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United States v. Tejeda

United States District Court, D. New Hampshire

August 8, 2017

United States of America
v.
Yovannys Guerrero Tejeda and Eric Pineda Mateo Opinion No. 2017 DNH 149P

          MEMORANDUM ORDER

          Joseph N. Laplante, United States District Judge

         This 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.

         The 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.[1]Guerrero moved to quash the subpoena, invoking the adverse spousal testimonial privilege.[2] 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).

         I. Background[3]

         Guerrero's 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.

         After 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 of fentanyl.

         Guerrero 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.[4] 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.

         The 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.[5] 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.[6]

         II. Analysis

         “The 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.

         Guerrero has carried her burden of showing that the adverse spousal testimonial privilege applies to her testimony.[7] 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 testimony.

         A. Spousal privileges

         “The 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).

         The 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).

         In its 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.

         The admissibility of Guerrero's testimony turns on whether a joint-participant exception applies to the adverse spousal testimonial privilege.[8] 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.

         The 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 ...


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