Commercial Litigation and Arbitration

Spousal Privileges — (1) Adverse Spousal Testimony Priv. Invokable Only by Witness; Preferred Procedure Delineated — (2) Marital Communications Priv.: Invokable by Either; 3 Prongs; Inapplicable to Commc’ns re Joint Illegal Activity

United States v. Jackson, 2019 U.S. App. LEXIS 9807, 2019 WL 1501539 (6th Cir. April 3, 2019):

A jury found Darries Jackson guilty of two counts of possessing ammunition as a felon. Deciding that Jackson's prior convictions qualified as "violent felonies" under the Armed Career Criminal Act (ACCA), and in light of other evidence implicating him in a murder and a shooting, the district court sentenced him to concurrent life sentences. He appeals, arguing the Eastern District of Tennessee's grand jury pool unconstitutionally underrepresented [*2]  African Americans, tainting his indictment, and that the court should have excluded as privileged his wife's trial testimony. He also appeals his sentence, claiming that his predicate Florida convictions are not "violent felonies," and that his sentence is substantively unreasonable. We AFFIRM.


One night in October 2014, somebody fatally shot Bennie Bowlin in the head at her home. Less than two hours later, a gunman fired multiple shots into Bowlin's daughter's residence, striking the daughter, Kathy Ramos, but fortuitously missing her two-year-old granddaughter sleeping in the same bed. Officers found matching .380 caliber shell casings at each location; forensics later revealed that the casings from both crime scenes came from the same gun. Ramos told investigators that she figured Jackson—with whom she had recently had an affair—was the shooter in both incidents, noting that he had threatened her with a gun during a visit earlier that week and that he drove a white Plymouth van. A neighbor saw a white Plymouth van parked in Ramos's driveway shortly before the shooting. Officers arrested Jackson the following morning. A search of his house and his white Plymouth van revealed [*3]  multiple .380 rounds in both places, and some of his clothing tested positive for gunshot residue. Additionally, during an interview, a detective asked Jackson why he shot Ramos, to which he replied that he didn't know why Ramos and her mother were shot. Yet at that point in the interview, no detective had revealed anything to Jackson about the mother, Bowlin, being shot.

Police investigators also interviewed Jackson's wife, Jessica Jackson. She volunteered statements to them on at least three occasions and testified before a grand jury. She told the police that her husband was distressed because he had recently confessed to his extramarital affair with Ramos. According to her later trial testimony, she accompanied her husband to Walmart a couple of days before the shootings. At his direction, and knowing he was a felon, she purchased 9mm ammunition for him. When Jackson later realized that these rounds would not fit his handgun, he returned to Walmart himself, exchanging the 9mm rounds for .380 caliber bullets that fit his pistol.

On the night of the shootings, he told his wife that he planned to murder his former mistress. When Mrs. Jackson tried to talk him out of it, he said that [*4]  he would kill Ramos's mother or son instead.

Before state prosecutors tried Jackson for murder and attempted murder in state court, a federal grand jury indicted Jackson on the only charges implicated in this appeal: two counts of possessing ammunition (one each for the 9mm and .380 caliber bullets) as a felon in violation of 18 U.S.C. § 922(g)(1). After a trial at which Jackson represented himself assisted by "elbow counsel," a jury found him guilty of both.

At sentencing, however, the Government presented evidence that Jackson murdered Bowlin and attempted to murder Ramos. By this time, Tennessee grand juries had indicted him for both alleged crimes (plus a charge of felony reckless endangerment for nearly shooting Ramos's child). The district court found by a preponderance of the evidence that he committed both crimes. The court then considered that evidence in sentencing him to within-Guidelines concurrent life sentences. He timely appeals.



B. Mrs. Jackson's Testimony Against Her Husband

Mrs. Jackson testified against [*9]  her husband at trial pursuant to a subpoena. Jackson argues that the district court should have barred all or some of that testimony under either of the two marital-testimony privileges—the adverse-spousal-testimony privilege or the marital-communications privilege. See United States v. Underwood, 859 F.3d 386, 390 (6th Cir. 2017) (outlining both marital privileges).

1. Mrs. Jackson's Waiver of Her Adverse-Spousal-Testimony Privilege

A witness can be "neither compelled to testify nor foreclosed from testifying" against his or her spouse. Trammel v. United States, 445 U.S. 40, 53, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980). This privilege may be invoked only by the testifying spouse, id., and we review a district court's finding that a spousal witness waived it de novo, Underwood, 859 F.3d at 390.

Jackson disputes whether his wife knowingly and voluntarily waived her spousal privilege. Ordinarily, he would lack standing to raise such a claim because it was his wife's privilege to not testify. See id. at 392 (noting that the non-testifying spouse "holds no right to the privilege and thus lacks standing to raise the issue on appeal"). The Government forfeited any standing argument, however, by neglecting to raise the matter in its brief.

Even so, Jackson's claim fails. Before Mrs. Jackson testified, the district judge engaged her in a lengthy colloquy, explaining the [*10]  nature of her privilege. The judge repeatedly asked her whether her past statements had been voluntary, and whether she was voluntarily testifying against her husband at trial. Relevant excerpts follow:

Q. All right. Before the jury hears your testimony, Ms. Jackson, I need to advise you of a privilege which exists in federal law. It's called an adverse, an adverse testimony privilege. What it means is that one spouse cannot be forced to testify against the other in a criminal proceeding. Now, the privilege belongs to you, not to your husband. In other words, he can't invoke it.

Are you here voluntarily today to testify against your husband?

A. Yes, sir.

* * *

Q. And how many times did you make statements—on how many different occasions did you make statements to the [police]?

A. I'd say at least three or more, I mean.

Q. Were you ever forced to make any of those statements?

A. No.

Q. Did you make them all voluntarily?

A. Yes.

Q. All right. I guess let me get to the bottom of this. I've advised you that you can invoke the privilege and not be forced to testify against your husband. Do you wish to invoke that privilege?

A. I just fear if I didn't, I'd be in trouble.

* * *

Q. Well, what kind of trouble? [*11]  What are you afraid of?

A. I'm just—I mean, having I bought ammunition and then not being the ammunition for, that was—I don't know, just, I mean, I'm fearful because he's a felon, and I've never been in trouble before.

Q. Okay. Has the government agreed that you will not be prosecuted if you testify?

A. No, there's nothing that I know of.

Q. Okay. For whatever the reason, do you want today to invoke the privilege against testifying?

A. I'd like to not testify.

Q. All right.

A. But I don't want to be in trouble.

Q. I don't have anything—I don't have any part in the decision whether to prosecute you or not prosecute you, that's a decision that has to be made by the U.S. Attorney or state authority. The only thing I can do here today is advise you of the privilege and ascertain whether or not you want to invoke that privilege.

So do you want to testify or not?

A. I'll testify.

At this point, Jackson attempted to object, arguing that his wife hadn't had enough time to make a considered decision on whether to testify. The court again took care to reconfirm Mrs. Jackson's waiver:

Q. Ms. Jackson, how long have you been married to Mr. Jackson?

A. It will be 14 years this June.

Q. All right. Do you understand [*12]  what I've said to you about the privilege?

A. Yes, sir.

Q. Is this the first time you've heard about this privilege?

A. My husband's mentioned it before and talked to me about it.

Q. And what has he said to you about it?

A. That, I mean, it's my constitutional right to not testify if I didn't want to.

Q. All right. Has he threatened you in any way?

A. No, he hasn't.

Q. All right. Have you had enough time to think about this decision?

A. Yes.


Q. Given the fact that you told me you've had enough time to consider this, do you want—or do you intend to respond to questions put to you by the government here today by virtue of this subpoena that's been issued, even though you have a privilege not to do so? In other words, do you intend to testify?

A. Yes, I'll testify.

The Court: All right. I think that's sufficient for the record.

Jackson claims that despite this extensive questioning, the district court did not establish that Mrs. Jackson knowingly and voluntarily waived her spousal privilege. His argument centers on Mrs. Jackson's fear of getting in "trouble" if she didn't testify. It isn't clear, he says, "whether Mrs. Jackson feared the government would prosecute her for acts conducted outside [*13]  of court," such as being a straw buyer for her husband's ammunition, or if she "feared the government would prosecute her for deciding not to waive the spousal privilege." Appellant Br. 13. Given that the court compelled her presence via subpoena and that she lacked her own lawyer to explain the possible consequences of her testimonial decision, Jackson maintains that his wife could have testified out of fear that she would be prosecuted for invoking her privilege. He suggests we analyze his claim using the same "totality of the circumstances" approach we use to assess whether a person waived his right against self-incrimination "voluntarily, knowingly, and intelligently." See, e.g., Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) (quotation omitted); see also Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The record reveals that the district court managed this issue adequately. The "preferred" procedure when one spouse is called to testify against the other is for the court "to ascertain, prior to the introduction of [the spouse's] testimony, the circumstances under which she was persuaded to testify." United States v. Sims, 755 F.2d 1239, 1244 (6th Cir. 1985). That is precisely what happened here. The excerpts above demonstrate that the court took pains to satisfy itself that Mrs. Jackson waived her privilege knowingly, voluntarily, [*14]  and intelligently before allowing her to testify. We see no basis for second-guessing its decision.

2. Applicability of the Marital-Communications Privilege

Jackson could, however, properly move to exclude portions of his wife's testimony against him under the marital-communications privilege. This privilege exists "to protect information privately disclosed between husband and wife in the confidence of the marital relationship." Trammel, 445 U.S. at 51; see also United States v. Porter, 986 F.2d 1014, 1018 (6th Cir. 1993) (noting that marital-communications privilege "exists to insure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law" (quoting United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984))). Either spouse may assert it upon establishing three prerequisites. Porter, 986 F.2d at 1018. First, at the time of the communication, the putative spouses must have been married under state law. Id. Second, the communication must have been "utterances or expressions intended by one spouse to convey a message to the other." Id. (quoting United States v. Lustig, 555 F.2d 737, 748 (9th Cir. 1977)). Finally, the spouses must have made the communication in confidence. Id.

Communications "regarding joint ongoing or future patently illegal activity," however, enjoy no [*15]  protection. Sims, 755 F.2d at 1243. Under such circumstances, "the public's interest in discovering the truth about criminal activity outweigh[s] the public's interest in protecting the privacy of marriage." Id.

Jackson maintains that two components of his wife's trial testimony were privileged and should have been excluded. In examining those, we will reverse only if the district court abused its discretion in a fashion that affected the trial's outcome. United States v. Flemming, 658 F. App'x 777, 787 (6th Cir. 2016) (citing United States v. Morales, 687 F.3d 697, 701-02 (6th Cir. 2012)).

Conversation regarding straw purchase of ammunition. He first points to his wife's testimony that he asked her to purchase 9mm bullets on his behalf. For the joint-participant exception to apply, he claims, the Government needed to elicit testimony that Mrs. Jackson knew that her husband could not lawfully purchase ammunition. The Government alerted the district court before Mrs. Jackson took the stand that it intended to do so. Once she did, however, the prosecutor only asked her when she learned that her husband was a convicted felon; the Government did not ask her whether she knew that her husband could not buy the bullets himself lawfully. This omission, Jackson contends, means that the Government failed to show that Mrs. Jackson knowingly [*16]  broke the law by acting as a "straw buyer" for her husband. Thus, the argument goes, her testimony regarding this conversation remained privileged and inadmissible.

But whether Mrs. Jackson knew the consequences of Jackson's felon status is immaterial. The Government highlights two criminal statutes that confirm that Mrs. Jackson's knowledge that her husband was a convicted felon sufficed. See 18 U.S.C. § 922(a)(6) (criminalizing misrepresenting facts "material to the lawfulness of the sale" of ammunition); § 922(d)(1) (making it a crime to "dispose" of ammunition to anyone known to "ha[ve] been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year"). Both statutes establish that Mrs. Jackson's knowledge of her husband's criminal history justified admission of the testimony under the joint-participant exception.

Conversation regarding Jackson's return to Walmart. Mrs. Jackson also testified about her conversation with her husband when he realized that the 9mm ammunition did not fit his pistol:

Q. Okay. And what did Mr. Jackson say when he realized that that ammunition didn't fit?

A. Just that it didn't fit and he was going—he didn't really say, he just, just did, said that he [*17]  was going to Walmart.

Q. Did you go to Walmart with him?

A. No, not the second time.

Jackson claims that there is "simply no basis" for applying the joint-activity exception to this communication because Mrs. Jackson's mere awareness of her husband's plan to return to Walmart doesn't implicate her in any joint criminal activity. He asserts that the communication "remained privileged and its admission was . . . in error."

But even if we agreed with Jackson, any error was harmless. The challenged testimony was relevant because it evidenced Jackson's return to Walmart to get different bullets. Yet the Government amply proved that point using other evidence. For example, Mrs. Jackson identified her husband in Walmart's surveillance footage showing him returning to the store and exchanging the 9mm bullets for .380 ammunition. Jackson fails to show that excluding the allegedly-privileged testimony would have "affected the outcome of the trial." See Morales, 687 F.3d at 702 (quoting United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011)).



For these reasons, we AFFIRM.

Concur by: JANE B. STRANCH







JANE B. STRANCH, Circuit Judge, concurring.

I join fully in the panel opinion. I write separately to express my concern about the increasing statistical underrepresentation of African American jurors in the grand jury pool of the Eastern District of Tennessee. ***

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