United States of America v. /02-JL Yovannys Guerrero Tejeda and Eric Pineda Mateo

                  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.



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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.



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    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


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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




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