evolved since the privilege's common law origins.

In its traditional form, the spousal testimonial privilege was, in fact, an absolute rule that completely barred a spouse from giving any testimony in his or her defendant spouse's case, even testimony that would support the defendant's cause. Trammel, 445 U.S. at 43-44, 100 S.Ct. 906. This rigid rule "remained intact in most common-law jurisdictions well into the 19th century." Id. at 44, 100 S.Ct. 906 (citing 8 Wigmore, Evidence § 2333). That was the case until 1933, when the Supreme Court softened the limitations of this rule "so as to permit the spouse of a defendant to testify in the defendant's behalf." Id.; see also Funk v. United States, 290 U.S. 371, 380-81, 54 S.Ct. 212, 78 L.Ed. 369 (1933). However, it was still the rule that "either spouse could prevent the other from giving adverse testimony." Trammel, 445 U.S. at 44, 100 S.Ct. 906 (citing Funk, 290 U.S. at 373, 54 S.Ct. 212 ).

The Supreme Court next considered the scope of the spousal testimonial privilege in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). The defendant in that case sought to invoke the spousal testimonial privilege to prevent his wife from voluntarily testifying against him. Id. at 74-75, 79 S.Ct. 136. Despite the Government's invitation to draw a distinction between compelling a spouse's testimony on one hand and allowing her to testify voluntarily on the other, and the Court's acknowledgement of "the critical comments that the common-law rule had engendered," the Court nevertheless allowed the defendant to bar his wife from testifying against him. Trammel, 445 U.S. at 46, 100 S.Ct. 906. Finding that "the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences," the Court elected to maintain the "rule which bars the testimony of one spouse against the other unless both consent." Hawkins, 358 U.S. at 78-79, 79 S.Ct. 136.

The most recent occasion on which the Supreme Court has addressed the scope of the spousal testimonial privilege is Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The Court was once again confronted with a defendant who sought to assert the spousal testimonial privilege to prevent his unindicted co-conspirator wife from voluntarily testifying against him in his criminal trial. Id. at 42-43, 100 S.Ct. 906. In that case, the Tenth Circuit had held that the defendant's wife should be permitted to testify against her husband, declaring an exception to the spousal testimonial privilege when the "defendant husband ... has jointly participated in a criminal conspiracy with his wife." United States v. Trammel, 583 F.2d 1166, 1169 (10th Cir. 1978). Instead of adopting the Tenth Circuit's approach, the Court found that "[t]he ancient foundations for so sweeping a privilege have long since disappeared," and held that "the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely[.] [T]he witness may be neither compelled to testify nor foreclosed from testifying." Trammel, 445 U.S. at 52-53, 100 S.Ct. 906.

C.

The joint participant exception to the spousal testimonial privilege the Government asks us to adopt, by contrast, does not have anywhere near as long a history as the privilege itself does. The first court to recognize an exception to the spousal testimonial privilege for a witness accused of engaging in a criminal conspiracy with his or her defendant spouse was the Seventh Circuit in United States v. Van Drunen, 501 F.2d 1393 (7th Cir. 1974). In recognizing such an exception, that court found that doing so appropriately "limits the privilege to those cases where it makes most sense, namely, where a spouse who is neither a victim nor a participant observes evidence of the other spouses's [sic] crime." Id. at 1397.

A few years later, the Tenth Circuit followed the Seventh Circuit's lead in adopting the joint participant exception. Trammel, 583 F.2d at 1170-71. That court relied in substantial part on the Seventh Circuit's reasoning in Van Drunen-that the goal of preserving the family "does not justify assuring a criminal that he can enlist the aide of his spouse in a criminal enterprise without fear that by recruiting an accomplice or coconspirator he is creating another potential witness." Id. at 1169-70 (internal quotation marks omitted) (quoting Van Drunen, 501 F.2d at 1396 ).

The other courts of appeals that have considered this issue have reached differing conclusions. The Second, Third, and Ninth Circuits have refused to recognize the joint participant exception. See United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir. 1997), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000) ; In re Grand JurySubpoena, 755 F.2d at 1026-28 ; Appeal of Malfitano, 633 F.2d 276, 278-80 (3d Cir. 1980). By contrast, the Seventh Circuit continues to recognize such an exception even after the Supreme Court's decision in Trammel. United States v. Clark, 712 F.2d 299, 300-02 (7th Cir. 1983) (quoting Van Drunen, 501 F.2d at 1397 ).¹

The Third Circuit based its rejection of the exception on several inter-related grounds. First, that court disputed the premise that "there is no need in fact to protect" marriages where the partners are involved in crime because those marriages "disintegrate and dissolve." Malfitano, 633 F.2d at 278. The court pointed out that "[t]he spouses in fact may be very happy," and "the fact that under Trammel the witness spouse is the holder of the privilege completely satisfies any concern that the privilege not be extended to marriages that in fact need no protection." Id. Second, that court also disputed the proposition that "marriages with partners that engage in crime should not be protected." Id. (emphasis added). The court emphasized that the assumption that "because of what may be an isolated criminal act, the marriage has no social value whatsoever" might not be true in all cases. Id.

Next, the court opined that it was "not confident that courts can assess the social worthiness of particular marriages or the need of particular marriages for the protection of the privilege." Id. at 279. Given the difficulty that such determinations would involve, the court stated that it "d[id] not think that the court should 'condition the privilege ... on a judicial determination that the marriage is happy or successful one.' " Id. (quoting United States v. Lilley, 581 F.2d 182, 189 (8th Cir. 1978) ). Finally, the court observed...