United States v. Neville Bruce Thompson
716 F.2d 248
4th Cir.
1983
Check Treatment

*1 Supreme directions opinion and

Court.

REVERSED AND REMANDED. America, Appellee, STATES of

UNITED THOMPSON, Appellant.

Neville Bruce

No. 82-5201. Appeals, Court of Circuit.

Fourth Feb.

Argued Aug.

Decided Jr., Mount, Rocky N.C. Crawley,

Jack B. Lane, Rocky & Jolly, McCotter (Spruill, Mount, N.C., brief), appellant. for Justice, Miller, Dept, I. Margaret Currin, T. D.C., (Samuel Washington, N.C., brief), appellee. Raleigh, Atty., *2 WINTER, Judge, Before Chief WIDEN- had left morning home that but had neither BRYAN, ER, Judge, and Senior Cir- returned nor since been in touch with her. Judge. cuit Despite the initial failure of the F.B.I. to Thompson, locate a complaint accusing him BRYAN, ALBERT Y. Senior Circuit of the was in robbery January filed of 1982. Judge: Subsequent conversations with his wife con- Indicted for bank robbery,1 appellant Ne- vinced the F.B.I. that living guilty by ville Bruce was found a in New City using York the name jury in the Federal Court for the Eastern Mugabe.” investigation “Bruce Further District of North Carolina and sentenced to Bronx, York, traced him to the New where imprisonment for sixteen He now years. he was arrested on March appeals, primarily asserting that certain trial, Prior to displayed F.B.I. an ar- testimony privi- allowed at trial violated his ray photographs of seven black males to lege against disclosure of marital communi- teller, Evans, and asked her to identify cations. we Although conclude the robber. On the first occasion she failed permitting trial court erred in the Govern- identify Thompson’s to picture, positive- evidence, to ment introduce this we see the ly identified him in her second attempt, error as harmless and so affirm. thirteen days before trial. On the date of trial, 25, 1982, June the Court denied the request defendant’s for a lineup. 4, 1981, at On November about 11:30 Thompson testified that the morning a.m., driving a man a silver-colored Capri of the he to a had driven local automobile at the drive-in window stopped mall. shopping shopping After and eating Rocky of the Planters National Bank in lunch, he car discovered his had been Mount, driver, North Carolina. The a black parking taken from the lot. He maintained male, placed a note in the teller’s drawer that at approximately 11:15 a.m. tele- reading, anything stupid. “Don’t do I know phoned his wife who told police him the where live. you Anything go wrong, my question wanted to him in connection with get you. friend will I want cash.” The robbery. Thompson a bank said that be- teller, Evans, $1,230 put Shirlee cause he believed he not a could receive fair drawer and asked a to activate colleague Carolina, trial in North he fled to New grabbed silent alarm. The driver then York. He “Mugabe” used the alias for “tax money sped out of the lot while parking reasons.” Evans recorded his license number. plate hour,

Within the local police Among prosecution’s identified witnesses teller, Evans, the license as that Capri of a silver Ford the bank who was asked if belonging Thompson. At approximately the robber was in the courtroom. She 2 p.m. pointed the same F.B.I. said “I day, agents visited believe it’s Rocky Thomp- home in Mount. but I’m positive.” not She [the defendant] son’s wife told the that her agents explained husband that while the had defendant bank, union, part 1. 18 U.S.C. section reads: as a credit or as a sav- association, ings Robbery and loan with intent to com- Bank and incidental crimes Whoever, violence, bank, union, (a) by force and or mit in such credit or in such intimidation, takes, take, attempts association, savings building, or from and loan or or person presence any prop- thereof, used, or of another part any felony affecting so erty any thing or or other of value union, savings such bank credit such or to, care, control, belonging custody, or in the any loan association and in violation of stat- of, bank, management, possession any or any larceny— ute of the United or union, any savings credit or and loan associa- $5,000 Shall be fined not more than or tion; or imprisoned twenty years, not more than or attempts any Whoever enters or to enter both. bank, union, any savings credit or and loan association, any building used in whole or or from testi- prevent had been one the other spouse the robber glasses wore beard and Trammel United glasses. fying. and was without shaven clean 906, 912, 40, 51, however, spousal her wife, exercised His Lefkowitz, (1980); on behalf testify and declined privilege (9th Cir.1980); Wig- 8 J. F.2d prompted This refusal of the Government. Law, more, in Trials at Common Evidence the wife was unavail- rule that the Court to *3 1961). (McNaughton rev. ed. 2333 § It then allowed an F.B.I. witness. able as a Thomas, about his conver- testify agent, form, privilege In the present its her.2 the particular, sations with In “marital communications are dictates her about her he asked said that when v. confidential.” Blau Unit presumptively 1982,3 January whereabouts husband’s States, 333, 301, 332, 71 ed 340 U.S. S.Ct. in which the conversation described a she 302, (1951). party seeking The 95 L.Ed. 306 irritated and blamed had become defendant of privilege the bears the burden to avoid pres- she kept on her “because his dilemma Id.; Hipes v. overriding presumption. this get job.”4 suring States, 786, (9th United 603 F.2d 788 Cir. presence either the of a 1979). Proof of II at the time of the communica party third Rules of Evi- adopting the Federal tion, the intention that the informa or of dence, proposed eliminated all Congress be transmitted to a third conveyed tion privi- the nonconstitutional governing rules pri the of person, negate presumption will 1277, No. 93rd S.Rep. of witnesses. leges States, 1, v. United vacy. Pereira 347 U.S. Sess., reprinted in 1974 U.S.Code Cong., 2d 6, 358, 361, (1954). 74 98 L.Ed. 435 S.Ct. 7051, Rather, it Cong. & Ad.News in the the in Although Government the task chose to leave to the Federal courts no evidence that dis stant case adduced privileges the standards for interpreting confidentiality, the assumption the pelled the of the common law “in principles from testify permitted Agent Thomas Court experience.” of reason and Fed.R. light the defendant made in about statements Evid. 501. conse confidence to his wife. The Court law, ex- At common the Federal courts error in Thom quently allowing committed communi- immunity tended confidential testify as to about the defendant’s comment cations between husband and wife. Stein predica for his that his wife was to blame Bowman, v. 207, 222, (13 Pet.) 38 10 U.S. ment. (1839). They privi- 129 deemed this L.Ed. Nevertheless, must as preserva- to the this Court lege indispensable to be so affected the sub relationship that it certain whether error marriage tion of the of the defendant. 28 U.S.C. disadvantages rights stantial outweighed any consequent 2111; Wolfle v. appro The Fed.R.Crim.P. justice. to the administration of 7, 14, 279, determining the harmless United priate 291 54 test for U.S. whether it 280, 617 re- of nonconstitutional error is 78 L.Ed. doctrine ness assurance, after pon- from the rule that enabled can be said “with fair mained distinct spoke Thompson searching Agent “asked him to Thomas with Mrs. F.B.I. was for him and ” 4, said, 1981, January according She also three occasions: November 27, turn himself in .... 11, Agent Thomas, 1982 and June 1982. The testi- husband’s that she learned of her that, during fied the November 1981 conversa- “Mugabe” from the return use of the alias tion, Thompson him that she did not Mrs. told to her. address on the defendant’s letters know where her husband was. He also de- day supply of food in the clared that on that [Thompson] “He stated to 4. Thomas testified: low, and that Mrs. household was in that he her that it was her fault many family’s bills said that happened. The reason this situation unpaid. kept pressuring because she was her fault was job.” him Mrs. said Thomas testified that repeatedly had told her husband that

251 motion, dering stripping all that without the Court did not abuse its whole, Bennett, discretion. See United v. the erroneous action from States cert, 596, (4th Cir.), denied, 675 F.2d 598 judgment substantially swayed was not ” 1011, by the error.... Kotteakos v. United (1982); Ravich, United States v. 421 F.2d 750, 765, (2d Cir.1970). (1946);- 90 L.Ed. 1557 United v. States Nyman, (4th Cir.1980). 649 F.2d 211-12 Finally, questions the defendant This exaction necessitates an examination convict, sufficiency of the evidence to aver probability that the error “could have ring prove that the Government failed to particu- affected the verdict reached taking committed crime and that jury lar circumstances of particular accomplished with force or intimida Davis, the trial.” 657 F.2d Howard, tion. See (4th Cir.1981). During the course (2d Cir.1974) (essential F.2d ele inquiry, court consider other ments of robbery). Assessing the evi *4 id., guilt, evidence of the defendant’s the dence most to the favorably prosecution, see error, steps mitigate Nyman, taken to the 307, Virginia, 319, Jackson v. 99 649 centrality F.2d at and the of the 2781, 2789, 61 (1979), L.Ed.2d 560 the affected the error. issue Id. Government beyond established a reasona ble doubt that the defendant was the indi Presently, upholding the evidence vidual who stole the from the Plant Thompson’s conviction was so conclusive ers National Bank. The use of a note con “that it is that the altogether unlikely error taining a threat does not defeat the conclu Davis, affected the verdict.” 657 F.2d at that sufficient sion intimidation was 640. The at evidence adduced trial identi for pressed purposes of 18 U.S.C. § Thompson’s fied car as the one used in the Epps, United States v. 438 F.2d 1193 robbery proved upon learning and that (4th Cir.1971). the crime he fled to New York where he The judgment the District Court is an employed alias for several months. Al though error here an the involved issue of AFFIRMED. the

importance, prosecutor highlight did not WIDENER, Judge, dissenting: the flawed testimony by repeated question ing argu nor did he refer to it in closing I respectfully dissent. ment. v. Espinosa See United States —Cer that, I think when the district court ad- pa, (5th Cir.1980). Thus, 630 F.2d 335 mitted into evidence the state- privileged we conclude that the error did not affect wife, Thompson’s ments of it committed the judgment jury.5 pass reversible error. I thus would not the other upon questions addressed in

Ill opinion majority except of the that of Thompson also maintains that error, harmless for I that “it can do not feel Court denied his erroneously motion a assurance, be with pondering said fair after Nonetheless, lineup. the defendant made all that the er- stripping without request morning on the of trial whole, roneous action from the that Court that the noted defendant had altered judgment substantially swayed by was not his appearance denying since the crime. In the error.” Kotteakos v. 328 United recounted, proof just robbery addition to the noon of the did not record his visit. fully Finally, Thompson record manifests that the defendant made averred that his wife told these, exculpatory Among false statements. a police looking him for him when neighbor declared that he saw leave morning called her at 11:20 a.m. on the of the robbery his house in the in car used one evidence, however, robbery. The shows that Despite hour later than the defendant fixed it. the bank was not until 11:30 a.m. and robbed assertions, reported he never his police did not contact his wife until 2:00 Further, car as stolen. at records of the hotel p.m. stayed which said he the after- 252 agent L.Ed. told the FBI She whereabouts the return of her husband from address him letter had received from course, holding with the of the agree, I he was the alias going “Mugabe.”1 under admitting privileged majority, agent further told the FBI that on at She was error. But in statements into evidence least two occasions her husband had become error, the extent of the analyze order to subject irritated with her when the of the placed evidence be suggest that such came robbery up and told her that following setting. was her fault obviously “this [which of the bank robber was The identification hap- could have meant the bank robbery] be It might not so certain as desired. pened,” the it was being reason her fault really important, only an contested kept pressuring job.2 that she case,

issue in the and the district court pages two one-half of its devoted Thus, the statements of the defendant’s outset,” charge to that matter alone “at the wife to the FBI introduced into evi- quote the district court. teller who proved dence use of an alias which itself identify failed to attended is evidence relevant to show consciousness first to her Thompson’s picture when shown guilt. Boyle, United 675 F.2d States so in a attempt was able to do second (1st Cir.1982); Wigmore on Evidence days some seven months later and thirteen (Chad.Rev.1979). It also showed the trial, majority points before as the out. flight defendant’s which also be taken The teller’s identification of guilt. to evince his consciousness of even more “I courtroom was uncertain: Cir.1963); Paige, (4th 324 F.2d 31 *5 I am not believe it’s defendant] [the Evidence, Wigmore supra. Thomas, positive.” agent, The FBI inter- And, course, the statement of the de- viewed the defendant’s wife on at least fendant to his wife that the affair would three occasions. pres- not have had she not been intro- setting, government In this suring job could well have duced evidence that the defendant’s wife been, was, probably by jury and taken Thomas in agent told FBI his first inter- to amount to a confession. her, day robbery, view with The statement of the defendant’s wife to behind, that family all the bills were includ- FBI agent that the household bills bills, ing the that light telephone unpaid, including lights telephone, rent and that paid, had not been there due, that there past that the-rent was no the house. money in obviously sup- was no in the house Later, she Thomas that she had told told a motive for the crime.3 plied her husband several times that the FBI was took in seek- government route looking for him and had asked him to turn ing ques- the introduction of the evidence in himself in to the FBI. Of course worthy findings had not in. tion is of note for the bear turned himself Declining divulge (which Capri the whereabouts of an automobile was similar to the one robbery). hiding explicitly used absent wife in held be States, privileged in Blau v. United 340 U.S. majority opinion may suggest If the that com- 95 L.Ed. 306 munications between husband and wife are testimony part privileged, on the but other Although perhaps not as crucial as the wife’s not, generally Wig- testifying spouse see is above, especially statements recited since iden- Evidence, Rev.1961, McNaughton more on case, tification was the issue in the evidence 2227-2245; 2232-2240, theory that has §§ was also introduced that wife told rejected been in terms in Trammel v. agent the FBI where she banked which was the 63 L.Ed.2d robbed, same bank which was the Planters (1980), which modified Hawkins v. United (she agent deposit slip National showed the her one on which was similar which (1980), only the extent that now the witness addition, written). note was privilege’s] privilege. “Its claim the [the grey told the that drove a protection limited to confidential commu- is not harmless question persuasively on moved to admit the government

error. The they hearsay, the wife as

statements of 804(b)(5). In the under FRE

were admitted ruling, that the district making

course of found: specifically

court sought to be

“. .. the statements in this case government by

offered facts in evidence as to material

contain more they probative

the case and that are proposed

on the for which is point any be offered than other evidence

they has government procured

which the efforts.”

through reasonable have, then, privileged statements

We motive, flight, to show tending the wife crime,

alias, and a con- connection with These statements have guilt.

fession of judge the district correctly

been found context), in a somewhat different

(although them

who saw the witnesses and heard probative points be more on the

testify, than other they any

for which were offered government procured.

evidence the had see, agree,

am not able to and cannot into evidence

admitting these statements

was harmless error. remand

I would vacate the conviction and

for a new trial. *6 Gastonia, N.C. Bumgardner, H.

Don Carpenter, & Gasto- (Harris, Bumgardner nia, N.C., brief), for appellant. HORNE, Jr., Appellant, James E. Charlotte, (Helms, Cordle, Robert B. N.C. Charlotte, N.C., Johnston, Mulliss & COMPANY, ELECTRIC GENERAL brief), appellee. Appellee. No. 82-1535. WIDENER, HALL and MURNA- Before Appeals, Court of GHAN, Judges. Fourth Circuit. March Argued PER CURIAM: 1, Sept. Decided action diversity plaintiff brought District Court for

in the United States to re- North Carolina Western District of while injuries sustained damages for cover p. nications; rather, p. permits exclusion at 100 S.ct. at ... [the testimony.” Trammel all adverse of]