Argued April 9, 2012
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 10 cr 11-Larry J. McKinney, Judge.
Before Flaum and Hamilton, Circuit Judges, and Feinerman, District Judge [*]
Hamilton, Circuit Judge.
Defendant-appellant Michael Brock was convicted in a jury trial on three counts of possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). He was sentenced to a fifteen-year mandatory minimum term of imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). In this appeal, he challenges his convictions and his sentence. The challenge to the convictions is based on Mr. Brock's wife's testimony against him at trial. The district court found that the marital evidentiary privileges had been waived when she testified at his pretrial detention hearing. Over her objection, she was then ordered to testify against Mr. Brock at trial. We agree that the spousal communication privilege was waived, and we find that Mr. Brock lacks standing to challenge the finding that the separate spousal testimonial privilege was waived.
Mr. Brock's challenge to his sentence depends on whether unlawful possession of a machinegun counts as a "violent felony" under ACCA. In United States v. Upton, 512 F.3d 394 (7th Cir. 2008), we held that unlawful possession of a sawed-off shotgun counted as a violent felony under ACCA. Applying Upton, the district court ruled that possessing a machinegun was also a violent felony and that Mr. Brock's three separate convictions for possessing machineguns triggered ACCA. Although the district court properly applied controlling circuit law, we have recently overruled Upton on this point, holding now that unlawful possession of a sawed-off shotgun no longer counts as a violent felony. United States v. Miller, __ F.3d __ (7th Cir. 2013). The reasoning of Miller applies equally to unlawful possession of a machinegun, so we vacate Mr. Brock's sentence and remand for sentencing.
I. Factual and Procedural Background
In 1998 Mr. Brock was convicted on three counts of unlawful possession of machineguns, two counts of unlicensed dealing in explosives, and criminal conspiracy. According to the presentence report from that case, Mr. Brock and his two co-conspirators had purchased at least a dozen semi-automatic rifles in Kentucky, removed their serial numbers, and converted them into fully automatic weapons, that is, machineguns. They then transported the guns to Indiana and sold them, along with some blasting caps and detonating cord, to undercover federal agents. The machinegun sales were federal crimes under 18 U.S.C. § 922(o)(1), which makes it "unlawful for any person to transfer or possess a machinegun" unless it was lawfully possessed prior to 1996. Mr. Brock's partners pled guilty and testified for the government at his trial. Mr. Brock was found guilty and was sentenced to 108 months (nine years) in prison. There is no indication that Mr. Brock or his co-conspirators ever engaged in any acts of violence.
After his release from prison in the machinegun case, Mr. Brock married, started a business, and purchased a rural Indiana home where he lived with his family. Also present in the Brock home were several firearms — a 12-gauge shotgun, a .22-caliber rifle, and a .38-caliber revolver. Section 922(g)(1) prohibits any person convicted of a felony from possessing virtually any firearm that has ever crossed a state or national border. In 2009 federal agents received a tip about the guns and obtained a search warrant for the Brock home. As Mr. Brock was pulling out of his driveway, he realized the agents were arriving. He fled in what became a highspeed chase along the winding, hilly roads in the area. Mr. Brock eventually circled back to his home, where he was detained with the assistance of a police dog and a taser.
He was charged with violating 18 U.S.C. § 922(g)(1) and quickly appeared before a magistrate judge for a detention hearing. Mr. Brock's retained counsel (not the counsel at trial or on appeal) called his wife to testify in support of his release pending trial. She testified on direct examination that Mr. Brock had only recently returned home from working out of state and that he was the household's sole provider. On cross-examination, the government asked Mrs. Brock whether "Mr. Brock knew that . . . firearms were in the residence." This question was relevant to the detention issue but still should have set off several alarm bells for defense counsel. The question was beyond the scope of direct examination, it went to the heart of the charges against Mr. Brock, and it clearly threatened both the marital evidentiary privileges discussed below. Mr. Brock's lawyer objected, but on the meritless ground that the question called for speculation. The objection was overruled and the question was rephrased.
In response to a short series of questions that turned out to be critical, Mrs. Brock admitted that she had seen Mr. Brock handle at least one firearm, that he had shot and killed two possums with one, and that shortly before the government search, he had asked her to move two firearms from the residence to the back seat of their car. Finding that Mr. Brock was a flight risk and a danger to the community, the judge detained him pending trial.
In preparing for trial, the government subpoenaed Mrs. Brock to testify for the prosecution. With separate counsel, Mrs. Brock moved to quash the subpoena. She invoked the two marital privileges — the spousal testimonial privilege, which prevents one spouse from being compelled to testify against the other in a criminal trial, and the marital communications privilege, which protects both spouses against in-court disclosures of confidential statements made between them. Before trial, the district court denied the motion to quash, finding that Mrs. Brock had waived the spousal testimonial privilege because she had already given testimony against Mr. Brock in his detention hearing. The court also found that both Mr. and Mrs. Brock had waived the marital communications privilege as to anything she said in the detention hearing, including her testimony that Mr. Brock told her to move the two guns to the car. The court said it would entertain specific objections at trial to any questions seeking new information protected by the marital communications privilege.
At trial, the government called Mrs. Brock to testify. The court overruled Mr. Brock's objections to the court's waiver findings. Mrs. Brock was a reluctant witness, but she eventually repeated the crux of her earlier testimony: that Mr. Brock had known the firearms were in the home, that he had handled each of the three firearms in question, that he had used one to shoot some possums, and that he had asked her to move two of them from the residence to the car. No other witness testified that Mr. Brock had used the firearms or had known they were in the home, so Mrs. Brock's testimony was important to prove that Mr. Brock knowingly possessed the firearms.
The jury found Mr. Brock guilty on all counts. At sentencing the principal legal issue was whether Brock's prior convictions for unlawful possession of machine-guns were violent felonies. The district court followed our decision in United States v. Upton, 512 F.3d 394 (7th Cir. 2008), which held that possession of a sawed-off shotgun was a violent felony under ACCA, ...