United States of America v. Donavan Jay White Owl, also known as DJ

United States Court of Appeals
For the Eighth Circuit
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No. 21-1489
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United States of America,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Donavan Jay White Owl, also known as DJ,
lllllllllllllllllllllDefendant - Appellee.
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: February 18, 2022
Filed: July 5, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Donovan White Owl is charged in the district court with arson and felony
murder after allegedly starting a cabin fire that killed an occupant of the dwelling.
White Owl moved in limine to prevent the government from introducing
incriminating statements that he made to his wife in private after the fire. The district
court granted the motion based on the marital communications privilege. The court

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concluded that a spousal-victim exception to the privilege did not apply, because
White Owl’s spouse was not a victim of the charged offenses. The government
appeals, and we conclude that a related exception applies—one that vitiates the
privilege in a case where a spouse is charged with a crime against a third person that
is committed in the course of committing a crime against the defendant’s spouse. We
therefore reverse the order excluding the testimony of White Owl’s spouse.
I.
White Owl and Tera Cooke have been married since May 2014. On the night
of April 3-4, 2019, White Owl and Cooke were at a bonfire with friends Cody Serdahl
and Winnifred Smith. All four were living in a cabin in Mandaree, North Dakota, that
belonged to Serdahl’s mother. The bonfire was in the yard outside the dwelling.
During the gathering, White Owl started to yell at Cooke during an argument.
Serdahl intervened and told White Owl to stop yelling. After that exchange, White
Owl concluded that Cooke was having an affair with Serdahl. Cooke left the bonfire
and hid from White Owl in the back of their Chevrolet Tahoe vehicle. Shortly
thereafter, the cabin burned down, and Smith was killed in the fire.
White Owl entered the Tahoe and drove away without realizing that Cooke was
hiding in the back. White Owl eventually discovered Cooke when he stopped for gas
in Circle, Montana, about 150 miles from the cabin.
Some time thereafter, when the two were alone together, White Owl made
incriminating statements to Cooke. White Owl said that he thought she was inside
the cabin after their argument at the bonfire, so he decided to pour gasoline through
the bedrooms, kitchen, stairs, and deck of the cabin. He told Cooke that he poured
the gasoline because he believed that she was hiding in the cabin. He said that he
took this action because he thought Cooke was sleeping with Serdahl.
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A grand jury charged White Owl with arson within Indian country, see 18
U.S.C. §§ 81, 1153, and felony murder within Indian country based on the death of
Winnifred Smith. See 18 U.S.C. §§ 1111, 1153. In preparation for trial, White Owl
moved in limine to exclude any private communications to Cooke, including his
statement that he poured gasoline in and around the cabin, on the basis that they were
privileged marital communications. The government urged the court to recognize an
exception to the privilege for a criminal case in which one spouse commits a crime
against the other spouse.
The district court granted White Owl’s motion and declared inadmissible any
communications that were “made in confidence” between the spouses. The court
concluded that even if there should be a spousal-victim exception to the marital
communications privilege, it would not apply in this case. The court reasoned that
Cooke was not a victim of the charged arson, because she did not have any
“discernable personal effects in the home” and did not own the home. The court
found that White Owl confessed to Cooke in an attempt at reconciliation, and that the
marital communications privilege “ought to guard those communications as inherent
to protecting and supporting the marital relationship.”
The government unsuccessfully moved for reconsideration and then brought
this interlocutory appeal. See 18 U.S.C. § 3731. We consider questions concerning
the scope of an evidentiary privilege de novo. United States v. Ghane, 673 F.3d 771,
779-80 (8th Cir. 2012).
II.
This case involves the privilege for confidential marital communications. “The
basis of the immunity given to communications between husband and wife is the
protection of marital confidences, regarded as so essential to the preservation of the
marriage relationship as to outweigh the disadvantages to the administration of
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justice.” Wolfle v. United States, 291 U.S. 7, 14 (1934). As one court long ago
explained, the policy behind the privilege is “to preserve family peace and maintain
that full confidence which ought to subsist between husband and wife.” Pringle v.
Pringle, 59 Pa. 281, 288 (1868). The privilege ordinarily “prohibits testimony
concerning intra-spousal, confidential communications arising from the marital
relationship.” United States v. Allery, 526 F.2d 1362, 1365 (8th Cir. 1975); see
United States v. Evans, 966 F.2d 398, 401 (8th Cir. 1992).
The common law, as interpreted by the federal courts in light of reason and
experience, governs a claim of privilege. Fed. R. Evid. 501; see Trammel v. United
States, 445 U.S. 40, 47 (1980). Therefore, we have said that federal courts must
“examine the policies behind the federal common law privileges” and “alter or amend
them when ‘reason and experience’ so demand.” Allery, 526 F.2d at 1366.
The government on appeal identifies several potential exceptions to the marital
communications privilege that have been recognized in the following circumstances:
(1) where a spouse commits a crime against the person or property of the other spouse
(the spousal-victim exception), (2) where a spouse is charged with a crime against a
child of either spouse or a child under the care of either (the minor-child exception),
(3) where a spouse is charged with a crime against a person residing in the household
of either spouse (the same-household exception), and (4) where a spouse is charged
with a crime against a third person committed in the course of committing a crime
against the other spouse (the third-person/spousal-victim exception). The
government’s briefing is focused on what the government calls a spousal-victim
exception and argues that Cooke was a victim of the arson offense charged against
White Owl. But in arguing that an exception also applies even if the victimized
spouse is not a victim of a charged offense, the government’s brief effectively raises
the third-person/spousal-victim exception without naming it as such. Appellant’s Br.
37-42.
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We need not address all of the enumerated exceptions, because we conclude
that the third-person/spousal-victim exception is well grounded in reason and
experience, and is applicable here. The Model Code of Evidence (adopted by the
American Law Institute) and the Uniform Rules of Evidence (promulgated by the
Uniform Law Commission) include this exception. Model Code of Evid. § 216 (Am.
L. Inst. 1942); Unif. R. Evid. 504 (Unif. L. Comm’n 2005); see 8 J. Wigmore,
Evidence § 2338, at 665 & n.1 (McNaughton rev. 1961). At least eighteen States
have adopted it. Ala. R. Evid. 504; Ark. R. Evid. 504; Cal. Evid. Code § 985; Del.
R. Evid. 504; Haw. R. Evid. 505; Idaho R. Evid. 504; Kan. Stat. Ann. § 60-428; Ky.
Rev. R. Evid. 504; Me. R. Evid. 504; Miss. R. Evid. 504; N.M. R. Evid. 11-505; N.D.
R. Evid. 504; Okla. Stat. tit. 12, § 2504; Or. Rev. Stat. § 40.255; S.D. Codified Laws
§ 19-19-504; Utah R. Evid. 502; Vt. R. Evid. 504; Wis. Stat. § 905.05.
We think the conclusion of these authorities is sound. The marital
communications privilege obstructs the truth-seeking process, so it should be
construed carefully in a criminal case where society has a strong interest in the
administration of justice. See Trammel, 445 U.S. at 50-51; Allery, 526 F.2d at 1366.
If the purposes of the privilege are not well served by its application, then the
prohibition on receiving relevant evidence should yield.
That is the situation here. When one spouse is charged with committing a
crime against a third person while committing a crime against the other spouse,
marital peace, unity, and stability have already been undermined: “there is probably
little in the way of marital harmony for the privilege to preserve.” Trammel, 445 U.S.
at 52. Other circuits have applied an exception to the marital communications
privilege where one spouse is charged with perpetrating a crime against a child of
either spouse or a child in the marital home, on the view that the interests of justice
in that circumstance outweigh the goal of fostering marital harmony. United States
v. White, 974 F.2d 1135, 1138 (9th Cir. 1992); United States v. Breton, 740 F.3d 1,
11-12 (1st Cir. 2014); United States v. Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997).
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We reach the same conclusion where a spouse is charged with a crime against a third
person that is committed in the course of victimizing the other spouse. Although the
alleged crime against a third person may not imperil the family unit in the same way
as a charged crime against the other spouse or a child of either, see 2 Edward J.
Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary Privileges
§ 6.13.5, at 1613-15 (4th ed. 2022), the third-person/spousal-victim exception also
requires a showing that the charged crime was committed in the course of committing
a crime against the other spouse. As with the case where one spouse is willing to
testify against the other regarding facts other than private communications, excluding
testimony about marital communications from a spouse who has been victimized by
her spouse’s crime “seems far more likely to frustrate justice than to foster family
peace.” Trammel, 445 U.S. at 52. In our view, the interests of justice in receiving
relevant evidence of crime outweigh the goal of fostering whatever might remain of
marital unity and harmony in these circumstances.
Where the record supports invocation of the third-person/spousal-victim
exception, the crime against the other spouse need not be formally charged. See State
v. G.B., 656 N.W.2d 469, 470, 473-74 (Wis. Ct. App. 2002); see also People v.
Sinohui, 47 P.3d 629, 630-32, 639 (Cal. 2002) (considering marital adverse testimony
privilege). Indeed, this court applied an exception to the marital adverse testimony
privilege where the defendant committed an offense against his spouse in the course
of a charged drug trafficking offense that had no identifiable victim. United States
v. Smith, 533 F.2d 1077, 1078-79 (8th Cir. 1976) (per curiam). As with the adverse
testimony privilege, we do not believe the defendant who is charged with a crime
committed in the course of victimizing his spouse should be “permitted to prevent his
wife from testifying to the crime by invoking an interest founded on the marital
relation or the desire of the law to protect it.” Wyatt v. United States, 362 U.S. 525,
527 (1960); see Wigmore, supra, § 2239, at 243. We agree with Judge Clark’s
observation in United States v. Walker, 176 F.2d 564 (2d Cir. 1949), that because the
reason for the marital communication privilege is “the promotion of marital peace,”
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where a husband is charged with an offense against a third person in the course of
committing a crime of similar character against his wife, “we must recognize that the
reason for the exclusion is now gone entirely, put an end to by the husband’s acts.”
Id. at 568 (Clark, J., dissenting).
The record shows that White Owl’s statements to Cooke fall within the third-
person/spousal-victim exception. For purposes of resolving the preliminary question
of privilege under Federal Rule of Evidence 104(a), it is sufficient for the government
to make a prima facie showing that an exception applies. Clark v. United States, 289
U.S. 1, 14-15 & n.1 (1933); In re Berkley & Co., Inc., 629 F.2d 548, 553 (8th Cir.
1980). That showing in the trial context requires no more than a preponderance of
the evidence, see Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); In re
Napster, Inc., Copyright Litig., 479 F.3d 1078, 1095-96 (9th Cir. 2007), and that
standard is satisfied here.
White Owl is charged with arson and felony murder against third persons,
Serdahl and Smith. White Owl allegedly committed these charged offenses in the
course of committing an offense against his wife, Cooke. The district court found
that White Owl told Cooke that he poured gasoline in and around the cabin, and that
White Owl admitted he was trying to kill Cooke. R. Doc. 110, at ¶¶ 5, 21, 23; R. Doc.
120, at ¶ 8. Those findings are supported by the record. See R. Doc. 56-1, at 3. For
purposes of a preliminary determination, they show the essence of attempted murder
of the spouse: intent to kill and an overt act qualifying as a substantial step toward
completion of the offense. See 18 U.S.C. § 1113; Braxton v. United States, 500 U.S.
344, 349 (1991); United States v. Contreras, 950 F.2d 232, 237 (5th Cir. 1991)
(“Factual impossibility is not a defense if the crime could have been committed had
the attendant circumstances been as the actor believed them to be.”). Accordingly,
the privilege for confidential marital communications does not preclude Cooke from
testifying about White Owl’s admissions.
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We recognize that the government’s briefing in the district court focused on
what it called a spousal-victim exception, argued that Cooke was a victim of the
charged arson, and adverted specifically to the third-person/spousal-victim exception
only briefly in its motion for reconsideration. R. Doc. 115, at 12. We have
discretion, however, to consider a new issue on appeal if it is purely legal and
requires no additional factual development. See United States v. Hirani, 824 F.3d
741, 751 (8th Cir. 2016). The district court here made the relevant factual findings,
and the scope of an evidentiary privilege is a legal question. Ghane, 673 F.3d at
779-80. In our view, the significant interest in correctly defining an evidentiary
privilege for the proper administration of justice warrants our exercise of discretion
to address the issue. See United States v. Bahe, 128 F.3d at 1445.
* * *
For these reasons, we reverse the order of the district court excluding Cooke’s
testimony about communications with the defendant White Owl.
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