United States v. Montgomery
384 F.3d 1050 (2004)
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Rule of Law:
The marital communications privilege, which protects confidential communications made between spouses during a valid marriage, may be asserted by either spouse to prevent testimony about the communication.
Facts:
- In 1983, James Montgomery and his wife, Louise Montgomery, formed Sun Village Realty, a property management business for vacation homes.
- In 1992, Montgomery's sister, Mary Lou O’Connor, began working at the business, causing Mrs. Montgomery to leave.
- In January 1994, Mrs. Montgomery returned to the office and grew suspicious that O'Connor was diverting money from property owners by hiding reservations.
- Mrs. Montgomery discussed these irregularities with her husband, James Montgomery, on numerous occasions.
- Frustrated by his inaction, Mrs. Montgomery wrote a letter to him stating she would not 'be part of a dishonest operation' and that his 'sister stops stealing.'
- She left the confidential letter for him on the kitchen counter of their shared residence.
- Subsequently, Mrs. Montgomery joined the conspiracy and began creating inaccurate owners’ statements herself.
- During a government investigation, the letter was seized from the Montgomerys' bedroom.
Procedural Posture:
- A federal grand jury indicted James Montgomery, his wife Louise Montgomery, and his sister Mary Lou O’Connor on charges of conspiracy to commit mail fraud and mail fraud.
- Before trial, Louise Montgomery agreed to cooperate with the government and testify against her husband and O'Connor.
- At trial in the U.S. District Court, James Montgomery moved to exclude his wife's testimony and a letter she wrote to him, asserting the marital communications privilege.
- The district court denied the motion and admitted the evidence.
- The jury convicted James Montgomery on one count of conspiracy and five counts of mail fraud.
- Montgomery (appellant) appealed his conviction to the United States Court of Appeals for the Ninth Circuit, arguing the district court erred in its ruling on the marital privilege.
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Issue:
Does the marital communications privilege belong exclusively to the communicating spouse, or can the non-communicating spouse also assert it to prevent testimony regarding confidential marital communications?
Opinions:
Majority - Goodwin, Circuit Judge
No. The marital communications privilege does not belong exclusively to the communicating spouse; rather, either spouse may assert the privilege to prevent testimony about their confidential communications. The district court erred in admitting Mrs. Montgomery's letter and testimony because her husband, James Montgomery, was entitled to invoke the privilege to exclude them. The court rejected prior non-binding dictum suggesting the privilege belonged only to the communicating spouse, aligning with Supreme Court precedent (Blau v. United States), the holdings of most other federal circuits, and the law in a majority of states. The court reasoned that vesting the privilege in both spouses is necessary to protect marital harmony, as allowing one spouse to disclose their side of a conversation would 'eviscerate the privilege.' Furthermore, the 'partnership in crime' exception does not apply because Mrs. Montgomery's communications were made before she participated in the conspiracy and were intended to stop the criminal activity, not further it.
Analysis:
This decision solidifies the Ninth Circuit's position that the marital communications privilege is held jointly, empowering either spouse to block testimony about their private conversations. It clarifies that prior circuit dictum suggesting the privilege belonged solely to the communicating spouse is not controlling law, thereby aligning the circuit with the overwhelming majority of federal and state jurisdictions. The ruling reinforces the strong public policy of protecting marital confidentiality, even at the cost of excluding probative evidence in a criminal prosecution. It also narrowly construes the 'partnership in crime' exception, limiting its application to communications made after both spouses have become joint participants in the criminal endeavor.
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