UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2900
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARLEENE ELIZABETH BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(January 11, 1994)
Before POLITZ, Chief Judge, GARWOOD, Circuit Judge, and PARKER*,
District Judge.
POLITZ, Chief Judge:
Convicted of embezzling union funds and of making false
entries in union records, Darleene Elizabeth Brown appeals.
Concluding that the manner in which the testimonial privileges of
Brown's husband and son were handled tainted the fairness of the
trial, we vacate the convictions and remand.
*
District Judge of the Eastern District of Texas, sitting by
designation.
Background
Brown was employed as secretary and bookkeeper of Local 1111
of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO. In that capacity she
paid herself amounts in excess of her regular salary and charged
substantial sums to the union's oil company credit cards. Charges
were made on the credit cards by her husband, Homer Brown, and her
son, Austin Wright. After an investigation by the United States
Department of Labor's Office of Labor Management Standards, Brown
was indicted for embezzlement in violation of 29 U.S.C. § 501(c)
and falsifying union records in contravention of 29 U.S.C.
§ 439(c). A jury rejected her defense that the credit card usage
and the extra salary allowances were authorized by the local's
business manager, Lynn Wells, and convicted her of all counts.
Sentenced to prison for 12 months, Brown timely appealed.
Analysis
Brown advances numerous challenges to her convictions. We
find one dispositive -- the handling of the testimonial privileges
asserted by her husband and son.
Before calling Homer Brown to the stand the government knew
that he would invoke the marital privilege and refuse to testify
against his spouse. Homer Brown's attorney informed the government
in writing prior to trial and did so orally in open court prior to
voir dire. The government, nonetheless, called Homer Brown as its
witness in the presence of the jury. Counsel immediately
2
conferenced at the bench and the court sustained Homer Brown's
invocation of the spousal privilege. The court did not instruct
the jury to disregard the fact that he had been called to the
stand. That left the jury free to draw the obvious negative
inference that his testimony would have been damaging to his wife.1
The government called Austin Wright over defense counsel's
objection. After a few preliminary questions the prosecutor asked
Wright whether his mother gave him a gasoline credit card belonging
to Local 1111. Wright invoked his fifth amendment right not to
incriminate himself. The court sustained this invocation of the
privilege but denied defense counsel's request to admonish the jury
to draw no negative inferences therefrom. Wright was dismissed
without further questioning. As with Homer Brown, there is a
reasonable probability that the jury inferred guilty knowledge on
the part of both the defendant and the witness from Wright's
refusal to testify.
Under certain circumstances the forced invocation of a
testimonial privilege in the presence of the jury will warrant
reversal.2 One such circumstance is when the government makes a
"conscious and flagrant effort to build a case based on the
unfavorable inferences which inure from a claim of the privilege."3
1
See San Fratello v. United States, 340 F.2d 560 (5th Cir.
1965).
2
United States v. Coveney, 995 F.2d 578 (5th Cir. 1993).
3
United States v. Watson, 591 F.2d 1058, 1062 (5th Cir.),
cert. denied, 441 U.S. 965 (1979) (citing Namet v. United States,
373 U.S. 179 (1963)).
3
Another is when those inferences add critical weight to the
government's case in a form that is not subject to
cross-examination.4 Both circumstances appertain herein. Business
manager Lynn Wells testified that Darleene Brown was authorized to
charge $50 a week on the credit cards, whether for personal or
business use. Silence on the part of Brown's husband and her son
suggested the contrary. Their claim of privileges impressed their
conduct -- and hers -- with the stamp of criminality.5 Because the
two did not testify, defense counsel had no opportunity to
cross-examine them in an effort to dispel the adverse inferences
arising from their silence.6 Unlike in Watson, on which the
government relies, the trial court did not give a limiting
instruction that might have offset the prejudice.
The record also reflects the spectre of prosecutorial
misconduct with respect to Homer Brown. It is Hornbook law that
one cannot be forced to testify against a spouse in a criminal
proceeding.7 Once formally notified that Brown intended to invoke
that privilege, the government should have abandoned its plans to
call him as a witness. At the very least the government should
have carefully insulated its actions from the jury. At trial the
government urged the district court to break new ground in this
4
Id.
5
See San Fratello; United States v. Ritz, 548 F.2d 510 (5th
Cir. 1977).
6
Ritz.
7
Trammel v. United States, 445 U.S. 40 (1980).
4
circuit by extending the "joint crimes" exception, heretofore
limited to confidential marital communications, to the privilege
not to testify against one's spouse.8 That is a slender reed upon
which to rest the prosecution's decision to call Homer Brown to the
stand and thus dramatize to the jury his refusal to testify. Any
legitimate objections to the application of the spousal privilege
should have been raised in limine and resolved out of the presence
of the jury.
The convictions and sentences are VACATED and the matter is
REMANDED for further proceedings consistent herewith.
8
United States v. Archer, 733 F.2d 354 (5th Cir.), cert.
denied, 469 U.S. 861-62 (1984); United States v. Mendoza, 574 F.2d
1373 (5th Cir.), cert. denied, 439 U.S. 988 (1978). The privilege
protecting confidential communications between spouses may be
invoked by the defendant spouse and is limited to such
communications. The rule against adverse spousal testimony bars
the prosecution from forcing the defendant's spouse to testify
against the defendant if the spouse does not wish to do so.
2 Wright, Federal Practice and Procedure: Criminal 2d § 405 at
435, § 406 at 437-439 (1982 and 1993 Supp.).
5