The opinion of the court was delivered by: Herndon, Chief Judge:
Before the Court is defendant Brett L. Nash's motion in limine regarding marital communications (Doc. 29). At issue here is whether the Court should apply the marital communications privilege to communications between defendant Brett L. Nash and his wife, Tanya Nash. For the reasons that follow, the Court finds that the privilege does not apply, and therefore, the Court denies defendant's motion in limine (Doc. 29).
On February 23, 2012, the United States filed a five count indictment against defendant, alleging in separate counts: 1) attempted interference with commerce by violence; 2) physical violence and threats of physical violence in furtherance of plan to commit robbery and extortion; 3) attempting abduction, seizing, and confining; 4) murder for hire; and 5) murder for hire.
On September 17, 2012, defendant filed a motion in limine regarding martial communications (Doc. 29). Two days later, on September 19, 2012, the United States filed a superseding indictment charging defendant with the following four counts: 1) attempt to obtain money by extortion; 2) attempted abduction, seizing, and confining; 3) murder for hire; and 4) murder for hire. On September 27, 2012, the government filed its response (Doc. 35) to the defendant's motion in limine, and on October 5, 2012, defendant filed a reply (Doc. 37) to the government's response.
Subsequently, on October 17, 2012, the government filed a second superseding indictment, charging the following counts: 1) attempt to obtain money by extortion; 2) attempted abduction, seizing, and confining; 3) murder for hire; 4) murder for hire; 5) solicitation of crime of violence; and 6) solicitation of crime of violence. Thereafter, on October 23, 2012, the United States filed a motion for leave to file a supplemental response to defendant's motion in limine (Doc. 53). The Court gave defendant time to file any objections to the United States' request but none were filed and on November 7, 2012, the Court gave the United States permission to file a supplement. The next day, November 8, 2012, the United States filed its supplement, and the Court gave defendant until November 13, 2012, to file a response, if any, thereto. On November 13, 2012, defendant filed his response. The parties arguments are set forth below.
In defendant's motion in limine, defendant seeks to preclude the use, whether direct or indirect, of any recordings of communications between defendant and his wife along with the recordation or reflection of any other marital communications between defendant and his wife on the basis of the marital privilege. Defendant indicates that during the course of discovery, the United States provided defendant recordings of conversations between defendant and his wife that were made unbeknownst to defendant, along with recordings and summaries of interviews and conversations with defendant's wife in which she discusses communications between her and defendant. Defendant maintains that these communications between defendant and his wife were made in confidence during a valid marriage and therefore those communications and any testimony, documents, or recordings reflecting those communications are privileged and subject to exclusion.
In response, the government contends that the marital communication privilege should not apply because the defendant was attempting to solicit a crime. Further, the government argues that "[n]o policy justifies protecting the communications of a wife-beating husband who is trying to force his wife into criminal activity through his communication to her." (Doc. 35, p. 15). The government also contends that the defendant's communications, in themselves, constitute felonious conduct, and presumably therefore should not be subject to the marital privilege. Alternatively, the government asserts that even if defendant prevents his wife from discussing the communications themselves based on the marital communications privilege, the privilege does not prevent her from testifying that she made the recordings. Lastly, the government contends that the privilege should be deemed waived because defendant related many of the same subjects of his conversations with his wife to the confidential witness.
In the government's supplemental memorandum, the government contends that in light of the second superseding indictment, which added counts V and VI for solicitation of a crime of violence, defendant's communications were in themselves criminal and are not deserving of protection under the marital communications privilege. In defendant's response, defendant asserts that it appears that the newly added counts, counts V and VI, were only included in the second superseding indictment as a crutch for the government's position on defendant's motion in limine, and that the government seeks to go beyond the commonly recognized exceptions to the marital communications privilege. For the reasons that follow, the Court disagrees with defendant.
"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.'" United States v. Lea, 249 F.3d 632, 641 (7th Cir. 2001) (citing FED. R. EVID. 501). "Evidentiary privileges must be construed narrowly to protect the search for truth." United States v. Lofton, 957 F.2d 476, 477 (7th Cir. 1992) (citing United States v. Byrd, 750 F.2d 585, 592 (7th Cir. 1984)).
III. The Marital Privileges
"There are two clearly recognized marital privileges: the marital testimonial privilege and the marital communications privilege." United States v. Westmoreland, 312 F.3d 302, 307 n. 3 (7th Cir. 2002). "Distinct differences exist between the purposes of the two privileges." Id. "The testimonial privilege looks forward with reference to the particular marriage at hand: the privilege is meant to protect against the impact of the testimony on the marriage." Id. "The marital communications privilege in a sense, is broader and more abstract: it exists to ensure that spouses generally, prior to any involvement in a criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear or eventual exposure in a court of law." Id. (citing Lofton, 957 F.2d at 477). Since both privileges are closely related, "to understand the one, it is necessary to understand the relationship between the two privileges." Byrd, 750 F.2d at 589.
The marital communications privilege "applies only to communications made in confidence between the spouses during a valid marriage." United States v. Darif, 446 F.3d 701, 705 (7th Cir. 2006) (quoting Lea, 249 F.3d at 641). "The privilege may be asserted by either spouse." Darif, 446 F.3d at 705 (citing Lea, 249 F.3d at 641). "It 'exists to ensure that spouses generally, prior to any involvement in criminal activity or a trial, feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law.'" Darif, 446 F.3d at 705 (quoting Westmoreland, 312 F.3d at 307 n. 3). "'[W]hile divorce removes the bar of incompetency, it does not terminate the privilege for confidential marital communications.'" Byrd, 750 F.2d at 591 (quoting Pereira v. United States, 347 U.S. 1, 6 (1953).
"Exceptions to the privilege result from the tension between the cost of reducing our ability to punish criminals and the value of increased spousal communication." United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993). "For example, we only protect statements made in absolute confidence; that necessary element is lost when spouses permit third parties to witness their communications." Id.; see also Lea, 249 F.3d at 642 ("While we remain steadfast in our position that the necessary element of confidentiality is lost when a spouse divulges to a third party the communication which he or she seeks to exclude from evidence . . . ."). "Because testimony about first-hand observations would not affect the decision to confide in one's spouse, the privilege does not extend to descriptions of observations." Short, 4 F.3d at 478. "In addition, we do not value criminal collusion between spouses, so any confidential statements concerning a joint criminal enterprise are not protected by the privilege." Id.; see also Darif, 446 F.3d at 706 (citing Westmoreland, 312 ...