01-3870 U.S. v. Westmoreland

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“The initial disclosure of a crime to one’s spouse, without more, is covered by the marital communications privilege. If the spouse later joins the conspiracy, communications from that point certainly should not be protected. This distinction is consistent with the purpose of the marital communications privilege. As one treatise has suggested, further expansion of the partners-in-crime exception to the marital privilege could ‘eventually reduce the marital communications privilege to a hollow shell.’ 25 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure sec. 5601 (1989).

“Although we believe that the district court erred in admitting the initial communication between Mr. Westmoreland and his wife, this misstep does not automatically warrant reversal. We have held that, even if evidence barred by the marital communications privilege is improperly admitted, we must determine whether the error was harmless. See United States v. Short, 4 F.3d 475, 479 (7th Cir. 1993). The contested statement constitutes only two or three pages of more than 150 pages of the transcript containing Ms. Matthews’ direct testimony against her husband. … In light of this evidence, we believe that the error was harmless.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Stiehl, J., Ripple, J.