UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4267
MARK FORESMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., District Judge.
(CR-01-145)
Argued: February 28, 2003
Decided: May 16, 2003
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
P.C., Norfolk, Virginia, for Appellant. Joseph Evan DePadilla, Assis-
tant United States Attorney, Norfolk, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Norfolk, Virginia,
for Appellee.
2 UNITED STATES v. FORESMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Mark Foresman on one count of possessing a
silencer not registered to him in the National Firearms Registration
and Transfer Record in violation of 26 U.S.C. § 5861(d). Foresman
now appeals the district court’s decisions: (1) to admit testimony of
a conversation he had with his wife despite his invocation of the privi-
lege against admission of confidential marital communications; and
(2) to deny his motion for a downward departure. For the reasons that
follow, we affirm Foresman’s conviction and sentence.
I.
Mark Foresman had a long and distinguished military career in the
United States Navy, including decorated membership in the Navy
SEALs. His personal life, however, has been anything but honorable.
In 2001, Mark Foresman’s wife, Delores, summoned the Norfolk,
Virginia police to her home after Foresman broke into their home
despite a preliminary protective order barring him from the residence.
At Mrs. Foresman’s request, the police searched the house for Fores-
man and for his weapons, which Mrs. Foresman had asked the police
to remove for their children’s safety. During their search, Mrs. Fores-
man informed the police that her husband had hidden an "object"
behind a heater in their basement and had given her explicit instruc-
tions not to "let anyone find it" should he get into trouble. Mrs. Fores-
man led the police to the "object," which the police confiscated. The
"object," which had been wrapped in a towel and placed in a plastic
bag, was a piece of PVC pipe that housed a military silencer belong-
ing to the Navy. Further investigation revealed that the silencer had
not been registered to Foresman. Shortly thereafter, a grand jury
indicted Foresman for possessing a silencer that had not been regis-
tered to him in violation of 26 U.S.C. § 5861(d).
UNITED STATES v. FORESMAN 3
During his criminal trial, Foresman filed a motion in limine, seek-
ing to preclude his wife’s testimony that he had instructed her to con-
ceal the silencer. After a hearing on the motion, the district court
denied the motion. Mrs. Foresman was permitted to testify that she
received a call from Foresman and that he instructed her to hide an
"item" in the basement. At the end of his criminal trial, the jury con-
victed Foresman of possessing a silencer not registered to him.
During his sentencing, Foresman moved for a downward departure,
arguing that his lengthy and exemplary military service took his case
outside the heartland of cases prosecuted under § 5681(d). The district
court denied his motion for downward departure and sentenced Fores-
man to twenty-seven months, the minimum sentence allowed under
the sentencing guidelines. In denying Foresman’s motion for down-
ward departure, the district court explained that it did not have the
legal authority to depart downward because the facts of the case were
not sufficient to take it outside of the heartland of cases as required
by Koon v. United States, 518 U.S. 81 (1996). Foresman then filed
this appeal.
II.
This appeal raises two issues: (1) whether the district court abused
its discretion when it permitted Mrs. Foresman to testify regarding her
husband’s instructions to her to conceal the silencer; and (2) whether
the district court erred in refusing to grant Foresman’s motion for
downward departure. We review the trial court’s resolution of the
marital privilege issue for abuse of discretion. See United States v.
Hassan El, 5 F.3d 726, 731 (4th Cir. 1993). An appellate court may
not review a district court’s refusal to depart downward unless "the
district court was under the mistaken impression that it lacked the
authority to depart." United States v. Shaw, 313 F.3d 219, 222 (4th
Cir. 2002) (internal quotation and citation omitted).
III.
A.
The district court denied Foresman’s motion in limine, which
sought to preclude Mrs. Foresman from testifying that Foresman had
4 UNITED STATES v. FORESMAN
instructed her in a telephone conversation to hide the "object" or
"item" in their basement. After reviewing the law and facts of this
case, we conclude that the district court abused its discretion when it
admitted Mrs. Foresman’s testimony regarding Foresman’s instruc-
tions to her to conceal the silencer.
It is well established that confidential marital communications are
presumptively privileged. See United States v. Parker, 834 F.2d 408,
411 (4th Cir. 1987) (explaining that "[i]nformation that is privately
disclosed between husband and wife in the confidence of the marital
relationship is privileged."). In this case, the government attempts to
overcome this presumption by arguing that the marital communica-
tion at issue involves a crime in which both Foresman and his wife
were joint participants. See id. (explaining that marital communica-
tions are not protected when the communication concerns the com-
mission of a crime in which both spouses are participants). Mere
allegations, however, are insufficient to overcome the confidential
marital communication privilege. Indeed, in order to satisfy its burden
in this case, the government must demonstrate Mrs. Foresman’s com-
plicity in her husband’s underlying criminal activity before the district
court may properly admit Foresman’s conversation regarding the con-
cealment of the silencer. See United States v. Bey, 188 F.3d 1, 5 (1st
Cir. 1999). There is no evidence in the record, however, that Mrs.
Foresman was aware that the PVC pipe housed a silencer. According
to Mrs. Foresman’s uncontradicted testimony, she never saw what
was inside the piece of PVC. As Mrs. Foresman was unaware that her
husband even possessed a silencer, she cannot have jointly partici-
pated in the crime of unlawful possession. Foresman should have
been able to invoke the confidential martial communication privilege
to exclude this inculpatory evidence. Accordingly, this Court con-
cludes that the district court abused its discretion by permitting this
testimony at trial.
Because we conclude that the district court abused its discretion
when it admitted Mrs. Foresman’s testimony, we must now determine
whether this error was harmless. "An error is harmless when the error
does not substantially sway or substantially influence" the jury’s ver-
dict. Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (internal
quotation and citation omitted). Thus, this Court’s inquiry is whether,
in light of the entire record, Mrs. Foresman’s testimony had a "sub-
UNITED STATES v. FORESMAN 5
stantial and injurious effect or influence" in determining the jury’s
verdict. Id. We conclude that it did not.
Under § 5861, it is unlawful for a person to possess a firearm
which is not registered to him or her in the National Firearm Registra-
tion and Transfer Record. See 26 U.S.C. § 5861(d). Thus, to obtain
a conviction in this case, the government need only prove that Fores-
man "knowingly possessed a silencer" and that the silencer was not
registered. See United States v. Moore, 253 F.3d 607, 609-10 (11th
Cir. 2001). Excluding the privileged conversation, the record is
replete with testimony from both Foresman and his wife that demon-
strates that Foresman "knowingly possessed the silencer."
For example, during her husband’s trial, Mrs. Foresman testified
that the first time she saw the silencer, she was in the garage with
Foresman and watched him "moving it from one point of the garage
to the other." She also testified that on a different occasion, she
observed Foresman showing the silencer to three other people in the
basement of their home. In fact, when Foresman testified in his own
defense, he admitted that he was aware that he had a silencer in his
home. We conclude, therefore, that in light of the other evidence in
the record, the district court’s admission of the privileged conversa-
tion was harmless because it did not "substantially sway or influence"
the jury’s conclusion that Foresman knowingly possessed the silencer.
B.
Having affirmed Foresman’s conviction, we now address the denial
of downward departure. After reviewing the record, this Court con-
cludes that the district court was aware of its discretion to depart
downward but chose not to exercise it in Foresman’s case. "We are
not permitted to review a district court’s refusal to depart downward
from the Sentencing Guidelines unless the district court was under the
mistaken impression that it lacked the authority to depart." United
States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002) (internal quotation
omitted).
Although the district court most certainly expressed its discomfort
at the government’s decision to prosecute Foresman under § 5861, it
ultimately concluded that Foresman’s extensive and exemplary mili-
6 UNITED STATES v. FORESMAN
tary career did not take his case outside the heartland of cases prose-
cuted under § 5861. To this end, the district court explained: "I don’t
believe that the fact that this is an unusual case in which to apply the
[statute] is sufficient to take it out of the heartland and consider the
motion for downward departure under Fourth Circuit precedent." This
statement is sufficient for this Court to conclude that the district court
was aware of its authority to depart downward but simply chose not
to exercise its authority in Foresman’s case.
IV.
For the reasons stated herein, we affirm Foresman’s conviction and
sentence.
AFFIRMED