                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                             __________________________              U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          AUGUST 8, 2001
                                     No. 99-14867                       THOMAS K. KAHN
                             __________________________                      CLERK
                              D.C. Docket No. 99-CR-57-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                            versus

DONNA SINGLETON,

                                                                   Defendant-Appellant.

                              _________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                           __________________________
                                   (August 8, 2001)

Before CARNES and MARCUS, Circuit Judges, and PROPST*, District Judge.




        * Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
PER CURIAM:

       Donna Singleton (appellant) was indicted on three counts of making false

statements to a federally-insured credit union (Title 18 U.S.C. §1014). The jury

convicted her on June 30, 1999 of all three counts. She raises two issues on

appeal. She contends: (1) that the district court erred by refusing to apply the

marital communications privilege to a conversation between the appellant and her

then-husband Cedric Singleton (Cedric); and (2) that the district court erred by

allowing the jury to consider the testimony of witness Sonya White concerning

alleged statements of the appellant, when White was ambivalent as to whether she

had heard the statements directly from the appellant or whether she heard other(s)

quote the appellant.

                                              Facts1

       The appellant and Cedric began living together in 1992 and were married in

January 1995. The marriage was a rocky one involving, during the marriage,

allegations of adultery by both partners and physical altercations. Prior to

December 1996, appellant filed charges of domestic abuse against Cedric, which

resulted in his being jailed. The parties separated in December 1996 after another


        1 The underlying facts with regard to the commission of the three offenses are not
directly at issue. We will summarize the facts related to the stated issues. Additional facts will
be stated, infra, with regard to a motion in limine hearing regarding the marital communications
privilege.

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physical altercation involving appellant’s boyfriend, Earl Davis. A petition for

divorce was filed by appellant in September 1997. The divorce became final in

May 1998.

      In December 1997, Cedric was visiting his daughter at appellant’s residence.

While there, he searched for papers related to a prior divorce from another woman,

and found documents that indicated that appellant had filed the false loan

applications for which she was eventually convicted. In January 1998, he took the

documents to the FBI. He agreed with the FBI to wear a recording device and to

tape a conversation with appellant. Cedric met the appellant at a restaurant on

January 29, 1998. During the taped conversation, appellant made incriminating

statements. After the taped conversation, the FBI questioned appellant and

obtained her consent to search her residence, where other incriminating evidence

was found.

      Over the appellant’s objection, the taped conversation with Cedric and

testimony concerning it were admitted at trial. The prosecution also called Sonya

White as a witness. White testified that appellant told her that appellant had

obtained loans based upon false documents. She also stated, however, that she

may have heard about the loans from other co-worker(s). In her own testimony at

the trial, the appellant first denied that she had falsified the loan documents, but, on


                                           3
cross-examination, recanted and acknowledged that she had forged, altered, and

submitted inaccurate loan applications, supporting documents, and income

statements.

                                      Marital Privilege

       Appellant’s first issue is one of first impression in this circuit. It arises out

of the admission into evidence of the conversation taped while the Singletons were

married, but separated, and testimony concerning it. There are two recognized

types of marital privilege: the marital confidential communications privilege and

the spousal testimonial privilege. Trammel v. United States, 445 U.S. 40, 50-51

(1980). The marital privilege asserted by the appellant is marital communications

privilege, which has been recognized by this court. United States v. Entrekin, 624

F.2d 597, 598 (5th Cir. 1980); United States v. Mendoza, 574 F.2d 1373, 1379 (5th

Cir. 1978).2 The threshold issue in this case is whether the marital

communications privilege applies to communications made while the spouses,

although still technically married, are living separate lives with no reasonable


        2 Unlike the testimonial privilege, the communications privilege generally survives a
terminated marriage. Pereira v. United States, 347 U.S. 1, 6 (1953). The unanimous rulings of
other circuit courts, however, have held that marital communications made while the parties are
legally married but permanently separated are not privileged. The adverse spousal testimonial
privilege is sometimes referred to as spousal incompetency. It can be asserted only by the
witness-spouse. The marital communication privilege, when available, can be asserted by a
defendant to prevent his or her spouse from testifying concerning the communication and to
exclude related evidence.

                                               4
expectation of reconciliation (in other words, the couple is “permanently

separated”). The appellant, while recognizing that no circuit court has so held,

argues that this court, in a case of first impression, should “adopt a bright-line rule

that the marital privilege lasts until the marriage formally ends” with a divorce

decree. The appellant’s justification for this argument is that, “[t]his standard

would avoid the intrusive inquiries that were posed to the appellant and her

estranged husband in this case.” Appellant also argues that such a rule would

“create predictability around the duration of the privilege” and would avoid

discouraging “communication between couples exploring reconciliation.”

      The appellant’s “bright-line” argument has not been accepted by any circuit

court that has considered the availability of the marital communications privilege

for a conversation taking place when the spouses are permanently separated.

Further, contrary to the appellant’s argument, other courts of appeal do not appear

to “have struggled to fashion solutions to the problem of determining whether the

marital privilege survives through separation.” In United States v. Byrd, 750 F.2d

585, 591-94 (7th Cir. 1984), the Seventh Circuit stated:

             “We refuse to extend the communications privilege to
      permanently separated couples on the theory that a guaranteed
      protection of confidentiality at this stage might save some troubled
      marriages. Cf. Appeal of Malfitano, 633 F.2d 276, 278 (3d Cir. 1980)
      (declined to uphold “joint participants in a crime” exception to the
      testimonial privilege on the theory that the protection of the privilege

                                           5
may tend “to help future integration of the spouse back into society”).
Such a purpose is too speculative to justify a privilege that can
severely hamper the truth finding process essential to a criminal trial.
Moreover, this circuit has interpreted strictly the ‘valid marriage’
requirement in the testimonial privilege context. See United States v.
Van Drunen, 501 F.2d 1393, 1397 (7th Cir.), cert. denied, 419 U.S.
1091, 95 S.Ct. 684, 41 L. Ed 2d 684 (1974); United States v. Clark,
712 F.2d 299, 302 (7th Cir. 1983) (both holding that the privilege
does not protect communications that occur prior to marriage). See
also United States v. Pensinger, 549 F.2d 1150, 1151 (8th Cir. 1977);
Volianitis v. Immigration & Naturalization Service, 352 F.2d 766,
768 (9th Cir. 1965) (same). Cf. United States v. Lustig, 555 F.2d 737
(9th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L. Ed.
2d 795 (1978) (neither the marital communications privilege nor the
testimonial privilege applies where the marriage is not valid under
state law, though the couple have lived together as man and wife for
years). We, too, therefore, strictly interpret that portion of the
privilege’s requirement and hold that only communications that take
place during a valid marriage between couples still cohabiting
pursuant to that marriage are protected by the privilege.

       Arguably, the fact of separation at the time of the
communications rebuts the presumption of confidentiality that is a
requirement of the exercise of the privilege. The presumption has
been justified by courts on the grounds that communications within a
marriage are intended to be private, yet are often made without a
request for secrecy. Thus the difficult matter of proving the intent to
keep the communications confidential is avoided by the presumption.
See generally, State v. Smith, 384 A.2d 687, 692 (Me. 1978); Blau v.
United States, 340 U.S. 332, 71 S. Ct. 301, 95 L. Ed. 306 (1951); note,
supra, 56 IND. L.J. at 128-29, 133-34. We do not, however, base our
holding today on the premise that communications made during a
permanent separation lose the presumption of confidentiality. Such a
holding would only involve courts in the difficult assessment of the
intent of the communications, which the defendant would raise to
reassert confidentiality once the presumption had been rebutted by the
government’s proof of the spouses’ separated status. We decline to
involve courts in this burdensome task. Our holding today is more

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      categorical and looks to the purpose of the privilege. We hold that
      society’s interest in protecting the confidentiality of the relationships
      of permanently separated spouses is outweighed by the need to secure
      evidence in the search of truth that is the essence of a criminal trial,
      and that proof of permanent separated states at the time of the
      communication between the defendant and the defendant’s spouse
      renders the communications privilege automatically inapplicable.”

      In United States v. Porter, 986 F.2d 1014, 1018-19 (6th Cir. 1993), the court

stated:

             “Courts have recognized certain exceptions to the [marital
      communications] privilege. . . . While the privilege is said to apply to
      confidential communications made during marriage, an exception to
      the privilege has been recognized by the Second, Seventh, Eighth and
      Ninth Circuits where the evidence consists of statements made by one
      spouse after the spouses have permanently separated, even though
      they may not have been legally divorced. In re Witness Before
      Grand Jury, 791 F.2d 234, 238-39 (2d Cir. 1986); United States v.
      Fulk, 816 F.2d 1202, 1205 (7th Cir. 1987); United States v. Byrd, 750
      F.2d at 593; United States v. Frank, 869 F.2d 1177, 1179 (8th Cir.),
      cert. denied, 493 U.S. 839, 110 S. Ct. 121, 107 L. Ed. 2d 82 (1989);
      United States v. Roberson, 859 F.2d 1376, 1381 (9th Cir. 1988).

            . . . Therefore, joining all other circuits which have faced this
      issue we hold that the privilege is inapplicable where the spouses have
      permanently separated . . . .”

      In United States v. Frank, 869 F.2d 1177, 1179 (8th Cir. 1989), the court

stated:

             “Finally, Frank argues the district court committed error in
      admitting evidence of Patricia’s conversations with him because the
      conversations were confidential communications protected by the
      marital privilege. See Fed. R. Evid., 501. Frank contends the mere
      fact the couple was still legally married when the conversations

                                          7
      occurred entitled him to claim the privilege. We disagree.

             We recognize that privileges are disfavored because they
      impede the search for truth. See United States v. Nixon, 418 U.S.
      683, 710, 94 S. Ct. 3090, 3108-09, 41 L. Ed. 2d 1039 (1974). Taking
      into account the Franks’ permanent separation and their defunct
      marriage, we agree with the district court that Frank was not entitled
      to invoke the privilege. See United States v. Roberson, 859 F.2d
      1376, 1378-82 (9th Cir. 1988); United States v. Fulk, 816 F.2d 1202,
      1204-05 (7th Cir. 1987); In re Witness Before Grand Jury, 791 F.2d
      234, 238-39 (2d Cir. 1986); United States v. Byrd, 750 F.2d 585,
      589-94; (7th Cir. 1984). The district court did not commit error in
      admitting this evidence.”

      In United States v. Roberson, 859 F.2d 1376, 1378-82 (9th Cir. 1988), the

court stated:

             “As the Byrd court concluded as to permanently separated
      couples, society has little interest in protecting the confidentiality of
      separated couples whose marriage has failed by the time of the
      communication. See Id. at 593. The need for truth outweighs this
      interest. Id.”

For similar holdings as to the permanent separation exception to the marital

communication privilege see: United States v. Murphy, 65 F.3d 758, 761-62 (9th

Cir. 1995); United States v. Jackson, 939 F.2d 625, 626 (8th Cir. 1991); and In re

Witness Before Grand Jury, 791 F.2d 234, 236-39 (2d Cir. 1986).

      We agree with the other circuits which have determined that the privilege is

not available when the parties are permanently separated; that is, living separately

with no reasonable expectation of reconciliation. Our decision is bolstered by the


                                           8
factors generally applicable to privilege assertions, and more particularly, to

marital privilege assertions. The general issue of evidentiary privilege in criminal

cases is governed by the first sentence of Rule 501 of the Federal Rules of

Evidence, which states: “Except as otherwise required by the Constitution of the

United States or provided by Act of Congress or in rules prescribed by the

Supreme Court pursuant to statutory authority, the privilege of a witness, person,

government, State, or political subdivision thereof shall be governed by the

principles of the common law as they may be interpreted by the courts of the

United States in the light of reason and experience.” The Supreme Court has held

that privileges must be narrowly construed because they impede the search for

truth. United States v. Nixon, 418 U.S. 683, 710 (1974); See also United States v.

Chapman, 866 F.2d 1326, 1333 (11th Cir. 1989). While the confidentiality of

communications during a valid marriage is presumed,3 there is no reasonable basis

for asserting the privilege when the marriage is “moribund.”4 If the spouses are

permanently separated at the time of the communication, the reasonableness of the

expectation of the spouse who asserts the privilege that the communication will be



       3 Blan v. United States, 340 U.S. 332, 333 (1951).


       4 Compare, United States v. Cameron, 556 F.2d 752, 756 (5th Cir. 1977) (spousal
testimonial privilege).

                                              9
kept confidential is diminished. There is also less societal interest in protecting the

marital relationship of permanently separated spouses, especially when such

protection would operate to “severely hamper the truth finding process essential to

a criminal trial.” Byrd, 750 F.2d at 593. The need for a search for truth in judicial

proceedings weighs against construing the privilege any more broadly than

necessary to achieve its ends. In re Grand Jury Proceedings, 664 F.2d 423, 429-30

(5th Cir. 1981, Unit B). In Cameron, supra, the old Fifth Circuit rejected, albeit in

a testimonial privilege case, the argument that the privilege should be available in

“moribund” marriages. 556 F.2d at 756. There is no reasonable distinction to be

made in the case of a marital communication privilege assertion.

      Having determined that the marital communication privilege is not available

in cases of permanent separation prior to divorce, we next consider the factors that

should be considered by district courts in determining whether there was a

permanent separation at the time of the communication. A district court should

focus upon the following three objective factors as especially important: (1) Was

the couple cohabiting?; (2) if they were not cohabiting, how long had they been

living apart?; and (3) had either spouse filed for divorce? A district court may, of

course, consider other objective evidence of the parties’ intent or lack of intent to

reconcile. See Cameron, 556 F.2d at 756 (finding permanent separation in


                                          10
testimonial privilege case where there was “a great disparity between the amount

of time that the couple cohabited and the time that one of the other chose not to

live together,” and where one of the spouses already entered into “a more

permanent living arrangement with another partner than with his spouse”). A court

also may (not must) consider testimony by the spouses themselves regarding their

subjective intent, but simply because one or both spouses testifies that the couple

intended to stay married and that the communications at issue were thought by

them to be protected, the communications need not be deemed privileged where

objective factors undermine the credibility of that testimony.

      The trial judge conducted a hearing outside the presence of the jury

concerning the state of the Singletons’ marital relationship at the time of the taped

conversation. Once the Government opposed the allowance of the privilege, the

burden of proof was on the appellant to prove by a preponderance of the evidence

that she and Cedric were not permanently separated at the time of the subject

communication. See In re Grand Jury Subpoena, 831 F.2d 225, 227 (11th Cir.

1987); and In re Certain Complaints Under Investigation, 783 F.2d 1488, 1520

(11th Cir. 1986). We review a district court’s ruling on a claim of evidentiary

privilege only for abuse of discretion. See, e.g., United States v. United Kingdom,

238 F.3d 1312, 1319 (11th Cir. 2001). Factual findings of a district court are


                                          11
reviewed only for clear error. See United States v. Kuku, 129 F.3d 1435, 1438

(11th Cir. 1997). See also, Roberson, 859 F.2d at 1382 (applying clearly

erroneous standard to this issue); City of Tuscaloosa v. Harcros Chem. Corp., 158

F.3d 548, 556 (11th Cir. 1999) (“The factual findings of the district court that

underlie its decisions regarding the admissibility of the purported hearsay evidence

-- such as its findings regarding whether a statement was made in furtherance of a

conspiracy, or whether a particular document is a regular business record – are

reviewed for clear error.”)

      The following evidence was presented to the district court: (1) the appellant

alleged, in a divorce action complaint filed in September 1997, that Cedric had

abandoned her in December 1996; (2) during the marriage Cedric had accused

appellant of having affairs with her co-worker(s) and contractor(s) based on

documents he found; (3) the appellant, at the time of the taped conversation, was

living with Earl Davis, a co-worker; (4) the Singletons had a physical altercation

shortly before their December 1996 separation; (5) after December 1996, Cedric

lived with appellant’s cousin, his own brother, and a former wife named Stephanie;

(6) appellant stayed at Cedric’s brother’s house three or four times while Cedric

was there; (7) Cedric spent one night, possibly two nights, at appellant’s house

after December 1996 (on one of the occasions, her boyfriend showed up; there was


                                          12
an altercation, and Cedric left); (8) in 1997, there was another altercation involving

appellant, Earl Davis, and Cedric, in which knives were drawn; (9) the appellant

and Cedric continued to trade accusations of infidelity throughout the separation;

(10) the spouses had tried marriage counseling around March 1997, and did not

thereafter reconcile; (11) the spouses discussed reconciliation in the taped

conversation, but appellant also told Cedric that she would shoot him if she had a

gun, and several times during the taped conversation, appellant told Cedric that she

hated him; (12) appellant also told Cedric, “It’s ‘cause I hate your ass and this is

how I feel about you Cedric. I don’t feel nothing nice for you any damn more;”

and (13) Cedric testified that, at the time of the taped conversation, reconciliation

was unlikely.

      We conclude that the district court did not clearly err by finding that the

Singletons were permanently separated at the time of the communication and that it

did not abuse its discretion in denying the privilege to the appellant.

                             Testimony of Sonya White

      The defendant did not object to the testimony of Sonya White, who, the

Government has acknowledged, was ambivalent during her testimony. The jury

could, of course, weigh her testimony. Even assuming, however, that the

testimony should have been stricken, it was not plain error to fail to do so. Any


                                          13
perceived equivocation arguably could have been weighed in appellant’s favor.

Further, the evidence, including appellant’s own testimony, strongly suggested

guilt. There was certainly neither “egregious error,” nor any error that would result

in a “miscarriage of justice.” United States v. Williford, 764 F.2d 1493, 1502

(11th Cir. 1985).

                                     Summary

      We reject appellant’s argument that we should establish a bright-line rule of

termination of marriage before the marital communication privilege can be denied.

We conclude that the district court did not abuse its discretion in concluding that

the parties were permanently separated and that appellant was not entitled to assert

the marital communications privilege. Finally, we conclude that there was no error

in admitting, or in failing to strike, the testimony of Sonya White.

      The judgment of the district court is AFFIRMED.




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