                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 16-30202
                  Plaintiff-Appellee,
                                                     D.C. No.
                     v.                           1:15-cr-00062-
                                                      SPW-1
 LEON SEMINOLE,
              Defendant-Appellant.
                                                     OPINION

        Appeal from the United States District Court
                for the District of Montana
         Susan P. Watters, District Judge, Presiding

             Argued and Submitted July 10, 2017
                     Portland, Oregon

                       Filed July 31, 2017

    Before: Paul J. Watford and John B. Owens, Circuit
      Judges, and Vince G. Chhabria, * District Judge.

                    Opinion by Judge Owens



    *
     The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
2                 UNITED STATES V. SEMINOLE

                          SUMMARY **


                          Criminal Law

    The panel affirmed the defendant’s convictions for
strangling and assaulting his wife, in a case in which the
district court compelled the defendant’s wife to testify
against him.

    The panel rejected the defendant’s argument that the
Supreme Court in Trammel v. United States, 445 U.S. 40
(1980), effectively overruled the holding in Wyatt v. United
States, 362 U.S. 525 (1960), that a court can compel a
witness to testify against her spouse when she is the victim
of the crime.


                            COUNSEL

Robert L. Kelleher (argued), Kelleher Law Office, Billings,
Montana, for Defendant-Appellant.

Bryan Timothy Dake (argued), Assistant United States
Attorney, United States Attorney’s Office, Great Falls,
Montana, for Plaintiff-Appellee.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               UNITED STATES V. SEMINOLE                    3

                         OPINION

OWENS, Circuit Judge:

     Defendant-Appellant Leon Seminole (“Seminole”), an
enrolled member of the Northern Cheyenne Tribe, appeals
from his jury trial convictions for strangling and assaulting
his wife in violation of 18 U.S.C. §§ 113(a)(8) and 113(a)(7).
He contends that the trial court erred by compelling his wife
– the domestic violence victim – to testify against him. The
trial court did not err, so we affirm.

   I. FACTUAL      BACKGROUND                           AND
      PROCEDURAL HISTORY

       A. The Strangulation and Assault

    Seminole and his common-law wife Maxine
Limberhand (“Limberhand”) had a history of problems, and
by August 2014, Limberhand needed a change – she planned
on moving out of their house. On August 17, 2014,
Limberhand drove with her brother Enoch and his girlfriend
to the house so Limberhand could remove certain
belongings.

    When they arrived at the house, Limberhand exited the
vehicle and spoke with Seminole outside. She then entered
the house with Seminole, who shut the door. A few minutes
later, Enoch saw his sister come “staggering out, and she was
holding her cheek.” Seminole followed her outside the
house with a pistol in his hand. When Enoch approached,
Seminole cocked his pistol and held it at his side.
Limberhand was dizzy with a bump on her cheek and blood
showing, and told her brother they should leave before
Seminole shot somebody.
4               UNITED STATES V. SEMINOLE

    They left Seminole at the house and drove away,
eventually meeting a Bureau of Indian Affairs (“BIA”)
officer who accompanied Limberhand to the emergency
room and recorded her statement. Limberhand told the BIA
officer that Seminole hit and knocked her into a corner, and
then began swinging and kicking while she was down. He
got on the floor and continued to hit her, and eventually
placed her in a chokehold. She made similar statements to
the emergency room doctor, who observed her right eye
swollen shut, swelling around her left eye, a swollen and
lacerated lip, other facial abrasions, a broken tooth, and a
scraped knee. He opined that these injuries were consistent
with blunt force trauma to her face. Two days later,
Limberhand provided the BIA officer with a written
statement consistent with her earlier recorded statement.

       B. The Indictment and Trial

    A grand jury returned a two-count indictment against
Seminole for: (1) assault of a spouse by attempting to
strangle and suffocate (18 U.S.C. §§ 1153(a) and 113(a)(8)),
and (2) assault resulting in substantial bodily injury to a
spouse (18 U.S.C. §§ 1153(a) and 113(a)(7)). The case
proceeded to trial, where the government introduced
evidence of defendant’s guilt, including the testimony of
Enoch, the emergency room doctor, and other people who
witnessed Seminole’s actions and Limberhand’s subsequent
injuries.

   The government also called Limberhand as a witness,
even though she made clear in a variety of ways that she
wanted no part of this prosecution. 1 In particular, she

   1
     The government is not arguing that any error in compelling
Limberhand’s testimony was harmless.
                UNITED STATES V. SEMINOLE                      5

attempted to assert the adverse spousal testimony privilege
(or the “anti-marital facts” privilege, as our circuit
sometimes calls it) to avoid taking the stand. The district
court compelled her to testify, and that testimony differed
dramatically from her earlier statements to the BIA officer
and the doctor. This time, she told the jury that, in effect,
she was the instigator, and Seminole merely tried to hug her
to calm her down. The prosecution impeached her testimony
with her previous statements detailing the assault and
strangulation. The jury returned a guilty verdict on both
counts, and Seminole received concurrent 48-month
sentences for each count.

    II. DISCUSSION

        A. Standard of Review

   This court reviews de novo a district court’s construction
of the Federal Rules of Evidence. United States v.
Montgomery, 384 F.3d 1050, 1056 (9th Cir. 2004).

        B. The District Court Did Not Err In Compelling
           Limberhand’s Testimony

    Federal common law recognizes two separate marital
privileges: (1) the so-called “adverse spousal testimony” or
“anti-marital facts” privilege, which permits a witness to
refuse to testify against his or her spouse; and (2) the “marital
communications” privilege, which allows either spouse to
prevent testimony concerning statements privately
communicated between them. See United States v. Griffin,
440 F.3d 1138, 1143–44 (9th Cir. 2006); United States v.
White, 974 F.2d 1135, 1137 (9th Cir. 1992). This case
concerns the former.
6                  UNITED STATES V. SEMINOLE

    In Wyatt v. United States, 362 U.S. 525 (1960), a Mann
Act prosecution, the Supreme Court addressed the same
issue as we have here – whether a trial court could compel a
wife to testify against her husband, despite the well-
established spousal testimony privilege that normally would
prohibit such testimony. The short answer was yes the court
could, due to a well-established exception to the well-
established privilege – if the spouse is the victim of the
defendant’s crime, the privilege does not apply, and absent
the privilege, compelling the spouse (like compelling any
other witness) is within the court’s power. Id. at 530; see
also Shores v. United States, 174 F.2d 838, 841 (8th Cir.
1949) (“[T]he wife . . . stood in the same position as any
other victim of another’s criminal act.”). 2

    The “spouse as victim” exception to the adverse spousal
testimony privilege did not originate in Wyatt – it has existed
for hundreds of years, as the Supreme Court and our court
have recognized. 3 Courts regularly reaffirm Wyatt’s holding

    2
      Although the Court in Wyatt dealt with the Mann Act, 362 U.S. at
530–31, no court has read the exception to apply only in Mann Act cases.
Indeed, “[t]he classic case for invocation of the exception is wife-
beating,” and “it is generally agreed that an assault, battery, or other form
of corporeal violence is within the exception.” 25 Charles Alan Wright
& Kenneth W. Graham, Jr., Federal Practice & Procedure § 5592 (1st
ed. 1989). Courts have also applied the exception outside the traditional
domestic violence and Mann Act context. See, e.g., Herman v. United
States, 220 F.2d 219, 226 (4th Cir. 1955) (“[A] wife can be a witness
against her husband not only when personal injury to her of a physical
or moral nature is claimed, but also where the crime affects her
property.”). We do not decide the exception’s outer limits, because this
case falls squarely within it.
    3
     The Supreme Court dates the exception back to 1631. See, e.g.,
Trammel v. United States, 445 U.S. 40, 46 n.7 (1980) (citing Lord
Audley’s Case (1631) 123 Eng. Rep. 1140); see also Note, Victim-Wife’s
                  UNITED STATES V. SEMINOLE                           7

that a court can compel a witness to testify against her spouse
when she is the victim of the crime, even if she is adamant
that she not do so. See, e.g., United States v. Underwood,
859 F.3d 386, 390 (6th Cir. 2017) (citing Wyatt and
recognizing that “federal courts have also created an
exception to the privilege in instances in which the spouse
commits an offense against the other spouse”); Brown v.
Dart, 667 F. App’x 873, 874 (7th Cir. 2016) (privilege was
unavailable to domestic violence victim because under
Wyatt, “the victim spouse cannot be prevented from
testifying [against her husband], and can even be
compelled”); United States v. Chandler, No. 2:10-cr-00482,
2011 WL 1871223, at *3–6 (D. Nev. May 16, 2011) (under
Wyatt, the court can compel spouse’s testimony when
defendant’s abuse of her was “facilitated and inextricably
intertwined with the conduct for which [he] was charged”).

   Hundreds of years of adverse and ironclad precedent
normally end a case. But Seminole argues that the Supreme


Testimony May Be Compelled in Prosecution of Husband for Mann Act
Violation: Wyatt v. United States, 362 U.S. 525 (1960), 39 Tex. L. Rev.
508, 510 n.11 (1961). The Supreme Court and our court have referenced
it many times. See Stein v. Bowman, 38 U.S. 209, 221 (1839) (“It is a
general rule that neither a husband nor wife can be a witness for or
against the other. This rule is subject to some exceptions; as where the
husband commits an offence against the person of his wife.” (citations
omitted)); Cohen v. United States, 214 F. 23, 29 (9th Cir. 1914) (“[T]he
common law made an exception to the rule of privilege in cases where
the husband or wife was called as a witness to testify as to personal
wrong or injury sustained from the other.”); Kerr v. United States,
11 F.2d 227, 228 (9th Cir. 1926) (wife permitted to testify against
husband in prosecution for mailing her poisoned candy, as under “the
common law a wife had a right to testify against her husband in a case
of personal violence by the husband against her”); see also White,
974 F.2d at 1138 (applying exception to marital communications
privilege).
8               UNITED STATES V. SEMINOLE

Court in Trammel v. United States, 445 U.S. 40 (1980),
dramatically altered the spousal privilege landscape. We
disagree.

    In Trammel, the Court considered whether a criminal
defendant could use the adverse spousal testimony privilege
to prevent his wife from taking the stand at his narcotics
trafficking trial, even though the spouse was willing to do so.
445 U.S. at 42–43. Until Trammel, the answer was yes – the
privilege barred “the testimony of one spouse against the
other unless both consent[ed].” Hawkins v. United States,
358 U.S. 74, 78 (1958). After reviewing the history and
purpose of the privilege, the Court narrowed Hawkins and
the privilege: “the witness-spouse alone has a privilege to
refuse to testify adversely.” 445 U.S. at 53. Although
Trammel did not feature a crime against a spouse, the Court
went out of its way to recognize that the exception to the
privilege “for cases in which one spouse commits a crime
against the other . . . was a longstanding one at common
law.” Id. at 46 n.7.

    Despite Trammel’s narrowing the scope of the privilege,
Seminole contends that the Court actually broadened it
considerably with the following language at the end of the
opinion: “the witness may be neither compelled to testify nor
foreclosed from testifying.” Id. at 53. According to
Seminole, when the Trammel Court wrote “the witness may
[not be] compelled to testify,” it meant that in all
circumstances, with no exception. The Court, the argument
goes, effectively overruled Wyatt with this phrase.

   Seminole reads too much into this language. If a court
says that hearsay is inadmissible without noting its countless
exceptions, this does not reflect an intent to eliminate the
exceptions. Similarly, it is clear from the context of
Trammel that the Court was not overruling Wyatt with these
                   UNITED STATES V. SEMINOLE                             9

12 words. Rather, it was simply stating the general principle
that, absent an exception, a witness cannot be compelled to
testify against her spouse. 4 But there is an exception – one
the Court in Trammel identified as existing as early as 1631,
but the facts in Trammel did not implicate. Seminole has not
identified any cases that hold that Trammel somehow
eliminated a court’s ability to compel a witness to testify
against her spouse when she is the victim of the spouse’s
crime. 5 And to the extent that the Court in Trammel found
“special relevance” in state law trends under Federal Rule of
Evidence 501 “because the laws of marriage and domestic
relations are concerns traditionally reserved to the states,” id.
at 47–50, the trend here is all one way – no state in our circuit
permits a spouse to refuse to testify in a domestic violence
prosecution. See Chandler, 2011 WL 1871223, at *6
(collecting statutes of Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, and Washington).

   We are far from solving the crisis of domestic violence,
as “[t]his country witnesses more than a million acts of
domestic violence, and hundreds of deaths from domestic

    4
     It is for this same reason that Seminole overreads similar language
in United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir.
1997), overruled on other grounds by United States v. Nordby, 225 F.3d
1053 (9th Cir. 2000), which also did not require discussion of the
“spouse as victim” exception.
     5
       United States v. Jarvison, 409 F.3d 1221 (10th Cir. 2005), which
neither party cited, does not alter our view. The Tenth Circuit in Jarvison
quoted the same phrase from Trammel to hold that a court could not
compel a spouse to testify against a defendant who was accused of
sexually abusing their granddaughter. Id. at 1231–32. The opinion
neither cited Wyatt nor the spousal victim exception that Trammel
expressly identified. Because Jarvison did not feature a spousal victim,
we do not opine on its validity, but do conclude it has no application
here.
10             UNITED STATES V. SEMINOLE

violence, each year.” United States v. Castleman, 134 S. Ct.
1405, 1408 (2014). It is a crime that is “notoriously
susceptible to intimidation or coercion of the victim to
ensure that she does not testify at trial.” Davis v.
Washington, 547 U.S. 813, 832–33 (2006). Wyatt’s “spouse
as victim” holding dictates that the district court correctly
compelled the testimony of Limberhand.

     AFFIRMED.
