United States v. Neville Bruce Thompson

WIDENER, Circuit Judge,

dissenting:

I respectfully dissent.

I think that, when the district court admitted into evidence the privileged statements of Thompson’s wife, it committed reversible error. I thus would not pass upon the other questions addressed in the opinion of the majority except that of harmless error, for I do not feel that “it can be said with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 *252U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).

I agree, of course, with the holding of the majority, that admitting the privileged statements into evidence was error. But in order to analyze the extent of the error, I suggest that such evidence be placed in the following setting.

The identification of the bank robber was not so certain as might be desired. It was an important, and really the only contested issue in the case, and the district court devoted two and one-half pages of its charge to that matter alone “at the outset,” to quote the district court. The teller who attended the robbery failed to identify Thompson’s picture when first shown to her but was able to do so in a second attempt some seven months later and thirteen days before trial, as the majority points out. The teller’s identification of Thompson in the courtroom was even more uncertain: “I believe it’s [the defendant] but I am not positive.” The FBI agent, Thomas, interviewed the defendant’s wife on at least three occasions.

In this setting, the government introduced evidence that the defendant’s wife told FBI agent Thomas in his first interview with her, the day of the bank robbery, that all the family bills were behind, including the light and telephone bills, that the rent had not been paid, and that there was no money in the house.

Later, she told Thomas that she had told her husband several times that the FBI was looking for him and had asked him to turn himself in to the FBI. Of course Thompson had not turned himself in.

She told the FBI agent the whereabouts of her husband from the return address on a letter she had received from him and that he was going under the alias “Mugabe.”1 She further told the FBI agent that on at least two occasions her husband had become irritated with her when the subject of the bank robbery came up and told her that it was her fault that “this [which obviously could have meant the bank robbery] happened,” the reason it was her fault being that she kept pressuring him to get a job.2

Thus, the statements of the defendant’s wife to the FBI agent introduced into evidence proved the use of an alias which itself is evidence relevant to show consciousness of guilt. United States v. Boyle, 675 F.2d 430 (1st Cir.1982); 2 Wigmore on Evidence § 276 (Chad.Rev.1979). It also showed the defendant’s flight which also may be taken to evince his consciousness of guilt. United States v. Paige, 324 F.2d 31 (4th Cir.1963); 2 Wigmore on Evidence, § 279, supra. And, of course, the statement of the defendant to his wife that the affair would not have happened had she not been pressuring him to get a job could well have been, and probably was, taken by the jury to amount to a confession.

The statement of the defendant’s wife to the FBI agent that the household bills were unpaid, including the lights and telephone, that the-rent was past due, and that there was no money in the house obviously supplied a motive for the crime.3

The route the government took in seeking the introduction of the evidence in question is worthy of note for the findings bear *253persuasively on the question of harmless error. The government moved to admit the statements of the wife as hearsay, and they were admitted under FRE 804(b)(5). In the course of making that ruling, the district court specifically found:

“. .. that the statements sought to be offered by the government in this case contain evidence as to material facts in the case and that they are more probative on the point for which it is proposed that they be offered than any other evidence which the government has procured through reasonable efforts.”

We have, then, the privileged statements of the wife tending to show motive, flight, alias, connection with the crime, and a confession of guilt. These statements have been correctly found by the district judge (although in a somewhat different context), who saw the witnesses and heard them testify, to be more probative on the points for which they were offered than any other evidence the government had procured. I am not able to see, and cannot agree, that admitting these statements into evidence was harmless error.

I would vacate the conviction and remand for a new trial.

. Declining to divulge the whereabouts of an absent wife in hiding was explicitly held to be privileged in Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951).

. Although perhaps not as crucial as the wife’s statements recited above, especially since identification was the issue in the case, evidence was also introduced that Thompson’s wife told the FBI agent where she banked which was the same bank which was robbed, the Planters National (she showed the agent her deposit slip which was similar to the one on which the robbery note was written). In addition, she told the agent that Thompson drove a grey Capri automobile (which was similar to the one used in the robbery).

. If the majority opinion may suggest that communications between husband and wife are privileged, but other testimony on the part of the testifying spouse is not, see generally Wig-more on Evidence, McNaughton Rev.1961, §§ 2227-2245; 2232-2240, that theory has been rejected in terms in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), which modified Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1980), to the extent that now only the witness may claim the privilege. “Its [the privilege’s] protection is not limited to confidential commu*253nications; rather, it permits ... [the exclusion of] all adverse testimony.” Trammel 445 U.S. at p. 51, 100 S.ct. at p. 912.