United States v. Banks

improved rating sys- does not con- such as the ESRB the “18” sticker protections, vey tem, factual information. educational campaigns, enhanced parental Finally, controls. even if the

Moreover, labeling requirement fails labeling requirement only Act’s affects test, relationship s rational which Zauder&f speech commercial the form of video requirements if the “disclosure are asks reasonably game packaging, provision related to the State’s interest constitutes deception of customers.” Id. preventing impermissibly compelled speech because determination 105 S.Ct. 2265. Our compelled convey pure- label would not Act eliminates that the is unconstitutional ly Accordingly, factual information. la alleged deception that the State’s grant summary judg- district court’s beling requirement purportedly pre ment to Plaintiffs denial of the State’s misleading vent: of consumers and summary judgment cross-motion for is age ratings the ESRB retailers AFFIRMED. already appear games’ pack on the video and, the Act is invalid as a aging. Since

result, age there is no state-mandated purchase for the or rental of

threshold games, decep there is no chance for

video possibly conflicting

tion based on the fact, rating labels. the State’s

ESRB arguably

mandated label would now con that certain vey a false statement conduct America, UNITED STATES of not, and the has illegal when is State Plaintiff-Appellee, legitimate no reason to force retailers products. affix false information on their Hatch, F.Supp.2d at on See aff'd Jerry BANKS, Sr., Levis Defendant- Swanson, grounds, other 519 F.3d 768. Appellant. VII. No. 07-30130. ap- We decline the State’s invitation to ply obscenity the variable standard from Appeals, United States Court of Ginsberg to the Act because we do not Ninth Circuit. beyond Ginsberg reaching read as the con- sexually-explicit text of restrictions on ma- 5,May 2008. Argued and Submitted creating entirely terials or as new cate- Filed Feb. gory expression speech as to minors— — excepted protec- from First Amendment regu- As the Act is a content based tions.

lation, subject scrutiny it is to strict and is

presumptively invalid. Under strict scru-

tiny, produced substan- the State has not Legisla- that supports

tial evidence games

ture’s conclusion that violent video psychological neurological

cause harm did, if it the Act

to minors. Even

narrowly prevent tailored to harm and

there remain less-restrictive means of for- interests,

warding purported the State’s Charney, Charnéy

Dennis M. and Asso- ciates, ID, Eagle, defendant-appellant. for (briefed), James M. Peters Assistant Boise, ID; Attorney, United States (briefed Alexandra argued), Gelber Justice, Department United States D.C., Washington, plaintiff-appellee. ALARCÓN, Before: L. ARTHUR GRABER, SUSAN P. and JOHNNIE B. RAWLINSON, Judges. Circuit RAWLINSON; Opinion by Judge Partial Concurrence and Partial Dissent by Judge ALARCÓN.

RAWLINSON, Judge: Circuit appeal, we determine whether Banks, (Banks) Jerry Levis Sr.’s convic- multiple tion on involving pos- counts session, production, transportation and re- ceipt images depicting engaged minors in sexually explicit conduct should be re- versed based on the denial of his motion to suppress pursuant evidence seized to a warrant, the admission of testimonial evi- court, rejected by ments were the district alleged wife by Banks’s provided dence and a bench trial ensued. by the marital communica- protected adop- court’s or the district privilege, tions trial, government At called Banks’s for “mas- of definitions application tion or primarily a witness. Mrs. Banks wife as they relate and “lascivious” as turbation” relationship about her with the testified the con- subject video. We affirm subject in the video. tes- minor child She court did not err viction. The district grandson, tified that the was her suppress motion to when it denied Banks’s relationship. whom she had a close Mrs. the terms defining applying or in ring, Banks also identified her husband’s Although and “lascivious.” “masturbation” watch and couch in the video.1 Mrs. commu- ruling addressing the marital was asked whether her husband Banks erroneous, the er- nications regarding a vid- had made statements ror was harmless. grandson. involving eo their Over Banks’s objection, Mrs. Banks testified that her I. making had admitted to the video husband to ensure that he had done so BACKGROUND “nothing changing diaper went on Agent began Special when This case past things.” because of Martin) (Agent “Ap- filed an Mary Martin guilty on The district court found Banks War- plication and Affidavit Search counts, concluding all that Banks had cre- affidavit, According to the a Cana- rant.” subject ated the video. The court relied investigation pornography into child dian testimony ring, identifying on the Banks’s in the arrest of a Canadian had resulted couch, testimony that watch and as well as trading admitted to pedophile who changing Banks had admitted the child’s pornography with Banks. Canadian diaper. The district court also determined pedophile provided also evidence images sexually that the video contained may pornographic Banks have created Specifically, conduct. the court explicit two-year-old involving video Banks’s the mas- depicted concluded that the video grandson. a defini- turbation of a minor child under Banks’s A warrant issued to search included the tion of masturbation described types home for sixteen of items genitalia in a manner that stimulation of the evi- in the affidavit. As result an adult. The district would stimulate warrant, pursuant seized dence also contained a court found that the video nine criminal charged Banks was genitals lascivious exhibition possession, produc- relating counts the mas- depicted minor child because it tion, transportation receipt images purpose turbation of the child “for sexually engaged minors ex- depicting response.” eliciting in the viewer sexual ul- charges of those plicit conduct. Seven timately to trial. proceeded II. trial, suppress Prior to Banks moved- OF REVIEW STANDARDS the search pursuant seized the evidence de novo the district warrant, lacked We asserting that the affidavit review suppress and argu- rulings court’s on a motion to specificity. Banks’s foundation ga- with the child in the locked was in addition to that of discovered 1. This changing rage, detailing had been and that he had admitted witnesses that Banks other child, diaper. child’s with the that he had been left alone 972 argues Banks the affidavit failed to validity of a search warrant. See Crews, 1130, 502 F.3d proper v. set forth the foundation for later

United States Cir.2007). (9th assumptions pedophiles, require- about ments of Weber were met. legal de novo also review We Further, to the extent that Banks ar- the marital commu regarding conclusions gues v. the contested sections of the See United States privilege. nications Cir.2006). (9th F.3d Griffin, required supported by affidavit were to be However, the admission of evi we review expert opinion, he is incorrect. The con- of discretion. See for an abuse dence provided background tested sections infor- Marashi, 913 F.2d States v. pedophiles mation about how act Cir.1990). (9th “A district court abus digital age, generally how law enforcement ruling if it ‘bases its on an discretion es its computers, conducts searches of and what clearly the law or on a erroneous view likely steps would be taken to search a ” assessment of the evidence.’ erroneous computer. topics None of these is so eso- (9th Astrue, 518 F.3d v. Shafer require expert explanation teric as to to be Cir.2008) (citation and alteration Additionally, understood. at the outset of affidavit, Agent explained Martin Finally, we review de novo the dis interpretation investigating she has been the sexual ex- trict court’s “construction Carranza, statute,” v. ploitation of a United States of children since has 1998 and Cir.2002) (citation (9th 289 F.3d training attended seminars and classes omitted), for clear error the and review in- conducting types “related to these findings court’s of fact. See United States vestigations.” background Her extensive Leos-Maldonado, 1061, 1063 302 F.3d support generalized was sufficient to (9th Cir.2002). in provided statements the first three sec- tions of the affidavit.

III. Finally, argues to the extent Banks that DISCUSSION Agent specifically Martin’s failure to in- clude the source of her information each A. The contained an ade- affidavit section renders the affidavit insufficient to quate support issu- foundation cause, probable argument create fails warrant. ance the search because Banks is unable to demonstrate sup in an affidavit Statements that, that omission was material or di porting application a search warrant supplemented “when with the omitted in- particular rected “the behavior of a toward formation, [the affidavit] would be insuffi- supported by “a persons” class of must support probable finding.” cient to cause person foundation which shows that Jawara, United States v. 474 F.3d 582 subject is a member of the to the search (9th (citation Cir.2007), as amended omit- Weber, class.” States v. 923 F.2d United ted). (9th Cir.1991), as amended. In case, present ample there was informa B. The warrant sufficiently specif- was support the notion tion the affidavit ic. production that in the engaging Banks was “Specificity aspects: has two images depicting minors en trade particularity Particularity and breadth. is conduct, gaged sexually explicit includ requirement that the warrant must ing evidence of the transmission of such clearly sought. state what is Breadth images between Banks and convicted sex Thus, requirement deals with that scope offender Canada. extent only to obtain be tailored warrant probable be limited the warrant fact, In already known to exist. based.” evidence the warrant is which cause on Hill, specifi- limitation has been heightened F.3d v. United States Cir.2006) (citation Meek, (9th F.3d at 716. cally rejected. See of the challenges also breadth Banks general prohibition “The warrant, asserting that the items seized precise ... a demand is not searches specifical- more have described could been con location and knowledge of the ante ex have ex- that the warrant should ly and metric of proper ... The tent of evidence home-based of Banks’s cluded search rea whether it was specificity sufficient business. descrip specific a more provide sonable juncture at that items

tion of the support submitted The affidavit Meek, v. States investigation.” United explained that “com- warrant in this case Cir.2004) (citation (9th omit 705, 716 F.3d ... can store the storage devices puter ted). sought in this matter The warrant pages thousands of infor- equivalent of in the engaged Banks was evidence wanting that a user mation.” It noted also por and transmission production it in ran- evidence “often stores to conceal so, range it limited its doing nography. deceptive file names.” order with dom to “child a connection containing to items searching then stated The affidavit erotica,” “minors “child pornography,” high- criminal evidence is computers “for as sexually explicit conduct” engaged expert skill ly requiring technical process was description This defined statute. controlled environment.” properly and a Banks’s to overcome sufficiently particular provided affidavit evidence Finally, to be seized were that the items argument the Banks’s computers residence specifically identified. and transfer child to obtain had been used the warrant’s contention Banks’s pornography. it insuffi- frame rendered lack of a time specific description of more “[N]o unpersuasive because ciently particular sought possible,” equipment computer do not demon- and affidavit the record 630, 637 Hay, 231 F.3d gov- part knowledge on strate Cir.2000) (citation (9th and footnote refer- limit- illegal conduct that the was ernment way no omitted), there was because ence time frame. particular ed to Cf. images had offending know to where Kow, 427 F.3d v. 58 United “Further, ex- the affidavit been stored. Cir.1995) (9th (invalidating a warrant necessary to it was seize plained why indicated affidavit where the in order to exam- computer system entire specific time activity began at criminal contraband,” id., data for the electronic ine to not the warrant was limited period but sei- not authorize[] did and the “warrant frame). time particular document, por- but of of every zure the war- suggestion final Banks’s sufficiently specific is a nography which insufficiently particular because rant was the search.” at to focus definition seek to recover specifically not did (footnote reference have been transmitted videos known seizure of business “A generalized identify the name it failed to and because if it justified” is demon may documents mod- chat room Banks the internet not government could that “the strated govern- Although fails. erated also on ... documents reasonably segregate the name of certain may have known ment they were the basis of whether finding probable supported files that Kow, activity.” criminal likely to evidence cause, requirement no there (citations omitted). White, (9th A 58 F.3d at 974 F.2d Cir. 1992) (citation omitted). reading full of the affidavit this matter that no more limited search reveals balancing While public’s in feasible, even if the have been evidence of terest in the full fair administration of had Banks’s home business been more ful- justice protect integri and the need to Meek, ly set forth. As “the warrant ty marriage spouses and ensure that here did not authorize ‘the seizure of virtu- communicate, freely we have created two ally every computer document and file’ exceptions First, privilege. to the “the indicating without how items were related marital communications does not suspected crime.” 366 F.3d at 715 apply to statements made furtherance (citation omitted) Kow). (distinguishing joint activity.” Marashi, criminal Rather, sought only the warrant evidence Second, F.2d at 731. “the marital commu pornography appropriately of child nications apply should not provisions limited its search and seizure relating statements to a crime where a objective. attain this See id. at 715-16. spouse’s or a children are the vic Thus, the district court did not err in White, tims.” F.2d 1138. It is the denying suppress. Banks’s motion to extent of this second that we now consider. Although C. the district court erred in White, agreed we balancing applying the marital communica- test by set forth the Eighth Circuit in privilege, tions the error was harm- Allery, States v. 526 F.2d less. (8th Cir.1975), 1366-67 which concluded objection Over Banks’s that an exception to the protected by the marital protect was needed to the children of ei- privilege, communications the district ther by from abuse the other testify allowed Banks’s wife to spouse. Id. at 1367. The district court’s statements made during Banks ruling in this case demonstrates its belief marriage course of their concerning why that the White exception should extend to Banks created the video. those individuals considered the functional equivalent of protected the children

The marital communications White. privilege “protects from private disclosure spouses,” Griffin,

communications between In determining whether the functional (citations omitted), 440 F.3d at 1143-44 equivalent of a parent relationship child/ may be invoked the non-testifying support should an exception to the marital Marashi, spouse. 913 F.2d at 729. The privilege, the rationale of privilege protect integrity exists “to the of Allery is In Alle'ry, instructive. the court marriages spouses freely and ensure that extended exception the allow communicate with Griffin, one another.” when a crime has been against committed (citation, 440 F.3d at 1143 alterations and the spouse, child of either recognizing that quotation internal marks Howev “in light today’s society,” the policy er, because the marital communications behind privilege the requires expansion of privilege “obstructs seeking pro the truth exceptions. its 526 F.2d at 1366. The cess,” “in its use criminal proceedings re court a noted “that serious against crime a quires particularly a narrow construction child is an offense against family[’s] that society’s because of strong interest in harmony the society and to as well.” Id. The justice.” administration of United States court also discussed that majority a vast Banks; defendant, Banks, Mr. and the par- or parent “a involve abuse cases child were and the the defendant that witness perpetrator. the as substitute” ent co-habitating at the time of and married mar the bond between that Given communication; in the that JB was the equivalent functional the and partners ital the care, and care of Mrs. Banks joint nearly identical be children would of their alleged the the time of at defendant their and partners that between be- molestation; specifically was JB that family harm to the step-children, or birth the by for the defendant ing cared equiva the society would be harmony and molestation; that at alleged time In Allery. id. See that noted lent prior during period the two-month least Ninth the deed, states within of the nine had that JB alleged molestation to the marital commu Circuit, recognize a seven the defen- joint in the care of left been including privilege nications Banks for two weekends dant Mrs. children or of birth equivalent functional Friday evening ending on beginning Considering concept.2 broader somewhat afternoon; parents, that Saturday ties, conclude familial we comparable i.e., son and their and Mrs. Banks’ Mr. equiva the functional against that violence dur- present were not daughter-in-law, the same be afforded a child should lent of in the care when JB ing the birth or those times as violence protections and his wife. couple.3 of the defendant step-child of married Further, two approximate during remains, however, whether question time, preceding life years JB’s correctly concluded the district he lived with months had for the first six the func- in this case was the minor child during And Mrs. Banks. Mr. and step-child. of a birth or equivalent tional Mr. and time, also lived with parents was based court’s conclusion The district Banks, on occasion Mrs. Banks findings: Mrs. but following on the bathe, clothe, change feed, victim, JB, was the alleged occasions. many JB on witness, diapers Mrs. of both the grandchild party would where either lascivious conduct exception are Alas- such 2. The states with privilege"); State, (Alaska protected (Daniels otherwise P.2d v. ka (ex- 49.295(2)(e)(l)) (Nev.Rev.Stat. § well Nevada (covering as Ct.App.1984) foster children against "a child in children)); cluding crimes committed adopted Arizona as birth 13-604) spouse); and custody of either” or (Ariz.Rev.Stat. control §§ & Ann. 13-4062 5.60.060(1)) (Wash. § Rev.Code Washington serious of- (waiving the for several "proceed- (precluding use of crime including "[a]ny dangerous fenses "[sjexual said committed crime conduct against children” and against any whom partner age”); domestic years of Califor- under fifteen a minor parent Court, partner is the domestic (Dunn said Cal.App.4th Superior v. nia 723-24, guardian"). Cal.Rptr.2d 365 exception applies to (recognizing path in Unit foster chil- step-children as well as all We decline follow taken adult (10th 626-1, Bake, (Haw.Rev.Stat. dren)); Rule § 128 F.3d ed States Hawaii 1997), exception to testimo 505(c)) extending the crimes (excepting from Cir. child in residing ny relating abuse of minor person against "a third committed household, residing there whether [spouse]”); Idaho the marital either the household of adopted 9-203(1)) visiting. circuit has No other (Idaho use or (precluding § Code Ann. exemption to federal injury a broad such "any physical case of of the fact, privilege. such injury caused as has been a child to where adopted broader than exception be by neglect one or physical abuse or a result of Ninth by majority of states within "any of lewd parents” and case both of Circuit. lewd and attempted and lascivious conduct After that three-month-or after that six- clearly wife was erroneous under these month period, the times which JB was (“A Shafer, facts. See 518 F.3d at 1070 in Mr. and Mrs. Banks’s very care was district court abuses its discretion if it infrequent April until of 2005. But the ‘bases ruling its on an erroneous view parents started leaving JB in the care of the law or on a clearly erroneous assess- ” Mr. and Mrs. Banks from the time he (citation ment of the evidence.’ and alter- was about one and years one half old but omitted)). ation usually not overnight until April of 2005. Our dissenting colleague accuses the Although these facts demonstrate majority of “neglect[-ing] duty pursuant its strong bond between the victim and his to Rule 501 of the Federal Rules of Evi- grandparents, they do not show type ...” Dissenting dence Opinion, p. 981. To relationship that would be considered the contrary, it is the dissenting opinion equivalent functional of a birth step- that strays from the dictates of Rule 501 child’s relationship parents. with his In- by incorporating wholesale state law statu- frequent overnight visits are common to a tory privileges analysis. into its large portion of grandparent/grandehild relationships, frequent provides as are Rule 501 pertinent with or visits part: regular day-care even provided by services “[T]he of a witness ... shall be grandparents. care, type This while governed by principles of the common admirable and important, does carry they law may as interpreted by the same indicia of guardianship and re- courts the United ...” Fed. B. sponsibility parent/child that a relationship added). (emphasis Evid. 501 In keeping Further, carries. while the district court with Rule emphasis 501’s on com- federal noted that JB had resided with the Banks law, mon the court Allery recognized life, for the first six months of his it is an “[fjederal may courts ... look to the important qualifier parents that his had privileges by created state courts and ap- also resided in the home and that this plicable state statutes the court if finds living situation had ended well year over a them appropriate.” Allery, 526 F.2d alleged before the molestation. added). 1365 (emphases No to deference This is not a case which a state law is mentioned implied. and, raised grandparents therefore, importantly, More the court in Allery could be said to a parent/child share rela- proposed noted that rules of tionship with those Rather, caretakers. “adopted the United States Supreme this situation demonstrates a strong Court and sent Congress for approval grandparent/grandchild relationship. Al- ... by Congress [were] abandoned though such a relationship important replaced by [were] Rule 501.” Id. at 1366 building strong extended families and im- (footnote omitted). reference proving society, it is not the type that creates the same overriding policy con- In Allery, explained the court that “[a] cerns that led us to limit the marital com- careful review of legislative history munications privilege protect children of rejection behind the changes pro- marriage. posed in Article V and the passage of Rule 501 does

Accordingly, not indicate Congress the district disap- court’s admis- proved sion of Mrs. expansion Banks’s was an abuse discretion but because the district rather changes substantive finding court’s JB was the functional should be done case-by-case on a basis.” equivalent of a (citation birth child and his Banks court, majority to leads the by our preted on these this case resolving than Rather apply not exception did that the sweep- conclude to make facts, dissent seeks the is privilege marital in this case.4 that the ruling ing for for all time grandparents for all waived Nevertheless, im evidence charge of circumstances, whenever a all marital com under the admitted properly Al- minor is involved. of a abuse sexual reversal warrants munications the abhor- recognizes majority though the substan the defendant’s only if it affected abuse, must we sexual of child nature rent Marashi, at 729. 913 F.2d rights. tial prece- our faithfully apply nevertheless as it related harmless here was error The dent. fact, In identity. Banks’s the issue of on this issue governing precedent Our cre finding Banks that district court’s the White, Allery which cited opinion our of Banks’s no mention the video made ated White, F.2d at See approval. with Rather, the court to his wife. confession White, that the we concluded In 1138. sup of evidence multitude on the focused priv- communications law “marital common made that Banks conclusion the porting relat- to statements apply ilege should the rec included evidence video. This the spouse’s crime ing to a where on the ring watch and of Banks’s ognition the victims.” are children of a video; recognition the in the adult holding this to extend The dissent seeks by was owned that in the video couch Dissent- limitation. See virtually without garage; in his kept Banks so, the doing pp. 986-87. ing Opinion, locked his found in Banks been had that tak- approach the beyond far goes dissent victim, had with the alone garage, apparent It court. the district en diaper; changing the child’s admitted findings court’s factual the district from left been testimony that Banks had a de- upon ruling predicated its that dem child. This evidence the alone in this grandparents that termination that doubt a reasonable beyond onstrated equivalents the functional were case garage in Banks’s was made video Indeed, court ex- district parents. mak in the involved been Banks had that was “not that case reasoned pressly be persuaded areWe ing of the video. the court from what step a small even the district doubt a reasonable yond exactly the It is almost in White. ruled made Banks found would have court case, under particular In this same.” ad improperly video, without even facts, Per- disagree. we particular these statement. mitted if the be different haps holding our it relat- as was also harmless Any error caregivers. primary grandparents were finding that the court’s to the district ed Rather, the case. But such was not conduct. sexually explicit constituted video caregivers. occasional were grandparents did discuss Although the district above, con- and as Rule discussed As the video making competing motives case-by-case application templates, trial, finding that at were adduced as inter- court refer- Although authority. the district length the dis- from quotes dissent 4. argu- not seek support generally, did reasoning law enced state court’s trict analysis, and the marital its ment law into incorporate state p. Opinion, Dissenting expanded. should at 1366 Allery, F.2d rightfully See so. portions quoted It is notable the marital expansion of (cautioning against reason- the district court's the dissent anchor than other exception on basis privileges White, than to precedent, rather to our law."). federal ''case-by-case under common statutory or case any other state Idaho law or the video sexually constituted explicit stimulation, con- “the manipulation, or excita- duct was on the based actions taken in the tion genital organs purposes video and Banks’s later transmission of exciting or stimulating person the being that video to a known pedophile with com- masturbated if person was an adult.” ments suggesting that the video in- was argues Banks imper- this definition tended to show the child’s erection. See missibly conflicts with the district court’s Freeman, 893, 498 F.3d later definition of lasciviousness because it (9th Cir.2007) (holding error harmless considers the intent of the individual mas- when “it is more probable than not that turbating the minor child while the defini- the error did materially not affect the ver- tion lascivious considers response the dict”) (citation omitted). in the person intended viewing image. argues Banks that admission tes- below, As discussed the definition of mas- timony constituted reversible error be- turbation provided by the district court cause he required change his trial does not impermissibly giv- contradict that strategy to his explain prior criminal histo- en for lasciviousness. The catch-all nature ry. However, there is no indication in the of the term lascivious recog- allows for the record that the district court at all relied acts, nition that certain because of their prior on Banks’s criminal history in reach- nature, inherent sexual satisfy can the con- ing guilty verdict, its rendering any error cept of lasciviousness and also constitute harmless. See id. specific another more sexual act. sum, In although the district court statute, interpreting a we abused its discretion in admitting the con- begin “must with the language of the stat testimony, tested such error was harmless ute itself.” Co., Bowsher v. Merck & and does not warrant reversal. 824, 830, 1587, U.S. 103 S.Ct. 75 L.Ed.2d (1983) (citation omitted). As D. the dis The district court’s definition noted, trict aptly neither finding masturbation were statute nor interpretive provides case law a defini erroneous. tion of masturbation. “[I]n absence of The district court conscientiously statutory definition, terma should be crafted a definition of masturbation. It ordinary accorded its ...” meaning Sher first noted the fact that statutory no defi Comm’n, man v. U.S. Parole 502 F.3d exists, nition before recounting a dictio (9th Cir.2007) (citation omitted). Defi nary definition of masturbation that includ should be adopted nitions that “give effect, ed the exciting another’s genitals by if possible, every word of statute,” manual contact. Rejecting govern Bowsher, 460 U.S. at 103 S.Ct. 1587 ment’s assertion that may masturbation (citation omitted), and dictionary defini found if the act were done solely “for the tions cognizable. are See United States v. purpose of exciting person performing — Santos, -, U.S. 128 S.Ct. act,” the court concluded that the act 170 L.Ed.2d 912 (utilizing dic- must be purpose “for the of exciting the definitions). tionary person being masturbated.” English Oxford Dictionary The court defines next turned to problem masturbation as “deliberate definition created erotic self- when it came to provides masturbation of a stimulation” and minor an accompany- child who might not be to be able definition of stimulated mutual masturbation as action. The district court concluded that “stimulation genitals of one per- Congress intended masturbation to include son by another in produce order to con- and, sexually explicit ultimately, tion 9 Ox- intercourse.” without sexual orgasm Leos-Maldonado, 302 F.3d ed.1989). (2d duct. See Dictionary 454 English ford find- district court’s (reviewing the Dictio- 1063 International New Third Webster’s error). clear fact for ings of as masturbation similarly defines nary or- genital involving the “erotic stimulation and court’s E. The district definition and orgasm resulting commonly gans not were lasciviousness finding of bodily contact other by manual or achieved erroneous. ...” Web- intercourse of sexual exclusive Dictionary provide an did not International The district Third New ster’s dis- when Unabridged 1391 of lascivious definition Language explicit English of the las- video constituted the cussing whether (1986). pubic genitals of the civious exhibition the on primarily focuses Each definition However, the child. minor area of the De- genitals. of one’s “erotic” stimulation following: the court did note commonly is orgasm an that noting spite I think could factor that An additional re- intended, definition neither reached or be factors would to the Dost be added or even occur orgasm an quires that fondling And is of a fondling the child. definition court’s The district possible. gov- If the masturbation. than broader masturbation aspect of this recognizes masturbation, my proved ernment has a child with of contact context the difficult fondling of the proved also view has the response to have a sexual young too of purpose the it was for child. And the manipulation. physical response. a sexual the viewer eliciting in the minor depicts subject video image this court finds And so the Using a changed. diaper having his lascivious exhibi- ... also constitutes touched, rubbed Banks wipe, diaper the area of pubic genitals tion of the mas- Banks also penis. the child’s held pur- for the created [I]t child.... anus, and child’s scrotum saged and for exciting Mr. Lindstrom pose ap- anus the child’s wiping spent time prurient to his appealing purpose tak- actions were These prolonged. pears interests. pedophilia [sic] where diaper-changing in the point at a en reasoning, complain- Banks attacks they reasonably be concluded it could fold- improperly district court that the Indeed, clean- after the were extraneous. into of masturbation the definition ed ex- complete, Banks appeared ing process lasciviousness. definition more returned two the screen ited touch- wipes and continued new times with in images the context In addition, be- messages ing the child. has children, “lascivious” the term volving pedophile Canadian and the tween Banks exhi A lascivious defined. fairly been well represented Banks demonstrated obscene, if not even pornographic, bition is erection. child’s depicting the as video “the context of considered ... attitude imposed ... depictions district supports evidence This photographer.” viewer child’s the minor court’s conclusion (9th Arvin, 900 F.2d for the purpose stimulated genitals were Cir.1990). “applied to Accordingly, Banks to share a video producing children, lasciviousness conduct Such in Canada. pedophile his fellow photographed of the child characteristic of masturba- fit the definition action would photogra which but of exhibition Accordingly, the above. tion described that consists for an audience sets pher up in con- clearly err did not district court pedophiles.” likeminded himself or depicts masturba- cluding the video United States v. Wiegand, 812 F.2d alteration and internal quotation marks (9th Cir.1987). This focus results in a Accordingly, the district court’s definition of lascivious that criminalizes im- failure to consider the factors explicitly, or ages “so presented by photographer as to comment on the diaper-change setting satisfy arouse or the sexual cravings of video, is not dispositive. Rather, Hill, voyeur.” (citation 459 at 972 F.3d because the district court did not err in determining that the video depicted the masturbation of a minor child and because

The district court’s definition did not run the recording of such an act constitutes the afoul recognized of this definition of lasciv- lascivious exhibition of genitals, the child’s ious. The court’s definition of masturba- the court did not in concluding err that the required tion finding that the contact video contains a lascivious exhibition of genitalia with the minor’s type was of the minor genitals. child’s that produce would a sexual response in an adult. The court’s discussion lascivious IV. displayed an awareness the court that there be an part must intent on the of the SUMMARY AND CONCLUSION photographer viewer satisfy a sexual Despite objections, Banks’s we hold that desire through the image. Although the the search warrant in issued this case was distinction subtle, between the terms is adequately supported and sufficiently spe- nevertheless exists: masturbation focuses Further, cific. although the district court on the effect on the victim and lascivious- erred overextending the exceptions to ness focuses on the effect on the pedophile. the marital communications privilege, the The district court’s factual determina- error was in harmless Finally, this case. tion that the video encompassed the lasciv- the district court’s findings definitions and ious exhibition of the minor genitals child’s regarding the terms “masturbation” and predicated on the court’s conclusion “lascivious” appropriately captured the re- that the depicted video the masturbation of quirements each they term as related the minor child. Banks counters that the charges brought, and imper- did not display video’s of a diaper change and its missibly conflict with each other. Accord- failure to many meet of the factors articu- ingly, we conclude that reversal of Banks’s Dost, lated in United F.Supp. conviction is not warranted and affirm his (S.D.Cal.1986),5 preclude a factual find- conviction. ing that the video contains a lascivious AFFIRMED. exhibition of the minor genitals. child’s However, the Dost factors “are neither ALARCÓN, Judge, Circuit concurring exclusive nor conclusive” because “a deter- part in and dissenting part: in mination of lasciviousness has to be made based on the overall I content visual concur in the majority’s conclusion Hill, depiction.” (citation, F.3d at 972 that the district court did not err in deny- 5. The factors are child; Dost six considering (4) considerations that age whether judges may starting point use as "a ... in clothed, nude; fully the child is partially determining particular whether a image is (5) whether depiction suggests the visual sex- Hill, likely [to lascivious].” 459 F.3d at coyness ual willingness or a engage "(1) 972. The six factors are whether the (6) activity; sexual [and] whether the visual point ...; focal ... is on the genitalia child’s depiction designed is intended or to elicit a (2) setting sexually whether ... sugges- response sexual in the viewer.” Id. at 971 ...; tive depicted whether the child is (citations omitted). pose, attire, inappropriate unnatural or in States v. is United grandchild their evi- suppress motion ing Banks’s (9th Cir.1992). Ma- White, 974 F.2d warrant, to a search pursuant dence seized was not issue at 977. That Opinion jority terms applying defining and Instead, this in White. this court before re- I “lascivious.” “masturbation” question a discrete addressed court hold- majority’s from dissent spectfully district White, i.e., whether its dis- court abused district ing that testi- admitting the its discretion abused admitting cretion had accused mony of a pro- he told her he Banks’s daughter. her her and to kill threatened the inter- on for distribution a video duced White, at 1137. F.2d him depicts pedophiles to other net ruling trial court’s grand- affirming two-year-old their masturbating admissible, we testimony was ruling. spouse’s affirm child. I as follows: reasoned majority has that the persuaded I am mari- that the has counseled This court of this Circuit the law holding that erred in privilege must communications tal deciding question a us from precludes it obstructs because narrowly construed i.e., considered, whether previously has not the of process. Use seeking truth the ap- privilege communications the marital re- proceedings in criminal privilege a testimony of voluntary to the plicable narrow construc- particularly a quires an of the statements concerning strong society’s interest of because tion the sexual him to connect accused The justice. of administration in the holding, so grandchild. their of abuse the protecting interests in policy public duty pursu- its neglected majority has the ensuring marriages and of integrity Rules of Federal the Rule 501 of ant to an- with one freely communicate spouses involving the questions to decide Evidence marital communica- the underlie other communications marital of the applicability balancing these When privilege. tions “in light case-by-case basis on a privilege against threats find that we interests majori- The experience.”1 and of reason not do children spouse’s a spouses grandchild a finding ty’s remarkable privilege of the purposes the further of a birth equivalent “functional not in the adminis- interest public 975) at Opinion (Majority step-child,” or any possible justice outweighs tration to surprise complete surely come as will in such serves purpose grandparents. case. I and citations marks (quotation 1138 Id. at that “[o]ur determined majority has hold in White not determining This court did precedent” governing should communications privi- marital communications the marital whether by the accused admission apply admis- to an accused’s apply should lege had or he she spouse that or her to his a crime committing to his sion United States by courts preted follows: reads as 501 1. Rule Howev- experience. light of reason by Consti- required Except as otherwise with er, proceedings, in civil actions by provided United tution or defense of a claim element respect to an by prescribed Congress inor rules Act of supplies the rule law which State to as statutory pursuant Supreme Court witness, decision, person, privilege of witness, person, privilege of authority, the State, political subdivision government, State, political subdivision government, in accordance be determined shall thereof principles governed by the shall be thereof State law. may be inter- they as law common sexually abused their grandchild. Without After pled Banks guilty sexually molest- citation to White, language relevant son, ing their he imprisoned for twelve majority erroneously has construed years. Transcript 3, 371, Record at that decision to limit the exception to the Banks, Case No. 1:06-CR-00051-S-BLW- prose- WBS. cutions for crimes children to II

statements made “the equiv- functional alents parents.” Majority Opinion Any inquiry concerning the federal 977. Our holding White was limited as court’s extension of a testimonial privilege follows: a trial court can properly balance necessarily begins with Rule 501. The the admission the voluntary genesis of the language of Rule 501 can be of a spouse, regarding the threats Supreme traced Court’s decisions accused stepchild, to harm a against the States, Funk v. 371, United 290 U.S. privilege that communications between 212, S.Ct. 78 L.Ed. 369 and Wolfle spouses should be treated as confidential States, U.S. S.Ct. and inadmissible in a criminal proceeding (1934). L.Ed. The Funk decision White, maintain marital harmony. 974 tracks language from Benson v. United F.2d at 1138. States, 146 U.S. 13 S.Ct. 36 L.Ed. (1892). Benson,

We held in In White the the ques- government critical tion in called determining if as a the marital witness a commu- codefendant whose nications trial privilege should had been apply is whether from that severed of the Benson, not the conduct is 335, 13 “inconsistent with accused. the at U.S. S.Ct. purposes of the marital 60. Precedent appeared require privilege: promoting the confidential commu- declare the codefendant was not spouses nications between in competent. 336, (“It order to fos- Id. at 13 S.Ct. 60 ter harmony.” marital Id. Obviously, an familiar knowledge that the old common admission to a by the accused that law carefully excluded from the witness produced he for video distribution on the stand parties record, to the and those who internet depicting his masturbation of were result; interested in the and this rule their grandchild to other pedophiles would cases.”) extended to both civil and criminal destroy the harmonious relationship of Benson, In the Supreme Court held that it partners. was “precluded [precedent] from examining question this in the light

Indeed, the impact Banks’s admission general authority and sound reason.” that he abused grandchild their must have Benson, 335, 146 U.S. at 13 S.Ct. 60. emotionally been In devastating to his wife in reviewing the grounds historical view of for her ex knowledge that [grand- “the cluding codefendent testifying, from question in the the son very [was] of the Supreme Court explained that person[Banks] plead guilty to molesting going and to prison in [t]he for 1990.” courts were Tran- afraid to trust script 371, of Record intelligence at jurors. But the last fifty Banks, Case No. years wrought 1:06-CR-00051-S-BLW- have great change in Indictment, WBS. See also Case No. these respects, today and tendency 1:06-CR-00051-S-BLW, 14, March 2006.2 enlarge is to the domain of competency According case, 2. Sixteen, the indictment Age § violation of Idaho Code 18— trial, testimony at 1508, Banks was abuse, convicted in aggravated for sexual sexual County Ada No. CR Case 16884 on two abuse abusive sexual conduct on his 11- counts of Lewd Conduct with a year Minor Under old son. adaptation their upon reason —is to rest their con- jury for to the submit and to development to the successful credibility of the to the as sideration is of all experience since truth. And which heretofore matters those witness dependable, most teachers his exclu- justify ruled sufficient were also is a continuous experience since wrought has been change This sion. evi- rule of it follows process, partially by legislation partially necessary to thought time at one dence judicial construction. yield should of truth the ascertainment 336, 13 at S.Ct. Id. succeeding gen- aof experience Thus, reasons traditional because has experience eration whenever to testi- incompetent a codefendant holding un- fallacy clearly demonstrated longer no were an accused fy against the old rule. wisdom of rule, sound, Court revised deemed fur- 212. The Court at 54 S.Ct. Id. by citing a trend its supporting conclusion explained ther incompetency. a rule toward testimony, the exclusion wife’s of similar (“Legislation 13 S.Ct. at and liberal exten- face of the broad of the States. most import prevails in compe- respect rules sion has controlled legislation of this spirit no generally, tency [can of witnesses ”). ... the courts decisions justi- if it justified, ever longer be] Funk, overturned Supreme Court It fied, public policy. ground on spousal prohibiting rule such testi- that to admit has been said Funk, 290 U.S. trials. criminal federal policy because mony against public Hen- (overruling, part, 54 S.Ct. harmony and confi- endanger the States, 79, 31 S.Ct. 219 U.S. v. United drix and, relations, more- dence of marital Fuey and Jin L.Ed. 102 over, subject the witness 189, States, 41 254 v. U.S. Moy United Modern perjury. to commit temptation (1920)). Citing 98, 214 65 L.Ed. S.Ct. com- making spouse either legislation, in Benson, in Funk re- Court Supreme the the other in of testify to behalf petent courts, in the “that the jected the notion rejected cases, definitely has criminal conditions, are still changed greatly of face notions, light of such these and are the ancient formulae to chained they thought modern legislation and modifica- enforce to declare powerless The fanciful. altogether to seem in the wrought to have been deemed tions not, may generation one policy of public these by law itself force common conditions, public be the changed under Funk, at 290 U.S. changed conditions.” policy of another. Instead, held 379, the Court 54 S.Ct. 212. States, 281 v. (citing Patton “disposed of should be question 854). 253, 74 L.Ed. 276, 306, 50 S.Ct. U.S. authority and light general in the ... Funk, 380, 212. year at 54 S.Ct. a after reason.” Id. decided Wolfle, In sound by rule that ruling early, upheld common law Reviewing Supreme Court statement, testify for an to incompetent that a husband’s was Ninth Circuit rea- use of a through in Funk Court spouse, to his wife made accused even privileged, was not stenographer, as follows: soned communicat- intended to be though all was upon which basis The fundamental States, 64 v. United to his wife.3 they are ed rest —if must rules of evidence Wolfle the Cantu following reference tamed the the defen- testified stenographer going and whenever to break in Mine: "I am which con- his dictated a letter to wife dant (9th Cir.1933). F.2d 566 The Supreme opment in the law of privilege to federal Court held evidentiary “gov rules are legislation, and declined to limit the range by erned common-law principles as inter of possible privileges. Congress instead preted and applied the federal courts in crafted Rule order “provide light experience.” reason and Wol courts flexibility with the to develop rules fle, 291 U.S. (emphasis S.Ct. 279 of privilege on a case-by-case basis.” Id. added). “general The examination of au citing (state- Cong. Rec. 40891 thority” Funk, as described in thus Rep. ment of Hungate). It Congress’ evolved into an assessment “experience” intent “to leave the door open change.” part As of its assessment of Wolfle. Id. After embarking on a comprehensive “experience,” the Court in reviewed Wolfle review of the history of the marital testi- various state court rulings, some privilege, monial as well evolving as the predicated statutes, on state and concluded trends in state law concerning the marital the defendant’s statement was not privilege, the Court noted protected by the privilege protecting mari that “support for against ad- tal confidences. Id. at 54 S.Ct. 279. spousal verse eroded” in ha[d] It is indisputable that Congress en years, recent and affirmed the lower dorsed inclusion state law in directing ruling court’s the witness-spouse federal courts to develop “common law alone holds the privilege to refuse to testi- principles ... in light of and expe reason fy adversely. Id. The Court noted in rience” in enacting Rule 501. See Jaffee Trammel that Redmond, 1, 8, 518 U.S. 116 S.Ct. [w]hen one willing testify (1996) (“The 135 L.Ed.2d 337 authors of other in proceed- a criminal the Rule borrowed phrase from our the motivation —their re- —whatever opinion States, v. United 291 U.S. Wolfle lationship is certainly almost in disre- 7, 12, (1934)”). 54 S.Ct. L.Ed. pair; is probably there way little Jaffee, the court stated that “it appro of marital harmony for the privilege to priate to body treat consistent policy preserve. circumstances, In these legislatures determinations state as re rule of evidence that permits the ac- ” flecting both ‘reason’ and ‘experience.’ cused to prevent spousal adverse testi- 13, 116 518 U.S. at S.Ct. 1923. mony seems far likely more to frustrate Supreme The Court held in Trammel v. justice than to foster family peace. States, 40, United 906, 445 U.S. 100 S.Ct. 52, added).4 Id. at 100 S.Ct. 906 (emphasis 63 L.Ed.2d 186 in “enacting The intent courts’ to foster evolution in 501, Rule Congress manifested affirma- the area of testimonial privilege was rein- tive intention not to freeze the law of forced recently more In Jaffee, privilege.” 47, 445 U.S. at 100 S.Ct. 906. Jaffee. Supreme held, the time, Court for the first 501, Under Rule federal courts are author- that communications the psycho- ized to within “develop[ ... ] privi- testimonial therapist-patient leges relationship privi- federal criminal are governed by trials leged. principles Jaffee, 8-9, the 518 U.S. at law 116 they common as S.Ct. may interpreted ... 1923. In recognizing in the light of the new testimonial reason experience.” and In enacting privilege, Id. the Court insisted that reliance 501, Rule Congress did not restrict upon devel- laws legislatures enacted state do, I going I am every to rob one majority last oí them 4. The has failed to cite Trammel or blind.” Id. duly discuss its not to freeze privi- the law of lege. in a state admission spouse’s developing regarding for a model as be used should abuse of pursuant concerning sexual privilege prosecution law of common the id. See entirely “appropriate.” Rule 501 is child. minor (“In v. United 13, Funk at 116 S.Ct. A appropriate it

States, recognized we body policy deter- a consistent to treat underly- assumptions primary The two as reflect- legislatures by state minations privi- of testimonial recognition ing ”) (cita- ‘experience.’ both ‘reason’ by the as articulated Court leges Jaffee explained The Court tion are that the federal for appropriate it is [t]hat give what duty to there is a general psychotherapist recognize courts and, capable giving, testimony one is Rule 501 is confirmed privilege under may exist are dis- any exceptions which the Dis- all 50 States the fact that many dero- being so tinctly exceptional, into law have enacted trict of Columbia rule. general a positive from gations privilege. psychotherapist form some general rule disfa- from the Exceptions observed previously have We jus- may be privileges voring testimonial bear on of the States policy decisions however, tified, “public good tran- by a courts should federal question whether normally predominant scending amend the new recognize a utilizing all rational means principle existing one. coverage of an the truth.” ascertaining Trammel, 12, (citing Id. at 116 S.Ct. (internal citations Id. at 116 S.Ct. 906; 48-50, at 100 S.Ct. 445 U.S. omitted) Trammel, at 445 U.S. (quoting 360, 368, Gillock, n. 445 U.S. because (1980)). 50-51, (holding 100 S.Ct. 63 L.Ed.2d 100 S.Ct. “[tjestimonial privi- exclusionary rules that “[b]e- reasoned The Court Jaffee principle fundamental leges contravene aware of fully are legislatures cause state every right ... has a public that ‘the integrity protect the need to evidence,’ strictly they ... must be courts, the man’s of their factfinding functions construed”)). the States among consensus existence sup- experience’ ‘reason indicates that a marital justification for traditional Jaffee, privilege.” recognition of port is that it testimonial adverse The Court 116 S.Ct. 1923. 518 U.S. forcing good” because “public serves consequence is of noted that no “[i]t also in a testify against another spouse to one vast recognition two to one of would lead criminal case legisla- product majority of states potentially results: could unacceptable judicial decision.” than action rather tive if the marriage up of cause a break acceptance of unanimous present “The her voluntarily inculpated witness per- lawmakers” by “state privilege” perjury. husband, promote could or it “consensus” proof of a solid social suasive Marston, See, 52 N.H. v. e.g., Clements relation- psychotherapist-patient (1872). in by the court Clem- explained As an evidentia- protection of ship merits the ents: Thus, policy the stated ry Id. privilege. not a [a]ny person law ... common At by consider- 501 is served underlying Rule in the result if party, interested law, but also case only of state ation not on the a suit, as witness was excluded developing by the states laws enacted exclud- were of interest. Wives ground majority has the law of privilege. interest, they ed, 1st, ground on the and by Idaho laws enacted to look to failed — hus- their wherever being testify interested to permit spouse other states that were; 2d, bands upon the ground of concerning communications against crimes public policy, that it expedient was not grandchild accused, only an it is not to place husband position and wife instructive trend, to review evolving this that might lead to dissensions and strife required that we do so if we are to in- them, between might encourage terpret “the principles of the common law Hence, perjury. wives were not allowed ... light experience.” reason and testify to against their husbands Fed.R.Evid. 501.5 they when were parties proceed- to civil In United v. Allery, 526 F.2d and, ings, reason, for the same both (8th Cir.1975), Eighth Circuit were excluded party when either was a held, in opinion prior announced in a criminal case. Supreme Trammel, Court’s decision in 37; Trammel, at Id. see also 445 U.S. at “that a serious against crime a child is an 44, (“The justifica- S.Ct. 906 modern against offense family[’s] harmony tion for this against privilege adverse society and to as well.” Id. at 1366. The spousal testimony perceived is its role in court held in Allery that the marital facts fostering the harmony sanctity privilege did not in a case apply where the marriage relationship.”). step-child defendant’s was the victim. B at 1367. 1980, Since Trammel was decided White, In United States v. 974 F.2d 1135 courts, state, federal and legisla- state (9th Cir.1992), Allery cited tures, have continued to limit the marital extending to the marital communications obedience to communications to include state- the Court’s direction that it “must be relating ments to against crimes step-chil- strictly construed accepted ‘only White, dren. F.2d 1138. We held very limited that permitting extent in White that “the marital communications testify refusal or excluding relevant evi- privilege should apply to statements a public good dence has transcending the relating to a crime where a or a normally predominant principle of utiliza- spouse’s children are the victims.” Id. We tion of all rational means for ascertaining ” reasoned in White “[protecting 50, the truth.’ Id. at {quot- S.Ct. 906 threats spouse’s States, Elkins v. 364 U.S. children is purposes inconsistent with the 80 S.Ct. 4 L.Ed.2d 1669 of the marital communications privilege: (Frankfurter, J. dissenting)). This trend promoting confidential communications be- undeniably demonstrates that marital tween spouses in order to foster communications marital regarding sexual harmony.” Id. of a We also stated in abuse minor protected child are not White they are because the because antithetical marital society’s concept of relationship. In the truth seeking pro- “obstructs analyzing question cess,” whether the marital its use “in criminal proceedings re- communications privilege should apply quires a particularly narrow construction Trammel, Supreme Court admon- contemporary evidence of Kennedy values.” - ished federal courts to Louisiana, continue "the evolu- -, U.S. 128 S.Ct. tionary development privi- of testimonial 171 L.Ed.2d (reviewing 525 state leges.” 445 U.S. at 100 S.Ct. 906. In “objective statutes for indicia of consensus” contexts, Eighth other such as in Amendment as to whether penalty appro- death is an cases, the Court has instructed that federal priate punishment in cases rape). of child may give “great weight” courts "objective to

987 (internal quo- minor child.” Id. victim is a in the strong society’s interest because omitted). tation justice.” Id. administration State, (Miss. 268 v. 690 So.2d In Fisher Bahe, F.3d 1440 128 v. In his 1996), challenged convic- the defendant held (10th Cir.1997), Circuit the Tenth 11-year-old rape of his capital tion for marital exception recognize an “we the trial court ground niece on the testi- privilege spousal communications testify to that he allowing his wife erred any minor abuse of relating to the mony her. sexually abusing his niece to admitted at 1446. Id. the household.” child within inter- Mississippi Supreme Court The as follows reasoned The Tenth Circuit 504(d) of Evidence Mississippi Rule preted Bahe: communications except from marital difference, aas significant no We see to crimes testimony relating a matter, against a crime between policy at 272. any minor child. Id. against a against couple, of the married here, or, as Modest, home living Wash.App. in the stepchild 88 In State v. visit- eleven-year-old (Wash.Ct.App.1997), an relative against 417 944 P.2d a hor- abuse is in the home. Rev.Code Child held that under Wash. court 5.60.060, in (ARCW) guardianship It occurs ex- generally § crime. “the rendous by up any spouse ... and often covered when acts ception applies home she meaning when he or children parentis, innocence small loco or dis- It character parental against disclosure. assumes threats duties, very if for even permit charges parental unconscionable 247-48, 944 Id. at P.2d communications short time.” promoting on grounded in Mod- construed marriage part- Washington statute and love between of trust communications between outraged provided est properly prevent ners by the marital protected not testifying spouses knowledge from are spouse com- for a crime “proceeding in a a crime. of such against perpetrator partner or domestic said mitted (citation we Since 1446 Id. at spouse or any child of whom said against White, number our decision published parent guard- partner is the domestic accused’s jurisdictions have held (ARCW) Wash. ian.” Rev.Code to crimes relating to his statements in Modest considered § The court 5.60.060. without are admissable children against intent to insure legislative paramount “the against to crimes limiting crimes for sexual prosecutions effective either marriage or of children children,” “[i]n concluded that spouse. concern, overriding court] [the light of this Martinez, v. In United States ‘guardian’ word liberally interprets the (W.D.Tex.1999),the district F.Supp.2d protect children punish child abusers one “in a case where held that Id. further mistreatment.” from chil- abusing minor accused of spouse is Countryman, 572 N.W.2d v. In State dren, in the administra- society’s interest (Iowa 1997), Supreme Court Iowa interest outweighs justice far its tion of 232.74, pro- § which that Iowa Code held may trust harmony whatever protecting the disclosure hibited in the still point at remain not persons, apply did between married 836. “Reason relationship.” Id. at 561. prosecution. a child abuse commu- the marital dictate that experience State, Ark. apply to Munson privilege should nications (1998), the defendant was where the S.W.2d relating to a crime statements charged sexually assaulting with his wife’s logical We see no Legisla- reason for the sister, 14-fourteen-year-old who deny spousal was visit- ture to privilege when ing in their young home when the crime victim occurred. of abuse is a child of one 504(d)(3) (or Id. at 392. Rule spouses of the both closely Arkansas other child Rules of Evidence sets forth an related consanguinity) but perpet- to to the marital uate spouse when one young when the victim charged with a against person crime is related to spouse. neither The abuse property person of a is the “residing” Society’s same. interest in con- victing household of Ark. punishing either. R. Evid. one who commits 504(d)(3). Supreme The Court of Arkan- abuse is the same. The threat to in, preservation sas held Munson that family the victim the of the unit aris- case was “residing” ing spouse the accused’s from one being compelled house- testify hold because her “temporary against residence the other seems substan- presented tially the Munsons op- Indeed, the same identical in all instances. portunity to Mr. Munson if he would have the defendant’s alleged child abuse incestuous, had if the victim intended to remain in was not spouse’s com- indefinitely.” household pelled testimony Id. at 393. might be less threaten- ing marriage than if she were Commonwealth, In Villalta v. 428 Mass. compelled testify, as the wife and 429, (Mass.1998), 702 N.E.2d 1148 the Su- must, defendant agree she concerning preme Judicial Court of Massachusetts ad- abuse, incestuous child which involves an question dressed the whether the marital greater even stigma than child abuse privilege applied pre- alone. The criminal conduct asserted in clude spouse the accused’s testifying from case, abuse of the victim in the husband, against her charged who was home, defendant’s shows that the need with rape, indecent battery, assault and of a defendant’s and assault battery two-year-old on a spouse may great be as as it would ifbe girl. The child was unrelated to the wife alleged victim were their own child. or the husband. periodically She received We apply choose to the literal meaning day-care services from the accused’s 20, § words “child abuse” to cl. 429-30, in their home. Id. at Second. Child usage abuse common N.E.2d 1148. The trial court allowed Mrs. is not limited to the abuse of one’s own Villalta to invoke the marital communica- child but any means the abuse of child. 430, tions privilege. Id. at 702 N.E.2d 434-35, Id. at 702 N.E.2d 1148. 1148. The trial court concluded Mass. 233, § Gen. Law Ann. ch. inapplica- 20 was R.T.H., J.S. v. 155 N.J. 714 A.2d alleged ble when the victim was not a child (1998), a civil action was filed either and did not live with 64-year man, the wife of a old who had them. Id. The Supreme Judicial Court of pled guilty criminally sexually assault- disagreed. Massachusetts pro- Section 20 ing unrelated, two neighbor adolescent “except vides that proceeding relat- girls- ages and 15. 714 A.2d — abuse, incest, to child including neither parents The alleged children husband nor required wife shall be to testi- perpetrator’s wife was liable for their fy indictment, trial complaint physical and emotional injury, because she proceeding other criminal against the “was aware of history her husband’s other.” Mass. Gen. Law Ann. ch. pedophilia as well as his conduct involving § 20. Supreme Judicial Court inter- these children.” Id. at 335 n. 714 A.2d preted the statute R.T.H., as follows: (citing J.S. v. 301 N.J.Super.

989 upon 1997)). higher priority ‘places The tent that (App.Div., 150, A.2d 1191 693 marital rela- Jersey held defendants’ New preserving Supreme Court held liable could be children protecting upon the defendant-wife than tionship ” knew if she conduct criminal N.J.Super. her husband’s at (citing Id. 301 from abuse.’ of his sexual have known should of or 1191). explained 157, court A.2d The 693 Id. warn others. failed to but proclivities as follows: ruling its 352, 714 A.2d at the sexu- recognized that has This Court legislature Jersey New Noting that the only traumatizes of children not al abuse subject with the comprehensively dealt had heavy victims, toll but also exacts de abuse, statutes and enacted of child indicates society: Recent research on chil abuse of the sexual prevent to signed prob- psychosocial a number of dren, “it the court commented and depression including chronic lems— that the to assure legislation intent of adjust- social poor and anxiety, isolation immediately are children of innocent lives abuse, behav- ment, suicidal substance injury possi from further safeguarded ior, physically involvement rights of such legal that the ble death either relationships as sexually abusive 343, at Id. fully protected.” are children more common or victim—are aggressor acknowledged court A.2d 924. The 714 children than molested as among adults “[wjhile chil protecting the interest ex- no childhood those with such among great, this Court abuse is from sexual dren abuse can of sexual periences. Victims defen into consideration also take must ability critically impaired suffer rela a stable marital interests in dants’ motives and behavior evaluate at Id privacy.” tionship and vulnerable to others, them more making Szemple, v. 345, (citing State 714 A.2d 924 disturb- especially An revictimization. (1994)). 414, 406, A.2d 817 135 N.J. abuse is sexual ing finding about child however, concluded, that “[t]he The pattern; intergenerational strong its rela enhancing marital interest in societal im- psychological due to the particular, in outweigh the societal tionships cannot abuse, sexually abused their own pact of from sexual children protecting terest likely to be more found boys have been reporting statute The abuse. child-abuse boys turn into of- ap that balance—it than non-abused has mandated itself citizen, spouse.” including generation every against the next plies to fenders omitted). (citations the Appellate “As are children, sexually girls Id. abused described, Legislature’s ‘the here Division of chil- mothers likely to become more [i.e., “Megan’s that statute adoption of And studies show abused. who are dren Jersey’s of New expression is an Law”] behavior, aggressive adult male favoring protection public policy strong is associ- aggression, particularly sexual offending of an privacy children over childhood sexual the trauma of ated with ” N.J.Super. (citing Id. adult.’ Thus, the substantial apart from abuse. 1191). “Thus, protective ‘[t]he 693 A.2d the victims of trauma caused personal peril be public ends where chil- crimes, crimes sexual such ” Regents v. gins.’ (citing Id. Tarasoff as well. heavy costs social dren exact Cal. Cal., 17 Cal.3d the Univ. of (citations (1976)). Su 551 P.2d 334 Rptr. State, 997 S.W.2d In Huddleston Jersey upheld the New preme Court Dist.1999), 1st Houston (Tex.App. Division’s decision overrule Appellate admission of trial court’s 579, court upheld N.J.Super. Peley, 199 Rozycki v. her husband Div.1984) testimony against (Law spouse’s ex- “to the A.2d 1272 who charged with raping ten-year- Anderson, In v. State 636 N.W.2d 26 daughter old of a neighbor. (Iowa Id. at 321. 2001), Supreme Court of Iowa 504(b)(4)(A) The court held that “Rule held that the to the marital com- states that the privilege does not apply privilege provided munications for in Iowa any proceeding which the person is § Code applies 232.74 to cases of child charged with ‘a against crime the person’s abuse that result from or acts omissions of spouse, a member household of ei provider. a care Id. at 36-37. In ” spouse, ther or any minor.’ (empha 232.68(7), § “person a responsible for the in original) sis (citing Tex.R. Evid. care of child” is defined as: 504(b)(4)(A)). language “The of amended parent, a. a guardian, parent; or foster 504(b)(4)(A) rule makes it clear that the b. a any relative or person other with exception applies when the spouse is whom the child resides and who assumes charged with a against crime any minor.”6 supervision child, care or without Id. (emphasis original). See Lud also State, length reference of wig time or conti- S.W.2d 771 (Tex.App. 872 1994) nuity residence; of such (holding employee Waco that a c. an may wife testi fy against agent charged any public husband of killing private facility nephew his because the exception to the providing child, care for a including an involving institution, hospital, facility, health care “against crimes person of any minor home, group center, mental health resi- any member the household of center, dential treatment shelter care spouse” either included crimes center, facility, detention or child care child, minor whether or not the child of or, facility; any person d. providing care spouse). either child, for a but with whom the child does State, 180, Brown v. 359 Md. 753 A.2d reside, not without reference to the du- (2000), 84 Appeals Mary- Court ration the care. that, land Ann., held pursuant to Md.Code 232.68(7). § See Iowa Code 9-106, § Cts. & Jud. Proc. testimony con- In Commonwealth v. cerning “the 572 Spetzer, abuse of a child Pa. under 18” is exempted from 813 A.2d (2002), 707 “non-compellability Supreme of a spouse to testify as an Pennsylvania adverse in a Court of witness reviewed the admis- criminal ease.” Id. at sibility A.2d 84. of communications between the ac- ample 6. There is statistical data concerning Kilcoyne, Brown and J. Child Sexual Abuse the increase in child sexual abuse. For exam- Us, Prevention: What Tell Offenders Child ple, "from 1976 to the number of re- (1995) Neglect, Abuse & (reporting 579-594 ported cases grew of child sexual abuse from nearly 70% child sex offenders have 6,000 132,000, 2,100%.” an increase of victims; between and 9 least have 20% Kennedy, (Alito, at 2671 S.Ct. n. J. victims). 10 to 40 More equally recent data is Jones, dissenting) (citing Smith, Lurigio, A. M. & B. alarming. According to "Statistics Surround- Causes, Child Sexual Abuse: Its Con- Abuse,” Sexual Child found online at sequences, Implications for Probation http darkness21ight.org/KnowAbout/ ://www. Practice, (1995) Sep Fed. Probation 69 statistics_2.asp: "The age report- median Statistics, & Abuse Incest National Network old; years ed abuse is 9 than more 20% online at http://www.rainn.org/get-inf orma- sexually children are age before abused tion/statistics/sexual-assault-victims.) Justice 8; nearly of all 50% victims of forcible sod- Alito, dissent, "reported his noted that in- omy, object, sexual assault with an and forc- stances of child abuse have dramat- increased 12; and, fondling ible are children under 30- ically; many are there indications of victims are family 40% of abused mem- growing alarm about the sexual abuse of chil- ber.” Id. 2671; Elliott, dren.” Id. at see also M. K. inapplicable are partners or domestic rape of concerning the and his wife eused that: ... where the victim is prosecutions stated The court step-daughter. his § child”); Ann. 24-9-23 Ga.Code [statutory- that the if it is assumed Even (no against any minor in crimes communica- the marital exceptions 504(d)(1) child); (eliminating Evid. addressing Id. R. privilege specifically tions cases) directly pro- and Ida- act child abuse all do] child abuse “exception” § of (precluding child abuse 9-203 use a broad ho Ann. vide Code mari- Pennsylvania’s inju- of application “any physical in privilege [the case in criminal privilege] tal communications injury has where the been ry to a child a certainly affects what proceedings, or physical abuse cause as a result expectation” “reasonable spouse’s parents” and or both of the neglect by one may be with confidentiality continued conduct or of lewd and lascivious “any case marital communications respect lascivious attempted lewd and conduct abuse or intended previous reveal would otherwise be party either where of a child. intimidation privilege”); Ind.Code protected by Accordingly, the 813 A.2d (“The Id. at communica- privileged § 31-32-11-1 described that the accused who court held ... ... the husband and wife tion between a child abuse of previous wife his to his in excluding for evidence ground is not a Penn- under expectation had no reasonable resulting from any judicial proceeding will that such communication sylvania law may who be a victim report of a child confidential.” “remain Johnson, neglect”); State child abuse or 1982) (Iowa (holding 318 N.W.2d C § 232.74 eliminates Iowa Code states, and the District Thirty-eight abuse); involving cases child in privilege all Columbia, expand- legislation have enacted (“the § 620.050 husband-wife Ky.Rev.Stat. rule, exceptions to or ing, statute ground be a ... shall privilege [not] ... privilege. marital excluding or for refusing report., privi- no jurisdictions, there is twenty-six neglected, regarding dependent evidence charged has been lege the accused where thereof’); or the cause abused child child, regard- any criminal abuse 14403(B) (2007) § Ann. La.Rev.Stat. affilia- there is a familial whether less of cases); in child abuse (eliminating privilege Ariz.Rev. the victim-child. See tion with Ann., § Proc. 9- & Jud. Md.Code Cts. (eliminat- §§ & 13-604 Ann. 13-4062 Stat. 106(a)(1) (2007) privilege (eliminating any involving in cases privilege ing cases); Mass. Gen. Laws. child in all abuse children” and against crime “dangerous (eliminates privilege § 20 Ann. ch. fif- under with a minor conduct “[s]exual any involving abuse of proceedings in §Ann. 12- Ark.Code age”); years teen Laws child); Comp. Ann. Mich. (no prevent shall privilege 12-518 600.2162(c) (2007) excep- (providing § concerning child testifying anyone from privilege for offenses the marital tion to § maltreatment); 18—3— Colo.Rev.Stat. 18); any person under against committed (no (2006) 411(5) marital communications (2006) (eliminat- 595.02(l)(a) § Minn.Stat. offenses, involving in cases sexual privilege involving crimes in cases privilege children); against offenses including sexual the care of any child under either against (elimi- (2007) § 46b-129a GemStat. Conn. 504(d)(1) (“no priv- R. Evid. spouse); Miss. in all abuse nating in one proceeding which ilege ... in a § 22^4124 cases); Columbia St. Dist. ... against charged with a crime spouse is (“Laws against disclo- attaching privilege child”); Mo.Rev.Stat. any spouses between minor sure of communications 546.260(2) (2007) § hold”); (eliminating privilege 505(c)(1)(C) (“no Haw. R. Evid. minor); in against any crimes N.Y. Fam. privilege ... proceedings in which one 1046(a)(vii) (2007) § Ct. Act (eliminating spouse is charged with a crime against ... proceedings for child abuse person third residing household”); in the neglect); § Ore.Rev.Stat. 419B.040 504(c)(2)(C) (no Ky. R. Evid. (“the husband-wife privilege, shall not be a “any proceeding which one ground for excluding evidence regarding a charged with wrongful against conduct ... abuse, thereof, child’s any the cause household”); individual residing [a]n judicial proceeding”); 23 Pa. Cons.Stat. 504(d) (“no R.Me. Evid. privilege ... in a § Ann. (eliminating privilege proceeding in which one charged cases); in child § abuse R.I. Ann. 12-17- with a any crime ... person resid (“The husband or wife of respon- household”); ing in the N.D. R. Evid. 504 dent in a criminal prosecution, offering (“no privilege ... in a in proceeding which witness, himself or herself aas shall not be spouse one charged is with a crime against excluded from testifying because he or she person ... a residing household”); in the is the husband or wife of the respondent”); (2007) (“no 12, § Okla. Stat. Ann. tit. (“a § S.C.Code of Laws Ann. 19-11-30 privilege ... in a in proceeding which one husband or wife is required any to disclose spouse charged is with a crime against ... communication, otherwise, confidential or a person in residing household”); Utah made one to the other during the mar- 502(b)(4)(C)(iii)(no R. Evid. privilege “[i]n riage suit, action, where the or proceeding a proceeding in spouse which one is concerns or is based on child abuse or charged with a against ... crime ... a neglect, child, the death aof criminal sexu- person in residing household”); Vt. R. minor, al involving conduct a or the com- 504(d)(3) (“no Evid. privilege ... in a pro attempt mission or to commit a lewd act ceeding in which spouse one charged is minor”); upon (“The a § Tex.R. Evid. with a ... against., crime a person resid privilege person’s of a spouse not to be household”); in the Eveans, People v. called as a witness for the state does not 277 Ill.App.3d 214 Ill.Dec. apply any ... proceeding [i]n in which the (1996) N.E.2d 246-47 (citing 725 Ill. person charged is a against with crime ... Comp. Stat. holding that the 5/115-16 any minor”); § Ann. Va.Code 19.2-271.2 legislature Illinois (2007) scope “broadened the (providing exception to the privilege the child exception interest to in include the victim); crimes where a minor is the (2007) only interests not Wyo. (elimi- of the children § Stat. Ann. 14-3-210 nating cases). testifying and privilege spouses, in child abuse accused but also any interests of care, children in then- addition, jurisdictions thirteen have custody control”); or Nev.Rev.Stat. passed legislation exempting from the 49.295(2)(e)(2) (2007) § (eliminating the marital privilege communications state- if privilege against crime is “a child in ments concerning against crimes children custody or spouse”); control either who were in the custody care or of either (2006) 42 Pa. § Cons.Stat. Ann. (pro spouse, or any person, including viding exception privilege “in any crimi child, any “residing” in the household of nal proceeding against [spouse] either. either Munson, As in supra, discussed bodily injury or may child attempted, “reside” violence done household if even only or temporarily. upon any there threatened See Del. ... minor R. Evid. 504(d)(3) (“no privilege custody [the] ... in a care or proceeding [of either spouse]”); spouse which 1 charged (2007) wrong § with a TenmCode. Ann. 24-1-201 (“privi against ... person residing in the lege house- shall apply to proceedings con- oth- party either where ous conduct in the custo- ... a minor abuse of cerning privilege”); protected and control erwise be the dominion or under dy of (2007) 49.295(2)(e)(2) Rev.Code § Wash. Nev.Rev.Stat. spouse”); either 5.60.060(1)(2007) exception (providing if the crime is privilege § (eliminating or domestic either where privilege custody in the or control against “a child guardian parent or considered partner § 419B.040 spouse”); Ore.Rev.Stat. either victim). (“the shall not be privilege, husband-wife regarding a excluding evidence ground for majority notes opinion, In its thereof, abuse, the cause child’s Idaho, states, have enact- including several judicial proceeding”). an broad- “encompassing even statutes ed limitation marital than a concept” er has created Washington legislature The the “functional communication either exception an where Majori- step-child,” of a birth equivalent is considered partner or domestic has majority The at 974-75. ty Opinion a child victim. guardian parent however, ig- why it has explain, failed to (2007). 5.60.060(a) § Rev.Code. Wash. Idaho, many other fact that nored the Washington held Supreme Court states, adopted have Waleczek, 746, 585 90 Wash.2d State prose- and wife that a husband P.2d 797 The children. against for crimes cutions for an seven-year-old girl a who hosted or ex- to consider has also failed majority of (during the course overnight sleepover public’s on the impact plain paradoxical the assaulted), were sexually she was which law that will the rule of perception under Wash. Rev. “guardians” considered ad- fact that an accused’s the result from 5.60.060(1). Waleczek, § 90 Wash.2d Code any child are of the abuse missions Waleczek, the In P.2d 797. courts, cannot but in most state admissible explained: in federal into evidence the presented be voluntarily un- his wife and Defendant the street. court across normally charac- that are dertook duties the Ninth Cir- within Most of the states They agreed to let parental: terized as the laws that extend adopted cuit have house, wake her sleep at their Theraesa beyond exception marital communications with morning, provide her up in the Arizona, Indeed, in holding our White. breakfast, she and make sure went Nevada, Idaho, Oregon have eliminat- addition, no doubt we have In school. commu- entirely where the privilege ed the old, Theraesa, being only years against to a crime nication relates trust, obey respect, and defendant custody control of in or child while the she had principally because and his wife Ann. spouse. See Ariz.Rev.Stat. either moth- in care her own their been left priv- (eliminating the §§ & 13-604 13-4062 er. “dangerous involving any ilege cases “[sjexual con- children” and crime against California, has created legislature the years of a minor under fifteen duct with marital communica- exception § (preclud- Ann. Code 9-203 age”); Idaho charged spouse privilege when tions “any case ing use of prop- person or against with crime “[a] injury a child where injury physical child, or of a spouse erty of the other physical as a result of has cause been relative, of either.” cohabitant or parent, by one or both neglect abuse 972(c)(1) (emphasis add- § Cal. Evid.Code of lewd lascivi- “any case parents” ed). the privilege has eliminated Hawaii lewd lascivi- attempted ous conduct “in proceedings in which spouse one the reasons for the privilege are dis- charged against crime ... a third cussed the Ninth Circuit White. person residing in the household.” Haw. all, First of the Ninth Circuit cautions us 505(c)(1)(C). R. Evid. must narrowly be con- Arizona, Idaho, Nevada, The statutes strued because it obstructs the truth and Oregon unambiguously have eliminat- seeking process. they say And the use privilege entirely ed the where the commu- proceedings criminal nication against any relates to crime requires particularly narrow construc- child while in custody or control of society’s tion because strong interest spouse. majority either The has failed justice. the administration of utterly impact to discuss the of state-creat- public policy privi- reasons for the exceptions ed to the marital communica- lege protect are to integrity of mar- privileges tions or “recognize privi- state riages and spouses insure that are able leges where this can accomplished be at no freely communicate with each other. substantial cost to federal substantive and There has to somebody you can procedural policy.” Hosp. Memorial go your to to bear soul. privi- But the Shadur, McHenry County v. 664 F.2d (7th lege says Cir.1981). your priest, if it isn’t if it isn’t In declining to your lawyer, your consider the it’s evolutionary development spouse. throughout the law the United States re- But you when balance the in- interests jecting the marital privi- volved, the court in White found that lege where the victim of a spouse’s crime threats grandchild, is them majority has cob- spouse’s children don’t pur- further the together bled an amorphous standard that poses Likewise, privilege. abuse limits the equiv- the functional or abuse of spouses’ alent of a stepchild. child or This unde- children don’t further privilege. It fined concept will no anyone doubt baffle doesn’t further the privilege to allow who tries to apply it. someone to talk abusing about spouse spouse’s or the children with im- CONCLUSION punity. It doesn’t further the sanctity of In explaining its reasons for admitting marriage family or the relationship. Banks’s concern- Well, you when grandchildren have ing his who admission that produced he video under the facts depicting the crime of this case Banks commit- have that ted grandchild, his kind the district of relationship grandparents, court, matter, unlike the majority in this it is not even a small step from what the scrupulously duty fulfilled its apply Rule ruled White. It is almost exact- 501 as interpreted by the Supreme Court ly the same.

in Trammel. The district court reasoned Transcript 501-02, Banks, of Record at as follows: Case No. 1:06-CR-00051-S-BLW-WBS. question then is under those rele- The district court also noted “that facts,

vant does the exception to the determining principles of the common communications apply? they law as interpreted are in the courts of And does the court extend interpret light United States in of reason Ninth Circuit’s decision White to apply experience, to those the court looks to circumstances? In mak- the state determination, you just have to laws of not Idaho look but other states to the reasons for the privilege. And the reasoning in those decisions and stat- states.” those experience utes and court’s well- district affirm the

I would juris- law of common assessment

reasoned other Idaho and and the law of

prudence the child victim regarding

states privilege.

to the marital from dissent respectfully I

Accordingly, an accused’s holding that majority’s produced that he

admission to his of their his masturbation depicting

video Rule under was inadmissible

grandchild

501. DEWEAVER, Petitioner-

Emile

Appellant, Warden, RUNNELS,

David L. Prison,

High Desert State

Respondent-Appellee.

No. 06-16865. Appeals,

United States Court

Ninth Circuit. 21, 2008. and Submitted Nov.

Argued Feb.

Filed

Case Details

Case Name: United States v. Banks

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 25, 2009

Citation: 556 F.3d 967

Docket Number: 07-30130

Court Abbreviation: 9th Cir.