UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Civil No. 15-cr-215-01/02-JL Opinion No. 2017 DNH 149P Yovannys Guerrero Tejeda and Eric Pineda Mateo
MEMORANDUM ORDER
This case involves whether a variation of marital
privilege, the adverse spousal testimonial privilege, protects
one spouse from testifying against the other when both spouses
jointly participated in criminal activity. Eric Pineda Mateo
(“Pineda”) and his wife, Yovannys Guerrero Tejeda (“Guerrero”),
were arrested and indicted on a number of drug-related offenses.
Ms. Guerrero pleaded guilty to two counts of distribution of
heroin, one count of possession with intent to distribute
fentanyl, and one count of conspiracy to possess with intent to
distribute and to distribute heroin and fentanyl. Mr. Pineda
was charged only with the conspiracy count.
The prosecution, seeking to introduce Guerrero’s immunized
testimony during Pineda’s trial, issued a subpoena to Guerrero
and moved in limine seeking a determination, pursuant to Federal Rule of Evidence 104(a), that her testimony is admissible.1
Guerrero moved to quash the subpoena, invoking the adverse
spousal testimonial privilege.2 The prosecution argues that an
exception to that privilege recognized by, inter alia, the
Seventh Circuit Court of Appeals, vitiates the privilege where
both spouses participated in the charged criminal activity,
rendering her testimony admissible. Concluding that the
substantial weight of authority impresses against recognizing
such an exception, the court grants Guerrero’s motion to quash
the subpoena and denies the prosecution’s motion under
Rule 104(a).
Background3
Guerrero’s involvement in this case began when she answered
a phone call from a confidential informant seeking to purchase
three “fingers” of heroin. On October 6, 2015, she met the
confidential informant in the parking lot of a mall in
1 Rule 104 Motion (doc. no. 57). 2 Mot. to Quash (doc. no. 71). Though, as discussed below, only Guerrero may assert (or waive) this privilege, Pineda also objects to the introduction of her testimony. See Obj. to Rule 104 Motion (doc. no. 67). 3 The court draws this background information from the anticipated testimony described by the prosecution in its pretrial memorandum. See Pretrial Mem. (doc. no. 65) at 1-5.
2 Newington, New Hampshire, where she exchanged a bag of heroin
for $1,000 in cash. The informant contacted Guerrero again on
October 21, asking to purchase an additional five “fingers” of
heroin. Guerrero, this time accompanied by Pineda, met with the
informant to exchange 25 grams of heroin for another $1,000.
After additional conversations over the next several weeks,
the informant and Guerrero arranged a third transaction for
November 16, 2015. Guerrero and Pineda arrived at the pre-
determined location and were arrested by the New Hampshire State
Police, who searched their car and recovered 25 grams of
fentanyl.
Guerrero and Pineda were jointly indicted under 21 U.S.C.
§§ 841(a)(1) and 846 for conspiracy to distribute heroin and
fentanyl and to possess those substances with the intent to
distribute them.4 Guerrero alone was indicted on two counts of
distribution of heroin under 21 U.S.C. § 841(a)(1) and one count
of possession with intent to distribute fentanyl under 21 U.S.C.
§ 841(a)(1). Guerrero pleaded guilty to all four counts.
The prosecution indicated its intention to call Guerrero as
a witness at Pineda’s trial, which was scheduled to begin on
May 8, 2017. To that end, after she asserted her Fifth
4 See Superseding Indictment (doc. no. 48).
3 Amendment right against self-incrimination, the government
sought an order securing her immunity, shielding her against
prosecution based on her testimony.5 After jury selection but
before trial could begin, Guerrero invoked her adverse spousal
testimonial privilege and moved to quash the prosecution’s
subpoena. When the prosecution then stated its intention to
take an interlocutory appeal on an adverse ruling on these
motions, necessitating a delay of the trial, the court dismissed
the panel.6
Analysis
“The court must decide any preliminary question about
whether a . . . privilege exists. In so deciding, the court is
not bound by evidence rules, except those on privilege.” Fed.
R. Evid. 104(a). “[T]he party asserting a privilege bears the
burden of showing that the privilege applies. If the privilege
is established, the burden shifts to the opposing party to show
5 See Mot. to Compel Testimony (doc. no. 64); see also 18 U.S.C. §§ 6001-6003. 6 It was unfortunate, not to mention unnecessary, that the court was forced to release an already-chosen jury, wasting the time of both potential and selected jurors. The prosecution’s intent to appeal an adverse ruling could have been communicated before (and thus eliminating the need for) jury selection. The court ascribes no bad faith or improper motive to the prosecution, but wishes it had proceeded differently.
4 that an exception defeats the privilege.” United States v.
Breton, 740 F.3d 1, 9-10 (1st Cir. 2014). “The common law -- as
interpreted by United States courts in the light of reason and
experience -- governs a claim of privilege” unless the
Constitution, a federal statute, or rules prescribed by the
Supreme Court provide otherwise. Fed. R. Evid. 501.
Guerrero has carried her burden of showing that the adverse
spousal testimonial privilege applies to her testimony.7 The
prosecution has not carried its burden of demonstrating that a
joint-participant exception defeats that privilege.
Accordingly, and for the reasons explained more fully below, the
court grants Guerrero’s motion to quash the subpoena and denies
the prosecution’s motion to admit her testimony.
A. Spousal privileges
“The common law recognizes two related but distinct marital
privileges . . . .” Breton, 740 F.3d at 9. The marital
communications privilege “permits a defendant to refuse to
testify, and allows a defendant to bar his spouse or former
spouse from testifying, as to any confidential communications
made during their marriage.” Id. at 10. This privilege
7 The prosecution does not challenge the fact that Guerrero and Pineda are married, nor does it dispute Guerrero’s right, as Pineda’s spouse, to assert the privilege.
5 protects only those confidential statements made during the
course of a marriage. United States v. Bey, 188 F.3d 1, 4 (1st
Cir. 1999). It is subject to a joint-participant exception,
meaning that “[c]ommunications concerning crimes in which the
spouses are jointly participating . . . do not fall within the
protection of [the] privilege.” United States v. Picciandra,
788 F.2d 39, 43 (1st Cir. 1986).
The adverse spousal testimonial privilege “allows one
spouse to refuse to testify adversely against the other in
criminal or related proceedings . . . .” Breton, 740 F.3d at 9-
10. Though it “sprang from two canons of medieval
jurisprudence” which are “now long-abandoned,” its “modern
justification . . . is its perceived role in fostering the
harmony and sanctity of the marriage relationship.” Trammel v.
United States, 445 U.S. 40, 44 (1980) (“Trammel II”). Because
the privilege is “designed to protect the marriage relationship
as it exists at the time of trial,” it “applies to all testimony
of any kind.” United States v. Ammar, 714 F.2d 238, 258 (3d
Cir. 1983).
In its traditional form, both the defendant and the
testifying spouse could assert the privilege to prevent the
latter’s testimony. Hawkins v. United States, 358 U.S. 74, 78
(1958). This allowed a defendant to prevent his or her spouse
6 from testifying even if the latter were willing to do so, thus
preventing the presentation of relevant evidence. Trammel II,
445 U.S. at 51-52. Following the Supreme Court’s decision in
Trammel II, however, “the witness-spouse alone has a privilege
to refuse to testify adversely; the witness may be neither
compelled to testify nor foreclosed from testifying.” Id. at
53.
The admissibility of Guerrero’s testimony turns on whether
a joint-participant exception applies to the adverse spousal
testimonial privilege.8 The prosecution takes the position that
it does and that Guerrero’s testimony falls into that exception.
Guerrero and Pineda argue the contrary. The First Circuit Court
of Appeals has not addressed the question directly. Cf.
Picciandra, 788 F.2d at 43 (recognizing exception to marital
communications privilege while distinguishing that privilege
from the adverse spousal testimonial privilege). Several other
Courts of Appeals, having done so, reach conflicting
conclusions.
8 Pineda initially invoked both marital privileges. The parties agree, however, that any communications that the prosecution may seek to introduce and that, arguably, would be protected by the communications privilege included third parties, such as the confidential informant. Those communications therefore were not privileged because they were not confidential.
7 The court concludes that the weight of authority counsels
against recognizing such an exception. Accordingly, Guerrero’s
testimony is not subject to such an exception and remains
protected by the adverse spousal testimonial privilege.
B. The joint-participation exception
Concerned about the breadth of the adverse spousal
testimonial privilege in its traditional form, the Seventh
Circuit Court of Appeals narrowed the adverse spousal
testimonial privilege by recognizing a joint-participant
exception. United States v. Van Drunen, 501 F.2d 1393 (7th Cir.
1974); see also United States v. Keck, 773 F.2d 759, 767 (7th
Cir. 1985); United States v. Clark, 712 F.2d 299, 300 (7th Cir.
1983). The court acknowledged that the privilege’s purpose was
“to preserve the family” by “preventing either spouse from
committing the ‘unforgivable act’ of testifying against the
other in a criminal case.” Van Drunen, 501 F.2d at 1396
(quoting Hawkins, 358 U.S. at 78). This interest, however, did
not “justify assuring a criminal that he can enlist the aid of
his spouse in a criminal enterprise without fear that by
recruiting an accomplice or coconspirator he is creating another
potential witness.” Id. The court accordingly created an
exception to the adverse spousal testimonial privilege such that
neither spouse could assert it, either to avoid testifying or to
8 prevent the other from testifying, when the spouses both
participated together in the charged criminal activity. Id. at
1397.
The Tenth Circuit Court of Appeals, addressing the same
concern, followed the Seventh Circuit’s lead and likewise
recognized a joint-participant exception. United States v.
Trammel, 583 F.2d 1166, 1169 (10th Cir. 1978) (“Trammel I”)
(citing Van Drunen, 501 F.2d at 1393). Faced with a case in
which the defendant asserted the privilege to prevent his co-
conspirator wife from voluntarily testifying, the court held
that “a defendant husband who has jointly participated in a
criminal conspiracy with his wife cannot prevail upon his claim
of the marital privilege when his wife gives incriminating
testimony under grant of immunity.” Id.
On appeal, the Supreme Court echoed that concern, but did
not follow suit with a full-blown endorsement of the joint-
participant exception. It noted that the privilege, in its
traditional form, contravened “the fundamental principle that
‘the public . . . has a right to every man's evidence,’” Trammel
II, 445 U.S. at 49 (quoting United States v. Bryan, 339 U.S.
323, 331 (1950)), because it permitted a defendant to prevent
his or her spouse from testifying regardless of the latter’s
wishes. To address that concern, rather than recognize a joint-
9 participant exception, the Supreme Court narrowed the privilege
by vesting the right to assert it in the testifying spouse
alone. In doing so, it observed that “[w]hen one spouse is
willing to testify against the other in a criminal proceeding .
. . a rule of evidence that permits an accused to prevent
adverse spousal testimony seems far more likely to frustrate
justice than to foster family peace.” Id. at 52.
The Seventh Circuit Court of Appeals alone preserved the
exception in the wake of Trammel II. It did so by interpreting
that decision as promoting a “general policy of narrowly
construing [a] privilege” that “generally retards truth
seeking,” a policy with which, it concluded, the joint-
participant exception was consistent. Id. Trammel II did not
“implicitly reject[] the joint participants exception,” the
Seventh Circuit explained, because Trammel II addressed only
“the limited question of whether the accused spouse could
invoke” the adverse spousal testimonial privilege without
considering the existence of a joint-participant exception.
Clark, 712 F.2d at 301 n.1.
C. Rejection of the exception
No other Court of Appeals has adopted the joint-participant
exception to the adverse spousal testimonial privilege. The
Second, Third, and Ninth Circuit Courts of Appeals have, to the
10 contrary, rejected the Seventh Circuit’s reasoning and
explicitly declined to recognize a joint-participant exception
to that privilege.9 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
Jury, 755 F.2d 1022, 1026 (2d Cir. 1985), vacated on other
grounds sub nom. United States v. Koecher, 475 U.S. 133 (1986);
Appeal of Malfitano, 633 F.2d 276, 279 (3d Cir. 1979).
In declining to find such an exception, the Second Circuit
Court of Appeals relied on the Supreme Court’s approach to
narrowing the privilege in Trammel II. As Judge Friendly
observed:
If the Supreme Court looked on the exception with favor, it is somewhat peculiar that it should not have decided the case on that ground rather than making the much broader assault upon the privilege involved in confining the privilege to the witness-spouse, thereby requiring a partial overruling of a decision little more than twenty years old. Also one would have
9 The prosecution distinguishes the decisions of the Second and Ninth Circuit Courts of Appeals on grounds that those decisions were later vacated or overruled. See United States v. Koecher, 475 U.S. at 133 (vacating and remanding the Second Circuit’s decision in In re Grand Jury, 755 F.2d 1022, 1026 (2d Cir. 1985), “with instructions to dismiss the cause as moot”); United States v. Nordby, 225 F.3d 1053, 1055 (9th Cir. 2000) (overruling United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir. 1997), on other, unrelated grounds). Because neither of these subsequent decisions even tangentially addresses the privilege determinations of In Re Grand Jury and Ramos-Oseguera, the earlier cases retain at least their persuasive value on the question of the joint-participation exception.
11 expected the Court at least to have indicated that the exception might still make the privilege unavailable even when the witness-spouse asserted it.
In re Grand Jury, 755 F.2d at 1026. The Supreme Court’s
narrowing of the privilege undermined the rationale of Van
Drunen and the Tenth Circuit Court of Appeals’s Trammel I
decision because “[a] person desiring to enlist the aid of his
spouse as an accomplice cannot,” post-Trammel II, “be sure that
he is not creating another potential witness; he takes the risk
that the spouse may choose to testify.” Id.
The Third Circuit Court of Appeals based its rejection of
the exception in the privilege’s own underlying rationale --
protection of marriages. It reasoned that “recognition of an
exception where it can be said that both spouses are involved
[in criminal conduct] will tend to undermine the marriage
precisely in the manner that the privilege is designed to
prevent.” Malfitano, 633 F.2d at 279. That is to say, a joint-
participation exception would require acknowledgement either
that “marriages with criminal overtones” are more likely to be
unstable, and thus require less protection, or that such
marriages should not be protected. Id. at 278. The court
declined to involve itself in “assess[ing] the social worthiness
of particular marriages,” including those between individuals
jointly participating in criminal conduct, “or the need of
12 particular marriages for the protection of the privilege,” as
recognizing such an exception would require. Id. at 279. In
any event, it concluded, “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. at 278.
Finally, the Ninth Circuit firmly rejected a joint-
participant exception. Ramos-Oseguera, 120 F.3d at 1042. It
read the Supreme Court’s statement in Trammel II that an
unwilling spouse “may be neither compelled to testify nor
foreclosed from testifying” to mean that “there is no joint
participant exception to the testimonial privilege” insofar as
recognizing an exception would permit the court to compel such
an unwilling spouse to testify. Id.
D. Guerrero’s testimony and the joint-participant exception
Neither the First Circuit Court of Appeals nor the Supreme
Court have recognized a joint-participant exception to the
adverse spousal testimonial privilege.10 In the absence of such
10The First Circuit Court of Appeals has recognized a joint- participant exception to the marital communications privilege. Picciandra, 788 F.2d at 43. But a recognized exception to that privilege does not necessarily implicate an exception to the adverse spousal testimonial privilege. The two privileges serve different purposes. The marital communications privilege “exists to promote marital harmony and stability by ‘ensur[ing]
13 binding precedent, the prosecution would have this court follow
the Seventh Circuit Court of Appeals in recognizing the
exception.11 Guerrero, taking the contrary position, contends
that the decisions of the Second, Third, and Ninth Circuit
Courts of Appeals rejecting such an exception are more
persuasive.12 The court agrees with Guerrero.
Faced with an opportunity to recognize the exception as the
Tenth Circuit Court of Appeals had in the decision below, the
Supreme Court in Trammel II instead “ma[de] the much broader
assault upon the privilege involved in confining the privilege
to the witness-spouse,” and in doing so partially overruled its
own precedent, Hawkins v. United States, 358 U.S. 74 (1958). In
re Grand Jury, 755 F.2d at 1026. While the Court in Trammel II
did not explicitly reject the exception, this court is persuaded
by the conclusion of the Second Circuit Court of Appeals that it
that spouses . . . feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law.’” Breton, 740 F.3d at 10 (quoting United States v. Brock, 724 F.3d 817, 820–21 (7th Cir. 2013)). The adverse spousal testimonial privilege “is more broadly aimed at protecting marital harmony,” and “compelling a spouse to testify under a joint participants exception could create exactly the negative impact on the marriage that the privilege was designed to avoid.” In re Grand Jury, 755 F.2d at 1027-28. 11 See Rule 104 Motion (doc. no. 57) at 8. 12 See Mot. to Quash (doc. no. 71) at 4-8.
14 did so implicitly by declining to adopt the Tenth Circuit’s
approach. See id. “[I]n light of [the adverse spousal
testimonial privilege’s] existence since the early days of the
common law and of the importance of the interests which the
marital privilege serves,” this court would, as Judge Friendly
suggested, “leave the creation of exceptions to the Supreme
Court or to Congress,” id. at 1028, or at least to the First
Circuit Court of Appeals.
Our Court of Appeals has not directly addressed the
question of whether such an exception exists. It has, however,
afforded more protection to the adverse spousal testimonial
privilege in other contexts. For example, in this Circuit, a
witness spouse may invoke that privilege in criminal forfeiture
proceedings. United States v. Yerardi, 192 F.3d 14, 22 (1st
Cir. 1999). Other courts have declined to extend the privilege
to such proceedings on the grounds that the possibility of
future prosecution too speculative to justify its invocation.
See United States v. Premises Known as 281 Syosset Woodbury Rd.,
Woodbury, N.Y., 71 F.3d 1067, 1071 (2d Cir. 1995). Declining to
recognize a joint-participant exception is consistent with this
slightly more generous approach to the privilege.
That the exception is not clearly established among other
Courts of Appeals further supports this court’s reluctance to
15 adopt it. As discussed supra, Parts II.B and II.C, more Courts
of Appeals have declined to recognize a joint-participant
exception than have recognized it. See In re Grand Jury, 755
F.2d at 1026; Malfitano, 633 F.2d at 279; Ramos-Oseguera, 120
F.3d at 1042. The prosecution’s contention that “other courts
have recognized that when husband and wife are co-conspirators,
acts made in furtherance of [a criminal] conspiracy are outside
the testimonial privilege,”13 the Seventh Circuit aside, is
unsupported. It cites nine cases for this proposition. Of
those nine cases, only two decisions from the Seventh Circuit
Court of Appeals14 and the Tenth Circuit Court of Appeals’s
decision in Trammel I support that contention. The remaining
cases concern either witness-spouses voluntarily testifying
against the defendant spouse,15 which is not the case here where
Guerrero asserted the privilege, or the joint-participation
exception to the marital communications privilege,16 which is not
13 Rule 104 Motion (doc no. 57) at 6. 14 Keck, 773 F.2d at 767; Clark, 712 F.2d at 300-01. 15United States v. Parker, 834 F.2d 408, 411 n.4 (4th Cir. 1987); United States v. Estes, 793 F.2d 465, 467 (2d Cir. 1986). This was also the case in Trammel I, 583 F.2d at 1168. 16United States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985); United States v. Neal, 743 F.2d 1441 (10th Cir. 1984); United States v. Ammar, 714 F.2d at 258; United States v. Mendoza, 574 F.2d 1373, 1381 (5th Cir. 1978).
16 at issue here. Nor does recognition of a joint-participant
exception to the marital communications privilege, in and of
itself, create a similar exception to the adverse spousal
testimonial privilege. Cf. In Re Grand Jury, 755 F.2d at 1027
(distinguishing the rationales underlying the marital
communications privilege and the adverse spousal testimonial
privilege, acknowledging joint-participant exception to the
former, and declining to recognize it for the latter);
Malfitano, 633 F.2d at 279 n.5 (rejecting an analogy between the
marital communications privileges and the adverse spousal
testimonial privilege, because the latter does not protect the
disclosure of communications “but rather the impact of the
testimony on the marriage”).
Finally, the circumstances under which the Seventh Circuit
Court of Appeals adopted the exception weigh strongly against
following that court’s approach. As discussed supra Part II.B,
the Seventh and Tenth Circuit Courts of Appeals adopted the
exception so as to curtail the scope of the privilege at a time
when a defendant spouse could assert it to prevent his or her
co-conspirator spouse from voluntarily testifying, and thus
preempt the presentation of otherwise admissible and relevant
evidence. Van Drunen, 501 F.2d at 1396-97; Trammel I, 583 F.2d
at 1168. Addressing the same problem, and presented with the
17 Tenth Circuit’s rationale, see Trammel I, 583 F.2d at 1169, the
Supreme Court instead narrowed the privilege by investing its
assertion in the testifying spouse alone. Trammel II, 445 U.S.
at 53. This leaves the privilege intact to perform the function
the Supreme Court has ascribed to it, see id. at 52, and places
the decision of whether the marriage may weather one spouse
testifying against the other in the hands of the testifying
spouse, not the court. See In re Grand Jury, 755 F.2d at 1026.
Conclusion
The weight of authority counsels against finding that a
joint-participant exception to the adverse spousal testimonial
privilege allows the court to compel Guerrero to testify
involuntarily against her husband, Pineda. Accordingly,
Guerrero’s motion to quash her subpoena17 is GRANTED and the
prosecution’s motion seeking to establish her testimony’s
admissibility is DENIED.18
SO ORDERED.
Joseph N. Laplante United States District Judge Dated: August 8, 2017
17 Document no. 71. 18 Document no. 57.
18 cc: Kevin E. Sharkey, Esq. Eduardo Masferrer, Esq. Susan B. Church, Esq. Donald A. Feith, AUSA Shane Kelbley, AUSA