United States v. Nash
2012 U.S. Dist. LEXIS 163932
| S.D. Ill. | 2012Background
- Defendant Nash moved in limine to exclude marital communications between Nash and wife Tanya and any reflections/recordings of such communications.
- Indictments evolved: initial five-count; superseding indictment reduced to four counts; second superseding added two counts of murder for hire and two counts of solicitation of a crime of violence.
- Government argues marital communications privilege does not apply due to defendant’s solicitation of a crime and potential felonious conduct; also argues wife’s testimony or recordings may be used and privilege waived.
- Defendant contends privilege should bar use of recordings and related materials; argues communications were confidential marital communications.
- Court analyzes both marital communications and testimonial privileges, and related exceptions, to determine applicability; ultimately concludes privilege does not apply and denies motion.
- Court notes marriage was moribund and emphasizes that the privilege is limited and exceptions may apply in cases like joint criminal participation or when one spouse is victim
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether marital communications privilege applies to Nash-wife recordings | United States argues no privilege due to crime solicitation | Nash asserts privilege should bar use of recordings | Privilege does not apply; recordings admissible |
| Whether exceptions (offense against wife; joint participation) apply | Exceptions support disclosure of communications | Exceptions narrow; privilege should protect | Exceptions apply; but recordings still admissible under both |
| Whether waiver or consent affected the privilege | No waiver presented by Nash | Waiver implied by conduct/participation | Not dispositive; privilege denied on other grounds |
| Scope of privilege given criminal context and victim/participant status | Public interests require disclosure in criminal enterprise | Privilege should protect confidential spousal communications | Public interest outweighed; privilege not controlling in this context |
| Impact of prior cases on this case’s privilege analysis | Circuit law supports exceptions in joint participation | Privileges should shield confidential communications | Court adopts broader joint-participant/exception approach consistent with authorities |
Key Cases Cited
- Hawkins v. United States, 358 U.S. 74 (U.S. 1958) (recognizes spouse exception to marital privilege in Mann Act prosecutions)
- Wyatt v. United States, 362 U.S. 525 (U.S. 1960) (recognizes exception where wife is crime victim; discusses scope of privilege)
- Trammel v. United States, 445 U.S. 40 (U.S. 1980) (modifies testimonial privilege to limit witness-spouse testimony)
- Stein v. Bowman, 38 U.S. 209 (U.S. 1839) (early exception recognizing certain circumstances for private communications)
- Kahn v. United States, 471 F.2d 191 (7th Cir. 1974) (joint participation/illegal activity exception to marital privilege)
- Van Drunen v. United States, 501 F.2d 1393 (7th Cir. 1974) (joint participation exception; privacy/encouragement of open communications balanced against crime)
- Parker v. United States, 834 F.2d 408 (4th Cir. 1987) (expands application of joint participation exception to spouse before active participation)
- Westmoreland v. United States, 312 F.3d 302 (7th Cir. 2002) (discusses marital privileges and exceptions; initial disclosure context)
- Short v. United States, 4 F.3d 475 (7th Cir. 1993) (recognizes limitations and exceptions for witnesses in conspiracy cases)
- Darif v. United States, 446 F.3d 701 (7th Cir. 2006) (analyzes marital communications vs testimonial privilege; confidential communications)