From U.S. v. Bolen, decided Friday by Judge Mary Dimke (E.D. Wash.), an interesting illustration of how the legal rules related to the spousal testimonial privilege sometimes play out:
The spousal testimonial privilege “prohibits one spouse from testifying against the other in criminal cases during the course of their marriage, and ‘the witness-spouse alone has a privilege to refuse to testify adversely.'” “[T]he privilege is not favored, and in consequence is narrowly construed.”
“The Ninth Circuit recognizes a sham marriage exception to the marital privilege of not having to testify against a spouse.” This exception is a “narrow” one “that has typically arisen when there has been a close temporal proximity between the date of a marriage and the date when a witness-spouse has been expected to testify.”
While the “timing of a marriage will always be a factor,” it is “only one of the factors.” Other factors include whether “the marriage was entered into in good faith” and whether the spouses “plan to continue their marital relationship.” … [T]he spousal testimonial privilege is not available when “the purpose of the marriage was for the purpose of invoking the marital privilege.” …
Defendant Greer and MacGregor began dating in July 2015 and quickly moved in together because MacGregor had been homeless. Defendant Greer was arrested and detained on state charges, which form the basis for these federal charges, on January 15, 2022. MacGregor was interviewed by law enforcement shortly after Defendant Greer’s arrest and made several incriminating statements about him. {The Court was not aware of the substance of these statements at the time it orally denied MacGregor’s motion. However, MacGregor subsequently testified that she provided law enforcement photos of Defendant Greer’s penis and identified Defendant Greer’s penis in the photos of alleged child pornography.}
The court concluded that “the couple’s May 8, 2022, marriage was designed for the purpose of MacGregor avoiding having to testify and Defendant Greer had no other intent to marry MacGregor”; here’s an excerpt of the fairly long discussion:
[1.] Timing of the Marriage
On the surface, the timing of the marriage is inherently suspect. After roughly six-and-a-half years together, Defendant Greer and MacGregor engaged in an effort to marry and eventually married only after Defendant Greer’s arrest on January 15, 2022, and after MacGregor made incriminating statements about Defendant Greer to law enforcement. {Notably, MacGregor did not testify as to any demonstrated intent to marry prior to Defendant Greer’s arrest.}
Following Defendant Greer’s arrest, recorded jail calls indicate Defendant Greer’s apparent newfound preoccupation with getting married and MacGregor’s apparent desperation to mitigate the potential legal damage of incriminating statements she made about Defendant Greer to law enforcement. Seven days after his arrest, Defendant Greer told MacGregor she needs to keep up her strength because of how hard she will have to work to get him out of custody. She responded by asking how much a marriage license costs. While the timing of the marriage is “only one” of the factors the Court must assess, the totality of the evidence, as discussed below, strongly weighs in favor of finding the marriage was designed for the purpose of MacGregor avoiding having to testify.
[2.] Text Messages prior to Defendant Greer’s Arrest
The Court has reviewed dozens of text messages Defendant Greer exchanged with Defendant Bolen and others beginning in October 2020 and continuing until the time of Defendant Greer’s arrest. The messages strongly suggest Defendant Greer never possessed an intent to marry MacGregor prior to his arrest. Rather, these exchanges portray his and MacGregor’s relationship as both unstable and in distress in the months leading up to his arrest.
The Court has reviewed messages exchanged between Defendant Greer and Defendant Bolen, with whom Defendant Greer apparently confided about MacGregor. The messages are reflective of dissatisfaction with the existing relationship. See, e.g., USA Trial Ex. 12 at 12-016-018 (discussing moving in together if Defendant Bolen gets a “big enough house,” because Defendant Greer wants to “get away” from MacGregor); id. at 12-063 (Defendant Greer explaining he could not respond to Defendant Bolen’s invitation to play video games because MacGregor was watching his every move, angering him); id. at 12-097-12-099 (Defendant Greer expressing displeasure that MacGregor was home for the week and that he could not play video games because she was home, referring to her as lazy and crazy); id. (the exhibit contains exchanges repeatedly and frequently expressing annoyance that Defendant Greer cannot play video games with Defendant Bolen because MacGregor was home).
The Court also considered messages Defendant Greer exchanged with two other individuals, which reflect a deep hostility to MacGregor. On September 3, 2021, Defendant Greer texted Ashley S. and Natasha H. about MacGregor: “As soon as we pulled away from you guys, she started bitching at me … and didn’t stop until a few minutes ago.” Ashley remarked in response: “I’m sorry Casey. If I had a spare room, I would let u stay here [sad emoji]. I feel so bad for you, no wonder you sit in the bathroom for 2 hours.” Defendant Greer agreed, stating: “Yeah. I need my alone time from her and she even ruins that!” Ashley repeated the earlier sentiment: “I wish u could stay here dude.” Defendant Greer again agreed, replying, “Same.” Ashley later referred to MacGregor as a “little psycho,” to which Defendant Greer responded, “Only a little! Try a lottle!” Ashley replied, “Haha crazy psycho.” Defendant Greer again agreed, replying, “Definitely!” Ashley then remarked, “That’s your future wife your talking about.” Defendant Greer responded, “NO FUCKING WAY IN HELL!!!!”
On September 7, 2021, Defendant Greer again texted Ashley and Natasha about MacGregor: “I don’t know who she’s talking to but she’s making me out to be the bad guy again, I went off on her because she wouldn’t stop with her bullshit from the second I stepped in the door tonight.” Ashley remarked that she “couldn’t believe [he] called her a spoiled brat.” Defendant Greer clarified “[t]hat’s not all I called her”: “Spoiled brat. Whiney little baby. Bit[c]h. I think there was more but I can’t remember. She doesn’t remember me calling her a bitch. … She’s e[x]pecting me to apologize but it’s not going to happen.” Ashley responded: “Nothing to apologize for speaking your truth.” Defendant Greer agreed: “Exactly.” Defendant Greer also referred to MacGregor as a “[s]tupid fucking cunt.” Finally, while discussing that MacGregor was “looking at apartments,” Defendant Greer noted that “if [MacGregor] moves, I can’t go with her, making me homeless.” The references cited are merely examples of dozens of messages containing the same tone of discontent, and which never reflect any positive commentary about MacGregor.
The Court recognizes that ebbs and flows are ordinarily a natural part of relationships. Accordingly, the Court does not—and would not—base its finding on an up-and-down dynamic between Defendant Greer and MacGregor…. “We do not believe that courts can or should ‘assess the social worthiness of particular marriages or the need of particular marriages for the protection of the privilege.'” … “The testimonial privilege applies with equal force to challenged marriages as it does to model marriages.” … The Court likewise does not assess whether, after nearly two-and-a-half years, Defendant Greer and MacGregor’s marriage is a “challenged” or “model” one.
Rather, it finds only that, based in part on the text messages referenced above, Defendant Greer did not have a bona fide intention to marry MacGregor prior to his arrest. Looking only to Defendant Greer’s motive, the messages in the record plainly suggest that “the purpose of the marriage was for the purpose of invoking the marital privilege.”
[3.] Jail Calls
The Court has reviewed a series of recorded jail calls made between Defendant Greer and MacGregor occurring after his arrest on state charges related to the conduct underlying the subsequent federal charges. The Court finds the jail calls reflect Defendant Greer entered into the marriage to avoid having MacGregor testify….
The calls reflect that, to Defendant Greer, the marriage was inexorably linked with his prosecution: Defendant Greer repeatedly was preoccupied with making sure the state prosecutor was aware of it. As with the text messages, the calls plainly suggest that “the purpose of the marriage was for the purpose of invoking the marital privilege.” …
[4.] MacGregor’s Testimony
The Court finds MacGregor’s testimony decidedly not credible. She repeatedly invoked equivocal phrases—such as variations of “I do not recall” and “I do not remember”—at least ten times on cross-examination. In the Court’s view, it was implausible for MacGregor not to remember details and conversations that were unambiguously memorable, based on the content of her calls with Defendant Greer….
The Court does not take lightly the task of assessing whether a marriage was entered into in good faith or for the purpose of wielding it as a shield in a criminal prosecution. However, the totality of the evidence compels the conclusion that Defendant Greer and MacGregor’s marriage was “for the purpose of using the marriage ceremony in a scheme to defraud[.]” …
Ann Wick represents the government.
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