From U.S. v. Bolen, determined Friday by Choose Mary Dimke (E.D. Wash.), an attention-grabbing illustration of how the authorized guidelines associated to the spousal testimonial privilege generally play out:
The spousal testimonial privilege “prohibits one partner from testifying in opposition to the opposite in prison instances through the course of their marriage, and ‘the witness-spouse alone has a privilege to refuse to testify adversely.'” “[T]he privilege shouldn’t be favored, and in consequence is narrowly construed.”
“The Ninth Circuit acknowledges a sham marriage exception to the marital privilege of not having to testify in opposition to a partner.” This exception is a “slender” one “that has sometimes arisen when there was a detailed temporal proximity between the date of a wedding and the date when a witness-spouse has been anticipated to testify.”
Whereas the “timing of a wedding will all the time be an element,” it’s “solely one of many components.” Different components embody whether or not “the wedding was entered into in good religion” and whether or not the spouses “plan to proceed their conjugal relationship.” … [T]he spousal testimonial privilege shouldn’t be obtainable when “the aim of the wedding was for the aim of invoking the marital privilege.” …
Defendant Greer and MacGregor started relationship in July 2015 and shortly moved in collectively as a result of MacGregor had been homeless. Defendant Greer was arrested and detained on state costs, which kind the idea for these federal costs, on January 15, 2022. MacGregor was interviewed by regulation enforcement shortly after Defendant Greer’s arrest and made a number of incriminating statements about him. {The Courtroom was not conscious of the substance of those statements on the time it orally denied MacGregor’s movement. Nonetheless, MacGregor subsequently testified that she supplied regulation enforcement photographs of Defendant Greer’s penis and recognized Defendant Greer’s penis within the photographs of alleged little one pornography.}
The court docket concluded that “the couple’s Might 8, 2022, marriage was designed for the aim of MacGregor avoiding having to testify and Defendant Greer had no different intent to marry MacGregor”; here is an excerpt of the pretty lengthy dialogue:
On the floor, the timing of the wedding is inherently suspect. After roughly six-and-a-half years collectively, Defendant Greer and MacGregor engaged in an effort to marry and finally married solely after Defendant Greer’s arrest on January 15, 2022, and after MacGregor made incriminating statements about Defendant Greer to regulation enforcement. {Notably, MacGregor didn’t testify as to any demonstrated intent to marry previous to Defendant Greer’s arrest.}
Following Defendant Greer’s arrest, recorded jail calls point out Defendant Greer’s obvious newfound preoccupation with getting married and MacGregor’s obvious desperation to mitigate the potential authorized harm of incriminating statements she made about Defendant Greer to regulation enforcement. Seven days after his arrest, Defendant Greer advised MacGregor she must sustain her energy due to how onerous she should work to get him out of custody. She responded by asking how a lot a wedding license prices. Whereas the timing of the wedding is “just one” of the components the Courtroom should assess, the totality of the proof, as mentioned beneath, strongly weighs in favor of discovering the wedding was designed for the aim of MacGregor avoiding having to testify.
[2.] Textual content Messages previous to Defendant Greer’s Arrest
The Courtroom has reviewed dozens of textual content messages Defendant Greer exchanged with Defendant Bolen and others starting in October 2020 and persevering with till the time of Defendant Greer’s arrest. The messages strongly recommend Defendant Greer by no means possessed an intent to marry MacGregor previous to his arrest. Quite, these exchanges painting his and MacGregor’s relationship as each unstable and in misery within the months main as much as his arrest.
The Courtroom has reviewed messages exchanged between Defendant Greer and Defendant Bolen, with whom Defendant Greer apparently confided about MacGregor. The messages are reflective of dissatisfaction with the present relationship. See, e.g., USA Trial Ex. 12 at 12-016-018 (discussing shifting in collectively if Defendant Bolen will get a “large enough home,” as a result of Defendant Greer needs to “get away” from MacGregor); id. at 12-063 (Defendant Greer explaining he couldn’t reply to Defendant Bolen’s invitation to play video video games as a result of MacGregor was watching his each transfer, angering him); id. at 12-097-12-099 (Defendant Greer expressing displeasure that MacGregor was dwelling for the week and that he couldn’t play video video games as a result of she was dwelling, referring to her as lazy and loopy); id. (the exhibit accommodates exchanges repeatedly and incessantly expressing annoyance that Defendant Greer can not play video video games with Defendant Bolen as a result of MacGregor was dwelling).
The Courtroom additionally thought of messages Defendant Greer exchanged with two different people, which mirror a deep hostility to MacGregor. On September 3, 2021, Defendant Greer texted Ashley S. and Natasha H. about MacGregor: “As quickly as we pulled away from you guys, she began bitching at me … and did not cease till a couple of minutes in the past.” Ashley remarked in response: “I am sorry Casey. If I had a spare room, I might let u keep right here [sad emoji]. I really feel so unhealthy for you, no surprise you sit within the rest room for two hours.” Defendant Greer agreed, stating: “Yeah. I want my alone time from her and she or he even ruins that!” Ashley repeated the sooner sentiment: “I want u may keep right here dude.” Defendant Greer once more agreed, replying, “Identical.” Ashley later referred to MacGregor as a “little psycho,” to which Defendant Greer responded, “Solely a bit of! Attempt a lottle!” Ashley replied, “Haha loopy psycho.” Defendant Greer once more agreed, replying, “Undoubtedly!” Ashley then remarked, “That is your future spouse your speaking about.” Defendant Greer responded, “NO FUCKING WAY IN HELL!!!!”
On September 7, 2021, Defendant Greer once more texted Ashley and Natasha about MacGregor: “I do not know who she’s speaking to however she’s making me out to be the unhealthy man once more, I went off on her as a result of she would not cease along with her bullshit from the second I stepped within the door tonight.” Ashley remarked that she “could not imagine [he] known as her a spoiled brat.” Defendant Greer clarified “[t]hat’s not all I known as her”: “Spoiled brat. Whiney little child. Bit[c]h. I feel there was extra however I am unable to keep in mind. She does not keep in mind me calling her a bitch. … She’s e[x]pecting me to apologize nevertheless it’s not going to occur.” Ashley responded: “Nothing to apologize for talking your fact.” Defendant Greer agreed: “Precisely.” Defendant Greer additionally referred to MacGregor as a “[s]tupid fucking cunt.” Lastly, whereas discussing that MacGregor was ” flats,” Defendant Greer famous that “if [MacGregor] strikes, I am unable to go along with her, making me homeless.” The references cited are merely examples of dozens of messages containing the identical tone of discontent, and which by no means mirror any optimistic commentary about MacGregor.
The Courtroom acknowledges that ebbs and flows are ordinarily a pure a part of relationships. Accordingly, the Courtroom doesn’t—and wouldn’t—base its discovering on an up-and-down dynamic between Defendant Greer and MacGregor…. “We don’t imagine that courts can or ought to ‘assess the social worthiness of explicit marriages or the necessity of explicit marriages for the safety of the privilege.'” … “The testimonial privilege applies with equal power to challenged marriages because it does to mannequin marriages.” … The Courtroom likewise doesn’t assess whether or not, after almost two-and-a-half years, Defendant Greer and MacGregor’s marriage is a “challenged” or “mannequin” one.
Quite, it finds solely that, primarily based partly on the textual content messages referenced above, Defendant Greer didn’t have a bona fide intention to marry MacGregor previous to his arrest. Wanting solely to Defendant Greer’s motive, the messages within the report plainly recommend that “the aim of the wedding was for the aim of invoking the marital privilege.”
[3.] Jail Calls
The Courtroom has reviewed a sequence of recorded jail calls made between Defendant Greer and MacGregor occurring after his arrest on state costs associated to the conduct underlying the next federal costs. The Courtroom finds the jail calls mirror Defendant Greer entered into the wedding to keep away from having MacGregor testify….
The calls mirror that, to Defendant Greer, the wedding was inexorably linked along with his prosecution: Defendant Greer repeatedly was preoccupied with ensuring the state prosecutor was conscious of it. As with the textual content messages, the calls plainly recommend that “the aim of the wedding was for the aim of invoking the marital privilege.” …
[4.] MacGregor’s Testimony
The Courtroom finds MacGregor’s testimony decidedly not credible. She repeatedly invoked equivocal phrases—equivalent to variations of “I don’t recall” and “I don’t keep in mind”—not less than ten instances on cross-examination. Within the Courtroom’s view, it was implausible for MacGregor to not keep in mind particulars and conversations that had been unambiguously memorable, primarily based on the content material of her calls with Defendant Greer….
The Courtroom doesn’t take flippantly the duty of assessing whether or not a wedding was entered into in good religion or for the aim of wielding it as a protect in a prison prosecution. Nonetheless, the totality of the proof compels the conclusion that Defendant Greer and MacGregor’s marriage was “for the aim of utilizing the wedding ceremony in a scheme to defraud[.]” …
Ann Wick represents the federal government.
