                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3473

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

M ICHAEL L. B ROCK,
                                              Defendant-Appellant.


            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
              No. 10 CR 11—Larry J. McKinney, Judge.



       A RGUED A PRIL 9, 2012—D ECIDED JULY 30, 2013




   Before F LAUM and H AMILTON, Circuit Judges, and
F EINERMAN, District Judge. 
  H AMILTON, 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 manda-



  The Honorable Gary Feinerman of the Northern District
of Illinois, sitting by designation.
2                                               No. 11-3473

tory 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 sen-
tence. 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 testi-
monial 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.
No. 11-3473                                             3

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, re-
moved 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 con-
victed 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
4                                               No. 11-3473

Mr. Brock was pulling out of his driveway, he realized
the agents were arriving. He fled in what became a high-
speed 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-examina-
tion, 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 over-
ruled 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
No. 11-3473                                              5

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 testimo-
nial 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 testi-
monial 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, in-
cluding 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 com-
munications 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 wit-
ness, 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
6                                             No. 11-3473

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 testi-
mony was important to prove that Mr. Brock know-
ingly possessed the firearms.
  The jury found Mr. Brock guilty on all counts. At sen-
tencing 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, and imposed
ACCA’s mandatory minimum sentence of fifteen years
in prison. This appeal followed.


II. The Marital Privileges
  We first consider the challenge to Mr. Brock’s convic-
tions, which depends on whether the district court
erred in finding that the Brocks had waived their
marital privileges. There are two distinct marital evi-
dentiary privileges under federal law: the marital com-
munications privilege and the adverse spousal testi-
monial privilege. United States v. Byrd, 750 F.2d 585, 589
(7th Cir. 1984). The two privileges are different in
scope and in terms of how and by whom they may
be asserted or waived. We address first the marital com-
munications privilege and then turn to the spousal testi-
monial privilege.
No. 11-3473                                                 7

  A. The Marital Communications Privilege
  The marital communications privilege covers “infor-
mation privately disclosed between husband and wife
in the confidence of the marital relationship . . . .” Trammel
v. United States, 445 U.S. 40, 51 (1980); Blau v. United
States, 340 U.S. 332, 333 (1951). The marital communica-
tions privilege belongs to both spouses, so either
spouse may invoke the privilege to avoid testifying or to
prevent the other from testifying about the privileged
communication. See United States v. Lea, 249 F.3d 632,
641 (7th Cir. 2001). The marital communications
privilege exists “to ensure that spouses . . . feel free to
communicate their deepest feelings to each other
without fear of eventual exposure in a court of law.”
United States v. Lofton, 957 F.2d 476, 477 (7th Cir. 1992),
quoting Byrd, 750 F.2d at 590. The marital communica-
tions privilege applies even after the marriage has dis-
solved, but the protected subject matter includes only
what one spouse communicates to the other, not what
one spouse learns about the other in other ways, such as
by observing the other’s actions. See Lofton, 957 F.2d at
477. In Mr. Brock’s trial, the marital communications
privilege could have applied to Mrs. Brock’s testimony
that he told her to take two guns from their home
and put them in a car. It would not have applied to her
testimony about Mr. Brock handling the guns or
shooting possums.
  The district court found that both Mr. and Mrs. Brock
had waived this privilege when Mrs. Brock testified
without objection in the detention hearing that he had
8                                                No. 11-3473

told her to move two guns from the house to the
car. We agree. As with other privileges governing com-
munications, such as the attorney-client privilege, an
unprivileged disclosure amounts to a waiver.
  In developing the federal law of privilege, other
circuits have affirmed findings of implied waiver of
the marital communications privilege when the witness-
spouse testified to marital confidences in a pretrial pro-
ceeding and the party-spouse failed to object. See
Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 383
(6th Cir. 1997) (party-spouse’s failure to object to witness-
spouse’s deposition testimony about confidential com-
munications waived the marital communications
privilege for trial as to those statements); United States
v. Dien, 609 F.2d 1038, 1043–44 (2d Cir. 1979) (defendant-
spouse waived marital communications privilege by
failing to object to wife’s testimony at suppression hear-
ing); see also Feldman v. Allstate Ins. Co., 322 F.3d
660, 667–69 (9th Cir. 2003) (deposition testimony about
privileged conversations waived the confidential marital
communications privilege for trial) (applying California
law of evidence in diversity case).1
  These decisions are consistent with the more
frequently litigated issue of waiver of the attorney-client



1
   Numerous state court decisions are in agreement. See, e.g.,
Northern RR. Co. v. Hood, 802 P.2d 458, 465 (Colo. 1990)
(failure of husband’s attorney to object at deposition to
wife’s testimony about conversations with husband waived
marital communications privilege).
No. 11-3473                                                      9

privilege in pretrial proceedings. See, e.g., Hawkins v.
Staples, 148 F.3d 379, 384 (4th Cir. 1998) (deposition testi-
mony about confidential conversation with lawyer
waived attorney-client privilege); United States v.
Billmyer, 57 F.3d 31, 36–37 (1st Cir. 1995) (disclosure
of confidential communications to government investi-
gators waived attorney-client privilege for criminal
trial); United States v. Suarez, 820 F.2d 1158, 1160 (11th
Cir. 1987) (defendant’s testimony at hearing to with-
draw guilty plea about confidential conversation with
attorney waived attorney-client privilege as to subject
for trial).2
  Mr. Brock contends that his wife’s pretrial testimony
did not waive the privilege because the waiver could
not have been “knowing, voluntary, and intentional.”
Appellant’s Br. at 46, citing In re Pebsworth, 705
F.2d 261, 262 (7th Cir. 1983) (finding waiver of
state-law psychotherapist-patient privilege under this



2
   See also 8 Wigmore on Evidence § 2328 at 638–39 (McNaughton
rev. 1961) (“A waiver [of attorney-client privilege] at one
stage of a trial should be final for all further stages, and a
waiver at a first trial should suffice as a waiver for a later
trial, since there is no longer any reason for preserving se-
crecy.”); Edna Selan Epstein, The Attorney-Client Privilege and
the Work-Product Doctrine 299 (4th ed. 2001) (“Failure to
make an adequate or timely objection to disclosure either
in responding to interrogatories, giving testimony in deposi-
tions or in producing documents may well be fatal to any
successful assertion of the privileged matter at trial. . . . Like-
wise, disclosure in court effects a waiver.”).
10                                                 No. 11-3473

more stringent standard, without expressly deciding
whether that standard or a less stringent standard
should apply). While waiver of certain constitutional
rights must be “knowing, voluntary, and intelligent,” see,
e.g., Iowa v. Tovar, 541 U.S. 77, 88 (2004) (right to coun-
sel); Illinois v. Allen, 397 U.S. 337, 343 (1970) (right to be
present at trial); Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969) (guilty plea), this standard generally does not
apply to common law privileges protecting confidential
communications. See generally 26A Charles Alan Wright
et al., Federal Practice and Procedure § 5726 (1st ed.)
(discussing waiver standards but indicating rule might
be different for spousal testimony).
  We conclude that a waiver of the marital communica-
tions privilege must be “voluntary” only in the sense
that the holder must realize that the once-confidential
communication is being revealed. “But if the holder
intends to disclose the privileged material, [even]
‘without realizing the impact’ of the disclosure on the
privilege, then there is a waiver.” Id. § 5726; see United
States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) (finding
no waiver of marital communications privilege, but
stating: “Ordinarily, deliberate disclosure of a privileged
communication, where no privilege protects this
further disclosure, waives a communications privi-
lege. . . . The restriction is one of public policy, and applies
regardless of the privilege holder’s subjective intent.”)
(citations omitted). “There can be no disclosure of that
which is already known, for when a secret is out, it is
out for all time, and cannot be caught again like a bird,
and put back in its cage.” People v. Bloom, 85 N.E. 824,
826 (N.Y. 1908).
No. 11-3473                                             11

  We agree with the district court that what happened
in the detention hearing amounted to a clear waiver
of the marital communications privilege as to the com-
munications that Mrs. Brock described in her testimony.
The disclosure was made voluntarily and without perti-
nent objection to try to protect the confidentiality of any
communications between Mr. and Mrs. Brock. The
district court did not err by overruling the objections
to Mrs. Brock’s trial testimony based on the marital
communications privilege.


 B. Spousal Testimonial Privilege
  The second marital privilege, the spousal testimonial
privilege, applies to any adverse testimony one spouse
might provide as a witness against the other in a
criminal case. It is both broader and narrower than the
marital communications privilege. It is broader in that
it covers testimony on any adverse facts, no matter
how they might have become known to the witness-
spouse. It is narrower in that it applies only to adverse
testimony in a criminal case, and it applies only during
the marriage. See Byrd, 750 F.2d at 590–91; United States
v. Fisher, 518 F.2d 836, 838 (2d Cir. 1975). Until the
Supreme Court’s decision in Trammel, either spouse
could invoke the spousal testimonial privilege, so that
a defendant could prevent his spouse from testifying
against him, even willingly. See, e.g., Hawkins v. United
States, 358 U.S. 74, 78–79 (1958). In Trammel v. United
States, however, the Court modified the privilege so that
12                                             No. 11-3473

only the witness-spouse can invoke the privilege to
refuse to testify adversely. 445 U.S. 40, 53 (1980). In
Mr. Brock’s trial, the spousal testimonial privilege
could have applied to any of Mrs. Brock’s testimony.
  The district court found that Mrs. Brock had also
waived this privilege by testifying in the detention
hearing. Mr. Brock appeals that ruling, but the govern-
ment counters that he lacks standing to raise the issue
since this privilege belonged only to his wife. We said
as much in United States v. Lofton, 957 F.2d 476, 477 n.1
(7th Cir. 1992), where the district court similarly found
that the defendant’s wife had waived the spousal testi-
monial privilege for purposes of trial by testifying at a
pretrial suppression hearing without objecting or
claiming the privilege. Relying on Trammel, we
concluded that because the defendant-spouse could not
invoke the privilege, he also could not appeal a rejection
of the privilege. Accord, United States v. Anderson, 39
F.3d 331, 350 (D.C. Cir. 1994), abrogated on other
grounds, Richardson v. United States, 526 U.S. 813 (1999);
Grand Jury Subpoena of Ford v. United States, 756 F.2d 249,
255 (2d Cir. 1985). In view of Trammel and our decision
in Lofton, Mr. Brock has no standing to raise this issue.
  We recognize that there are several consequences of
this rule. Our circuit’s rule on this issue makes it
especially important for defense counsel to stay alert.
Nothing should stop counsel for the defendant-spouse
from raising an objection to the witness-spouse’s testi-
mony to ensure that she knows she cannot be required
to testify against the defendant-spouse.
No. 11-3473                                               13

  We also recognize that a consequence of the Lofton
rule on standing to invoke the privilege is that when
a trial court rejects a witness-spouse’s claim of
privilege, appellate review of that decision may require
the witness-spouse to refuse to comply with the court’s
order to testify and to be found in contempt of court.
An emergency appeal of such matters in the middle of
the defendant-spouse’s criminal trial could be highly
disruptive, of course, but we agree with the government
that the logic of the Trammel limit on who can invoke
the privilege leads to that path for appellate review. See,
e.g., Blau v. United States, 340 U.S. 332 (1951) (on appeal
from contempt order, reversing sentence for justified
refusal to testify). By resolving the issue here nearly a
week before trial, Judge McKinney handled the issue
well, so that there would have been time for emergency
consideration before the trial began.
  Given the importance of the spousal testimonial privi-
lege, it would also be entirely appropriate and often
prudent for the court, even in the absence of an objec-
tion, to make sure that the testifying spouse understands
that she cannot be required to testify against her
spouse, especially if she does not have her own counsel.
See United States v. Sims, 755 F.2d 1239, 1244 (6th Cir.
1985); United States v. Lewis, 433 F.2d 1146, 1150 (D.C. Cir.
1970); Commonwealth v. Stokes, 374 N.E.2d 87, 96 n.9
(Mass. 1978) (“as a matter of good trial practice the
judge should satisfy himself, outside the presence of the
jury, that the spouse who is about to testify against
the other in a criminal proceeding knowingly waives his
or her statutory privilege”). Cf. United States v. Thompson,
14                                              No. 11-3473

454 F.3d 459, 464 (5th Cir. 2006) (“Defendants point to
no case law that suggests that a witness must be affirma-
tively warned of the right not to testify against his or
her spouse.”).
  The bottom line, however, is that under the logic of
Trammel and the precedent of Lofton, Mr. Brock does not
have standing to appeal the district court’s finding that
his wife waived the spousal testimonial privilege. Since
he cannot prevail on either of his challenges to his wife’s
testimony at trial, his convictions are affirmed.


III. The Armed Career Criminal Act
  Mr. Brock also challenges his sentence. He contends
that the district court erred in concluding that his three
convictions for possessing machineguns qualified as
“violent felonies” under the Armed Career Criminal Act
(ACCA). Whether a prior conviction is a violent felony
under ACCA is a legal conclusion that we review de novo.
E.g., United States v. Sykes, 598 F.3d 334, 335 (7th Cir.
2010), aff’d, 131 S. Ct. 2267 (2011). On appeal, Brock
has acknowledged our holding in United States v. Upton,
512 F.3d 394 (7th Cir. 2008), that possession of a sawed-off
shotgun is a violent felony under ACCA, but argues that
intervening Supreme Court decisions have called
Upton into doubt. In our recent decision in United States
v. Miller, ___ F.3d ___ (7th Cir. 2013), we agreed with
those arguments, overruled Upton, and held that posses-
sion of a sawed-off shotgun is not a violent felony
under ACCA.
No. 11-3473                                             15

  Without repeating Miller’s analysis of the involved
arguments and the extensive and evolving case law on
the issue, the reasoning of Miller applies equally to
mere possession of a machinegun. Sawed-off shotguns
and machineguns are both dangerous and can be used
to commit violent crimes, of course. But the same is true
of explosives, and ACCA specifies that only crimes in-
volving the “use of explosives” count as violent felonies.
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Congress
has grouped together sawed-off shotguns, machineguns,
and a variety of dangerous explosive devices for
stringent restrictions on possession and strict registra-
tion requirements for those that can be possessed lawfully.
26 U.S.C. §§ 5841–5845. And as dangerous as all these
weapons can be, we see no principled basis for distin-
guishing between sawed-off shotguns and machineguns
in terms of whether mere possession is a violent
felony under ACCA. We must therefore vacate
Mr. Brock’s sentence. He is entitled to be resentenced
without being subject to the enhanced penalties of ACCA.
  Accordingly, Mr. Brock’s convictions are A FFIRMED
but his sentence is V ACATED and the case is R EMANDED
to the district court for resentencing.




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