United States District Court, D. New Hampshire
N. Laplante, United States District Judge
case involves whether a variation of marital privilege, the
adverse spousal testimonial privilege, protects one spouse
from testifying against the other when both spouses jointly
participated in criminal activity. Eric Pineda Mateo
(“Pineda”) and his wife, Yovannys Guerrero Tejeda
(“Guerrero”), were arrested and indicted on a
number of drug-related offenses. Ms. Guerrero pleaded guilty
to two counts of distribution of heroin, one count of
possession with intent to distribute fentanyl, and one count
of conspiracy to possess with intent to distribute and to
distribute heroin and fentanyl. Mr. Pineda was charged only
with the conspiracy count.
prosecution, seeking to introduce Guerrero's immunized
testimony during Pineda's trial, issued a subpoena to
Guerrero and moved in limine seeking a determination,
pursuant to Federal Rule of Evidence
104(a), that her testimony is admissible.Guerrero moved to
quash the subpoena, invoking the adverse spousal testimonial
privilege. The prosecution argues that an exception
to that privilege recognized by, inter alia, the Seventh
Circuit Court of Appeals, vitiates the privilege where both
spouses participated in the charged criminal activity,
rendering her testimony admissible. Concluding that the
substantial weight of authority impresses against recognizing
such an exception, the court grants Guerrero's motion to
quash the subpoena and denies the prosecution's motion
under Rule 104(a).
involvement in this case began when she answered a phone call
from a confidential informant seeking to purchase three
“fingers” of heroin. On October 6, 2015, she met
the confidential informant in the parking lot of a mall in
Newington, New Hampshire, where she exchanged a bag of heroin
for $1, 000 in cash. The informant contacted Guerrero again
on October 21, asking to purchase an additional five
“fingers” of heroin. Guerrero, this time
accompanied by Pineda, met with the informant to exchange 25
grams of heroin for another $1, 000.
additional conversations over the next several weeks, the
informant and Guerrero arranged a third transaction for
November 16, 2015. Guerrero and Pineda arrived at the
predetermined location and were arrested by the New Hampshire
State Police, who searched their car and recovered 25 grams
and Pineda were jointly indicted under 21 U.S.C. §§
841(a)(1) and 846 for conspiracy to distribute heroin and
fentanyl and to possess those substances with the intent to
distribute them. Guerrero alone was indicted on two counts
of distribution of heroin under 21 U.S.C. § 841(a)(1)
and one count of possession with intent to distribute
fentanyl under 21 U.S.C. § 841(a)(1). Guerrero pleaded
guilty to all four counts.
prosecution indicated its intention to call Guerrero as a
witness at Pineda's trial, which was scheduled to begin
on May 8, 2017. To that end, after she asserted her Fifth
Amendment right against self-incrimination, the government
sought an order securing her immunity, shielding her against
prosecution based on her testimony. After jury selection but
before trial could begin, Guerrero invoked her adverse
spousal testimonial privilege and moved to quash the
prosecution's subpoena. When the prosecution then stated
its intention to take an interlocutory appeal on an adverse
ruling on these motions, necessitating a delay of the trial,
the court dismissed the panel.
court must decide any preliminary question about whether a .
. . privilege exists. In so deciding, the court is not bound
by evidence rules, except those on privilege.”
Fed.R.Evid. 104(a). “[T]he party asserting a privilege
bears the burden of showing that the privilege applies. If
the privilege is established, the burden shifts to the
opposing party to show that an exception defeats the
privilege.” United States v. Breton, 740 F.3d
1, 9-10 (1st Cir. 2014). “The common law -- as
interpreted by United States courts in the light of reason
and experience -- governs a claim of privilege” unless
the Constitution, a federal statute, or rules prescribed by
the Supreme Court provide otherwise. Fed.R.Evid. 501.
has carried her burden of showing that the adverse spousal
testimonial privilege applies to her testimony. The prosecution
has not carried its burden of demonstrating that a
joint-participant exception defeats that privilege.
Accordingly, and for the reasons explained more fully below,
the court grants Guerrero's motion to quash the subpoena
and denies the prosecution's motion to admit her
common law recognizes two related but distinct marital
privileges . . . .” Breton, 740 F.3d at 9. The marital
communications privilege “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.”
Id. at 10. This privilege protects only those
confidential statements made during the course of a marriage.
United States v. Bey, 188 F.3d 1, 4 (1st Cir. 1999).
It is subject to a joint-participant exception, meaning that
“[c]ommunications concerning crimes in which the
spouses are jointly participating . . . do not fall within
the protection of [the] privilege.” United States
v. Picciandra, 788 F.2d 39, 43 (1st Cir. 1986).
adverse spousal testimonial privilege “allows one
spouse to refuse to testify adversely against the other in
criminal or related proceedings . . . .” Breton, 740
F.3d at 9-10. Though it “sprang from two canons of
medieval jurisprudence” which are “now
long-abandoned, ” its “modern justification . . .
is its perceived role in fostering the harmony and sanctity
of the marriage relationship.” Trammel v. United
States, 445 U.S. 40, 44 (1980) (“Trammel
II”). Because the privilege is “designed to
protect the marriage relationship as it exists at the time of
trial, ” it “applies to all testimony of any
kind.” United States v. Ammar, 714 F.2d 238,
258 (3d Cir. 1983).
traditional form, both the defendant and the testifying
spouse could assert the privilege to prevent the latter's
testimony. Hawkins v. United States, 358 U.S. 74, 78
(1958). This allowed a defendant to prevent his or her spouse
from testifying even if the latter were willing to do so,
thus preventing the presentation of relevant evidence.
Trammel II, 445 U.S. at 51-52. Following the Supreme
Court's decision in Trammel II, however, “the
witness-spouse alone has a privilege to refuse to testify
adversely; the witness may be neither compelled to testify
nor foreclosed from testifying.” Id. at 53.
admissibility of Guerrero's testimony turns on whether a
joint-participant exception applies to the adverse spousal
testimonial privilege. The prosecution takes the position that it
does and that Guerrero's testimony falls into that
exception. Guerrero and Pineda argue the contrary. The First
Circuit Court of Appeals has not addressed the question
directly. Cf. Picciandra, 788 F.2d at 43 (recognizing
exception to marital communications privilege while
distinguishing that privilege from the adverse spousal
testimonial privilege). Several other Courts of Appeals,
having done so, reach conflicting conclusions.
court concludes that the weight of authority counsels against
recognizing such an exception. Accordingly, Guerrero's
testimony is not subject to such an exception and ...