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United States v. Byrd

December 10, 1984


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 607 -- Milton I. Shadur, Judge.

Author: Bauer

Before CUMMINGS, Chief Judge, BAUER, and POSNER, Circuit Judges.

BAUER, Circuit Judge. Defendant Cornell Byrd was convicted by a jury of one count of conspiracy to commit arson and one count of arson, in violation of 18 U.S.C. §§ 371 & 844(i). The defendant appeals from this judgment, arguing principally that certain communications between the defendant and his then estranged wife should have been excluded from introduction into evidence under the privilege for confidential marital communications. The defendant also asserts that the trial judge erred in permitting the introduction into evidence of a list of food and liquor stores, which evidence the defendant argues should have been barred as prejudicial under FED. R. EVID. 403. In addition, the defendant asserts that the government failed to prove beyond a reasonable doubt that the alleged arson was committed using an "explosive," as that term is defined in 18 U.S.C. § 844(i). We affirm.


Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), the facts of this case, simply put, are as follows. On the night of February 24, 1983, the Double Z Food and Liquor Store at 6810 S. Halsted, Chicago, Illinois exploded and burned. Defendant was charged with the arson and conspiracy to commit arson and the testimony at defendant's trial showed that beginning in January or February, 1983, the defendant had repeatedly discussed the idea of fire-bombing food and liquor stores with Ed Oden, the defendant's unindicted co-conspirator, and Eugene Nickerson, who later withdrew from the plans to firebomb Double Z. Both Oden and Nickerson testified that the defendant had shown them a list of addresses of the possible "jobs," each with $10,000 written beside it, and that he had solicited them to drive him to the stores he intended to fire-bomb.

Oden testified that on February 23, 1983, the defendant bought a large gas can and a hand drill and placed them in the trunk of Oden's car. On the night of February 24, 1983, Oden drove the defendant to the alley behind Double Z several times; on one occasion the defendant left Oden's car with the drill, saying he needed to drill holes. Later Oden drove the defendant to a service station where the defendant purchased gas for the gas can and Oden and the defendant then returned to the Double Z alley. The defendant left Oden's car with the gas can and a rope. Moments later Oden heard an explosion and saw flames and debris coming from the Double Z. When the defendant got back into the car, he said that it was a piece of cake and everything was fine. Oden and the defendant then left the Double Z alley.

An eyewitness, Noah White, also testified at trial that he had seen a man on the roof of the Double Z drilling holes, pouring gas into a funnel and throwing a flaming rag into the funnel. White was standing on a second floor porch across the alley from the Double Z. The area was lit by three lights in the alley. White also saw the man throw a gasoline can into a dumpster in the Double Z alley. White later identified the defendant in a photo spread as the man he had seen on the roof of the Double Z. Expert testimony at trial established that a five gallon gas can, which had been recovered from the dumpster, contained gasoline.

Oden and Nickerson both testified at trial that the week after the fire-bombing of Double Z the defendant had been concerned about whether he would be paid for the fire-bombing. The defendant said that the Reverend Turner had promised to pay him for the fire-bombing of the Double Z. Mrs. Bryd, the defendant's wife, from whom the defendant had been separated since March, 1982, also testified for the government at trial. Mrs. Byrd testified that she and the defendant had been married for about eight years before they separated. Mrs. Byrd has purchased her own home after the separation, but testified that she allowed the defendant to use the basement of her house as a workroom. Prior to trial, Mrs. Byrd filed divorce proceedings against the defendant. Mrs. Byrd testified at trial that she filed for a divorce because of the defendant's affairs with other women.*fn1

Three incidents between Mrs. Byrd and the defendant are of particular importance in this appeal. Mrs. Byrd testified that on March 3, 1983, the defendant gave Mrs. Byrd a torn piece of paper and told her "tear up that piece of paper and throw it in the toilet." The paper contained a list of addresses of food and liquor stores, of which the Double Z was not one. Mrs. Byrd did not flush the list, but went to the police and consented to a search of her house. In the search the police found, among other things, two cans of petroleum distillate and a hand drill with tar on the end of it. At this time, Mrs. Byrd also consented to let the police place a recording device on her phone.

The second incident occurred on March 18, 1983, after the defendant was jailed for an unrelated crime. The defendant called Mrs. Byrd and asked her "to pick some money up" for him. The defendant wanted Mrs. Byrd to go to Phoenix with Oden to collect $12,000 for him in payment for "the job." He told her to take $2,000 for herself, keep $9,500 for him, and give $500 to Oden. The defendant told Mrs. Byrd that he had "nobody else I trust" to collect his payment. The third incident testified to by Mrs. Byrd occurred on May 12, 1983, when the defendant told her that were she asked questions about the arson pursuant to a subpoena already served on her, she was to answer that she "don't know nothing about nothing."

The trial court ruled that the introduction of Mrs. Byrd's conversations with the defendant were admissible under the "joint participants" exception to the marital communications privilege. The "joint participants" exception holds that the privilege does not apply where the spouses are both participants in the crime at issue. The court also ruled that the list of stores was admissible and gave instructions on the definition of explosives pursuant to Section 844(i). The defendant was convicted of both counts of conspiracy to commit arson and arson, and was sentenced to ten years on the arson count. The defendant was sentenced to a consecutive five year probation term for the conspiracy count. We affirm the defendant's conviction.


Defendant's first argument is that the judge erred in not excluding from; the evidence the defendant's estranged wife's testimony regarding his requests to her to destroy the list of stores, help Oden collect the payment, and say that she knew nothing about the defendant's activities if questioned by the police. The defendant argues that the marital communications privilege barred the introduction of this evidence.

In a criminal trial the availability of any privilege is "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." FED. R. EVID. 501. Privileges such as the attorney-client, doctor-patient, or marital communications privilege exist at common law or by statute to protect those interpersonal relationships which are highly valued by society and peculiarly vulnerable to deterioration should their necessary component of privacy be continually disregarded by courts of law. Despite the importance of these privileges, the Supreme Court has held that they must be narrowly construed because they are in derogation of the search for truth which lies at the heart of a criminal trial. United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1983); see also United States v. Clark, 712 F.2d 299, 301 (7th Cir. 1983) (the privilege "generally retards truth-seeking."). ...

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