In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1502
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOBIAS DIGGS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cr-185-1 — Gary Feinerman, Judge.
____________________
ARGUED JANUARY 10, 2023 — DECIDED SEPTEMBER 5, 2023
____________________
Before SCUDDER, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
KIRSCH, Circuit Judge. A jury convicted Tobias Diggs of
armed robbery and other associated crimes after he and three
others held up an Illinois jewelry store. Two evidentiary rul-
ings form the basis of Diggs’s appeal. First, Diggs argues that
the district court should not have permitted his wife to testify
against him. The district court concluded that she was a co-
conspirator, so the spousal testimonial privilege did not
2 No. 22-1502
apply. Second, Diggs argues that certain hearsay testimony
from the case agent should have resulted in a mistrial. But any
evidentiary error was harmless, and the district court did not
abuse its discretion in refusing to grant a mistrial, so we af-
firm.
I
A jury found that Tobias Diggs and three others robbed
the Razny Jewelers store in Hinsdale, Illinois, on March 17,
2017. At trial, the government’s evidence established that
when the store opened at 10 am, Diggs and two others exited
a blue Lexus SUV bearing Michigan license plates. They en-
tered the store with guns raised and equipped with hand-
cuffs, sporting masks, and gloves. They quickly subdued and
handcuffed the store’s security guard and dragged a sales as-
sociate to a back room where they handcuffed and pistol-
whipped her. One of the men encountered another sales asso-
ciate, put a gun to her head, locked her in the bathroom, and
told her he’d kill her if she tried to get out. A fourth man in
the crew, Joshua McClellan, sat in the Lexus and listened to
the robbery unfold on his cellphone before driving the men—
and their haul of more than $400,000 in watches and jewelry—
to temporary safety. Three days later, Diggs and McClellan
drove from Chicago to Atlanta to liquidate their haul. They
met with a jeweler—A.P. the Jeweler—who initially ex-
pressed interest but eventually demurred due to the asking
price. After returning to Chicago, McClellan found a willing
buyer.
Eventually, the law caught up with Diggs and McClellan.
(Marvon Hamberlin and the fourth man remain at large.) A
grand jury indicted the pair on charges of Hobbs Act robbery,
conspiring to do the same, brandishing a firearm during a
No. 22-1502 3
crime of violence, and transporting stolen goods. Diggs and
McClellan pleaded not guilty and were tried together. The
jury convicted both men on all counts. Diggs preserved his
two challenges, which we turn to now.
II
Before trial, Diggs informed the court that his wife, Devinn
Adams (who was his girlfriend at the time of the robbery),
would invoke the spousal testimonial privilege if called to tes-
tify. The district court denied the privilege on the grounds
that Adams fell within the joint-participant exception. See
United States v. Clark, 712 F.2d 299, 301 (7th Cir. 1983) (no
spousal testimonial privilege when the defendant and spouse
jointly participated in the criminal conduct). The district court
found that the government’s proffered evidence showed that
Adams became a co-conspirator on the day of the robbery and
only withdrew a few days later when she told police that
Diggs had used her car for the robbery. The district court con-
cluded that the joint participant exception deprived Adams of
spousal testimonial privilege.
On appeal, Diggs argues that we should reconsider and
reject our joint-participant exception to the spousal testimo-
nial privilege. Failing that, Diggs contends that Adams wasn’t
a joint participant, so the district court erred by compelling
her to testify.
We need not reach these arguments, however. Like all ev-
identiary objections, the district court’s finding that Adams
was a joint participant is subject to the harmless error stand-
ard. The government carries the burden of proving that an er-
ror was harmless, meaning that it did not affect a defendant’s
substantial rights. United States v. Gomez, 29 F.4th 915, 929 (7th
4 No. 22-1502
Cir. 2022). When considering a non-constitutional error like
the one Diggs alleges, if we “cannot say, with fair assurance,
after pondering all that happened without stripping the erro-
neous action from the whole, that the judgment was not sub-
stantially swayed by the error, it is impossible to conclude
that substantial rights were not affected.” Kotteakos v. United
States, 328 U.S. 750, 765 (1946). In other words, we ask
“whether an average juror would find the prosecution’s case
significantly less persuasive without the improper evidence.”
United States v. Miller, 673 F.3d 688, 701 (7th Cir. 2012). We
consider the impact of the improperly admitted evidence on
the minds of the jury, “not singled out and standing alone, but
in relation to all else that happened.” Kotteakos, 328 U.S. at 764.
Here, after considering Adams’s testimony (and its role in the
government’s case) in relation to “all else that happened” at
trial, we are convinced that an average juror would not find
the government’s case significantly less persuasive without it.
A
Department of Homeland Security Special Agent Daniel
Silk led the investigation into the robbery and offered ample
testimony and evidence to support Diggs’s guilt. He testified
that in early 2017, McClellan’s calls and text messages sug-
gested that he and Diggs worked to surveil a robbery target
and coordinate their activities. McClellan’s phone records and
Diggs’s social media accounts, cell-site location information
(CSLI), and toll records all linked Diggs to a cellphone num-
ber that had been activated a week before the robbery.
At trial, Diggs argued unsuccessfully that the phone num-
ber didn’t belong to him, but the evidence that it did was
overwhelming. Diggs sent a social media message asking
someone to call him at that number. Diggs received a
No. 22-1502 5
Facebook message asking him to place a call, and toll records
reflect the call was made from that number just minutes later.
The contacts list on McClellan’s phone associated the number
with Diggs. Cell-site records showed that the number most
frequently used the cell tower nearest to Diggs’s home. Toll
records showed dozens of text messages and calls to numbers
associated with Diggs’s family, his two girlfriends (Adams
and another woman named Jessica Christian), McClellan, and
an individual called Gold Mouth. On appeal, Diggs does not
challenge that the phone number belonged to him.
Phone records from the day of the robbery revealed that
Diggs, McClellan, and the two others were in contact 49 times.
That morning, McClellan received two calls from a contact
named Johnny. McClellan then made a short call to Diggs at
7 am. Around the same time, CSLI showed Diggs’s phone
connected to a tower in Matteson, Illinois. (CSLI is generated
whenever a cell phone connects to a cell tower; by identifying
which towers a phone connects to, law enforcement can ap-
proximate a phone’s location with great precision. See United
States v. Lewis, 38 F.4th 527, 536 (7th Cir. 2022).) Other evi-
dence—including CSLI, phone records, and a marriage li-
cense—suggested that Diggs lived in Matteson. Ten minutes
later, McClellan texted Johnny: “Bet. He on his way.” Johnny
called McClellan at 7:54 am, and McClellan called Diggs at
7:55 am. Less than 10 minutes later, McClellan texted Johnny:
“We on our way.” Several calls between Johnny and McClel-
lan followed.
Shortly before the robbery, CSLI showed that Diggs and
McClellan’s phones connected to towers in Hinsdale. Diggs’s
phone pinged a tower a mile and a half from Razny Jewelers.
A third phone, which connected to the same tower as Diggs’s,
6 No. 22-1502
called Diggs’s phone for about 25 minutes, covering the time
of the robbery. The call ended just after the robbery ended.
Surveillance footage from the jewelry store depicted one of
the robbers holding a cell phone throughout the robbery.
There was no call activity on the phones for the next three
hours. Later that afternoon, Diggs’s number contacted Ad-
ams’s number seven times.
Jessica Christian, one of Diggs’s girlfriends at the time of
the robbery, also testified at trial. She said that she had seen
Diggs drive a blue or silver Lexus with Michigan plates in
March 2017 and that it belonged to Adams, his other girl-
friend. Christian had been in the Lexus three times, and Diggs
drove each time. Christian testified that on the day of the rob-
bery, Diggs asked her if she wanted to use the Lexus, some-
thing she had never done before. She accepted and took the
keys from Diggs. Christian then drove the car to a hospital
where she worked. Video surveillance captured Christian
parking the same Lexus that was used in the robbery in the
hospital’s parking lot. After work, Christian called Diggs to
pick him up, Diggs did not answer the call, and Christian
drove the Lexus directly to her home. She later asked Diggs
whether he would pick up the Lexus, and he said he would.
But Diggs never did, and law enforcement later found the
Lexus in Christian’s garage.
The day after the robbery, Gold Mouth called Adams at
2:43 pm and Diggs at 2:46 pm. That evening, Johnny and
McClellan discussed plans to head out of town, and they
talked about an individual they called A.P. the Jeweler. Just
before midnight, McClellan texted Johnny that he thought
they should bring “Bias”—a nickname for Diggs. Johnny
No. 22-1502 7
emphasized that they needed to leave as soon as possible that
night (a Saturday) in order to cash out before Monday.
Later that night and in the early morning hours of the next
day, cell phone evidence established that Diggs, McClellan,
and Johnny drove from Chicago to Atlanta. CSLI established
that Diggs’s phone left Chicago around 2 am before connect-
ing to various towers in Indiana, Kentucky, and Tennessee,
before settling in Georgia. CSLI generated by McClellan’s
phone showed the same movement. Both phones eventually
connected to the same tower near an Atlanta hotel that
McClellan checked into on Sunday, March 19, and checked
out of the next day.
A.P. the Jeweler testified that on March 19 he met with
three to five individuals near McClellan’s hotel. A.P. said he
knew two of the individuals. One was the man who arranged
the meeting; A.P knew him as “Nephew,” but others called
him “Gold Mouth.” The other was “one of Nephew’s boys.”
A.P. testified that he could not identify Diggs as one of the
individuals he met with, but June 2016 photos found on
Diggs’s social media revealed that the two had met in the past.
Phone records showed that Diggs and Gold Mouth had called
each other 16 times between March 18 and March 20. A.P. tes-
tified that during the March 19 meeting, the individuals of-
fered to sell him high end watches for around $100,000 to
$200,000. He declined but took two photographs of the
watches, which were admitted at trial. Razny Jewelers store
manager testified that the watches in the photos matched
those missing from its inventory. CSLI showed Diggs and
McClellan traveled back from Atlanta to Chicago in the early
hours of Monday, March 20.
8 No. 22-1502
B
After the district court found that she was a joint partici-
pant, Adams was granted immunity by the government and
compelled to testify at trial. Adams testified that Diggs had
her blue Lexus SUV with Michigan plates at the time of the
robbery. She also said that Diggs had told her that “he had
busted a J move or a J spot.” Adams stated that Diggs told her
that the car was “on the news” and asked her to come get it.
She also testified that Diggs had called to tell her that he was
going “out of town” or “south,” which she understood to
mean Atlanta.
Adams’s testimony was damning, no doubt. After all, ac-
cording to Adams’s testimony, Diggs confessed to the rob-
bery. And the government, recognizing the significant weight
of her testimony, relied heavily on it at trial. The government
framed its closing argument around the testimony, arguing
the testimony was “super powerful.” But the government also
presented an overwhelming amount of completely independ-
ent incriminating evidence. Phone records and CSLI, for ex-
ample, connected Diggs to his co-conspirators and the crime
scene. Phone records revealed that Diggs, McClellan, and
other participants had worked together to surveil possible
robbery targets and coordinate their activities for several
months before the robbery. They were in contact 49 times on
the day of the robbery. Phone records and CSLI proved that
Diggs and McClellan traveled to Hinsdale that morning and
were near Razny Jewelers for the entire duration of the rob-
bery. Phone records and surveillance footage from the jewelry
store showed that the robbers used an open phone line with
the getaway driver as a walkie-talkie system. Surveillance
footage recorded the robbers fleeing in a blue Lexus SUV with
No. 22-1502 9
Michigan license plates. Diggs’s girlfriend, Christian, testified
that the Lexus belonged to Adams. Christian also told the jury
that Diggs used that Lexus and recruited her to drive it after
the robbery. That afternoon, she got the keys from Diggs and
drove the Lexus home. Surveillance footage corroborated her
testimony, and police later recovered the vehicle in her gar-
age. The jury learned all of this without Adams’s help.
As for the trip to Atlanta and back, phone records, hotel
records, and CSLI all showed that Diggs and McClellan trav-
eled to meet with A.P. the Jeweler the day after the robbery.
A.P. testified that Gold Mouth set up the meeting. The meet-
ing took place near McClellan and Diggs’s hotel. A.P. testified
that he met with three to five individuals, including one of
Gold Mouth’s “boys.” Social media and phone records
showed that Diggs knew both A.P. and Gold Mouth. And
phone records showed that Diggs placed or received 16 calls
to Gold Mouth between March 18 and 20, which covered
Diggs’s drive down to Atlanta, his meeting with A.P., and his
return to Chicago. A.P. testified that the individuals offered
to sell watches that were later identified as part of Razny’s
missing inventory. And CSLI showed that Diggs and McClel-
lan traveled from Atlanta to Chicago the next morning.
With or without Adams’s testimony, the government pre-
sented a case to the jury that overwhelmingly proved Diggs’s
guilt. The government’s evidence made it clear beyond a rea-
sonable doubt that Diggs was guilty notwithstanding Ad-
ams’s testimony—the other evidence put Diggs squarely in
the middle of the crime before, during, and after the robbery.
We can thus say with fair assurance that the jury’s verdict was
not substantially swayed by any error. Kotteakos, 328 U.S. at
10 No. 22-1502
765. Thus, even if the district court erred in denying Adams
the spousal testimonial privilege, the error was harmless.
III
Diggs challenges the district court’s denial of a mistrial
based on a portion of Agent Silk’s testimony that was hearsay.
We review the district court’s denial for an abuse of discre-
tion. United States v. Graham, 47 F.4th 561, 566 (7th Cir. 2022).
“A defendant is only entitled to a new trial if there is a rea-
sonable possibility that the evidence had a prejudicial effect
upon the jury’s verdict.” United States v. Harden, 893 F.3d 434,
451–52 (7th Cir. 2018) (quoting United States v. Berry, 92 F.3d
597, 600 (7th Cir. 1996)). In essence, our “inquiry is whether
[the defendant] was deprived of a fair trial.” United States v.
Lauderdale, 571 F.3d 657, 661 (7th Cir. 2009).
During Diggs’s cross-examination, Agent Silk testified
that he started investigating the robbery after receiving infor-
mation from a confidential informant, who was a friend of an
individual named Jerry Francis. After Diggs completed his
cross-examination, McClellan cross-examined Agent Silk
about Francis:
COUNSEL: Your investigation developed specific
evidence that the day after the robbery, Jerry
Francis was trying to sell proceeds from the rob-
bery; is that true?
SILK: Jerry Francis—there was a phone call that
Jerry Francis was with Tobias Diggs to my in-
formant.
COUNSEL: Well, specifically, though, Jerry Fran-
cis Face-Timed your [confidential informant]
with a bag of jewelry—
No. 22-1502 11
SILK: Correct.
COUNSEL: —that he stated was from the Razny
robbery; is that true?
SILK: Yes.
The testimony that Agent Silk’s informant was on a
Facetime call with Francis and Diggs with a bag of Razny jew-
elry was undoubtedly hearsay, but Diggs did not object. In-
stead, once McClellan’s cross-examination ended, Diggs
moved for a mistrial, arguing that this part of Agent Silk’s tes-
timony was prejudicial hearsay. Diggs also argued he had
been careful in his cross-examination to not elicit any hearsay
from Agent Silk, and that Agent Silk could have responded to
McClellan’s question with a yes or no without further elabo-
ration. As an alternative to a mistrial, Diggs requested that the
court strike the testimony, advise the jury that Agent Silk’s
answer was improper, and instruct the jury to disregard any
reference to Diggs during McClellan’s entire cross-examina-
tion.
The district court agreed that the testimony constituted
hearsay and implicated Diggs’s rights under the Confronta-
tion Clause, but denied both Diggs’s motion for a mistrial and
his request for a curative instruction. The district court rea-
soned that Diggs had forfeited his hearsay and Confrontation
Clause objections: McClellan’s question called for hearsay,
and Diggs’s counsel should have objected to it before or right
after Agent Silk’s answer. The district court also explained
that Diggs repeatedly elicited hearsay about Francis when it
was favorable to him. Having introduced the statements of
the same unavailable declarant himself, the district court ex-
plained, Diggs could not then complain of a cross-
12 No. 22-1502
examination of the declarant’s related statements on the same
subject. Even if Diggs had not forfeited his objections, the dis-
trict court concluded that a new trial was not warranted be-
cause there was no reasonable possibility that the hearsay tes-
timony prejudiced Diggs.
On appeal, Diggs argues that he was careful not to elicit
hearsay statements from the confidential informant during
his own cross-examination of Agent Silk and that Agent Silk
improperly elaborated on a yes or no question. Diggs asserts
that McClellan’s question did not require hearsay and that
there was no reason Diggs could have known to object. Diggs
also contends that the hearsay testimony was highly prejudi-
cial because there was no other evidence that directly tied
Diggs to the jewelry after it was stolen.
The district court did not abuse its discretion in denying
Diggs’s motion for a mistrial. Diggs should have objected to
Agent Silk’s hearsay answer once it was uttered. See United
States v. Swan, 486 F.3d 260, 264 (7th Cir. 2007) (noting that an
objection raised for the first time in a motion for a mistrial or
new trial is not timely). A timely objection could have cured
any prejudicial effect from that hearsay, but a curative instruc-
tion long after the offending testimony would have drawn
more attention to the hearsay. And we agree with the district
court that the testimony did not prejudice Diggs and was not
critical to the government’s case. After it was admitted, it was
never mentioned again, and the other evidence tying Diggs to
the robbery and stolen jewelry was overwhelming. Diggs was
not denied a fair trial, so we find no abuse of discretion in the
district court’s decision to deny a mistrial.
AFFIRMED
No. 22-1502 13
SCUDDER, Circuit Judge, concurring. The majority opinion
is well done, and I agree in full with the conclusion that any
legal error in compelling Devinn Adams’s testimony was
harmless. I write separately to address the legal issue that the
majority understandably leaves for another day—whether a
witness who participates in their defendant-spouse’s crime
can invoke the spousal testimonial privilege and decline to
testify. We answered that question no in 1974 in United States
v. Van Drunen. 501 F.2d 1393, 1396–97. Since then, however,
four other circuits have relied on the Supreme Court’s 1980
decision in Trammel v. United States, 445 U.S. 40, to reach the
opposite conclusion. A future case will require us to recon-
sider our position.
A
The beginning point is to recognize that there are two dif-
ferent evidentiary privileges for spouses. The first is the mar-
ital communications privilege, which allows any party to pre-
vent their spouse (or ex-spouse) from testifying to certain con-
fidential communications made between them during their
marriage. See 1 Kenneth S. Broun et al., McCormick on Evidence
§§ 78–86 (8th ed. 2022). A defendant-spouse can invoke the
privilege even if their spouse would like to testify. See id. § 83;
see also United States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001).
The marital communications privilege has no application
here because Adams and Diggs were not yet married at the
time Diggs told Adams that he participated in the robbery.
The second privilege—the spousal testimonial privilege—
allows a witness to refuse to testify against their spouse in a
criminal trial. See 1 Broun et al., McCormick on Evidence § 66.
14 No. 22-1502
The privilege may only be invoked by the testifying spouse:
they alone decide whether to testify, regardless of the wishes
of the defendant-spouse. See Trammel, 445 U.S. at 53. And
when invoked, no testimony can be elicited from the testify-
ing spouse on any topic. See 1 Broun et al., McCormick on Evi-
dence §§ 66, 79; see also United States v. Lofton, 957 F.2d 476,
477 (7th Cir. 1992) (observing that the spousal testimonial
privilege “applies to all testimony against a defendant-
spouse, including testimony on nonconfidential matters and
matters which occurred prior to the marriage”); but see Van
Drunen, 501 F.2d at 1397 (stating that the privilege is inappli-
cable where testimony concerns “matters prior to the mar-
riage”); United States v. Clark, 712 F.2d 299, 302 (7th Cir. 1983)
(same).
In Van Drunen we imposed a significant limitation on this
second privilege, restricting its application “to those cases
where it makes the most sense, namely, where a spouse who
is neither a victim nor a participant observes evidence of the
other spouses’s crimes.” 501 F.2d at 1397. So when the district
court concluded that Adams participated in her husband’s
criminal conduct, she was no longer able to invoke the
spousal testimonial privilege. She had to testify against her
husband. Diggs urges us to revisit Van Drunen’s recognition
of this joint participant exception to the privilege.
B
In Van Drunen we offered two justifications for the excep-
tion. First, we worried that a defendant could “enlist the aid
of his spouse in a criminal enterprise without fear that by re-
cruiting an accomplice or coconspirator he is creating another
potential witness.” Id. at 1396. That concern made sense in a
No. 22-1502 15
pre-Trammel world where the defendant could invoke the
privilege and prevent their spouse from testifying. Second, we
assumed that, where both spouses jointly participated in a
crime, the marriage between the two may no longer constitute
“an important institution contributing to the rehabilitation of
the defendant spouse.” Id. at 1397.
Those rationales are difficult to square with the Supreme
Court’s decision in Trammel. Indeed, the facts of Trammel are
not far off from what happened here. Otis Trammel tried to
prevent his wife from voluntarily testifying against him about
a heroin-smuggling scheme in which they had both partici-
pated. See 445 U.S. at 42–43. The trial court admitted Tram-
mel’s wife’s testimony over his objection, and the Tenth Cir-
cuit affirmed, explaining that Trammel could not invoke the
privilege because he had “jointly participated in a criminal
conspiracy with his wife.” United States v. Trammel, 583 F.2d
1166, 1169 (10th Cir. 1978), aff’d on other grounds, 445 U.S. 40.
The Supreme Court granted review to consider the future
of the spousal testimonial privilege. See 445 U.S. at 41–42. Alt-
hough the Court acknowledged contemporary criticisms of
the privilege as antiquated and inhibiting a court’s truth-seek-
ing function, see id. at 44–45, 50 & n.11, it declined to abolish
the privilege altogether. The privilege, the Court ultimately
determined, “promotes sufficiently important interests to
outweigh the need for probative evidence in the administra-
tion of criminal justice.” Id. at 51, 53. Those interests include
the protection of the “marriage, home, and family relation-
ships” and “marital harmony.” Id. at 48, 53.
Trammel’s wife had chosen to testify against him. This
kind of voluntary testimony, the Court reasoned, would not
16 No. 22-1502
impede society’s interest in protecting family relationships
and marital harmony. See id. at 52–53. In the end, then, the
Court modified the spousal testimonial privilege “so that the
witness-spouse alone has a privilege to refuse to testify ad-
versely; the witness may be neither compelled to testify nor
foreclosed from testifying.” Id. at 53.
Soon after Trammel we revisited the joint participant ex-
ception, albeit in abbreviated terms, in United States v. Clark,
712 F.2d 299 (7th Cir. 1983). We concluded that Trammel did
not affect the exception we recognized in Van Drunen. See id.
at 301 & n.1. Indeed, we relied on and seemed to reinforce the
same two justifications underpinning Van Drunen: a concern
with rewarding criminals who bring their spouse into their
wrongdoing and a belief that a marriage between joint partic-
ipants in criminal conduct lacks rehabilitative value for the
defendant-spouse. See id. at 301–02. It has now been forty
years since we have examined the issue.
In the meantime, every other circuit to consider the issue
post-Trammel has rejected the joint participant exception to
the spousal testimonial privilege. See United States v. Pineda-
Mateo, 905 F.3d 13, 21–26 (1st Cir. 2018); In re Grand Jury Sub-
poena, 755 F.2d 1022, 1025–28 (2d Cir. 1985), vacated as moot,
475 U.S. 133; In re Grand Jury, 633 F.2d 276, 277–80 (3d Cir.
1980) (Malfitano); United States v. Ramos-Oseguera, 120 F.3d
1028, 1042 (9th Cir. 1997), overruled on other grounds, 225 F.3d
1053. And every other circuit has relied on Trammel in reach-
ing that conclusion. See, e.g., Grand Jury Subpoena, 755 F.2d at
1026 (“[T]he Supreme Court’s action in Trammel has some
negative implications as regards the joint participant excep-
tion.”). That leaves our court isolated on the short end of a
lopsided circuit split.
No. 22-1502 17
As the other circuits have recognized, Trammel under-
mines, if not eliminates, our justifications for the joint partici-
pant exception. The Supreme Court’s decision to vest the
spousal testimonial privilege in the testifying spouse alone
addresses our concern that a defendant could loop their
spouse into criminal conduct and then prevent that spouse
from taking the stand. See Van Drunen, 501 F.2d at 1396. After
Trammel, “[a] person desiring to enlist the aid of his spouse as
an accomplice cannot now be sure that he is not creating an-
other potential witness; he takes the risk that the spouse may
choose to testify.” Grand Jury Subpoena, 755 F.2d at 1026.
Our second justification—that a marriage between joint
participants in a crime is unlikely to aid in the rehabilitation
of the defendant-spouse—likely misses the mark too. Reha-
bilitating the defendant-spouse was never a justification for
the spousal testimonial privilege. See id. (“[R]ehabilitation
ha[s] never been regarded as one of the interests served by the
spousal privilege.”). And I share the doubts expressed by our
peer circuits about whether “courts can assess the social wor-
thiness of particular marriages or the need of particular mar-
riages for the protection of the marital privilege.” Malfitano,
633 F.2d at 279.
More to it, the joint participant exception is not consistent
with “the broader societal interest … in avoiding the per-
ceived unseemliness of seeing a spouse being coerced to ac-
tively contribute to the prosecution of his or her spouse.”
Pineda-Mateo, 905 F.3d at 24–25 (emphasis in original); see also
id. at 25 (“[P]iercing the spousal testimonial privilege neces-
sarily 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
18 No. 22-1502
undoubtedly also raises the unseemly spectre that ‘under-
mine[s] the marriage precisely in the manner that the privi-
lege is designed to prevent.’” (emphasis and alteration in
original) (quoting Malfitano, 633 F.2d at 279)).
To my eye, then, the joint participant exception is unlikely
to withstand scrutiny after Trammel and against the backdrop
of “reason and experience.” Fed. R. Evid. 501. In the right case,
we should revisit our precedent.