United States v. Tobias Diggs

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 5, 2023
• Docket: 22-1502
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1502 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

TOBIAS DIGGS, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cr-185-1 — Gary Feinerman, Judge. ____________________

ARGUED JANUARY 10, 2023 — DECIDED SEPTEMBER 5, 2023 ____________________

Before SCUDDER, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges. KIRSCH, Circuit Judge. A jury convicted Tobias Diggs of armed robbery and other associated crimes after he and three others held up an Illinois jewelry store. Two evidentiary rul- ings form the basis of Diggs’s appeal. First, Diggs argues that the district court should not have permitted his wife to testify against him. The district court concluded that she was a co- conspirator, so the spousal testimonial privilege did not 2 No. 22-1502

apply. Second, Diggs argues that certain hearsay testimony from the case agent should have resulted in a mistrial. But any evidentiary error was harmless, and the district court did not abuse its discretion in refusing to grant a mistrial, so we af- firm. I A jury found that Tobias Diggs and three others robbed the Razny Jewelers store in Hinsdale, Illinois, on March 17, 2017. At trial, the government’s evidence established that when the store opened at 10 am, Diggs and two others exited a blue Lexus SUV bearing Michigan license plates. They en- tered the store with guns raised and equipped with hand- Œžěœ, sporting masks, and gloves. They quickly subdued and ‘Š—ŒžěŽȱ‘Žȱœ˜›ŽȂœȱœŽŒž›’¢ȱžŠ›ȱand dragged a sales as- sociate to a back room where they ‘Š—ŒžěŽȱ and pistol- whipped her. One of the men encountered another sales asso- ciate, put a gun to her head, locked her in the bathroom, and told her he’d kill her if she tried to get out. A fourth man in the crew, Joshua McClellan, sat in the Lexus and listened to the robbery unfold on his cellphone before driving the men— and their haul of more than $400,000 in watches and jewelry— to temporary safety. Three days later, Diggs and McClellan drove from Chicago to Atlanta to liquidate their haul. They met with a jeweler—A.P. the Jeweler—who initially ex- pressed interest but eventually demurred due to the asking price. After returning to Chicago, McClellan found a willing buyer. Eventually, the law caught up with Diggs and McClellan. (Marvon Hamberlin and the fourth man remain at large.) A grand jury indicted the pair on charges of Hobbs Act robbery, conspiring to do the same, brandishing a firearm during a No. 22-1502 3

crime of violence, and transporting stolen goods. Diggs and McClellan pleaded not guilty and were tried together. The jury convicted both men on all counts. Diggs preserved his two challenges, which we turn to now. II Before trial, Diggs informed the court that his wife, Devinn Adams (who was his girlfriend at the time of the robbery), would invoke the spousal testimonial privilege if called to tes- tify. The district court denied the privilege on the grounds that Adams fell within the joint-participant exception. See United States v. Clark, 712 F.2d 299, 301 (7th Cir. 1983) (no spousal testimonial privilege when the defendant and spouse jointly participated in the criminal conduct). The district court found that t‘Žȱ˜ŸŽ›—–Ž—Ȃœȱ™›˜ěŽ›ŽȱŽŸ’Ž—ŒŽȱœ‘˜ Žȱthat Adams became a co-conspirator on the day of the robbery and only withdrew a few days later when she told police that Diggs had used her car for the robbery. The district court con- cluded that the joint participant exception deprived Adams of spousal testimonial privilege. On appeal, Diggs argues that we should reconsider and reject our joint-participant exception to the spousal testimo- nial privilege. Failing that, Diggs contends that Adams wasn’t a joint participant, so the district court erred by compelling her to testify. We need not reach these arguments, however. Like all ev- identiary objections, ‘Žȱ ’œ›’Œȱ Œ˜ž›Ȃœȱ ꗍ’—ȱ ‘ŠȱŠ–œȱ was a joint participant is subject to the harmless error stand- ard. The government carries the burden of proving that an er- ror was harmlesœǰȱ–ŽŠ—’—ȱ‘Šȱ’ȱ’ȱ—˜ȱŠěŽŒȱŠȱŽŽ—Š—Ȃœȱ substantial rights. United States v. Gomez, 29 F.4th 915, 929 (7th 4 No. 22-1502

Cir. 2022). When considering a non-constitutional error like the one Diggs alleges, if we “cannot say, with fair assurance, after pondering all that happened without stripping the erro- neous action from the whole, that the judgment was not sub- stantially swayed by the error, it is impossible to conclude ‘Šȱœž‹œŠ—’Š•ȱ›’‘œȱ Ž›Žȱ—˜ȱŠěŽŒŽǯ” ˜ĴŽŠ”˜œȱŸǯȱ—’Žȱ States, 328 U.S. 750, 765 (1946). In other words, we ask ȃ ‘Ž‘Ž›ȱŠ—ȱŠŸŽ›ŠŽȱ“ž›˜›ȱ ˜ž•ȱꗍȱ‘Žȱ™›˜œŽŒž’˜—ȂœȱŒŠœŽȱ œ’—’ęŒŠ—•¢ȱ•Žœœȱ™Ž›œžŠœ’ŸŽȱ ’‘˜žȱ‘Žȱ’–™›˜™Ž›ȱŽŸ’Ž—ŒŽǯȄȱ United States v. Miller, 673 F.3d 688, 701 (7th Cir. 2012). We consider the impact ˜ȱ‘Žȱ’–™›˜™Ž›•¢ȱŠ–’ĴŽȱŽŸ’Ž—ŒŽȱ˜—ȱ the minds of the jury, “not singled out and standing alone, but in relation to all else that happened.” ˜ĴŽŠ”˜œ, 328 U.S. at 764. Here, after considering Adams’s testimony (and its role in the government’s case) in relation to “all else that happened” at trial, we are convinced that an ŠŸŽ›ŠŽȱ“ž›˜›ȱ ˜ž•ȱ—˜ȱꗍȱ ‘Žȱ˜ŸŽ›—–Ž—ȂœȱŒŠœŽȱœ’—’ęŒŠ—•¢ȱ•Žœœȱ™Ž›œžŠœ’ŸŽȱ ’‘˜žȱ’. A Department of Homeland Security Special Agent Daniel Silk led the investigation into the robbery Š—ȱ˜ěŽ›ŽȱŠ–™•Žȱ testimony and evidence to support ’œȂœȱž’•ǯȱ ŽȱŽœ’ꮍ that in early 2017, McClellan’s calls and text messages sug- gested that he and Diggs worked to surveil a robbery target and coordinate their activities. McClellan’s phone records and Diggs’s social media accounts, cell-site location information (CSLI), and toll records all linked Diggs to a cellphone num- ber that had been activated a week before the robbery. At trial, Diggs argued unsuccessfully that the phone num- ber didn’t belong to him, but the evidence that it did was overwhelming. Diggs sent a social media message asking someone to call him at that number. Diggs received a No. 22-1502 5

Facebook message asking him to place a call, and toll records ›ŽĚŽŒȱ‘ŽȱŒŠ••ȱ Šœȱ–ŠŽȱ›˜–ȱ‘Šȱ—ž–‹Ž› just minutes later. The contacts list on McClellan’s phone associated the number with Diggs. Cell-site records showed that the number most frequently used the cell tower nearest to Diggs’s home. Toll records showed dozens of text messages and calls to numbers associated with Diggs’s family, his two girlfriends (Adams and another woman named Jessica Christian), McClellan, and an individual called Gold Mouth. On appeal, Diggs does not challenge that the phone number belonged to him. Phone records from the day of the robbery revealed that Diggs, McClellan, and the two others were in contact 49 times. That morning, McClellan received two calls from a contact named Johnny. McClellan then made a short call to Diggs at 7 am. Around the same time, CSLI showed Diggs’s phone connected to a tower in ŠĴŽœ˜—, Illinois. (CSLI is generated whenever a cell phone connects to a cell tower; by identifying which towers a phone connects to, law enforcement can ap- proximate a phone’s location with great precision. See United States v. Lewis, 38 F.4th 527, 536 (7th Cir. 2022).) Other evi- dence—including CSLI, phone records, and a marriage li- cense—suggested ‘Šȱ’œȱ•’ŸŽȱ’—ȱŠĴŽœ˜—. Ten minutes later, McClellan texted Johnny: “Bet. He on his way.” Johnny called McClellan at 7:54 am, and McClellan called Diggs at 7:55 am. Less than 10 minutes later, McClellan texted Johnny: “We on our way.” Several calls between Johnny and McClel- lan followed. Shortly before the robbery, CSLI showed that Diggs and McClellan’s phones connected to towers in Hinsdale. Diggs’s phone pinged a tower a mile and a half from Razny Jewelers. A third phone, which connected to the same tower as Diggs’s, 6 No. 22-1502

called Diggs’s phone for about 25 minutes, covering the time of the robbery. The call ended just after the robbery ended. Surveillance footage from the jewelry store depicted one of the robbers holding a cell phone throughout the robbery. There was no call activity on the phones for the next three hours. Later that afternoon, Diggs’s number contacted Ad- ams’s number seven times. Jessica Christian, one of Diggs’s girlfriends at the time of ‘Žȱ›˜‹‹Ž›¢ǰȱŠ•œ˜ȱŽœ’ꮍȱŠȱ›’Š•ǯȱ‘ŽȱœŠ’ȱ‘Šȱœ‘Žȱ‘ŠȱœŽŽ—ȱ Diggs drive a blue or silver Lexus with Michigan plates in March 2017 and that it belonged to Adams, his other girl- friend. Christian had been in the Lexus three times, and Diggs drove each time. ‘›’œ’Š—ȱŽœ’ꮍȱ‘Šȱon the day of the rob- bery, Diggs asked her if she wanted to use the Lexus, some- thing she had never done before. She accepted and took the keys from Diggs. Christian then drove the car to a hospital where she worked. Video surveillance captured Christian parking the same Lexus that was used in the robbery in the hospital’s parking lot. After work, Christian called Diggs to pick him up, Diggs did not answer the call, and Christian drove the Lexus directly to her home. She later asked Diggs whether he would pick up the Lexus, and he said he would. But Diggs never did, and law enforcement later found the Lexus in Christian’s garage. The day after the robbery, Gold Mouth called Adams at 2:43 pm and Diggs at 2:46 pm. That evening, Johnny and McClellan discussed plans to head out of town, and they talked about an individual they called A.P. the Jeweler. Just before midnight, McClellan texted Johnny that he thought they should bring “Bias”—a nickname for Diggs. Johnny No. 22-1502 7

emphasized that they needed to leave as soon as possible that night (a Saturday) in order to cash out before Monday. Later that night and in the early morning hours of the next day, cell phone evidence established that Diggs, McClellan, and Johnny drove from Chicago to Atlanta. CSLI established that Diggs’s phone left Chicago around 2 am before connect- ing to various towers in Indiana, Kentucky, and Tennessee, ‹Ž˜›Žȱ œŽĴ•’—ȱ ’—ȱ Georgia. CSLI generated by McClellan’s phone showed the same movement. Both phones eventually connected to the same tower near an Atlanta hotel that McClellan checked into on Sunday, March 19, and checked out of the next day.

A.P. the Jeweler Žœ’ꮍ that on March 19 he met with ‘›ŽŽȱ˜ȱ꟎ȱ’—’Ÿ’žŠ•œȱnear McClellan’s hotel. A.P. said he knew two of the individuals. One was the man who arranged the meeting; A.P knew him as “Nephew,” but others called him “Gold Mouth.” The other was “one of Nephew’s boys.” ǯǯȱ Žœ’ꮍȱ that he could not identify Diggs as one of the individuals he met with, but June 2016 photos found on Diggs’s social media revealed that the two had met in the past. Phone records showed that Diggs and Gold Mouth had called each other 16 times between March 18 and March 20. A.P. tes- ’ꮍȱ ‘Šȱ ž›’—ȱ ‘Žȱ Š›Œ‘ȱŗşȱ –ŽŽ’—ǰȱ the individuals of- fered to sell him high end watches for around $100,000 to $200,000. He declined but took two photographs of the watches, which were Š–’ĴŽȱŠȱ›’Š•ǯȱRazny Jewelers store –Š—ŠŽ›ȱ Žœ’ꮍȱ ‘Šȱ ‘Žȱ ŠŒ‘Žœȱ ’—ȱ ‘Žȱ ™‘˜˜œȱ –ŠŒ‘Žȱ those missing from its inventory. CSLI showed Diggs and McClellan traveled back from Atlanta to Chicago in the early hours of Monday, March 20. 8 No. 22-1502

B After the district court found that she was a joint partici- pant, Adams was granted immunity by the government and compelled to testify at trial. Adams testified that Diggs had her blue Lexus SUV with Michigan plates at the time of the robbery. She also said that Diggs had told her that “he had busted a J move or a J spot.” Adams stated that Diggs told her that the car was “on the news” and asked her to come get it. She also testified that Diggs had called to tell her that he was going “out of town” or “south,” which she understood to mean Atlanta. Adams’s testimony was damning, no doubt. After all, ac- cording to Adams’s testimony, Diggs confessed to the rob- bery. And the government, recognizing the significant weight of her testimony, relied heavily on it at trial. The government framed its closing argument around the testimony, arguing the testimony was “super powerful.” But the government also presented an overwhelming amount of completely independ- ent incriminating evidence. Phone records and CSLI, for ex- ample, connected Diggs to his co-conspirators and the crime scene. Phone records revealed that Diggs, McClellan, and other participants had worked together to surveil possible robbery targets and coordinate their activities for several months before the robbery. They were in contact 49 times on the day of the robbery. Phone records and CSLI proved that Diggs and McClellan traveled to Hinsdale that morning and were near Razny Jewelers for the entire duration of the rob- bery. Phone records and surveillance footage from the jewelry store showed that the robbers used an open phone line with the getaway driver as a walkie-talkie system. Surveillance footage recorded the robbers fleeing in a blue Lexus SUV with No. 22-1502 9

Michigan license plates. Diggs’s girlfriend, Christian, testified that the Lexus belonged to Adams. Christian also told the jury that Diggs used that Lexus and recruited her to drive it after the robbery. That afternoon, she got the keys from Diggs and drove the Lexus home. Surveillance footage corroborated her testimony, and police later recovered the vehicle in her gar- age. The jury learned all of this without Adams’s help. As for the trip to Atlanta and back, phone records, hotel records, and CSLI all showed that Diggs and McClellan trav- eled to meet with A.P. the Jeweler the day after the robbery. ǯǯȱŽœ’ꮍȱ‘Šȱ ˜•ȱ˜ž‘ȱœŽȱž™ȱ‘Žȱ–ŽŽ’—ǯȱThe meet- ’—ȱ˜˜”ȱ™•ŠŒŽȱ—ŽŠ›ȱŒ•Ž••Š—ȱŠ—ȱ’œȂœȱ‘˜Ž•ǯȱǯǯȱŽœ’ꮍȱ ‘Šȱ ‘Žȱ –Žȱ ’‘ȱ ‘›ŽŽȱ ˜ȱ ꟎ȱ ’—’Ÿ’žŠ•œǰȱ ’—Œ•ž’—ȱ ˜—Žȱ ˜ȱ Gold Mouth’s “boys.” Social media and phone records showed that Diggs knew both A.P. and Gold Mouth. And phone records showed that Diggs placed or received 16 calls to Gold Mouth between March 18 and 20, which covered Diggs’s drive down to Atlanta, his meeting with A.P., and his ›Žž›—ȱ˜ȱ‘’ŒŠ˜ǯȱǯǯȱŽœ’ꮍȱ‘Šȱ‘Žȱ’—’Ÿ’žŠ•œ ˜ěŽ›Žȱ ˜ȱ œŽ••ȱ ŠŒ‘Žœȱ ‘Šȱ Ž›Žȱ •ŠŽ›ȱ ’Ž—’ꮍȱ Šœȱ ™Š›ȱ ˜ȱ Razny’s missing inventory. And CSLI showed that Diggs and McClel- lan traveled from Atlanta to Chicago the next morning. With or without Adams’s testimony, the government pre- sented a case to the jury that overwhelmingly proved Diggs’s guilt. The government’s evidence made it clear beyond a rea- sonable doubt that Diggs was guilty notwithstanding Ad- ams’s testimony—the other evidence put Diggs squarely in the middle of the crime before, during, and after the robbery. We can thus say with fair assurance that the jury’s verdict was not substantially swayed by any error. ˜ĴŽŠ”˜œ, 328 U.S. at 10 No. 22-1502

765. Thus, even if the district court erred in denying Adams the spousal testimonial privilege, the error was harmless. III Diggs challenges the district court’s denial of a mistrial based on a portion of Agent Silk’s testimony that was hearsay. We review the district court’s denial for an abuse of discre- tion. United States v. Graham, 47 F.4th 561, 566 (7th Cir. 2022). “A defendant is only entitled to a new trial if there is a rea- œ˜—Š‹•Žȱ™˜œœ’‹’•’¢ȱ‘Šȱ‘ŽȱŽŸ’Ž—ŒŽȱ‘ŠȱŠȱ™›Ž“ž’Œ’Š•ȱŽěŽŒȱ upon the jury’s verdict.” United States v. Harden, 893 F.3d 434, 451–52 (7th Cir. 2018) (quoting United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)). In essence, our “inquiry is whether [the defendant] was deprived of a fair trial.” United States v. Lauderdale, 571 F.3d 657, 661 (7th Cir. 2009). During Diggs’s cross-examination, Agent Silk testified that he started investigating the robbery after receiving infor- mation from a confidential informant, who was a friend of an individual named Jerry Francis. After Diggs completed his cross-examination, McClellan cross-examined Agent Silk about Francis: COUNSEL: Your investigation developed specific evidence that the day after the robbery, Jerry Francis was trying to sell proceeds from the rob- bery; is that true? SILK: Jerry Francis—there was a phone call that Jerry Francis was with Tobias Diggs to my in- formant. COUNSEL: Well, specifically, though, Jerry Fran- cis Face-Timed your [confidential informant] with a bag of jewelry— No. 22-1502 11

SILK: Correct. COUNSEL: —that he stated was from the Razny robbery; is that true? SILK: Yes. The testimony that Agent Silk’s informant was on a Facetime call with Francis and Diggs with a bag of Razny jew- elry was undoubtedly hearsay, but Diggs did not object. In- stead, once McClellan’s cross-examination ended, Diggs moved for a mistrial, arguing that this part of Agent Silk’s tes- timony was prejudicial hearsay. Diggs also argued he had been careful in his cross-examination to not elicit any hearsay from Agent Silk, and that Agent Silk could have responded to McClellan’s question with a yes or no without further elabo- ration. As an alternative to a mistrial, Diggs requested that the court strike the testimony, advise the jury that Agent Silk’s answer was improper, and instruct the jury to disregard any reference to Diggs during McClellan’s entire cross-examina- tion. The district court agreed that the testimony constituted hearsay and implicated Diggs’s rights under the Confronta- tion Clause, but denied both Diggs’s motion for a mistrial and his request for a curative instruction. The district court rea- soned that Diggs had forfeited his hearsay and Confrontation Clause objections: McClellan’s question called for hearsay, and Diggs’s counsel should have objected to it before or right after Agent Silk’s answer. The district court also explained that Diggs repeatedly elicited hearsay about Francis when it was favorable to him. Having introduced the statements of the same unavailable declarant himself, the district court ex- plained, Diggs could not then complain of a cross- 12 No. 22-1502

examination of the declarant’s related statements on the same subject. Even if Diggs had not forfeited his objections, the dis- trict court concluded that a new trial was not warranted be- cause there was no reasonable possibility that the hearsay tes- timony prejudiced Diggs. On appeal, Diggs argues that he was careful not to elicit ‘ŽŠ›œŠ¢ȱ œŠŽ–Ž—œȱ ›˜–ȱ ‘Žȱ Œ˜—ꍮ—’Š•ȱ ’—˜›–Š—ȱ ž›’—ȱ his own cross-examination of Agent Silk and that Agent Silk improperly elaborated on a yes or no question. Diggs asserts that McClellan’s question did not require hearsay and that there was no reason Diggs could have known to object. Diggs also contends that the hearsay testimony was highly prejudi- cial because there was no other evidence that directly tied Diggs to the jewelry after it was stolen. The district court did not abuse its discretion in denying Diggs’s motion for a mistrial. Diggs should have objected to Ž—ȱ’•”Ȃœȱ‘ŽŠ›œŠ¢ȱŠ—œ Ž›ȱ˜—ŒŽȱ’ȱ ŠœȱžĴŽ›ŽǯȱSee United States v. Swan, 486 F.3d 260, 264 (7th Cir. 2007) (noting that an ˜‹“ŽŒ’˜—ȱ›Š’œŽȱ˜›ȱ‘Žȱꛜȱ’–Žȱ’—ȱŠȱ–˜’˜—ȱ˜›ȱŠȱ–’œ›’Š•ȱ˜›ȱ new trial is not timely). A timely objection could have cured Š—¢ȱ™›Ž“ž’Œ’Š•ȱŽěŽŒȱ›˜–ȱ‘Šȱ‘ŽŠ›œŠ¢, but a curative instruc- tion long afŽ›ȱ ‘Žȱ ˜ěŽ—’—ȱ Žœ’–˜—¢ȱ ˜ž•ȱ ‘ŠŸŽȱ ›Š —ȱ –˜›ŽȱŠĴŽ—’˜—ȱ˜ȱ‘Žȱ‘ŽŠ›œŠ¢ǯȱAnd we agree with the district court that the testimony did not prejudice Diggs and was not critical to the government’s case. After it ŠœȱŠ–’ĴŽǰȱit was never mentioned again, and the other evidence tying Diggs to the robbery and stolen jewelry was overwhelming. Diggs was not denied a fair trial, so wŽȱꗍȱ—˜ȱŠ‹žœŽȱ˜ȱ’œŒ›Ž’˜—ȱ’—ȱ‘Žȱ district court’s decision to deny a mistrial. AFFIRMED No. 22-1502 13

SCUDDER, Circuit Judge, concurring. The majority opinion is well done, and I agree in full with the conclusion that any legal error in compelling Devinn Adams’s testimony was harmless. I write separately to address the legal issue that the majority understandably leaves for another day—whether a witness who participates in their defendant-spouse’s crime can invoke the spousal testimonial privilege and decline to testify. We answered that question no in 1974 in United States v. Van Drunen. 501 F.2d 1393, 1396–97. Since then, however, four other circuits have relied on the Supreme Court’s 1980 decision in Trammel v. United States, 445 U.S. 40, to reach the opposite conclusion. A future case will require us to recon- sider our position.

A

The beginning point is to recognize that there are two dif- ferent evidentiary privileges for spouses. The first is the mar- ital communications privilege, which allows any party to pre- vent their spouse (or ex-spouse) from testifying to certain con- fidential communications made between them during their marriage. See 1 Kenneth S. Broun et al., McCormick on Evidence §§ 78–86 (8th ed. 2022). A defendant-spouse can invoke the privilege even if their spouse would like to testify. See id. § 83; see also United States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001). The marital communications privilege has no application here because Adams and Diggs were not yet married at the time Diggs told Adams that he participated in the robbery.

The second privilege—the spousal testimonial privilege— allows a witness to refuse to testify against their spouse in a criminal trial. See 1 Broun et al., McCormick on Evidence § 66. 14 No. 22-1502

The privilege may only be invoked by the testifying spouse: they alone decide whether to testify, regardless of the wishes of the defendant-spouse. See Trammel, 445 U.S. at 53. And when invoked, no testimony can be elicited from the testify- ing spouse on any topic. See 1 Broun et al., McCormick on Evi- dence §§ 66, 79; see also United States v. Lofton, 957 F.2d 476, 477 (7th Cir. 1992) (observing that the spousal testimonial privilege “applies to all testimony against a defendant- spouse, including testimony on nonconfidential matters and matters which occurred prior to the marriage”); but see Van Drunen, 501 F.2d at 1397 (stating that the privilege is inappli- cable where testimony concerns “matters prior to the mar- riage”); United States v. Clark, 712 F.2d 299, 302 (7th Cir. 1983) (same). In Van Drunen we imposed a significant limitation on this second privilege, restricting its application “to those cases where it makes the most sense, namely, where a spouse who is neither a victim nor a participant observes evidence of the other spouses’s crimes.” 501 F.2d at 1397. So when the district court concluded that Adams participated in her husband’s criminal conduct, she was no longer able to invoke the spousal testimonial privilege. She had to testify against her husband. Diggs urges us to revisit Van Drunen’s recognition of this joint participant exception to the privilege.

B

In Van Drunen we offered two justifications for the excep- tion. First, we worried that a defendant could “enlist the aid of his spouse in a criminal enterprise without fear that by re- cruiting an accomplice or coconspirator he is creating another potential witness.” Id. at 1396. That concern made sense in a No. 22-1502 15

pre-Trammel world where the defendant could invoke the privilege and prevent their spouse from testifying. Second, we assumed that, where both spouses jointly participated in a crime, the marriage between the two may no longer constitute “an important institution contributing to the rehabilitation of the defendant spouse.” Id. at 1397.

Those rationales are difficult to square with the Supreme Court’s decision in Trammel. Indeed, the facts of Trammel are not far off from what happened here. Otis Trammel tried to prevent his wife from voluntarily testifying against him about a heroin-smuggling scheme in which they had both partici- pated. See 445 U.S. at 42–43. The trial court admitted Tram- mel’s wife’s testimony over his objection, and the Tenth Cir- cuit affirmed, explaining that Trammel could not invoke the privilege because he had “jointly participated in a criminal conspiracy with his wife.” United States v. Trammel, 583 F.2d 1166, 1169 (10th Cir. 1978), aff’d on other grounds, 445 U.S. 40. The Supreme Court granted review to consider the future of the spousal testimonial privilege. See 445 U.S. at 41–42. Alt- hough the Court acknowledged contemporary criticisms of the privilege as antiquated and inhibiting a court’s truth-seek- ing function, see id. at 44–45, 50 & n.11, it declined to abolish the privilege altogether. The privilege, the Court ultimately determined, “promotes sufficiently important interests to outweigh the need for probative evidence in the administra- tion of criminal justice.” Id. at 51, 53. Those interests include the protection of the “marriage, home, and family relation- ships” and “marital harmony.” Id. at 48, 53. Trammel’s wife had chosen to testify against him. This kind of voluntary testimony, the Court reasoned, would not 16 No. 22-1502

impede society’s interest in protecting family relationships and marital harmony. See id. at 52–53. In the end, then, the Court modified the spousal testimonial privilege “so that the witness-spouse alone has a privilege to refuse to testify ad- versely; the witness may be neither compelled to testify nor foreclosed from testifying.” Id. at 53. Soon after Trammel we revisited the joint participant ex- ception, albeit in abbreviated terms, in United States v. Clark, 712 F.2d 299 (7th Cir. 1983). We concluded that Trammel did not affect the exception we recognized in Van Drunen. See id. at 301 & n.1. Indeed, we relied on and seemed to reinforce the same two justifications underpinning Van Drunen: a concern with rewarding criminals who bring their spouse into their wrongdoing and a belief that a marriage between joint partic- ipants in criminal conduct lacks rehabilitative value for the defendant-spouse. See id. at 301–02. It has now been forty years since we have examined the issue. In the meantime, every other circuit to consider the issue post-Trammel has rejected the joint participant exception to the spousal testimonial privilege. See United States v. Pineda- Mateo, 905 F.3d 13, 21–26 (1st Cir. 2018); In re Grand Jury Sub- poena, 755 F.2d 1022, 1025–28 (2d Cir. 1985), vacated as moot, 475 U.S. 133; In re Grand Jury, 633 F.2d 276, 277–80 (3d Cir. 1980) (Malfitano); United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir. 1997), overruled on other grounds, 225 F.3d 1053. And every other circuit has relied on Trammel in reach- ing that conclusion. See, e.g., Grand Jury Subpoena, 755 F.2d at 1026 (“[T]he Supreme Court’s action in Trammel has some negative implications as regards the joint participant excep- tion.”). That leaves our court isolated on the short end of a lopsided circuit split. No. 22-1502 17

As the other circuits have recognized, Trammel under- mines, if not eliminates, our justifications for the joint partici- pant exception. The Supreme Court’s decision to vest the spousal testimonial privilege in the testifying spouse alone addresses our concern that a defendant could loop their spouse into criminal conduct and then prevent that spouse from taking the stand. See Van Drunen, 501 F.2d at 1396. After Trammel, “[a] person desiring to enlist the aid of his spouse as an accomplice cannot now be sure that he is not creating an- other potential witness; he takes the risk that the spouse may choose to testify.” Grand Jury Subpoena, 755 F.2d at 1026. Our second justification—that a marriage between joint participants in a crime is unlikely to aid in the rehabilitation of the defendant-spouse—likely misses the mark too. Reha- bilitating the defendant-spouse was never a justification for the spousal testimonial privilege. See id. (“[R]ehabilitation ha[s] never been regarded as one of the interests served by the spousal privilege.”). And I share the doubts expressed by our peer circuits about whether “courts can assess the social wor- thiness of particular marriages or the need of particular mar- riages for the protection of the marital privilege.” Malfitano, 633 F.2d at 279. More to it, the joint participant exception is not consistent with “the broader societal interest … in avoiding the per- ceived unseemliness of seeing a spouse being coerced to ac- tively contribute to the prosecution of his or her spouse.” Pineda-Mateo, 905 F.3d at 24–25 (emphasis in original); see also id. at 25 (“[P]iercing the spousal testimonial privilege neces- sarily involves coercing a non-defendant spouse to take the witness stand, face his or her spouse, and put the nails in the defendant spouse’s proverbial coffin. Such a display 18 No. 22-1502

undoubtedly also raises the unseemly spectre that ‘under- mine[s] the marriage precisely in the manner that the privi- lege is designed to prevent.’” (emphasis and alteration in original) (quoting Malfitano, 633 F.2d at 279)). To my eye, then, the joint participant exception is unlikely to withstand scrutiny after Trammel and against the backdrop of “reason and experience.” Fed. R. Evid. 501. In the right case, we should revisit our precedent.