United States v. Pineda Mateo

United States Court of Appeals
For the First Circuit

No. 17-1857

UNITED STATES OF AMERICA,
Appellant,

v.

ERIC PINEDA-MATEO,
Defendant, Appellee,

and

YOVANNYS GUERRERO-TEJEDA,
Intervenor, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellant.
Jaye L. Rancourt, with whom Brennan Lenehan Iacopino & Hickey
was on brief, for intervenor-appellee.
Eduardo Masferrer, with whom Masferrer & Associates, P.C. was
on brief, for appellee.

September 18, 2018
 TORRUELLA, Circuit Judge. We are called upon to decide

an issue of first impression in this circuit -- whether to

recognize a "joint participant" exception to the spousal

testimonial privilege. For the following reasons, we affirm the

district court's conclusion that recognition of such an exception

is not warranted.

I.

Before moving forward, a brief survey of the spousal

testimonial privilege and the rationales that have traditionally

undergirded it is in order.

A.

The spousal testimonial privilege is an evidentiary

privilege that protects a defendant's spouse from having to take

the witness stand to testify against the defendant. See United

States v. Breton, 740 F.3d 1, 9-10 (1st Cir. 2014). It has deep

and "ancient roots" in the history of the common law, and descends

"from two canons of medieval jurisprudence." Trammel v. United

States, 445 U.S. 40, 43-44 (1980). The first of these canons

involved the principle that "an accused was not permitted to

testify in his own behalf because of his interest in the

proceeding." Id. at 44. The second was "the concept that husband

and wife were one, and that since the woman had no recognized

separate legal existence, the husband was that one." Id. Based

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on these two rationales, the traditional rule mandated that "what

was inadmissible from the lips of the defendant-husband was also

inadmissible from his wife." Id.

These two rationales are now "long-abandoned," and the

modern justifications for the privilege focus instead on a pair of

distinct but related rationales: "fostering the harmony and

sanctity of the marriage relationship," id., and the broader

societal interest in "avoid[ing] the unseemliness of compelling

one spouse to testify against the other in a criminal proceeding,"

United States v. Yerardi, 192 F.3d 14, 18 (1st Cir. 1999) (citing

Trammel, 445 U.S. at 44-45, 52-53 & n.12); see also Hawkins v.

United States, 358 U.S. 74, 77 (1958) ("The basic reason the law

has refused to pit wife against husband or husband against wife in

a trial where life or liberty is at stake was a belief that such

a policy was necessary to foster family peace, not only for the

benefit of husband, wife and children, but for the benefit of the

public as well."). This latter rationale has been further

explained as stemming from "the 'natural repugnance in every fair-

minded person to compelling a wife or husband to be the means of

the other's condemnation.'" In re Grand Jury Subpoena, 755 F.2d

1022, 1028 (2d Cir. 1985) (quoting 8 Wigmore, Evidence § 2228, at

217).

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 B.

Just as the rationales underlying the spousal

testimonial privilege have changed over time, the nature and

contours of the privilege have themselves evolved since the

privilege's common law origins.

In its traditional form, the spousal testimonial

privilege was, in fact, an absolute rule that completely barred a

spouse from giving any testimony in his or her defendant spouse's

case, even testimony that would support the defendant's cause.

Trammel, 445 U.S. at 43-44. This rigid rule "remained intact in

most common-law jurisdictions well into the 19th century." Id.

at 44 (citing 8 Wigmore, Evidence § 2333). That was the case

until 1933, when the Supreme Court softened the limitations of

this rule "so as to permit the spouse of a defendant to testify in

the defendant's behalf." Id.; see also Funk v. United States, 290

U.S. 371, 380-81 (1933). However, it was still the rule that

"either spouse could prevent the other from giving adverse

testimony." Trammel, 445 U.S. at 44 (citing Funk, 290 U.S. at

373).

The Supreme Court next considered the scope of the

spousal testimonial privilege in Hawkins v. United States, 358

U.S. 74 (1958). The defendant in that case sought to invoke the

spousal testimonial privilege to prevent his wife from voluntarily

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testifying against him. Id. at 74-75. Despite the Government's

invitation to draw a distinction between compelling a spouse's

testimony on one hand and allowing her to testify voluntarily on

the other, and the Court's acknowledgement of "the critical

comments that the common-law rule had engendered," the Court

nevertheless allowed the defendant to bar his wife from testifying

against him. Trammel, 445 U.S. at 46. Finding that "the law

should not force or encourage testimony which might alienate

husband and wife, or further inflame existing domestic

differences," the Court elected to maintain the "rule which bars

the testimony of one spouse against the other unless both consent."

Hawkins, 358 U.S. at 78-79.

The most recent occasion on which the Supreme Court has

addressed the scope of the spousal testimonial privilege is Trammel

v. United States, 445 U.S. 40 (1980). The Court was once again

confronted with a defendant who sought to assert the spousal

testimonial privilege to prevent his unindicted co-conspirator

wife from voluntarily testifying against him in his criminal trial.

Id. at 42-43. In that case, the Tenth Circuit had held that the

defendant's wife should be permitted to testify against her

husband, declaring an exception to the spousal testimonial

privilege when the "defendant husband . . . has jointly

participated in a criminal conspiracy with his wife." United

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States v. Trammel, 583 F.2d 1166, 1169 (10th Cir. 1978). Instead

of adopting the Tenth Circuit's approach, the Court found that

"[t]he ancient foundations for so sweeping a privilege have long

since disappeared," and held that "the existing rule should be

modified so that the witness-spouse alone has a privilege to refuse

to testify adversely[.] [T]he witness may be neither compelled

to testify nor foreclosed from testifying." Trammel, 445 U.S. at

52-53.

C.

The joint participant exception to the spousal

testimonial privilege the Government asks us to adopt, by contrast,

does not have anywhere near as long a history as the privilege

itself does. The first court to recognize an exception to the

spousal testimonial privilege for a witness accused of engaging in

a criminal conspiracy with his or her defendant spouse was the

Seventh Circuit in United States v. Van Drunen, 501 F.2d 1393 (7th

Cir. 1974). In recognizing such an exception, that court found

that doing so appropriately "limits the privilege to those cases

where it makes most sense, namely, where a spouse who is neither

a victim nor a participant observes evidence of the other spouses's

[sic] crime." Id. at 1397.

A few years later, the Tenth Circuit followed the Seventh

Circuit's lead in adopting the joint participant exception.

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Trammel, 583 F.2d at 1170-71. That court relied in substantial

part on the Seventh Circuit's reasoning in Van Drunen -- that the

goal of preserving the family "does not justify assuring a criminal

that he can enlist the aide of his spouse in a criminal enterprise

without fear that by recruiting an accomplice or coconspirator he

is creating another potential witness." Id. at 1169-70 (internal

quotation marks omitted) (quoting Van Drunen, 501 F.2d at 1396).

The other courts of appeals that have considered this

issue have reached differing conclusions. The Second, Third, and

Ninth Circuits have refused to recognize the joint participant

exception. See 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

Subpoena, 755 F.2d at 1026-28; Appeal of Malfitano, 633 F.2d 276,

278-80 (3d Cir. 1980). By contrast, the Seventh Circuit continues

to recognize such an exception even after the Supreme Court's

decision in Trammel. United States v. Clark, 712 F.2d 299, 300-

02 (7th Cir. 1983) (quoting Van Drunen, 501 F.2d at 1397).1

The Third Circuit based its rejection of the exception

on several inter-related grounds. First, that court disputed the

1 We have been unable to find, and the parties do not point to a
case in which the Tenth Circuit again applied the joint participant
exception to the spousal testimonial privilege after Trammel.

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premise that "there is no need in fact to protect" marriages where

the partners are involved in crime because those marriages

"disintegrate and dissolve." Malfitano, 633 F.2d at 278. The

court pointed out that "[t]he spouses in fact may be very happy,"

and "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. Second, that court also disputed the proposition

that "marriages with partners that engage in crime should not be

protected." Id. (emphasis added). The court emphasized that the

assumption that "because of what may be an isolated criminal act,

the marriage has no social value whatsoever" might not be true in

all cases. Id.

Next, the court opined that it was "not confident that

courts can assess the social worthiness of particular marriages or

the need of particular marriages for the protection of the

privilege." Id. at 279. Given the difficulty that such

determinations would involve, the court stated that it "d[id] not

think that the court should 'condition the privilege . . . on a

judicial determination that the marriage is happy or successful

one.'" Id. (quoting United States v. Lilley, 581 F.2d 182, 189

(8th Cir. 1978)). Finally, the court observed that "[g]iven the

intimacy of marriage and the fact that conspiracy is a rather

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flexible concept, it will be quite easy to allege that the spouses

are partners." Id. Therefore, "recognition of an exception where

it can be said that both spouses are involved will tend to

undermine the marriage precisely in the manner that the privilege

is designed to prevent." Id.

The Second Circuit echoed some of the same concerns.

That court stated that it was "unable to accept the proposition

that a marriage cannot be a devoted one simply because at some

time the partners have decided to engage in a criminal activity."

In re Grand Jury Subpoena, 755 F.2d at 1026. Further, it also

based its conclusion, in part, on the importance of protecting the

marriage relationship from the "'natural repugnance in every fair-

minded person to compelling . . . the culprit to the humiliation

of being condemned by the words of his intimate life partner,'

forced from her by governmental compulsion." Id. at 1028

(citation omitted) (quoting 8 Wigmore, Evidence § 2228 at 217).

On the other side of the split is the Seventh Circuit,

which is the only circuit to have recognized a joint participant

exception to the spousal testimonial privilege post-Trammel.

Clark, 712 F.2d at 300-02. Relying heavily on its precedent, the

court reiterated that the spousal testimonial privilege should be

limited "to those cases where it makes most sense, namely, where

a spouse who is neither a victim nor a participant observes

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evidence of the other spouse's crime," id. at 301 (quoting Van

Drunen, 501 F.2d at 1397), and that the underlying goal of the

privilege to preserve the sanctity and harmony of the family

"do[es] not justify assuring a criminal that he or she could enlist

the aid of a spouse in a criminal enterprise without fear that by

recruiting an accomplice the criminal was creating another

potential witness," id. at 301 (citing Van Drunen, 501 F.2d at

1396). Further, the court stated that "the rehabilitative effect

of a marriage, which in part justifies the privilege, is diminished

when both spouses are participants in the crime." Id. at 301

(citing Van Drunen, 501 F.2d at 1397). Finally, the Seventh

Circuit determined that "a joint participants exception is

consistent with the general policy of narrowly construing the

privilege." Id.

II.

Having assayed the history of the spousal testimonial

privilege and the joint participant exception, we turn to the facts

of this case. Because this case has not yet proceeded to trial,

we draw the relevant facts from the Government's indictment. See,

e.g., United States v. Colombo, 852 F.2d 19, 21 (1st Cir. 1988)

(using the facts alleged in the indictment in reviewing the

district court's dismissal of an indictment).

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 A.

On September 25, 2015, a confidential informant

attempted to call a drug dealer named "Tony." Yovannys Guerrero-

Tejeda ("Guerrero") -- who was recorded by law enforcement without

her knowledge -– and, in consultation with another individual

nearby (alleged to have been her husband, Eric Pineda-Mateo

("Pineda")), told the informant to raise $1,000 to pay part of a

prior drug debt before arranging another drug transaction.

Three days later, the informant called Guerrero again

and "arranged to purchase three fingers of heroin from Guerrero

and Pineda." On October 6, 2015, the informant and Guerrero

exchanged several more phone calls that were covertly recorded by

law enforcement, and arranged to meet at a New Hampshire mall for

a drug transaction. At this meeting, Guerrero gave the informant

a bag of heroin in exchange for $1,000 in cash. Two weeks later,

the informant arranged a second drug transaction with Guerrero and

Pineda, after which the informant attempted to set up a third

transaction. On November 16, 2015, Guerrero and Pineda appeared

together at the location where they had agreed to meet the

informant and were arrested by the New Hampshire state police and

others. In the car, which was registered to Pineda, the police

found twenty-five grams of fentanyl.

The Government alleged that the evidence established a

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conspiracy between Guerrero and Pineda throughout this series of

events. For example, during the recorded phone calls with the

informant, Guerrero repeatedly referred to "her husband" and

negotiated the transactions in concert with him. Additionally,

Pineda also appeared to be the person who acquired the heroin

subsequently sold to the informant. Furthermore, agents observed

both Guerrero and Pineda meeting with the informant in person to

conduct the second transaction, during which Guerrero and Pineda

spoke to each other in Spanish before speaking in English to the

informant. Finally, Guerrero and Pineda were arrested together

at the location of the planned third drug transaction.

B.

On December 2, 2015, a federal grand jury indicted

Guerrero for one count of conspiracy to possess with intent to

distribute and conspiracy to distribute heroin and fentanyl, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (Count 1), and two counts

of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1)

(Count 2 and 3). Pineda was indicted only on Count 1. Guerrero

subsequently pleaded guilty to all three counts against her in

April 2017, while Pineda elected to go to trial. Intending to

call her as a witness at trial, the Government subpoenaed Guerrero

and filed a motion in limine "seeking a determination, pursuant to

Federal Rule of Evidence 104(a), that her testimony is admissible."

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Guerrero subsequently moved to quash the subpoena on the grounds

that the spousal testimonial privilege prevented the Government

from compelling her to testify at her husband's trial. 2 In

response, the Government moved to compel Guerrero's testimony,

seeking to invoke an exception to the spousal testimonial privilege

"for a jointly participating spouse in a criminal conspiracy."3

After a hearing, the district court granted Guerrero's

motion to quash the subpoena and denied the Government's motion to

compel Guerrero's testimony at Pineda's trial. The district court

acknowledged the aforementioned circuit split as to the

recognition of the joint participant exception to the spousal

testimonial privilege, but ruled that "[t]he weight of authority"

counseled against the recognition of such an exception. The

Government then filed this interlocutory appeal of the district

court's order.

III.

The district court below based its conclusion in part on

2 Guerrero points out that "she was willing to forego possible
reductions in her sentence based upon substantial assistance in
order to maintain her adverse spousal testimonial privilege and
thereby protect her marriage." She further stated that even if
this court ruled against her, she would refuse to testify against
her husband and "would face civil contempt proceedings if
necessary."
3 The Government did not challenge the legality of the marriage
between Pineda and Guerrero before the district court.

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its reasoning that the Supreme Court implicitly rejected the joint

participant exception "by declining to adopt the Tenth Circuit's

approach" in Trammel. The Government challenges this finding on

appeal. Because a finding that Trammel does entirely foreclose

the recognition of a joint participant exception would be

dispositive in this appeal, we address that issue first.

The Government's principal contention is that Trammel

should not be read to foreclose the possibility of a joint

participant exception because the Supreme Court did not address

the joint participant exception recognized by the Tenth Circuit

below. Pineda and Guerrero defend the district court's reasoning

by arguing that "[d]espite the [G]overnment's invitation to adopt"

the joint participant exception, the Supreme Court chose to narrow

the privilege instead by vesting it only in the testifying spouse.

They contend that the district court correctly interpreted this

holding on the broader ground of overruling Hawkins as the Court's

rejection of that exception. We are not persuaded by Pineda and

Guerrero's arguments. Instead, we agree with the Government that

Trammel is not a categorical bar to the possibility of recognizing

a joint participant exception to the spousal testimonial

privilege.

Trammel, as the Government accurately points out, does

not discuss the joint participant exception on which the Tenth

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Circuit had rested its decision, let alone opine on its merits.

See Trammel, 445 U.S. at 41-53. We find it difficult to see how

the Supreme Court rejected an exception that it did not so much as

mention. In fact, the Court made clear that it granted certiorari

in that case "to consider whether an accused may invoke the

privilege against adverse spousal testimony so as to exclude the

voluntary testimony of his wife." Id. at 41-42. It is axiomatic

that the Supreme Court can grant a petition for a writ of

certiorari as to virtually any issue in a case it wishes to review,

and decide cases on any ground it feels is appropriate. See,

e.g., Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) ("[I]t is this

Court's prerogative alone to overrule one of its precedents."

(alteration in original) (citations omitted)); Vance v. Terrazas,

444 U.S. 252, 258 n.5 (1980) ("[C]onsideration of issues not

present in the jurisdictional statement or petition for certiorari

and not presented in the Court of Appeals is not beyond our power,

and in appropriate circumstances we have addressed them.").

Applying these principles has several consequences in

this case. First, because it is the Supreme Court's prerogative

to resolve cases on whatever grounds it believes appropriate, we

think that it would be wrong to interpret the Supreme Court's

decision to resolve the broader doctrinal question in Trammel as

implicitly rejecting the narrower ground for affirmance -- the

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joint participant exception. See Cohens v. Virginia, 19 U.S. (6

Wheat.) 264, 399 (1821) ("It is a maxim not to be disregarded,

that general expressions . . . are to be taken in connection with

the case in which those expressions are used. If they go beyond

the case, they . . . ought not to control the judgment in a

subsequent suit."). Second, we are not convinced that much weight

should be given to the fact that the Government had "invited" the

Trammel Court to approve the joint participant exception. Because

the Supreme Court's discretion extends not only to the grounds for

resolving a case but also to the specific issue(s) it reviews, we

think it unwise to read any dispositive meaning into the lack of

any discussion of the joint participant exception in the Trammel

opinion, or the Court's decision not to take up the Government's

"invitation" to recognize the joint participant exception. See

Maldonado Santiago v. Velázquez García, 821 F.2d 822, 828 (1st

Cir. 1987) (stating that interpreting the Supreme Court to have

overruled a line of precedent sub silentio would not "reflect . . .

a prudent reading of precedent"). The Supreme Court's silence on

this issue is just that -- silence.

The context in which Trammel was decided further

reinforces the conclusion that the Supreme Court did not implicitly

foreclose the joint participant exception. Prior to Trammel, the

Court had decided Hawkins, in which it held that a criminal

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defendant could assert the spousal testimonial privilege to

prevent his or her spouse from testifying against him, even when

the spouse was willing to do so. 358 U.S. at 77. In Trammel, the

defendant's only claim before the Tenth Circuit was that "the

admission of the adverse testimony of his wife, over his objection,

contravened [the Supreme] Court's teaching in Hawkins v. United

States . . . ." 445 U.S. at 43. The Tenth Circuit rejected this

argument, concluding that "[n]othing in Hawkins or any other

reported decision . . . prohibits the voluntary testimony of a

spouse who appears as an unindicted co-conspirator . . . ."

Trammel, 583 F.2d at 1168. In light of this background, therefore,

the conclusion that the Supreme Court did not implicitly reject

the joint participant exception makes sense. The Supreme Court

found the Tenth Circuit's decision in Trammel called for "a re-

examination of Hawkins," which is precisely what the Court did

without approving or disapproving the joint participant exception

recognized by the Tenth Circuit. Trammel, 445 U.S. at 42.

Absent guidance to the contrary from the Supreme Court

-- which we do not find in Trammel -- we decline to hold that

Trammel completely precludes the possibility of recognizing a

joint participant exception if the appropriate balancing analysis

weighs in its favor. For these reasons, the district court's

conclusion that the Supreme Court implicitly rejected the joint

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participant exception in Trammel is incorrect.

IV.

Having determined that Trammel does not squarely resolve

the question posed by this appeal, we now turn to the district

court's conclusion not to recognize such a joint participant

exception. We review the admission or exclusion of evidence over

claims of privilege for an abuse of discretion. In re Grand Jury

Subpoena, 662 F.3d 65, 69 (1st Cir. 2011). However, when the

issue presented is of a legal nature, those "[r]ulings on questions

of law are reviewed de novo." Id.

A.

Rule 501 of the Federal Rules of Evidence governs claims

of privilege in the federal courts. Swidler & Berlin v. United

States, 524 U.S. 399, 403 (1998). That Rule provides that "[t]he

common law -- as interpreted by United States courts in the light

of reason and experience -- governs a claim of privilege . . . ."

Fed. R. Evid. 501. It empowers the federal courts to "develop[]

rules of privilege on a case-by-case basis." United States v.

Gillock, 445 U.S. 360, 367 (1980). Furthermore, the Supreme Court

has instructed that a privilege should only apply in a particular

case if it "promotes sufficiently important interests to outweigh

the need for probative evidence." Univ. of Pa. v. EEOC, 493 U.S.

182, 189 (1990) (quoting Trammel, 445 U.S. at 51).

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 The spousal testimonial privilege is one of the two

marital privileges recognized under the Federal Rules of Evidence.4

It "allows one spouse to refuse to testify adversely against the

other in criminal or related proceedings . . . ." Breton, 740

F.3d at 9-10. Unlike the marital communications privilege, which

either spouse may assert, id. at 10, "the witness-spouse alone has

a privilege to refuse to testify adversely; the witness may be

neither compelled to testify nor foreclosed from testifying."

Trammel, 445 U.S. at 53.

The Government contends that Rule 501's mandate for the

federal courts to develop the law of evidentiary privileges "in

light of reason and experience" requires us to weigh the

Government's need for evidence against the policy rationales that

underlie a claimed privilege. A proper balancing of these

interests, the Government further argues, justifies recognizing a

joint participant exception to the spousal testimonial privilege.

Specifically, the Government points to two features of

conspiracies that it claims enhances the need for the Government

4 The other recognized marital privilege is the marital
communications privilege, which "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." Breton, 740 F.3d at 10. The parties agree that
the marital communications privilege cannot be a basis for
excluding Guerrero's testimony here.

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to be able to gather evidence. First, the Government argues that

a "[c]ollective criminal agreement . . . presents a greater

potential threat to the public than individual derelicts,"

Callanan v. United States, 364 U.S. 587, 593 (1961), a danger that

it asserts is "peculiar." Not allowing the Government to abrogate

the privilege in this context "wrongly places the law on the side

of protecting conspiracies within a marriage," and therefore the

Government "has a particularly strong need for evidence so that it

can dismantle the conspiracy before it inflicts additional harms

on the public." Second, the Government points to the inchoate and

secretive nature of conspiracies. The Government emphasizes that

it often needs to obtain testimony of a co-conspirator in order to

subvert the conspiracy, and cites to the hearsay exception for

statements of a co-conspirator, Fed. R. Evid. 801(d)(2)(E), to

highlight the importance of access to this critical evidence in

conspiracy prosecutions.

On the other side of the scale, the Government argues

that society's interest in preserving marital harmony is

"diminished in the particular context of conspiracy prosecutions."

Married couples who conspire to commit crimes, the Government

urges, "have abused the marital privilege granted to them by the

state." Because "[i]t would be odd to permit a spouse to invoke

the spousal testimonial privilege . . . to protect a criminal

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conspiracy formed within the marriage that is harmful to the

state," the Government argues that the force of the public policy

behind the privilege is "at its nadir" in conspiracy cases.

The Government, however, never addresses the

"experience" side of Rule 501's equation in arguing for the

exception to the longstanding spousal testimonial privilege. This

Court has recognized the spousal testimonial privilege without the

joint-participant exception for many years, and yet the Government

never presents an argument as to how our experience with the

spousal testimonial privilege shows that we should now recognize

this exception when we did not in the past.5 See, e.g., Jaffee v.

Redmond, 518 U.S. 1, 6 (1996) (citing the unanimous agreement of

the 50 states and the "skyrocket[ing]" demand for counseling

services as evidence of how our "experience" with mental health

had changed such that the Court needed to recognize the

psychotherapist privilege). When reason, by itself, fails to

5 The Government does suggest in a footnote to its brief that the
treatment of the privilege in the states supports its position
that we should judicially carve out the joint-participant
exception to this privilege pursuant to Rule 501. But the
Government does not dispute that a substantial majority of the
states recognize the spousal testimonial privilege without carving
out such an exception. In fact, the Government's own account of
state practice reveals that only two of the thirty states that
recognize the privilege have adopted the exception it favors.
Moreover, as the Government acknowledged at oral argument, of the
states that have limited the privilege, an overwhelming number
have done so via legislation rather than through judicial means.

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provide an unequivocal interpretation, a court's experience with

the privilege weighs even more on its decision. See Swidler &

Berlin v. United States, 524 U.S. 399, 410 (1998) (noting that

where "[i]t has been generally, if not universally, accepted, for

well over a century, that the attorney-client privilege survives

the death of the client," the Court would need more than

"thoughtful speculation" to justify recognizing a new exception).

B.

It seems clear then that the interests the spousal

testimonial privilege is designed to serve continue to be quite

substantial. Compared to these interests, the Government's

asserted evidentiary interests on the other side of the scale are,

in our view, less hefty. The inchoate and secretive features of

conspiracies to which the Government alludes in support of its

argument are common to every conspiracy prosecution, and are not

alleviated or exacerbated by the fact that some or both members of

the conspiracy are married to each other. By the Government's

logic, the difficulties involved in prosecuting conspiracies would

outweigh the significant countervailing interests that underlie a

number of other evidentiary privileges as well, including, for

example, the Fifth Amendment privilege against self-

incrimination.6 The Fifth Amendment, of course, is a constitutional

6 Of course, the other half of the Government's argument under

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right, and not just a matter of common law as is the spousal

testimonial privilege. But given that both privileges are deeply

rooted in history, the interests that underlie the spousal

testimonial privilege are similarly significant.7

The force of the Government's argument as to the need

for evidence in this context is further undermined by its

acknowledgement that "[t]here are many types of evidence that a

court may consider to determine whether a couple was engaged in a

criminal agreement, without requiring testimony from the unwilling

spouse." The Government's tacit admission that there is no

shortage of other evidence (at least in the mine run of cases)

with which the Government can make the predicate showing necessary

to invoking its proposed joint participant exception belies its

claim that the need for evidence is particularly high in conspiracy

the balancing analysis is that the rationales underlying the
spousal testimonial privilege are significantly diminished in the
specific context of conspiracy prosecutions. As further explained
below, however, that argument is also unpersuasive.
7 The Government also briefly refers to the treatment of co-
conspirators' statements as non-hearsay, Fed. R. Evid. 801(d)
(2)(E), as evidence of the law's preference for "facilitat[ing]
the presentation of co-conspirator statements" in criminal trials.
This comparison is inapt. Rule 801(d)(2)(E) rests on a theory of
agency, "the underlying concept being that a conspiracy is a common
undertaking where the conspirators are all agents of each other
and where the acts and statements of one can be attributed to all."
Bourjaily v. United States, 483 U.S. 171, 188 (1987) (Blackmun,
J., dissenting). The rule does not manifest a legislative
preference for co-conspirator statements generally.

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cases. We are therefore not persuaded that the Government's need

to pierce the spousal testimonial privilege is cognizably greater

in cases where the spouses are alleged to have engaged in a

criminal conspiracy than in other cases.

The Government also contends that "the public policy in

favor of applying the privilege is weak in conspiracy cases." We

also find that argument unpersuasive. As the Third Circuit

observed, this argument seemingly assumes "that because of what

may be an isolated criminal act, the marriage has no social value

whatsoever," which "may not be true" in all cases. Malfitano, 633

F.2d at 278. In fact, "the marriage may well serve as a

restraining influence on couples against future antisocial acts

and may tend to help future integration of the spouses back into

society." Id. Likewise, the Second Circuit has stated that it

is "unable to accept the proposition that a marriage cannot be a

devoted one simply because at some time the partners have decided

to engage in a criminal activity." In re Grand Jury Subpoena, 755

F.2d at 1026. We agree in large part with the reasoning of these

two courts.

The Supreme Court once described a marriage as "a coming

together for better or for worse, hopefully enduring, and intimate

to the degree of being sacred." Griswold v. Connecticut, 381 U.S.

479, 486 (1965). The Court recently underscored that "[n]o union

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is more profound than marriage, for it embodies the highest ideals

of love, fidelity, devotion, sacrifice, and family. In forming a

marital union, two people become something greater than once they

were." Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). In

light of these statements, we decline to engage in value judgments

about which marriages are worthy of protection and which are not,

and find that "reason and experience" counsels our refraining from

recognizing an exception that requires courts to make such

determinations.

In arguing that the interest in marital harmony is not

always paramount, the Government also points to "long-standing

criticism of the privilege by the Supreme Court, the States and

commentators." However, to the extent the Government is correct

that the spousal testimonial privilege is rightly criticized as

being too broad, we believe that this concern was squarely

addressed by the Supreme Court in Trammel. The Government, after

all, cites to Trammel itself for its criticism of the privilege's

breadth and capacity to impede a court's path to the truth. Yet,

when provided the opportunity to address this problem, the Supreme

Court chose to vest the privilege only in the testifying spouse

instead of opting for the narrower remedy of recognizing a joint

participant exception. As previously noted, this holding is not

conclusive that no joint participant exception should be

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recognized, but it does significantly undermine the Government's

claim that the law as it currently stands does not strike the

proper balance between protecting the marriage and the

Government's need for evidence in conspiracy cases.

We also decline the Government's invitation to follow

the Seventh Circuit's lead because we do not find persuasive the

two rationales on which the Seventh Circuit's view is based. As

to the first rationale, that the spousal testimonial privilege

"did not justify assuring a criminal that he or she could enlist

the aid of a spouse in a criminal enterprise without fear that

. . . the criminal was creating another potential witness,"

Clark, 712 F.2d at 301 (quoting Van Drunen, 501 F.2d at 1396), we

agree with the Second Circuit that Trammel addressed this concern

by vesting the privilege in only the witness spouse, see In re

Grand Jury Subpoena, 755 F.2d at 1026. Regarding the Seventh

Circuit's second rationale that "the rehabilitative effect of a

marriage, which in part justifies the privilege, is diminished

when both spouses are participants in the crime," Clark, 712 F.2d

at 301 (citing Van Drunen, 501 F.2d at 1397), we note that

"rehabilitation ha[s] never been regarded as one of the interests

served by the spousal privilege." In re Grand Jury Subpoena, 755

F.2d at 1026. Even if we were to accept that rehabilitation is

one of the privilege's underlying rationales, we do not find it to

-26-
be necessarily true in all cases that a marriage in which the

spouses are parties to a criminal conspiracy prevents that marriage

from being one that would aid in rehabilitation. At the very

least, the uncertainty surrounding this principle persuades us

that the best course in this case is to decline the Government's

invitation to recognize the joint participant exception.

Notably, the Government fails to address how the

exception it seeks is consistent with the broader societal interest

behind the spousal testimonial privilege in avoiding the perceived

unseemliness of seeing a spouse being coerced to actively

contribute to the prosecution of his or her spouse. Even in cases

where the married couple is, in fact, using the marriage as a

shield to hide joint criminal activity and "abus[ing] the marital

privilege granted to them by the state," it is not apparent that

the broader concern about the appearance of the Government coercing

one spouse to testify against the other applies with any less

force.

Accordingly, the Rule 501 balancing analysis weighs in

favor of rejecting the joint participant exception.

C.

The Government suggests two additional reasons why it

believes it would be appropriate to recognize a joint participant

exception to the spousal testimonial privilege. First, the

-27-
Government presents this case as an opportunity to "unify the law

governing the marital privileges," noting that every federal court

of appeals "has adopted a joint participant exception to the

martial communications privilege." Because both privileges are

rooted in the policy of promoting marital harmony, the Government

urges, "the outcome of the Rule 501 balance in the conspiracy

context should also be the same" for both privileges.

However, the importance of distinguishing between these

two privileges is evident in several respects, not least of which

is the manner in which each operates. The marital communications

privilege can be asserted by both spouses, see United States v.

Picciandra, 788 F.2d 39, 43 (1st Cir. 1986) (noting that the

marital communications privilege "prohibits one spouse from

adversely testifying to confidential communications made by the

other during their marriage"), in order to "ensur[e] 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) (citation omitted) (internal quotation marks

omitted)). The spousal testimonial privilege, by contrast, can

only be asserted by the testifying spouse, see Trammel, 445 U.S.

at 53, in order to protect him or herself from taking the witness

stand at all. See Trammel, 445 U.S. at 51 (noting that the spousal

-28-
testimonial privilege's "protection is not limited to confidential

communications."). This is important because the universe of

testimony that a joint participant exception would make available

to the Government (where it otherwise would not be) is smaller and

narrower for the marital communications privilege than for the

spousal testimonial privilege. Thus, invoking a joint participant

exception to the spousal testimonial privilege would allow the

prosecutor to force the spouse to take the stand and make available

not only marital communications, but also a panoply of other

information -- the revealing of which may be detrimental to

marriage.

Furthermore, the joint participant exception to the

marital communications privilege is arguably less pernicious to

marital harmony than an equivalent abrogation of the spousal

testimonial privilege. To be sure, the Government's presentation

of communications between two spouses may very well be harmful to

the relationship. But, unlike when a prosecutor enters evidence

consisting of marital communications, piercing the spousal

testimonial privilege necessarily 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 undoubtedly also raises the unseemly spectre that

"undermine[s] the marriage precisely in the manner that the

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privilege is designed to prevent." Malfitano, 633 F.2d at 279.

The second argument offered by the Government is that

the already-established injured spouse exception 8 demonstrates

that the Trammel decision "does not mean that the spousal

testimonial privilege is a privilege that should have no

exceptions." The Government goes on to emphasize that in Breton,

we found that "the injured spouse exception is warranted, in part,

because of the peculiar need for evidence in cases involving

spouse-on-spouse or spouse-on-child crime." But, assuming as we

do that the underlying purpose behind the injured-spouse exception

is to protect the family, Wyatt v. United States, 362 U.S. 525,

529 (1960), it is difficult to see how that rationale has any

application to the joint participant exception the Government asks

us to adopt. All that this argument does for the Government is

bring us back to the Rule 501 balancing analysis, where it fails

to persuade us that the balance weighs in favor of recognizing the

joint participant exception.

V.

For all the foregoing reasons, we find that the

Government's interest in having the ability to compel the testimony

8 The Supreme Court recognized that, in the case of spouse-on-
spouse and spouse-on-child crime, there is a vital need for
evidence from the non-defendant spouse that justifies an exception
to the spousal testimonial privilege. Breton, 740 F.3d at 11.

-30-
of a defendant's co-conspiring spouse are outweighed by the

significant policy concerns underlying the spousal testimonial

privilege. This time-honored evidentiary privilege is no less

deserving of protection when the witness whose testimony it seeks

to compel is alleged to be a co-conspirator than when he or she is

not. We therefore join the majority of our sister circuits that

have considered this issue and conclude that the balance of

interests mandated by Rule 501 weighs against recognizing the joint

participant exception to the spousal testimonial privilege. The

district court, therefore, did not abuse its discretion in denying

the Government's motion to compel Guerrero to testify against her

husband, and in granting Guerrero's motion to quash the

Government's subpoena.

We note, however, that our decision today does not

foreclose the possibility of a defendant's co-conspirator spouse

taking the stand to testify against the defendant in a conspiracy

case. As it often does in co-conspirator cases, the Government

remains free to attempt to persuade a defendant's co-conspirator

spouse to testify voluntarily against their defendant spouse. We

hold only that the Government cannot compel the non-defendant

spouse's testimony in conspiracy prosecutions absent the

availability of another exception to this privilege.

For these reasons, the decision of the district court is

-31-
affirmed.

Affirmed.

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