On October 15, 2015, Joshua Davis, who then worked as a Brink’s driver, allegedly stole about $170,000 in credit-union funds skimmed from the collections he picked up at eight ATMs that he and co-worker Naheem Carrington had serviced that day.

After completing his collections for the day, defendant Davis drove the Brink’s truck to Atlanta, where it ran out of gas. A tow truck was called. Davis phoned his then-girlfriend, Philicia Morris, to pick him up while Carrington waited in the back of the truck for the tow to arrive.

A month later, Davis was indicted on charges of theft of credit union funds, in violation of 18 U.S.C. § 2113(b) and possession of stolen credit union funds, in violation of 18 U.S.C. § 2113(c).

On January 7, 2016, Morris voluntarily submitted to an interview by FBI agents. She told the agents that, after the Brink’s truck broke down, Davis called her. He asked that she pick up him up so they could buy food at a nearby Wendy’s.

While Morris and Davis were at Wendy’s, Carrington called to say the police were at the Brink’s truck and wanted to talk with Davis.

Morris heard Carrington say to Davis, “Somebody got out with a black bag, and it had money in it.”

She asked the defendant, “What money, what are you talking about . . . you got money on you or something?”

Morris stated that Davis responded “yes.” She told investigators that, at that point, she “freaked out” and “told him to . . . just get it out of [her] car.”

Morris then told the agents that Davis stuffed the stolen money into a pink bag that was in Morris’ car, and then “threw [the pink bag filled with money] out” of the car window on the side of the road somewhere.

She also told agents that she did not know what happened to the money after it was tossed.

She then drove Davis to the Brink’s truck where the police were waiting. The police searched Davis’ black bag, which was in Morris’ car. The police found Davis’ firearm and ammunition but did not locate any money.

After the tow truck arrived, Morris was allowed to leave. During her interview with the FBI, Morris stated, “After that, [she and Davis] stopped talking for one or two months.”

Morris and Davis had been in a long-term relationship since 2008 but despite frequently talking about getting married, they didn’t tie the knot until April 15, 2016, after Davis was indicted and shortly after Morris gave her statement to the FBI.

During a pre-trial teleconference with the parties in December 2016, defense counsel said he intended to seek to exclude, on the basis of hearsay, testimony by Morris about the comments she overheard during the telephone call between Davis and Carrington.

The Court, considering the hearsay argument and that Morris was married to the defendant, required the parties to brief the following issues: (1) whether Ms. Morris’ testimony regarding the telephone call is hearsay, and (2) whether any marital privileges apply to her testimony.

Shortly after, the Government filed a Motion to Admit the testimony of Morris, after which counsel for Morris formally invoked the adverse spousal testimonial privilege on Morris’ behalf. Those conflicting motions led the Court to address and resolve questions about whether the spousal privilege was applicable in the case.

For example, the Government first argued that, because Morris overheard the telephone call between Davis and Carrington before she married Davis, the spousal testimonial privilege did not apply, and it cited two Seventh Circuit cases in support of that proposition.

The Court first explained that Rule 501 of the Fed.R.Evid. provides that “[t]he common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege….”

It then noted that Federal law recognizes two marital privileges: (1) the marital confidential communications privilege (the “Communications Privilege”), and (2) the spousal testimonial privilege (the “Testimonial Privilege”). It then continued:

The Testimonial Privilege applies in a criminal case to any adverse testimony one spouse might provide as a witness against the other spouse. The privilege applies to testimony “on any adverse facts, no matter how they might have become known to the witness-spouse.” Unlike the Communications Privilege, the Testimonial Privilege does not survive the dissolution of the marriage. Historically, the Testimonial Privilege could be invoked by either spouse to prevent the other from testifying.

The purpose of the Testimonial Privilege is to protect the harmony and sanctity of marriage. Courts have reasoned that testifying against one’s spouse is likely to cause serious damage to a marriage, including by causing it to end. The Testimonial Privilege rests upon “its perceived role in fostering the harmony and sanctity of the marriage relationship,” . . . and the “natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner.” (Id. at 1367) (Internal citations omitted).

Then, the Court rejected the Government’s reliance of the two Seventh Circuit cases that it cited, stating that those cases “eviscerate the purpose upon which the Testimonial Privilege is based — to protect the harmony and sanctity of an intact marriage.” (Id. at 1368). The Court also stated that the Seventh Circuit’s “most recent statements . . . recognize[ ] that the reasoning in [the cases cited by the Government] is not persuasive here or in the Seventh Circuit.” (Id.) Accordingly, the Court concluded that “the Testimonial Privilege applies to pre-marital events” (Id.) - a conclusion which it acknowledged was a matter of first impression for the Eleventh Circuit.

The Government next argued that Morris could not assert the Testimonial Privilege because she participated in Davis’ crime. In response to that contention, the Court stated:

Whether there is a joint participant exception to the Testimonial Privilege is also a matter of first impression in our Circuit. The Government again relies on [the same two Seventh Circuit cases] to support its argument. . . . [However,] other Circuits Courts have found that the joint participant exception does not apply to the Testimonial Privilege (citing cases from the Second, Third and Ninth Circuits) (Id. at 1369) . . . .

In the absence of binding precedent, the Court finds the approach taken by the Second, Third, and Ninth Circuits convincing…. As the Second Circuit noted, “[i]n light of its existence since the early days of the common law and of the importance of the interests which the [Testimonial P]rivilege serves, we would leave the creation of exceptions to the Supreme Court or to Congress.”

Even if there was a joint participant exception to the Testimonial Privilege, it would not apply here. The crime in this case was committed by the Defendant when he allegedly took possession of credit union funds, placed them in a black bag and took the bag from the Brink’s vehicle. There is no evidence Ms. Morris was told that the Defendant wanted her to pick him up so that he could abscond with the money, and the facts as presented suggest Ms. Morris was unaware of the theft until she overheard the comments made by Mr. Carrington that someone had taken money and the police were investigating. Her remarks to get the money out of the car are most reasonably interpreted as Ms. Morris not wanting to be part of a crime the Defendant had already committed. There is insufficient evidence to show Ms. Morris was a joint participant in the Defendant’s crime, even if the joint participant exception applied to the Testimonial Privilege. The Court thus holds that the joint participant exception does not apply to the Testimonial Privilege and, even if it did, it would not apply here. (Id. at 1370-71)

Finally, the Government contended that the Testimonial Privilege does not apply because Davis and Morris married solely to prevent Morris from testifying against Davis. In support of that contention, the Government observed, inter alia, that Davis and Morris married shortly after Morris gave her statement to the FBI and after Davis was indicted; and that Davis described Morris as a “female associate” during a recorded interview with FBI agents on December 9, 2015. That evidence, the Government argued, shows that the marriage was collusive.

In response to those contentions, the Court agreed that “a ‘sham’ marriage cannot be used to invoke the Testimonial Privilege,” but it also said that “a couple married shortly before trial, standing alone, does not render a marriage a sham.” (Id. at 1371) (Internal citations omitted.) It then continued:

Ms. Morris provides ample evidence of the history of her relationship with Defendant. This evidence shows the two have had an on-again-off-again relationship for nearly nine years. They cohabitated for a portion of that time, including for most of the last three years. That Ms. Morris and Defendant “stopped talking for one or two months” after the alleged robbery does not undermine the sincerity of their relationship, because it is natural that Ms. Morris may have been angry or scared following the alleged robbery. That Defendant referred to her once as a “female associate” during an interview with the FBI also is not compelling evidence of a sham, because there is no indication he was asked to explain in detail the nature of his relationship with Ms. Morris. He also may have been trying to protect Morris. In any event, the statement was a single reference made under unusual circumstances. The weight of the evidence shows Ms. Morris and Defendant were in a committed, long-term relationship, and that the two intend to continue their marriage relationship. The timing of the marriage, while raising some suspicion, does not, with the other weak evidence relied upon by the Government, rise to the level necessary to show that the marriage was a sham. The Court finds Ms. Morris has met her burden to show that she and Defendant married in good faith, and thus that the Testimonial Privilege applies to the testimony sought by the Government. (Id. at 1372).

In the end, the Court denied the Government’s Motion to Admit the Testimony of Morris at Davis’ trial and held that she could assert her Testimonial Privilege with respect to her proposed trial testimony.

However, the court also held that the Government could introduce into evidence the statements Morris voluntarily gave to the FBI during her interview on January 7, 2016. It reasoned that the only possible basis for barring the use of those statements at trial was whether their admission would violate Davis confrontation clause rights; which required the Government to show “that the out-of-court statements bear sufficient indicia of reliability to provide the jury with an adequate basis for evaluating their truth.”

Under that standard and the facts of this case, the Court found that Morris’ statements to the FBI were sufficiently reliable and that their admission at trial would not violate Davis’ right to confrontation. See: U.S. v. Davis, 237 F.Supp.3d 1361 (N.D. Ga. 2017).

This article originally appeared in the February 2018 issue of Punch & Jurists and is reprinted with permission, with minor edits. Copyright, Punch & Jurists 

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