United States v. Montgomery

United States Court of Appeals for the Ninth Circuit · 2004 · Evidence

384 F.3d 1050 (9th Cir. 2004)

Updated August 22, 2026

EvidenceMarital privilegeMail fraudConspiracyRestitutionSentencingFederal Rule of Evidence 501marital communications privilege

Facts

Montgomery and his wife operated Sun Village Realty, which managed vacation homes and mailed monthly owners’ statements reporting rental activity, receipts, and charges. After returning to the business in 1994, Mrs. Montgomery discovered irregularities she believed showed O’Connor was hiding reservations and stealing from owners; she discussed this with Montgomery repeatedly and left him a handwritten letter at their home stating she would not be part of a dishonest operation and hoped he would address O’Connor’s conduct. Mrs. Montgomery later joined the scheme, but the letter and her testimony about earlier conversations were introduced at Montgomery’s trial to show that he had notice of O’Connor’s activities. The letter was seized from the Montgomery bedroom during a search.

Issue

Could Montgomery invoke the marital communications privilege to exclude his wife’s confidential letter and testimony about their private conversations? If so, did any exception remove the privilege because Mrs. Montgomery later joined the conspiracy or was allegedly an accessory after the fact?

Rule

The marital communications privilege protects words and acts intended as communications, made during a valid marriage, and intended to be confidential. The government bears the burden of showing a marital communication was not intended to be confidential. Either spouse may assert the privilege to prevent testimony regarding confidential communications between spouses, and the joint-criminal-activity exception does not apply to communications made before the spouse became a participant in the criminal activity.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Olivia Mercer left her husband, Daniel Mercer, a handwritten note on the kitchen table of their apartment. The note accused Daniel's business associate of siphoning client funds and urged Daniel to tell the associate to stop immediately. Prosecutors later offered the note at Daniel's fraud trial to show he had notice of the associate's conduct.

Is the note most likely protected by the marital communications privilege?

Explanation. The marital communications privilege covers communications between validly married spouses that are intended to be confidential. A handwritten note from one spouse to another left in the marital home is the kind of communication ordinarily presumed confidential. Under the majority rule here, a request that one spouse communicate the substance of a concern to a third person does not make the communication itself nonconfidential. Either spouse may assert the privilege.