# United States v. Arturo Reyes Mendoza, June Bunch Mendoza, and Oscar Reyes Mendoza > Court of Appeals for the Fifth Circuit · June 16, 1978 · 574 F.2d 1373 URL: https://www.frixlaw.com/law-library/cases/9464761 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Arturo Reyes MENDOZA, June Bunch Mendoza, and Oscar Reyes Mendoza, Defendants-Appellants - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** June 16, 1978 - **Citations:** 574 F.2d 1373; 3 Fed. R. Serv. 650; 1978 U.S. App. LEXIS 10647 - **Precedential status:** Published - **Opinion:** Concurrence by Goldberg - **Judges:** Cowen, Goldberg, Ainsworth - **Cited by:** 93 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9464761 ## How later opinions describe it (automated extraction) - holding that defendants lacked standing under the ECPA to challenge the admissibility of a tape of an intercepted telephone conversation because “neither has a legitimate expectation of privacy” - stating that “18 U.S.C. § 2511(2)(c) provides that such consent renders lawful the interception of a wire or oral communication” - finding no error in the trial court's failure to read the indictment to the jury ## Opinion text GOLDBERG, Circuit Judge, specially concurring: While agreeing with the majority’s result and with its analysis of most of the issues raised on appeal, I am compelled to concur specially on the question of the marital privilege. The majority holds today that the privilege barring one spouse from testifying adversely to another is inapplicable in this case simply because Mrs. Mendoza did not testify at trial against her husband. Without explanation or citation of superseding authority, the majority thus discards the rule of Ivey v. United States, 344 F.2d 770 (5th Cir. 1965), as that rule has been understood by this court, see United States v. Williams, 447 F.2d 894, 897-98 (5th Cir. 1971), as well as others. See United States v. Cleveland, 477 F.2d 310, 313 (7th Cir. 1973); United States v. Doughty, 460 F.2d 1360 , 1364 n.3 (7th Cir. 1972). See also 2 C. Wright, Federal Practice and Procedure § 405, at 87 n.25. Although I concur in the affirmance of Arturo Mendoza’s conviction on harmless error grounds, I find myself bound by clear Fifth Circuit precedent. The challenged testimony in the instant case was introduced through Agent Balazs who, working in an undercover capacity, had discussed the purchase of narcotics with the defendants. 1 Agent Balazs testified that in the course of arranging a heroin sale Mrs. Mendoza told him that her husband owned land in Mexico on which there was a cave in which was cached a large amount of heroin. Agent Balazs also testified that she told him that she and her husband were interested in establishing a Mexican curio shop in Corpus Christi. Their plan, she told the agent, was to smuggle heroin inside the curios. Appellant Arturo Mendoza, contends that the admission of this testimony violated the rule against admitting the testimony of one spouse against the other. He rests his claim of privilege upon Ivey v. United States, supra. *1383 Ivey , like the case at bar, presented a claim of marital privilege. Miley, a government agent, testified at trial. A portion of his testimony related to an interview he had with Mrs. Ivey, the defendant’s wife, while Mrs. Ivey was confined in the hospital subsequent to her arrest. Miley testified that Mrs. Ivey told him that “she and her husband had gone to Mexico to get a “fix,” that each of them had received an injection of a portion of the heroin they purchased, and that what was found on her was the remainder.” 344 F.2d at 771 . The husband contended that the admission of Miley’s testimony violated the rule against admitting the testimony of one spouse against another. 2 This court agreed and reversed the conviction. After discussing Hawkins v. United States, 358 U.S. 74 , 79 S.Ct. 136 , 3 L.Ed. 125 (1958), in which the Supreme Court reaffirmed the common-law rule that a wife’s testimony at trial was inadmissible against her husband, the Ivey court turned to the contention that the rule ought not be applicable when the wife’s testimony was introduced solely through the mouth of a third person to whom the wife had made an out-of-court statement. Our response to that contention was both precise and unequivocal: The Hawkins case, supra, involved the admission of a wife’s testimony in open court, but we know of no reason why the rule there reaffirmed is not equally applicable to a statement alleged to have been made by her out of court. She might as well be permitted to testify against her husband in open court as to permit the introduction of a statement she had made against him out of court. Id. at 772. That is the law in this circuit. In United States v. Williams, supra, we reviewed Ivey in closely analogous circumstances. There the government attempted to introduce through a law enforcement agent’s testimony Mrs. Williams’ out-of-court statement incriminating her husband. Ivey was read to reject any distinction between a statement made out-of-court and one made on the witness stand. 447 F.2d at 897 . 3 Indeed, the Seventh Circuit, in drawing a distinction between in-court and out-of-court statements, was forced to admit that “testimony by a government agent as to what a spouse said would be inadmissible in the Fifth Circuit . . .” United States v. Cleveland, 477 F.2d 310 , 313 and n.2 (per Stevens, J.). See United States v. Doughty, 460 F.2d 1360 , 1364 n.3 (7th Cir. 1972) (rejecting Ivey in favor of Second Circuit’s position in United States v. Mack-iewicz, 401 F.2d 219, 225 (2d Cir. 1968)). 4 The majority’s holding that the marital privilege barring one spouse from testifying *1384 against another is inapplicable simply because Mrs. Mendoza did not testify against her husband at trial is flatly inconsistent with the prior case law of this circuit. Although the challenged testimony further incriminated Arturo Mendoza, the husband, Mrs. Mendoza’s statements against her husband were entirely cumulative and added nothing of significance to the overwhelming independent evidence of her husband’s guilt. Agent Balazs also testified to a number of conversations with Arturo Mendoza in which Arturo Mendoza referred to the same land in Mexico and offered to arrange large sales of heroin and marijuana. Under the circumstances any error in admitting Mrs. Mendoza’s statements was harmless. One final point deserves clarification. The majority holds that the second marital privilege, that barring introduction of confidential interspousal communications, was not violated here since the confidential communications between Mr. and Mrs. Mendoza were both in furtherance and during the pendency of a criminal conspiracy. I agree with the majority that such communications ought not be privileged, but wish to emphasize that the confidential interspousal communication must itself occur during the pendency and be in furtherance of the joint criminal enterprise in order to lose its protected character. Here the only confidential interspousal communications introduced were the couple’s discussions, as summarized by Mrs. Mendoza, regarding their plan for the Mexican curio shop. Obviously, Mrs. Mendoza’s report of these conversations to Agent Balazs was not itself a confidential interspousal communication. While a finding that Mrs. Mendoza made this report in furtherance and during the penden-cy of a criminal conspiracy is a prerequisite to the admission of that report on hearsay grounds, Mr. Mendoza would still be privileged to exclude the evidence on the ground that it disclosed the content of a confiden-. tial interspousal communication were it not for the fact that the interspousal communication was itself made in furtherance of and during the pendency of a criminal enterprise between the Mendozas. Again, it is the character of the interspousal communication which is decisive on the.question of its protected character. See United States v. Kahn, 471 F.2d 191, 194-95 (7th Cir. 1972), cert. denied, 415 U.S. 986 , 93 S.Ct. 2271 , 36 L.Ed.2d 964 (1973), rev’d on other grounds, 415 U.S. 143 , 94 S.Ct. 977 , 39 L.Ed.2d 225 (1974). The sensitivity and constitutionally protected status of marital privacy, moreover, require that courts applying the rule we pronounce today not indulge unduly elastic conceptions of a communication in furtherance of a criminal enterprise. I have not hesitated to join in decisions which have denied claims of marital privilege when neither principle or precedent counsels exclusion. See United States v. Cameron, 556 F.2d 752, 755-56 (5th Cir. 1977); United States v. Harper, supra. I cannot, however, silently acquiesce in a decision which disregards the settled law of this circuit. Our prior cases make clear that the privilege barring one spouse from testifying adversely to the other is equally applicable to in-court and out-of-court declarations. Since the majority rejects this proposition, I cannot join in Judge Ains-worth’s opinion. I concur in the affirmance of Arturo Mendoza’s conviction because I am convinced that any error in the admission of Mrs. Mendoza’s extra-judicial statements was harmless in view of the overwhelming independent evidence of Arturo Mendoza’s guilt. . Tape recordings of the same conversations were also introduced. . At every point in the Ivey opinion, the court states that the issue presented there involved a claim of the privilege barring adverse testimony by one spouse against another. At no point does the Ivey opinion indicate a concern with the privilege for confidential interspousal communications. . The Williams court found Ivey indistinguishable from the case before it “unless it can be demonstrated that since Sarah Williams was a charged co-conspirator in the indictment the evidence was an admission against the interest of a co-conspirator admissible against the other conspirators.” United States v. Williams, supra, 447 F.2d at 898 . (Emphasis in original.) The court pretermitted consideration of that question holding that Mrs. Williams’ statement was inadmissible hearsay since she was under arrest at the time she made it. Thus, while the Williams decision leaves open a question which might be decided as a res nova today, the Williams court definitely considered 7vey to have settled the question of the applicability of the privilege to out-of-court statements in general. Today, the majority redetermines the settled question and casts Ivey aside. Since my disagreement is with the majority’s per se approach to the applicability of the privilege to out-of-court statements and since I am convinced that any error in the admission of the statements was harmless, I do not find it necessary to address the question noted but left open in Williams . Neither do I find it necessary to consider whether the fact that Mr. Mendoza was present when his wife made certain of the challenged statements and failed to object to them constitutes an implied admission. . United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) does contain a single sentence of dictum indicating that the privilege barring one spouse from testifying adversely to the other is inapplicable where the declarant does not testify at trial. Id. at 1045 . Read in context, however, it is clear that Harper offers no support to the majority. The claim rejected in Harper *1384 was that the government could not use the fruits of an extra-judicial investigation prompted by Mrs. Harper’s out-of-court statement. The court specifically noted that the government did not attempt to introduce into evidence any out-of-court disclosures by Mrs. Harper. The only use by the government of Mrs. Harper’s statements was in the extra-judicial investigation of the case. Id. at 1045 . Harper is not authority for the proposition that the privilege barring testimony adverse to a spouse is applicable only when the declarant makes the statement in open court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464761. Public record. Not legal advice.