United States v. Banks ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30130
Plaintiff-Appellee, D.C. No.
v.  CR-06-00051-BLW-
JERRY LEVIS BANKS, SR., WBS-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Idaho
William B. Shubb, District Judge, Presiding
Argued and Submitted
May 5, 2008—Seattle, Washington
Filed February 25, 2009
Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Partial Concurrence and Partial Dissent by Judge Alarcón
2223
2226 UNITED STATES v. BANKS
COUNSEL
Dennis M. Charney, Charney and Associates, Eagle, Idaho,
for the defendant-appellant.
James M. Peters (briefed), Assistant United States Attorney,
Boise, Idaho; and Alexandra Gelber (briefed and argued),
United States Department of Justice, Washington, D.C., for
the plaintiff-appellee.
OPINION
RAWLINSON, Circuit Judge:
In this appeal, we determine whether Jerry Levis Banks,
Sr.’s (Banks) conviction on multiple counts involving the pos-
session, production, transportation and receipt of images
depicting minors engaged in sexually explicit conduct should
be reversed based on the denial of his motion to suppress evi-
dence seized pursuant to a warrant, the admission of testimo-
nial evidence provided by Banks’s wife alleged to be
protected by the marital communications privilege, or the dis-
trict court’s adoption or the application of definitions for
UNITED STATES v. BANKS 2227
“masturbation” and “lascivious” as they relate to the subject
video. We affirm the conviction. The district court did not err
when it denied Banks’s motion to suppress or in defining and
applying the terms “masturbation” and “lascivious.” Although
the ruling addressing the marital communications privilege
was erroneous, the error was harmless.
I.
BACKGROUND
This case began when Special Agent Mary Martin (Agent
Martin) filed an “Application and Affidavit for Search War-
rant.” According to the affidavit, a Canadian investigation
into child pornography had resulted in the arrest of a Cana-
dian pedophile who admitted to trading child pornography
with Banks. The Canadian pedophile also provided evidence
that Banks may have created a pornographic video involving
Banks’s two-year-old grandson.
A warrant issued to search Banks’s home for sixteen types
of items described in the affidavit. As a result of the evidence
seized pursuant to the warrant, Banks was charged with nine
criminal counts relating to the possession, production, trans-
portation and receipt of images depicting minors engaged in
sexually explicit conduct. Seven of those charges ultimately
proceeded to trial.
Prior to trial, Banks moved to suppress the evidence seized
pursuant to the search warrant, asserting that the affidavit
lacked foundation and specificity. Banks’s arguments were
rejected by the district court, and a bench trial ensued.
At trial, the government called Banks’s wife as a witness.
Mrs. Banks primarily testified about her relationship with the
minor child in the subject video. She testified that the child
was her grandson, with whom she had a close relationship.
Mrs. Banks also identified her husband’s ring, watch and
2228 UNITED STATES v. BANKS
couch in the video.1 Mrs. Banks was asked whether her hus-
band had made any statements regarding a video involving
their grandson. Over Banks’s objection, Mrs. Banks testified
that her husband had admitted to making the video and that
he had done so to ensure that “nothing went on in changing
the diaper because of past things.”
The district court found Banks guilty on all counts, con-
cluding that Banks had created the subject video. The court
relied on the testimony identifying Banks’s ring, watch and
couch, as well as testimony that Banks had admitted changing
the child’s diaper. The district court also determined that the
video contained images of sexually explicit conduct. Specifi-
cally, the court concluded that the video depicted the mastur-
bation of a minor child under a definition of masturbation that
included the stimulation of genitalia in a manner that would
stimulate an adult. The district court found that the video also
contained a lascivious exhibition of the genitals of the minor
child because it depicted the masturbation of the child “for the
purpose of eliciting in the viewer a sexual response.”
II.
STANDARDS OF REVIEW
We review de novo the district court’s rulings on a motion
to suppress and the validity of a search warrant. See United
States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007).
We also review de novo legal conclusions regarding the
marital communications privilege. See United States v. Grif-
fin, 440 F.3d 1138, 1143 (9th Cir. 2006). However, we review
the admission of evidence for an abuse of discretion. See
1
This testimony was in addition to that of other witnesses detailing that
Banks had been left alone with the child, that he had been discovered with
the child in the locked garage, and that he had admitted to changing the
child’s diaper.
UNITED STATES v. BANKS 2229
United States v. Marashi, 913 F.2d 724, 729 (9th Cir. 1990).
“A district court abuses its discretion if it ‘bases its ruling on
an erroneous view of the law or on a clearly erroneous assess-
ment of the evidence.’ ” Shafer v. Astrue, 518 F.3d 1067,
1070 (9th Cir. 2008) (citation and alteration omitted).
Finally, we review de novo the district court’s “construc-
tion or interpretation of a statute,” United States v. Carranza,
289 F.3d 634, 642 (9th Cir. 2002) (citation omitted), and
review for clear error the court’s findings of fact. See United
States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir.
2002).
III.
DISCUSSION
A. The affidavit contained an adequate foundation to sup-
port issuance of the search warrant.
[1] Statements in an affidavit supporting a search warrant
application directed toward “the behavior of a particular class
of persons” must be supported by “a foundation which shows
that the person subject to the search is a member of the class.”
United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1991),
as amended. In the present case, there was ample information
in the affidavit to support the notion that Banks was engaging
in the production and trade of images depicting minors
engaged in sexually explicit conduct, including evidence of
the transmission of such images between Banks and a con-
victed sex offender in Canada. Thus, to the extent Banks
argues that the affidavit failed to set forth the proper founda-
tion for later assumptions about pedophiles, the requirements
of Weber were met.
Further, to the extent that Banks argues that the contested
sections of the affidavit were required to be supported by
expert opinion, he is incorrect. The contested sections pro-
2230 UNITED STATES v. BANKS
vided background information about how pedophiles act in
the digital age, how law enforcement generally conducts
searches of computers, and what likely steps would be taken
to search a computer. None of these topics is so esoteric as to
require expert explanation to be understood. Additionally, at
the outset of the affidavit, Agent Martin explained that she
has been investigating the sexual exploitation of children
since 1998 and has attended training seminars and classes “re-
lated to conducting these types of investigations.” Her exten-
sive background was sufficient to support the generalized
statements provided in the first three sections of the affidavit.
Finally, to the extent Banks argues that Agent Martin’s fail-
ure to specifically include the source of her information in
each section renders the affidavit insufficient to create proba-
ble cause, the argument fails because Banks is unable to dem-
onstrate that any omission was material or that, “when
supplemented with the omitted information, [the affidavit]
would be insufficient to support a probable cause finding.”
United States v. Jawara, 474 F.3d 565, 582 (9th Cir. 2007),
as amended (citation omitted).
B. The warrant was sufficiently specific.
“Specificity has two aspects: particularity and breadth. Par-
ticularity is the requirement that the warrant must clearly state
what is sought. Breadth deals with the requirement that the
scope of the warrant be limited by the probable cause on
which the warrant is based.” United States v. Hill, 459 F.3d
966, 973 (9th Cir. 2006) (citation omitted).
[2] “The prohibition of general searches is not . . . a
demand for precise ex ante knowledge of the location and
content of evidence . . . The proper metric of sufficient speci-
ficity is whether it was reasonable to provide a more specific
description of the items at that juncture of the investigation.”
United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004)
(citation omitted). The warrant in this matter sought evidence
UNITED STATES v. BANKS 2231
that Banks was engaged in the production and transmission of
child pornography. In doing so, it limited its range to items
containing a connection to “child pornography,” “child eroti-
ca,” or “minors engaged in sexually explicit conduct” as
defined by statute. This description was sufficiently particular
to overcome Banks’s argument that the items to be seized
were not specifically identified. Id.
Banks’s contention that the warrant’s lack of a time frame
rendered it insufficiently particular is unpersuasive because
the record and affidavit do not demonstrate knowledge on the
part of the government that the illegal conduct was limited to
any particular time frame. Cf. United States v. Kow, 58 F.3d
423, 427 (9th Cir. 1995) (invalidating a warrant where the
affidavit indicated that the criminal activity began at a spe-
cific time period but the warrant was not limited to a particu-
lar time frame).
Banks’s final suggestion that the warrant was insufficiently
particular because it did not specifically seek to recover the
videos known to have been transmitted and because it failed
to identify the name of the internet chat room that Banks
moderated also fails. Although the government may have
known the name of certain files that supported the finding of
probable cause, there is no requirement that the warrant be
tailored to obtain only that evidence already known to exist.
In fact, this heightened limitation has been specifically
rejected. See Meek, 366 F.3d at 716.
Banks also challenges the breadth of the warrant, asserting
that the items seized could have been described more specifi-
cally and that the warrant should have excluded a search of
Banks’s home-based business.
The affidavit submitted in support of the warrant in this
case explained that “computer storage devices . . . can store
the equivalent of thousands of pages of information.” It also
noted that a user wanting to conceal evidence “often stores it
2232 UNITED STATES v. BANKS
in random order with deceptive file names.” The affidavit
then noted that searching computers “for criminal evidence is
a highly technical process requiring expert skill and a prop-
erly controlled environment.” Finally, the affidavit provided
evidence that computers at the Banks’s residence had been
used to obtain and transfer child pornography.
[3] “[N]o more specific description of the computer equip-
ment sought was possible,” United States v. Hay, 231 F.3d
630, 637 (9th Cir. 2000) (citation and footnote reference omit-
ted), because there was no way to know where the offending
images had been stored. “Further, the affidavit explained why
it was necessary to seize the entire computer system in order
to examine the electronic data for contraband,” id., and the
“warrant did not authorize[ ] seizure of every document, but
of child pornography which is a sufficiently specific defini-
tion to focus the search.” Id. at 638 (footnote reference omit-
ted).
“A generalized seizure of business documents may be justi-
fied” if it is demonstrated that “the government could not rea-
sonably segregate . . . documents on the basis of whether or
not they were likely to evidence criminal activity.” Kow, 58
F.3d at 427, 428 (citations omitted). A full reading of the affi-
davit in this matter reveals that no more limited search would
have been feasible, even if the evidence of Banks’s home
business had been more fully set forth. As in Meek, “the war-
rant here did not authorize ‘the seizure of virtually every doc-
ument and computer file’ without indicating how items were
related to the suspected crime.” 366 F.3d at 715 (citation
omitted) (distinguishing Kow). Rather, the warrant sought
only evidence of child pornography and appropriately limited
its search and seizure provisions to attain this objective. See
id. at 715-16.
[4] Thus, the district court did not err in denying Banks’s
motion to suppress.
UNITED STATES v. BANKS 2233
C. Although the district court erred in applying the
marital communications privilege, the error was harmless.
Over Banks’s objection that the testimony was protected by
the marital communications privilege, the district court
allowed Banks’s wife to testify to statements made by Banks
during the course of their marriage concerning why Banks
created the video.
[5] The marital communications privilege “protects from
disclosure private communications between spouses,” Griffin,
440 F.3d at 1143-44 (citations omitted), and may be invoked
by the non-testifying spouse. Marashi, 913 F.2d at 729. The
privilege exists “to protect the integrity of marriages and
ensure that spouses freely communicate with one another.”
Griffin, 440 F.3d at 1143 (citation, alterations and internal
quotation marks omitted). However, because the marital com-
munications privilege “obstructs the truth seeking process,”
its use “in criminal proceedings requires a particularly narrow
construction because of society’s strong interest in the admin-
istration of justice.” United States v. White, 974 F.2d 1135,
1138 (9th Cir. 1992) (citation omitted).
[6] While balancing the public’s interest in the full and fair
administration of justice and the need to protect the integrity
of marriage and ensure that spouses freely communicate, we
have created two exceptions to the privilege. First, “the mari-
tal communications privilege does not apply to statements
made in furtherance of joint criminal activity.” Marashi, 913
F.2d at 731. Second, “the marital communications privilege
should not apply to statements relating to a crime where a
spouse or a spouse’s children are the victims.” White, 974
F.2d at 1138. It is the extent of this second exception that we
now consider.
In White, we agreed with the balancing test set forth by the
Eighth Circuit in United States v. Allery, 526 F.2d 1362,
1366-67 (8th Cir. 1975), which concluded that an exception
2234 UNITED STATES v. BANKS
to the marital privilege was needed to protect the children of
either spouse from abuse by the other spouse. Id. at 1367. The
district court’s ruling in this case demonstrates its belief that
the White exception should extend to those individuals con-
sidered the functional equivalent of the children protected in
White.
In determining whether the functional equivalent of a child/
parent relationship should support an exception to the marital
communications privilege, the rationale of Allery is instruc-
tive. In Allery, the court extended the exception to allow testi-
mony when a crime has been committed against the child of
either spouse, recognizing that “in light of today’s society,”
the policy behind the privilege requires expansion of its
exceptions. 526 F.2d at 1366. The court noted “that a serious
crime against a child is an offense against that family[’s] har-
mony and to society as well.” Id. The court also discussed that
a vast majority of child abuse cases involve “a parent or par-
ent substitute” as the perpetrator. Id.
[7] Given that the bond between marital partners and the
functional equivalent of their children would be nearly identi-
cal to that between marital partners and their birth or step-
children, the harm to family harmony and society would be
the equivalent of that noted in Allery. See id. Indeed, of the
nine states within the Ninth Circuit, seven recognize a marital
communications privilege exception including the functional
equivalent of birth children or a somewhat broader concept.2
2
The states with such an exception are Alaska (Daniels v. State, 681
P.2d 341, 345 (Alaska Ct. App. 1984) (covering foster children as well as
birth and adopted children)); Arizona (Ariz. Rev. Stat. Ann. §§ 13-4062
& 13-604) (waiving the privilege for several serious offenses including
“[a]ny dangerous crime against children” and “[s]exual conduct with a
minor under fifteen years of age”); California (Dunn v. Superior Court, 21
Cal. App. 4th 721, 723-24 (1993) (recognizing that the exception applies to
adult step-children as well as all foster children)); Hawaii (Haw. Rev. Stat.
§ 626-1, Rule 505(c)) (excepting from the privilege crimes committed
against “a third person residing in the household of either [spouse]”);
UNITED STATES v. BANKS 2235
Considering the comparable familial ties, we conclude that
violence against the functional equivalent of a child should be
afforded the same protections as violence against the birth or
step-child of a married couple.3
The question remains, however, whether the district court
correctly concluded that the minor child in this case was the
functional equivalent of a birth or step-child. The district
court’s conclusion was based on the following findings:
that JB, the alleged victim, was the grandchild of
both the witness, Mrs. Banks, and the defendant, Mr.
Banks; that the witness and the defendant were mar-
ried and co-habitating at the time of the communica-
tion; that JB was in the care, joint care of Mrs. Banks
and the defendant at the time of the alleged molesta-
tion; that JB was specifically being cared for by the
defendant at the time of the alleged molestation; that
at least during the two-month period prior to the
alleged molestation that JB had been left in the joint
Idaho (Idaho Code Ann. § 9-203(1)) (precluding use of the privilege in
“any case of physical injury to a child where the injury has been caused
as a result of physical abuse or neglect by one or both of the parents” and
“any case of lewd and lascivious conduct or attempted lewd and lascivious
conduct where either party would otherwise be protected by this privi-
lege”); Nevada (Nev. Rev. Stat. § 49.295(2)(e)(1)) (excluding crimes com-
mitted against “a child in the custody or control of either” spouse); and
Washington (Wash. Rev. Code § 5.60.060(1)) (precluding use of the privi-
lege in a “proceeding for a crime committed by said spouse or domestic
partner against any child of whom said spouse or domestic partner is the
parent or guardian”).
3
We decline to follow the path taken in United States v. Bahe, 128 F.3d
1440, 1446 (10th Cir. 1997), extending the exception to testimony relating
to the abuse of any minor child in the marital household, whether residing
there or visiting. No other circuit has adopted such a broad exemption to
the federal marital communications privilege. In fact, such an exception
would be broader than that adopted by the majority of states within the
Ninth Circuit.
2236 UNITED STATES v. BANKS
care of the defendant and Mrs. Banks for two week-
ends beginning on Friday evening and ending Satur-
day afternoon; that the parents, i.e., Mr. and Mrs.
Banks’ son and their daughter-in-law, were not pres-
ent during those times when JB was in the care of
the defendant and his wife.
Further, during the approximate two years of JB’s
life preceding that time, for the first six months he
had lived with Mr. and Mrs. Banks. And during that
time, the parents also lived with Mr. and Mrs. Banks,
but Mrs. Banks on occasion would feed, bathe,
clothe, and change the diapers of JB on many occa-
sions. After that three-month — or after that six-
month period, the times in which JB was in Mr. and
Mrs. Banks’s care was very infrequent until April of
2005. But the parents started leaving JB in the care
of Mr. and Mrs. Banks from the time he was about
one and one half years old but not usually overnight
until April of 2005.
[8] Although these facts demonstrate a strong bond
between the victim and his grandparents, they do not show the
type of relationship that would be considered the functional
equivalent of a birth or step-child’s relationship with his par-
ents. Infrequent overnight visits are common to a large por-
tion of grandparent/grandchild relationships, as are frequent
visits with or even regular day-care services provided by the
grandparents. This type of care, while admirable and impor-
tant, does not carry the same indicia of guardianship and
responsibility that a parent/child relationship carries. Further,
while the district court noted that JB had resided with the
Banks for the first six months of his life, it is an important
qualifier that his parents had also resided in the home and that
this living situation had ended well over a year before the
alleged molestation.
[9] This is not a case in which a child was raised by grand-
parents and, therefore, could be said to share a parent/child
UNITED STATES v. BANKS 2237
relationship with those caretakers. Rather, this situation dem-
onstrates a strong grandparent/grandchild relationship.
Although such a relationship is important to building strong
extended families and improving society, it is not the type that
creates the same overriding policy concerns that led us to
limit the marital communications privilege to protect children
of the marriage.
[10] Accordingly, the district court’s admission of Mrs.
Banks’s testimony was an abuse of discretion because the dis-
trict court’s finding that JB was the functional equivalent of
a birth child to Banks and his wife was clearly erroneous
under these facts. See Shafer, 518 F.3d at 1070 (“A district
court abuses its discretion if it ‘bases its ruling on an errone-
ous view of the law or on a clearly erroneous assessment of
the evidence.’ ” (citation and alteration omitted)).
Our dissenting colleague accuses the majority of “neglect[-
ing] its duty pursuant to Rule 501 of the Federal Rules of Evi-
dence . . .” Dissenting Opinion, p. 2246. To the contrary, it
is the dissenting opinion that strays from the dictates of Rule
501 by incorporating wholesale state law statutory privileges
into its analysis.
Rule 501 provides in pertinent part: “[T]he privilege of a
witness . . . shall be governed by the principles of the com-
mon law as they may be interpreted by the courts of the
United States . . .” Fed. R. of Evid. 501 (emphasis added). In
keeping with Rule 501’s emphasis on federal common law,
the court in Allery recognized that “[f]ederal courts may . . .
look to the privileges created by state courts and applicable
state statutes if the court finds them appropriate.” Allery, 526
F.2d at 1365 (emphases added). No deference to state law is
mentioned or implied.
More importantly, the court in Allery noted that proposed
rules of privilege “adopted by the United States Supreme
Court and sent to Congress for approval . . . [were] abandoned
2238 UNITED STATES v. BANKS
by Congress and [were] replaced by Rule 501.” Id. at 1366
(footnote reference omitted).
In Allery, the court explained that “[a] careful review of the
legislative history behind the rejection of the changes pro-
posed in Article V and the passage of Rule 501 does not indi-
cate that Congress disapproved of the expansion of this
exception but rather that any substantive changes should be
done on a case-by-case basis.” Id. (citation omitted).
Rather than resolving this case on these facts, the dissent
seeks to make a sweeping ruling that the marital privilege is
waived for all grandparents for all time for all circumstances,
whenever a charge of sexual abuse of a minor is involved.
Although the majority recognizes the abhorrent nature of
child sexual abuse, we must nevertheless faithfully apply our
precedent.
Our governing precedent on this issue is our opinion in
White, which cited Allery with approval. See White, 974 F.2d
at 1138. In White, we concluded that the common law “mari-
tal communications privilege should not apply to statements
relating to a crime where a spouse or spouse’s children are the
victims.”
The dissent seeks to extend this holding virtually without
limitation. See Dissenting Opinion, p. 2256-57. In doing so,
the dissent goes far beyond the approach taken by the district
court. It is apparent from the district court’s factual findings
that its ruling was predicated upon a determination that the
grandparents in this case were the functional equivalents of
parents. Indeed, the district court expressly reasoned that this
case was “not even a small step from what the court ruled in
White. It is almost exactly the same.” In this particular case,
under these particular facts, we disagree. Perhaps our holding
would be different if the grandparents were the primary care-
givers. But such was not the case. Rather, the grandparents
were occasional caregivers. As discussed above, and as Rule
UNITED STATES v. BANKS 2239
501 contemplates, a case-by-case application of the marital
communications privilege as interpreted by our court, leads
the majority to conclude that the exception did not apply in
this case.4
[11] Nevertheless, evidence improperly admitted under the
marital communications privilege warrants reversal only if it
affected the defendant’s substantial rights. Marashi, 913 F.2d
at 729. The error here was harmless as it related to the issue
of Banks’s identity. In fact, the district court’s finding that
Banks created the video made no mention of Banks’s confes-
sion to his wife. Rather, the court focused on the multitude of
evidence supporting the conclusion that Banks made the
video. This evidence included the recognition of Banks’s
watch and ring on the adult in the video; the recognition of a
couch in the video that was owned by Banks and kept in his
garage; testimony that Banks had been found in his locked
garage, alone with the victim, and had admitted to changing
the child’s diaper; and testimony that Banks had been left
alone with the child. This evidence demonstrated beyond a
reasonable doubt that the video was made in Banks’s garage
and that Banks had been involved in the making of the video.
We are persuaded beyond a reasonable doubt that the district
court would have found that Banks made the video, even
without the improperly admitted statement.
Any error was also harmless as it related to the district
court’s finding that the video constituted sexually explicit
conduct. Although the district court did discuss the competing
4
The dissent quotes at length from the district court’s reasoning to sup-
port the argument that the marital privilege exception should be expanded.
Dissenting Opinion, pp. 2270-72. It is notable that the portions quoted by
the dissent anchor the district court’s reasoning to our precedent, White,
rather than to Idaho law or any other state statutory or case authority.
Although the district court referenced state law generally, it did not seek
to incorporate state law into its analysis, and rightfully so. See Allery, 526
F.2d at 1366 (cautioning against expansion of the marital privileges excep-
tion on any basis other than “case-by-case.”).
2240 UNITED STATES v. BANKS
motives for making the video that were adduced at trial, the
finding that the video constituted sexually explicit conduct
was based on the actions taken in the video and Banks’s later
transmission of that video to a known pedophile with com-
ments suggesting that the video was intended to show the
child’s erection. See United States v. Freeman, 498 F.3d 893,
901 (9th Cir. 2007) (holding error harmless when “it is more
probable than not that the error did not materially affect the
verdict”) (citation omitted).
Banks argues that admission of the testimony constituted
reversible error because he was required to change his trial
strategy to explain his prior criminal history. However, there
is no indication in the record that the district court relied at all
on Banks’s prior criminal history in reaching its guilty ver-
dict, rendering any error harmless. See id.
[12] In sum, although the district court abused its discretion
in admitting the contested testimony, such error was harmless
and does not warrant reversal.
D. The district court’s definition and finding of
masturbation were not erroneous.
The district court conscientiously crafted a definition of
masturbation. It first noted the fact that no statutory definition
exists, before recounting a dictionary definition of masturba-
tion that included the exciting of another’s genitals by manual
contact. Rejecting the government’s assertion that masturba-
tion may be found if the act were done solely “for the purpose
of exciting the person performing the act,” the court con-
cluded that the act must be “for the purpose of exciting the
person being masturbated.”
The court next turned to the problem that this definition
created when it came to the masturbation of a minor child
who might not be able to be stimulated by the action. The dis-
trict court concluded that Congress intended masturbation to
UNITED STATES v. BANKS 2241
include “the stimulation, manipulation, or excitation of the
genital organs for purposes of exciting or stimulating the per-
son being masturbated if that person was an adult.”
Banks argues that this definition impermissibly conflicts
with the district court’s later definition of lasciviousness
because it considers the intent of the individual masturbating
the minor child while the definition of lascivious considers
the response intended in the person viewing the image. As
discussed below, the definition of masturbation provided by
the district court does not impermissibly contradict that given
for lasciviousness. The catch-all nature of the term lascivious
allows for the recognition that certain acts, because of their
inherent sexual nature, can satisfy both lasciviousness and
another more specific sexual act.
In interpreting a statute, we “must begin with the language
of the statute itself.” Bowsher v. Merck & Co., 460 U.S. 824,
830 (1983) (citation omitted). As the district court aptly
noted, neither the statute nor interpretive case law provides a
definition of masturbation. “[I]n the absence of a statutory
definition, a term should be accorded its ordinary meaning
. . .” Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 874 (9th
Cir. 2007) (citation omitted). Definitions should be adopted
that “give effect, if possible, to every word of the statute,”
Bowsher, 460 U.S. at 833 (citation omitted), and dictionary
definitions are cognizable. See United States v. Santos, ___
U.S. ___, 128 S. Ct. 2020, 2024 (2008) (utilizing dictionary
definitions).
The Oxford English Dictionary defines masturbation as
“deliberate erotic self-stimulation” and provides an accompa-
nying definition of mutual masturbation as the “stimulation of
the genitals of one person by another in order to produce an
orgasm without sexual intercourse.” 9 Oxford English Dictio-
nary 454 (2d ed. 1989). Webster’s Third New International
Dictionary similarly defines masturbation as “erotic stimula-
tion involving the genital organs commonly resulting in
2242 UNITED STATES v. BANKS
orgasm and achieved by manual or other bodily contact exclu-
sive of sexual intercourse . . .” Webster’s Third New Interna-
tional Dictionary of the English Language Unabridged 1391
(1986).
Each definition focuses primarily on the “erotic” stimula-
tion of one’s genitals. Despite noting that an orgasm is com-
monly reached or intended, neither definition requires that an
orgasm occur or even be possible. The district court’s defini-
tion recognizes this aspect of masturbation in the difficult
context of contact with a child too young to have a sexual
response to the physical contact.
The subject video depicts the minor child having his diaper
changed. Using a diaper wipe, Banks touched, rubbed and
held the child’s penis. Banks also massaged the child’s scro-
tum and anus, and the time spent wiping the child’s anus
appears prolonged. These actions were taken at a point in the
diaper-changing where it could reasonably be concluded that
they were extraneous. Indeed, after the cleaning process
appeared complete, Banks exited the screen and returned two
more times with new wipes and continued touching the child.
In addition, messages between Banks and the Canadian
pedophile demonstrated that Banks represented the video as
depicting the child’s erection.
[13] This evidence supports the district court’s conclusion
that the minor child’s genitals were stimulated for the purpose
of producing a video for Banks to share with his fellow
pedophile in Canada. Such an action would fit the definition
of masturbation described above. Accordingly, the district
court did not clearly err in concluding that the video depicts
masturbation and, ultimately, sexually explicit conduct. See
Leos-Maldonado, 302 F.3d at 1063 (reviewing the district
court’s findings of fact for clear error).
UNITED STATES v. BANKS 2243
E. The district court’s definition and finding of
lasciviousness were not erroneous.
The district court did not provide an explicit definition of
lascivious when discussing whether the video constituted las-
civious exhibition of the genitals or pubic area of the minor
child. However, the court did note the following:
An additional factor that I think could be added to
the Dost factors would be the fondling of a child.
And fondling is broader than masturbation. If the
government has proved masturbation, in my view it
has also proved the fondling of the child. And it was
for the purpose of eliciting in the viewer a sexual
response. And so the court finds that this image also
. . . constitutes a lascivious exhibition of the genitals
or pubic area of the child. . . . [I]t was created for the
purpose of exciting Mr. Lindstrom and for the pur-
pose of appealing to his prurient pedophilia [sic]
interests.
Banks attacks this reasoning, complaining that the district
court improperly folded the definition of masturbation into the
definition of lasciviousness.
In the context of images involving children, the term “las-
civious” has been fairly well defined. A lascivious exhibition
is pornographic, even if not obscene, and is considered in the
context of “the depictions . . . imposed . . . by the attitude of
the viewer or photographer.” United States v. Arvin, 900 F.2d
1385, 1391 (9th Cir. 1990). Accordingly, “applied to the con-
duct of children, lasciviousness is not a characteristic of the
child photographed but of the exhibition which the photogra-
pher sets up for an audience that consists of himself or
likeminded pedophiles.” United States v. Wiegand, 812 F.2d
1239, 1244 (9th Cir. 1987). This focus results in a definition
of lascivious that criminalizes images “so presented by the
2244 UNITED STATES v. BANKS
photographer as to arouse or satisfy the sexual cravings of a
voyeur.” Hill, 459 F.3d at 972 (citation omitted).
The district court’s definition did not run afoul of this rec-
ognized definition of lascivious. The court’s definition of
masturbation required a finding that the contact with the
minor’s genitalia was of the type that would produce a sexual
response in an adult. The court’s discussion of lascivious dis-
played an awareness by the court that there must be an intent
on the part of the photographer or viewer to satisfy a sexual
desire through the image. Although the distinction between
the terms is subtle, it nevertheless exists: masturbation
focuses on the effect on the victim and lasciviousness focuses
on the effect on the pedophile.
[14] The district court’s factual determination that the video
encompassed the lascivious exhibition of the minor child’s
genitals was predicated on the court’s conclusion that the
video depicted the masturbation of the minor child. Banks
counters that the video’s display of a diaper change and its
failure to meet many of the factors articulated in United States
v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986),5 preclude a factual
finding that the video contains a lascivious exhibition of the
minor child’s genitals. However, the Dost factors “are neither
exclusive nor conclusive” because “a determination of lascivi-
ousness has to be made based on the overall content of the
visual depiction.” Hill, 459 F.3d at 972 (citation, alteration
and internal quotation marks omitted). Accordingly, the dis-
5
The Dost factors are six considerations that judges may use as “a start-
ing point . . . in determining whether a particular image is likely [to be las-
civious].” Hill, 459 F.3d at 972. The six factors are “(1) whether the focal
point . . . is on the child’s genitalia . . . ; (2) whether the setting . . . is sexu-
ally suggestive . . . ; (3) whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of the child; (4) whether the
child is fully or partially clothed, or nude; (5) whether the visual depiction
suggests sexual coyness or a willingness to engage in sexual activity;
[and] (6) whether the visual depiction is intended or designed to elicit a
sexual response in the viewer.” Id. at 971 (citations omitted).
UNITED STATES v. BANKS 2245
trict court’s failure to consider the factors explicitly, or to
comment on the diaper-change setting of the video, is not dis-
positive. Rather, because the district court did not err in deter-
mining that the video depicted the masturbation of a minor
child and because the recording of such an act constitutes the
lascivious exhibition of the child’s genitals, the court did not
err in concluding that the video contains a lascivious exhibi-
tion of a minor child’s genitals.
IV.
SUMMARY AND CONCLUSION
Despite Banks’s objections, we hold that the search warrant
issued in this case was adequately supported and sufficiently
specific. Further, although the district court erred by overex-
tending the exceptions to the marital communications privi-
lege, the error was harmless in this case. Finally, the district
court’s definitions and findings regarding the terms “mastur-
bation” and “lascivious” appropriately captured the require-
ments for each term as they related to the charges brought and
did not impermissibly conflict with each other. Accordingly,
we conclude that reversal of Banks’s conviction is not war-
ranted and affirm his conviction.
AFFIRMED.
ALARCÓN, Circuit Judge, concurring in part and dissenting
in part:
I concur in the majority’s conclusion that the district court
did not err in denying Banks’s motion to suppress the evi-
dence seized pursuant to a search warrant, and in defining and
applying the terms “masturbation” and “lascivious.” I respect-
fully dissent from the majority’s holding that the district court
abused its discretion in admitting the testimony of Banks’s
2246 UNITED STATES v. BANKS
spouse that he told her he produced a video for distribution on
the internet to other pedophiles that depicts him masturbating
their two-year-old grandchild. I would affirm that ruling.
I am persuaded that the majority has erred in holding that
the law of this Circuit precludes us from deciding a question
it has not previously considered, i.e., whether the marital
communications privilege is applicable to the voluntary testi-
mony of a spouse concerning the statements of an accused
that connect him to the sexual abuse of their grandchild. In so
holding, the majority has neglected its duty pursuant to Rule
501 of the Federal Rules of Evidence to decide questions
involving the applicability of the marital communications
privilege on a case-by-case basis “in light of reason and experi-
ence.”1 The majority’s remarkable finding that a grandchild is
not the “functional equivalent of a birth or step-child,”
(Majority Opinion at 2235) will surely come as a complete
surprise to grandparents.
I
The majority has determined that “[o]ur governing prece-
dent” in determining whether the marital communications
privilege should apply to an accused’s admission to his
spouse of committing a crime against their grandchild is
United States v. White, 974 F.2d 1135 (9th Cir. 1992). Major-
1
Rule 501 reads as follows:
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. However, in civil actions and
proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the privilege of
a witness, person, government, State, or political subdivision
thereof shall be determined in accordance with State law.
UNITED STATES v. BANKS 2247
ity Opinion at 2238. That issue was not before this court in
White. Instead, this court addressed a discrete question in
White, i.e., whether the district court abused its discretion in
admitting the testimony of a spouse that the accused had
threatened to kill her and her daughter. White, 974 F.2d at
1137.
In affirming the trial court’s ruling that the spouse’s testi-
mony was admissible, we reasoned as follows:
This court has counseled that the marital communi-
cations privilege must be narrowly construed
because it obstructs the truth seeking process. Use of
the privilege in criminal proceedings requires a par-
ticularly narrow construction because of society’s
strong interest in the administration of justice. The
public policy interests in protecting the integrity of
marriages and ensuring that spouses freely commu-
nicate with one another underlie the marital commu-
nications privilege. When balancing these interests
we find that threats against spouses and a spouse’s
children do not further the purposes of the privilege
and that the public interest in the administration of
justice outweighs any possible purpose the privilege
serves in such a case.
Id. at 1138 (quotation marks and citations omitted).
This court did not hold in White that the marital communi-
cations privilege should not apply to an admission by the
accused to his or her spouse that he or she had sexually
abused their grandchild. Without citation to any relevant lan-
guage in White, the majority has erroneously construed that
decision to limit the exception to the marital communications
privilege in prosecutions for crimes against children to state-
ments made by “the functional equivalents of parents.”
Majority Opinion at 2238. Our holding in White was limited
as follows: a trial court can properly balance the admission of
2248 UNITED STATES v. BANKS
the voluntary testimony of a spouse, regarding the threats by
the accused to harm a stepchild, against the privilege that
communications between spouses should be treated as confi-
dential and inadmissible in a criminal proceeding to maintain
marital harmony. White, 974 F.2d at 1138.
We held in White that the critical question in determining
if the marital communications privilege should apply is
whether or not the conduct is “inconsistent with the purposes
of the marital communications privilege: promoting confiden-
tial communications between spouses in order to foster mari-
tal harmony.” Id. Obviously, an admission to a spouse by the
accused that he produced a video for distribution on the inter-
net depicting his masturbation of their grandchild to other
pedophiles would destroy the harmonious relationship of mar-
ital partners.
Indeed, the impact of Banks’s admission that he abused
their grandchild must have been emotionally devastating to
his wife in view of her knowledge that “the [grand]child in
question [was] the son of the very person [Banks] plead guilty
to molesting and going to prison for in 1990.” Transcript of
Record at 371, United States v. Banks, Case No. 1:06-CR-
00051-S-BLW-WBS. See also Indictment, Case No. 1:06-
CR-00051-S-BLW, March 14, 2006.2 After Banks pled guilty
to sexually molesting their son, he was imprisoned for twelve
years. Transcript of Record at 3, 371, Banks, Case No. 1:06-
CR-00051-S-BLW-WBS.
II
Any inquiry concerning the federal court’s extension of a
2
According to the indictment in this case, and testimony at trial, Banks
was convicted in Ada County Case No. CR 16884 on two counts of Lewd
Conduct with a Minor Under Age Sixteen, in violation of Idaho Code
§ 18-1508, for aggravated sexual abuse, sexual abuse and abusive sexual
conduct on his 11-year old son.
UNITED STATES v. BANKS 2249
testimonial privilege necessarily begins with Rule 501. The
genesis of the language of Rule 501 can be traced to the
Supreme Court’s decisions in Funk v. United States, 290 U.S.
371 (1933) and Wolfle v. United States, 291 U.S. 7 (1934).
The Funk decision tracks language from Benson v. United
States, 146 U.S. 325 (1892). In Benson, the government called
as a witness a codefendant whose trial had been severed from
that of the accused. Benson, 146 U.S. at 335. Precedent
appeared to require that the court declare the codefendant was
not competent. Id. at 336 (“It is familiar knowledge that the
old common law carefully excluded from the witness stand
parties to the record, and those who were interested in the
result; and this rule extended to both civil and criminal
cases.”) In Benson, the Supreme Court held that it was not
“precluded by [precedent] from examining this question in the
light of general authority and sound reason.” Benson, 146
U.S. at 335. In reviewing the historical grounds for excluding
a codefendent from testifying, the Supreme Court explained
that
[t]he courts were afraid to trust the intelligence of
jurors. But the last fifty years have wrought a great
change in these respects, and today the tendency is
to enlarge the domain of competency and to submit
to the jury for their consideration as to the credibility
of the witness those matters which heretofore were
ruled sufficient to justify his exclusion. This change
has been wrought partially by legislation and par-
tially by judicial construction.
Id. at 336.
Thus, because traditional reasons for holding a codefendant
incompetent to testify against an accused were no longer
deemed sound, the Court revised the rule, supporting its con-
clusion by citing a trend toward a rule against incompetency.
Id. at 337 (“Legislation of similar import prevails in most of
2250 UNITED STATES v. BANKS
the States. The spirit of this legislation has controlled the
decisions of the courts . . .”).
In Funk, the Supreme Court overturned the rule prohibiting
spousal testimony in federal criminal trials. Funk, 290 U.S. at
387 (overruling, in part, Hendrix v. United States, 219 U.S. 79
(1911) and Jin Fuey Moy v. United States, 254 U.S. 189
(1920)). Citing Benson, the Supreme Court in Funk rejected
the notion “that the courts, in the face of greatly changed con-
ditions, are still chained to the ancient formulae and are pow-
erless to declare and enforce modifications deemed to have
been wrought in the common law itself by force of these
changed conditions.” Funk, 290 U.S. at 379. Instead, the
Court held that the question should be “disposed of . . . in the
light of general authority and sound reason.” Id. at 380.
Reviewing the early, common law rule that a spouse was
incompetent to testify for an accused spouse, in Funk the
Court reasoned as follows:
The fundamental basis upon which all rules of evi-
dence must rest — if they are to rest upon reason —
is their adaptation to the successful development of
the truth. And since experience is of all teachers the
most dependable, and since experience also is a con-
tinuous process, it follows that a rule of evidence at
one time thought necessary to the ascertainment of
truth should yield to the experience of a succeeding
generation whenever that experience has clearly
demonstrated the fallacy or unwisdom of the old
rule.
Id. at 381. The Court further explained that
the exclusion of the wife’s testimony, in the face of
the broad and liberal extension of the rules in respect
of the competency of witnesses generally, [can no
longer be] justified, if it ever was justified, on any
ground of public policy. It has been said that to
UNITED STATES v. BANKS 2251
admit such testimony is against public policy
because it would endanger the harmony and confi-
dence of marital relations, and, moreover, would
subject the witness to the temptation to commit per-
jury. Modern legislation, in making either spouse
competent to testify in behalf of the other in criminal
cases, has definitely rejected these notions, and in
the light of such legislation and of modern thought
they seem to be altogether fanciful. The public pol-
icy of one generation may not, under changed condi-
tions, be the public policy of another.
Id. (citing Patton v. United States, 281 U.S. 276, 306).
In Wolfle, decided a year after Funk, the Supreme Court
upheld a ruling by the Ninth Circuit that a husband’s state-
ment, made to his wife through the use of a stenographer, was
not privileged, even though it was intended to be communi-
cated to his wife.3 Wolfe v. United States, 64 F.2d 566 (9th
Cir. 1933). The Supreme Court held that evidentiary rules are
“governed by common-law principles as interpreted and
applied by the federal courts in the light of reason and
experience.” Wolfe, 291 U.S. at 12 (emphasis added). The
examination of “general authority” as described in Funk, thus
evolved into an assessment of “experience” in Wolfle. As part
of its assessment of “experience,” the Court in Wolfe
reviewed various state court privilege rulings, some predi-
cated on state statutes, and concluded that the defendant’s
statement was not protected by the privilege protecting mari-
tal confidences. Id. at 17.
It is indisputable that Congress endorsed inclusion of state
law in directing federal courts to develop “common law prin-
3
The stenographer testified that the defendant dictated a letter to his
wife which contained the following reference to the Cantu Mine: “I am
going to break in and whenever I do, I am going to rob every last one of
them blind.” Id.
2252 UNITED STATES v. BANKS
ciples . . . in light of reason and experience” in enacting Rule
501. See Jaffee v. Redmond, 518 U.S. 1, 8 (1996) (“The
authors of the Rule borrowed this phrase from our opinion in
Wolfle v. United States, 291 U.S. 7, 12 (1934)”). In Jaffee, the
court stated that “it is appropriate to treat a consistent body of
policy determinations by state legislatures as reflecting both
‘reason’ and ‘experience.’ ” 518 U.S. at 13.
The Supreme Court held in Trammel v. United States, 445
U.S. 40 (1980) that in “enacting Rule 501, Congress mani-
fested an affirmative intention not to freeze the law of privi-
lege.” 445 U.S. at 47. Under Rule 501, federal courts are
authorized to “develop[ ] . . . testimonial privileges in federal
criminal trials governed by the principles of the common law
as they may be interpreted . . . in the light of reason and expe-
rience.” Id. In enacting Rule 501, Congress did not restrict
development in the law of privilege to federal legislation, and
declined to limit the range of possible privileges. Congress
instead crafted Rule 501 in order to “provide the courts with
the flexibility to develop rules of privilege on a case-by-case
basis.” Id. citing 120 Cong. Rec. 40891 (1974) (statement of
Rep. Hungate). It was Congress’ intent “to leave the door
open to change.” Id. After embarking on a comprehensive
review of the history of the marital testimonial privilege, as
well as the evolving trends in state law concerning the marital
communications privilege, the Court noted that “support for
the privilege against adverse spousal testimony ha[d] eroded”
in recent years, and affirmed the lower court’s ruling that the
witness-spouse alone holds the privilege to refuse to testify
adversely. Id. The Court noted in Trammel that
[w]hen one spouse is willing to testify against the
other in a criminal proceeding — whatever the moti-
vation — their relationship is almost certainly in dis-
repair; there is probably little in the way of marital
harmony for the privilege to preserve. In these cir-
cumstances, a rule of evidence that permits the
accused to prevent adverse spousal testimony seems
UNITED STATES v. BANKS 2253
far more likely to frustrate justice than to foster fam-
ily peace.
Id. at 52 (emphasis added).4
The courts’ intent to foster evolution in the area of testimo-
nial privilege was reinforced more recently in Jaffee. In Jaf-
fee, the Supreme Court held, for the first time, that
communications within the psychotherapist-patient relation-
ship are privileged. Jaffee, 518 U.S. at 8-9. In recognizing the
new testimonial privilege, the Court insisted that reliance
upon laws enacted by state legislatures should be used as a
model for developing the common law of privilege pursuant
to Rule 501 is entirely “appropriate.” See id. at 13 (“In Funk
v. United States, we recognized that it is appropriate to treat
a consistent body of policy determinations by state legisla-
tures as reflecting both ‘reason’ and ‘experience.’ ”) (citation
omitted). The Court explained
[t]hat it is appropriate for the federal courts to recog-
nize a psychotherapist privilege under Rule 501 is
confirmed by the fact that all 50 States and the Dis-
trict of Columbia have enacted into law some form
of psychotherapist privilege. We have previously
observed that the policy decisions of the States bear
on the question whether federal courts should recog-
nize a new privilege or amend the coverage of an
existing one.
Id. at 12 (citing Trammel, 445 U.S. at 48-50; United States v.
Gillock, 445 U.S. 360, 368, n. 8 (1980)).
The Court reasoned in Jaffee that “[b]ecause state legisla-
tures are fully aware of the need to protect the integrity of the
factfinding functions of their courts, the existence of a con-
4
The majority has failed to cite Trammel or discuss its duty not to freeze
the law of privilege.
2254 UNITED STATES v. BANKS
sensus among the States indicates that ‘reason and experi-
ence’ support recognition of the privilege.” Jaffee, 518 U.S.
at 13. The Court also noted that “[i]t is of no consequence that
recognition of the privilege in the vast majority of states is the
product of legislative action rather than judicial decision.” Id.
“The present unanimous acceptance of the privilege” by “state
lawmakers” is persuasive proof of a solid social “consensus”
that the psychotherapist-patient relationship merits the protec-
tion of an evidentiary privilege. Id. Thus, the stated policy
underlying Rule 501 is served by consideration not only of
state case law, but also laws enacted by the states in develop-
ing the law of privilege. The majority has failed to look to
laws enacted by Idaho and other states that permit a spouse
to testify regarding a spouse’s admission in a state prosecu-
tion concerning sexual abuse of a minor child.
A
The two primary assumptions underlying the recognition of
testimonial privileges as articulated by the Court in Jaffee are
that
there is a general duty to give what testimony one is
capable of giving, and, any exceptions which may
exist are distinctly exceptional, being so many dero-
gations from a positive general rule. Exceptions from
the general rule disfavoring testimonial privileges
may be justified, however, by a “public good tran-
scending the normally predominant principle of uti-
lizing all rational means for ascertaining the truth.”
Id. at 9 (internal citations omitted) (quoting Trammel, 445
U.S. at 50-51 (holding that because “[t]estimonial exclusion-
ary rules and privileges contravene the fundamental principle
that ‘the public . . . has a right to every man’s evidence,’ . . .
they must be strictly construed”)).
The traditional justification for a marital adverse testimo-
nial privilege is that it serves the “public good” because forc-
UNITED STATES v. BANKS 2255
ing one spouse to testify against another in a criminal case
would lead to one of two unacceptable results: it could poten-
tially cause a break up of the marriage if the witness spouse
voluntarily inculpated her husband, or it could promote per-
jury. See, e.g., Clements v. Marston, 52 N.H. 31 (1872). As
explained by the court in Clements:
At common law . . . [a]ny person not a party, if inter-
ested in the result of the suit, was excluded as a wit-
ness on the ground of interest. Wives were excluded,
—1st, on the ground of interest, they being interested
wherever their husbands were; and 2d, upon the
ground of public policy, that it was not expedient to
place husband and wife in a position that might lead
to dissensions and strife between them, or that might
encourage perjury. Hence, wives were not allowed to
testify for or against their husbands when they were
parties to civil proceedings, and, for the same reason,
both were excluded when either was a party in a
criminal case.
Id. at 37; see also Trammel, 445 U.S. at 44 (“The modern jus-
tification for this privilege against adverse spousal testimony
is its perceived role in fostering the harmony and sanctity of
the marriage relationship.”).
B
Since Trammel was decided in 1980, courts, federal and
state, and state legislatures, have continued to limit the marital
communications privilege in obedience to the Court’s direc-
tion that it “must be strictly construed and accepted ‘only to
the very limited extent that permitting a refusal to testify or
excluding relevant evidence has a public good transcending
the normally predominant principle of utilization of all ratio-
nal means for ascertaining the truth.’ ” Id. at 50 (quoting
Elkins v. United States, 364 U.S. 206, 234 (1960) (Frank-
furter, J. dissenting)). This trend undeniably demonstrates that
2256 UNITED STATES v. BANKS
marital communications regarding the sexual abuse of a minor
child are not protected because they are antithetical to soci-
ety’s concept of the marital relationship. In analyzing the
question whether the marital communications privilege should
apply to communications concerning crimes against the
grandchild of an accused, it is not only instructive to review
this evolving trend, it is required that we do so if we are to
interpret “the principles of the common law . . . in the light
of reason and experience.” Fed. R. Evid. 501.5
In United States v. Allery, 526 F.2d 1362 (8th Cir. 1975),
the Eighth Circuit held, in an opinion announced prior to the
Supreme Court’s decision in Trammel, “that a serious crime
against a child is an offense against that family[’s] harmony
and to society as well.” Id. at 1366. The court held in Allery
that the marital facts privilege did not apply in a case where
the defendant’s step-child was the victim. Id. at 1367.
In United States v. White, 974 F.2d 1135 (9th Cir. 1992),
this court cited Allery in extending the exception to the mari-
tal communications privilege to include statements relating to
crimes against step-children. White, 974 F.2d at 1138. We
held in White that “the marital communications privilege
should not apply to statements relating to a crime where a
spouse or a spouse’s children are the victims.” Id. We rea-
soned in White that “[p]rotecting threats against a spouse or
the spouse’s children is inconsistent with the purposes of the
marital communications privilege: promoting confidential
communications between spouses in order to foster marital
harmony.” Id. We also stated in White that because the marital
5
In Trammel, the Supreme Court admonished federal courts to continue
“the evolutionary development of testimonial privileges.” 445 U.S. at 47.
In other contexts, such as in Eighth Amendment cases, the Court has
instructed that federal courts may give “great weight” to “objective evi-
dence of contemporary values.” Kennedy v. Louisiana, 128 S. Ct. 2641,
2658 (2008) (reviewing state statutes for “objective indicia of consensus”
as to whether the death penalty is an appropriate punishment in cases of
child rape).
UNITED STATES v. BANKS 2257
communications privilege “obstructs the truth seeking pro-
cess,” its use “in criminal proceedings requires a particularly
narrow construction because of society’s strong interest in the
administration of justice.” Id.
In United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997),
the Tenth Circuit held that “we recognize an exception to the
marital communications privilege for spousal testimony relat-
ing to the abuse of any minor child within the household.” Id.
at 1446. The Tenth Circuit reasoned as follows in Bahe:
We see no significant difference, as a policy matter,
between a crime against a child of the married cou-
ple, against a stepchild living in the home or, as here,
against an eleven-year-old relative visiting in the
home. Child abuse is a horrendous crime. It gener-
ally occurs in the home . . . and is often covered up
by the innocence of small children and by threats
against disclosure. It would be unconscionable to
permit a privilege grounded on promoting communi-
cations of trust and love between marriage partners
to prevent a properly outraged spouse with knowl-
edge from testifying against the perpetrator of such
a crime.
Id. at 1446 (citation omitted). Since we published our decision
in White, a number of jurisdictions have held that an
accused’s statements to his spouse relating to crimes against
children are admissable without limiting the exception to
crimes against children of the marriage or of either spouse.
In United States v. Martinez, 44 F. Supp. 2d 835 (W.D.
Tex. 1999), the district court held that “in a case where one
spouse is accused of abusing minor children, society’s interest
in the administration of justice far outweighs its interest in
protecting whatever harmony or trust may at that point still
remain in the marital relationship.” Id. at 836. “Reason and
experience dictate that the marital communications privilege
2258 UNITED STATES v. BANKS
should not apply to statements relating to a crime where the
victim is a minor child.” Id. (internal quotation omitted).
In Fisher v. State, 690 So. 2d 268 (Miss. 1996), the defen-
dant challenged his conviction for the capital rape of his 11-
year-old niece on the ground that the trial court erred in
allowing his wife to testify that he admitted sexually abusing
his niece to her. The Supreme Court of Mississippi interpreted
Mississippi Rule of Evidence 504 (d) to except from the mari-
tal communications privilege testimony relating to crimes
against any minor child. Id. at 272.
In State v. Modest, 88 Wash. App. 239 (Wash. Ct. App.
1997), the court held that under Rev. Code Wash. (ARCW)
§ 5.60.060, “the guardianship exception applies when any
spouse acts in loco parentis, meaning when he or she assumes
the parental character or discharges parental duties, even if for
a very short time.” Id. at 247-48. The Washington statute con-
strued in Modest provided that communications between
spouses are not protected by the marital privilege in a “pro-
ceeding for a crime committed by said spouse or domestic
partner against any child of whom said spouse or domestic
partner is the parent or guardian.” Rev. Code Wash. (ARCW)
§ 5.60.060. The court in Modest considered “the paramount
legislative intent to insure effective prosecutions for sexual
crimes against children,” and concluded that “[i]n light of this
overriding concern, [the court] liberally interprets the word
‘guardian’ to punish child abusers and protect children from
further mistreatment.” Id.
In State v. Countryman, 572 N.W.2d 553 (Iowa 1997), the
Iowa Supreme Court held that Iowa Code § 232.74, which
prohibited the disclosure of communications between married
persons, did not apply in a child abuse prosecution. Id. at 561.
In Munson v. State, 959 S.W.2d 391 (Ark. 1998), the defen-
dant was charged with sexually assaulting his wife’s 14-
fourteen-year-old sister, who was visiting in their home when
UNITED STATES v. BANKS 2259
the crime occurred. Id. at 392. Rule 504(d)(3) of the Arkansas
Rules of Evidence sets forth an exception to the marital privi-
lege when one spouse is charged with a crime against the per-
son or property of a person “residing” in the household of
either. Ark. R. Evid. 504(d)(3). The Supreme Court of Arkan-
sas held in Munson that the victim in the case was “residing”
in the accused’s household because her “temporary residence
with the Munsons presented the same opportunity to Mr.
Munson he would have had if the victim intended to remain
in the household indefinitely.” Id. at 393.
In Villalta v. Commonwealth, 428 Mass. 429 (Mass. 1998),
the Supreme Judicial Court of Massachusetts addressed the
question whether the marital communications privilege
applied to preclude the accused’s spouse from testifying
against her husband, who was charged with rape, indecent
assault and battery, and assault and battery on a two-year-old
girl. The child was unrelated to the wife or the husband. She
periodically received day-care services from the accused’s
spouse in their home. Id. at 429-30. The trial court allowed
Mrs. Villalta to invoke the marital communications privilege.
Id. at 430. The trial court concluded Mass. Gen. Law Ann. ch.
233, § 20 was inapplicable when the alleged victim was not
a child of either spouse and did not live with them. Id. The
Supreme Judicial Court of Massachusetts disagreed. Section
20 provides that “except in any proceeding relating to child
abuse, including incest, neither husband nor wife shall be
required to testify in the trial of an indictment, complaint or
other criminal proceeding against the other.” Mass. Gen. Law
Ann. ch. 233, § 20. The Supreme Judicial Court interpreted
the statute as follows:
We see no logical reason for the Legislature to deny
the spousal privilege when a young victim of abuse
is a child of one or both spouses (or other child
closely related by consanguinity) but to perpetuate
the privilege when the young victim is related to nei-
ther spouse. The abuse is the same. Society’s interest
2260 UNITED STATES v. BANKS
in convicting and punishing one who commits child
abuse is the same. The threat to the preservation of
the family unit arising from one spouse being com-
pelled to testify against the other seems substantially
identical in all instances. Indeed, if the defendant’s
alleged child abuse was not incestuous, the spouse’s
compelled testimony might be less threatening to the
marriage than if she were compelled to testify, as the
wife and defendant agree she must, concerning
incestuous child abuse, which involves an even
greater stigma than child abuse alone. The criminal
conduct asserted in this case, abuse of the victim in
the defendant’s home, shows that the need for the
testimony of a defendant’s spouse may be as great as
it would be if the alleged victim were their own
child. We choose to apply the literal meaning of the
words “child abuse” to § 20, cl. Second. Child abuse
in common usage is not limited to the abuse of one’s
own child but means the abuse of any child.
Id. at 434-35.
In J.S. v. R.T.H., 155 N.J. 330 (1998), a civil action was
filed against the wife of a 64-year old man, who had pled
guilty to criminally sexually assaulting two unrelated, adoles-
cent neighbor girls — ages 12 and 15. Id. at 334. The parents
of the children alleged the perpetrator’s wife was liable for
their physical and emotional injury, because she “was aware
of her husband’s history of pedophilia as well as his conduct
involving these children.” Id. at 335 n.1 (citing J.S. v. R.T.H.,
301 N.J. Super. 150 (App.Div., 1997)). The Supreme Court of
New Jersey held that the defendant-wife could be held liable
for her husband’s criminal conduct if she knew of or should
have known of his sexual proclivities but failed to warn oth-
ers. Id. at 352.
Noting that the New Jersey legislature had dealt compre-
hensively with the subject of child abuse, and enacted statutes
UNITED STATES v. BANKS 2261
designed to prevent the sexual abuse of children, the court
commented that “it is the intent of this legislation to assure
that the lives of innocent children are immediately safe-
guarded from further injury and possible death and that the
legal rights of such children are fully protected.” Id. at 343.
The court acknowledged that “[w]hile the interest in protect-
ing children from sexual abuse is great, this Court must also
take into consideration defendants’ interests in a stable marital
relationship and in marital privacy.” Id at 345 (citing State v.
Szemple, 135 N.J. 406, 414 (1994)). The court concluded,
however, that “[t]he societal interest in enhancing marital
relationships cannot outweigh the societal interest in protect-
ing children from sexual abuse. The child-abuse reporting
statute itself has mandated that balance—it applies to every
citizen, including a spouse.” Id. (citations omitted). “As the
Appellate Division here described, ‘the Legislature’s adoption
of that statute [i.e., “Megan’s Law”] is an expression of New
Jersey’s strong public policy favoring protection of children
over the privacy of an offending adult.’ ” Id. (citing 301 N.J.
Super. at 157, 693). “Thus, ‘[t]he protective privilege ends
where the public peril begins.’ ” Id. (citing Tarasoff v.
Regents of the Univ. of Cal., 17 Cal. 3d 425 (1976). The
Supreme Court of New Jersey upheld the Appellate Divi-
sion’s decision to overrule Rozycki v. Peley, 199 N.J. Super.
571, 579 (Law Div.1984) “to the extent that it ‘places a higher
priority upon preserving the defendants’ marital relationship
than upon protecting children from abuse.’ ” Id. (citing 301
N.J. Super. at 157). The court explained its ruling as follows:
This Court has recognized that the sexual abuse of
children not only traumatizes the victims, but also
exacts a heavy toll on society: Recent research indi-
cates that a number of psychosocial problems—
including chronic depression and anxiety, isolation
and poor social adjustment, substance abuse, suicidal
behavior, and involvement in physically or sexually
abusive relationships as either aggressor or victim—
are more common among adults molested as chil-
2262 UNITED STATES v. BANKS
dren than among those with no such childhood expe-
riences. Victims of sexual abuse can suffer an
impaired ability to critically evaluate the motives
and behavior of others, making them more vulnera-
ble to revictimization. An especially disturbing find-
ing about child sexual abuse is its strong
intergenerational pattern; in particular, due to the
psychological impact of their own abuse, sexually
abused boys have been found to be more likely than
non-abused boys to turn into offenders against the
next generation of children, and sexually abused
girls are more likely to become mothers of children
who are abused. And studies show that adult male
aggressive behavior, particularly sexual aggression,
is associated with the trauma of childhood sexual
abuse. Thus, apart from the substantial personal
trauma caused to the victims of such crimes, sexual
crimes against children exact heavy social costs as
well.
Id. (citations omitted).
In Huddleston v. State, 997 S.W.2d 319 (Tex. App. Hous-
ton 1st Dist. 1999), the court upheld the trial court’s admis-
sion of a spouse’s testimony against her husband who was
charged with raping the ten-year-old daughter of a neighbor.
Id. at 321. The court held that “Rule 504(b)(4)(A) states that
the privilege does not apply in any proceeding in which the
person is charged with “a crime against the person’s spouse,
a member of the household of either spouse, or any minor.”
Id. (emphasis in original) (citing Tex. R. Evid. 504(b)(4)(A)).
“The language of amended rule 504(b)(4)(A) makes it clear
that the exception applies when the spouse is charged with a
crime against any minor.”6 Id. (emphasis in original). See also
6
There is ample statistical data concerning the increase in child sexual
abuse. For example, “from 1976 to 1986, the number of reported cases of
child sexual abuse grew from 6,000 to 132,000, an increase of 2,100%.”
UNITED STATES v. BANKS 2263
Ludwig v. State, 872 S.W.2d 771 (Tex. App. Waco 1994)
(holding that a wife may testify against a husband charged
with killing his nephew because the exception to the marital
communications privilege involving crimes “against the per-
son of any minor child or any member of the household of
either spouse” included crimes against any minor child,
whether or not the child of either spouse).
In Brown v. State, 359 Md. 180 (2000), the Court of
Appeals of Maryland held that, pursuant to Md. Code Ann.,
Cts. & Jud. Proc. § 9-106, testimony concerning “the abuse of
a child under 18” is exempted from the “non-compellability
of a spouse to testify as an adverse witness in a criminal
case.” Id. at 197.
In State v. Anderson, 636 N.W.2d 26 (Iowa 2001), the
Supreme Court of Iowa held that the exception to the marital
communications privilege provided for in Iowa Code
§ 232.74 applies to cases of child abuse that result from acts
or omissions of a care provider. Id. at 36-37. In § 232.68(7),
a “person responsible for the care of a child” is defined as:
Kennedy, 128 S. Ct. at 2671 n.2 (Alito, J. dissenting) (citing A. Lurigio,
M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and
Implications for Probation Practice, 59 Sep Fed. Probation 69 (1995) and
Abuse & Incest National Network Statistics, online at http://
www.rainn.org/get-information/statistics/sexual-assault-victims. Justice
Alito, in his dissent, noted that “reported instances of child abuse have
increased dramatically; and there are many indications of growing alarm
about the sexual abuse of children.” Id. at 2671; see also M. Elliott, K.
Brown and J. Kilcoyne, Child Sexual Abuse Prevention: What Offenders
Tell Us, Child Abuse & Neglect, 5, 579-594 (1995) (reporting that nearly
70% of child sex offenders have between 1 and 9 victims; at least 20%
have 10 to 40 victims). More recent data is equally alarming. According
to “Statistics Surrounding Child Sexual Abuse,” found online at http://
www.darkness2light.org/KnowAbout/statistics_2.asp: “The median age
for reported abuse is 9 years old; more than 20% of children are sexually
abused before the age of 8; nearly 50% of all victims of forcible sodomy,
sexual assault with an object, and forcible fondling are children under 12;
and, 30-40% of victims are abused by a family member.” Id.
2264 UNITED STATES v. BANKS
a. a parent, guardian, or foster parent; b. a relative or
any other person with whom the child resides and
who assumes care or supervision of the child, with-
out reference to the length of time or continuity of
such residence; c. an employee or agent of any pub-
lic or private facility providing care for a child,
including an institution, hospital, health care facility,
group home, mental health center, residential treat-
ment center, shelter care facility, detention center, or
child care facility; or, d. any person providing care
for a child, but with whom the child does not reside,
without reference to the duration of the care.
See Iowa Code § 232.68(7).
In Commonwealth v. Spetzer, 572 Pa. 17 (2002), the
Supreme Court of Pennsylvania reviewed the admissibility of
communications between the accused and his wife concerning
the rape of his step-daughter. The court stated that:
Even if it is assumed that the [statutory exceptions to
the marital communications privilege specifically
addressing child abuse do] not act directly to provide
a broad child abuse “exception” to [the application
of Pennsylvania’s marital communications privilege]
in criminal proceedings, it certainly affects what a
spouse’s “reasonable expectation” of continued con-
fidentiality may be with respect to marital communi-
cations that reveal the previous or intended abuse
and intimidation of a child.
Id. at 42. Accordingly, the court held that the accused who
described to his wife his previous abuse of a child had no rea-
sonable expectation under Pennsylvania law that such com-
munication will “remain confidential.” Id.
C
Thirty-eight states, and the District of Columbia, have
enacted legislation expanding, by statute or rule, exceptions to
UNITED STATES v. BANKS 2265
the marital communications privilege. In twenty-six jurisdic-
tions, there is no privilege where the accused has been
charged with criminal abuse of any child, regardless of
whether there is a familial affiliation with the victim-child.
See Ariz. Rev. Stat. Ann. §§ 13-4062 & 13-604 (eliminating
the privilege in cases involving any “dangerous crime against
children” and “[s]exual conduct with a minor under fifteen
years of age”); Ark. Code Ann. § 12-12-518 (no marital privi-
lege shall prevent anyone from testifying concerning child
maltreatment); Colo. Rev. Stat. § 18-3-411(5) (2006) (no mar-
ital communications privilege in cases involving sexual
offenses, including sexual offenses against children); Conn.
Gen. Stat. § 46b-129a (2007) (eliminating the privilege in all
child abuse cases); Dist. Columbia St. § 22-4124 (“Laws
attaching a privilege against disclosure of communications
between spouses or domestic partners are inapplicable in
prosecutions . . . where the victim is a child”); Ga. Code Ann.
§ 24-9-23 (2007) (no privilege in crimes against any minor
child); Id. R. Evid. 504(d)(1) (eliminating privilege in all
child abuse cases) and Idaho Code Ann. §9-203 (precluding
use of the privilege in “any case of physical injury to a child
where the injury has been cause as a result of physical abuse
or neglect by one or both of the parents” and “any case of
lewd and lascivious condict or attempted lewd and lascivious
conduct where either party would otherwise be protected by
this privilege”); Ind. Code § 31-32-11-1 (“The privileged
communication between . . . the husband and wife . . .is not
a ground for excluding evidence in any judicial proceeding
resulting from a report of a child who may be a victim of
child abuse or neglect”); State v. Johnson, 318 N.W.2d 417,
439 (Iowa 1982) (holding that Iowa Code § 232.74 eliminates
the privilege in all cases involving child abuse); Ky. Rev.
Stat. § 620.050 (“the husband-wife . . . privilege . . . shall
[not] be a ground for refusing to report . . or for excluding
evidence regarding a dependent neglected, or abused child or
the cause thereof”); La. Rev. Stat. Ann. § 14:403(B) (2007)
(eliminating privilege in child abuse cases); Md. Code Ann.,
2266 UNITED STATES v. BANKS
Cts. & Jud. Proc. § 9-106(a)(1) (2007) (eliminating the privi-
lege in all child abuse cases); Mass. Gen. Laws. Ann. ch. 233,
§ 20 (eliminates the privilege in proceedings involving abuse
of any child); Mich. Comp. Laws Ann. § 600.2162(c) (2007)
(providing an exception to the marital privilege for offenses
committed against any person under 18); Minn. Stat.
§ 595.02(1)(a) (2006) (eliminating the privilege in cases
involving crimes against any child under the care of either
spouse); Miss. R. Evid. 504(d)(1) (“no privilege . . . in a pro-
ceeding in which one spouse is charged with a crime against
. . . any minor child”); Mo. Rev. Stat. § 546.260(2) (2007)
(eliminating privilege in crimes against any minor); N.Y.
Fam. Ct. Act § 1046(a)(vii) (2007) (eliminating the privilege
in proceedings for child abuse or neglect); Ore. Rev. Stat.
§ 419B.040 (“the husband-wife privilege, shall not be a
ground for excluding evidence regarding a child’s abuse, or
the cause thereof, in any judicial proceeding”); 23 Pa. Cons.
Stat. Ann. § 6381 (2006) (eliminating privilege in child abuse
cases); R.I. Ann. § 12-17-10 (“The husband or wife of any
respondent in a criminal prosecution, offering himself or her-
self as a witness, shall not be excluded from testifying
because he or she is the husband or wife of the repondent”);
S.C. Code of Laws Ann. § 19-11-30 (“a husband or wife is
required to disclose any communication, confidential or other-
wise, made by one to the other during the marriage where the
suit, action, or proceeding concerns or is based on child abuse
or neglect, the death of a child, criminal sexual conduct
involving a minor, or the commission or attempt to commit a
lewd act upon a minor”); Tex. R. Evid. § 504 (“The privilege
of a person’s spouse not to be called as a witness for the state
does not apply . . . [i]n any proceeding in which the person
is charged with a crime against . . . any minor”); Va. Code
Ann. § 19.2-271.2 (2007) (providing exception to the privi-
lege in crimes where a minor is the victim); Wyo. Stat. Ann.
§ 14-3-210 (2007) (eliminating privilege in child abuse
cases).
In addition, thirteen jurisdictions have passed legislation
exempting from the marital communications privilege state-
UNITED STATES v. BANKS 2267
ments concerning crimes against children who were in the
care or custody of either spouse, or against any person,
including any child, “residing” in the household of either. As
discussed in Munson, supra, a child may “reside” in a house-
hold even if only there temporarily. See Del. R. Evid.
504(d)(3) (“no privilege . . . in a proceeding in which 1
spouse is charged with a wrong against . . . a person residing
in the household”); Haw. R. Evid. 505(c)(1)(C) (“no privilege
. . . in proceedings in which one spouse is charged with a
crime against . . . a third person residing in the household”);
Ky. R. Evid. 504(c)(2)(C) (no privilege in “any proceeding in
which one spouse is charged with wrongful conduct against
. . . [a]n individual residing in the household”); Me. R. Evid.
504(d) (“no privilege . . . in a proceeding in which one spouse
is charged with a crime against . . . any person residing in the
household”); N.D. R. Evid. 504 (“no privilege . . . in a pro-
ceeding in which one spouse is charged with a crime against
. . . a person residing in the household”); Okla. Stat. Ann. tit.
12, § 2504 (2007) (“no privilege . . . in a proceeding in which
one spouse is charged with a crime against . . . a person resid-
ing in the household”); Utah R. Evid. 502(b)(4)(C)(iii) (no
privilege “[i]n a proceeding in which one spouse is charged
with a crime . . . against . . . a person residing in the house-
hold”); Vt. R. Evid. 504(d)(3) (“no privilege . . . in a proceed-
ing in which one spouse is charged with a crime . . . against
. . a person residing in the household”); People v. Eveans, 660
N.E.2d 240, 246-47 (Ill. Ct. App. 1996) (citing 725 Ill. Comp.
Stat. 5/115-16 and holding that the Illinois legislature “broad-
ened the scope of the child interest exception to include the
interests not only of the children of the testifying and accused
spouses, but also the interests of any children in their care,
custody or control”; Nev. Rev. Stat. § 49.295(2)(e)(2) (2007)
(eliminating the privilege if the crime is against “a child in the
custody or control of either spouse”); 42 Pa. Cons. Stat. Ann.
§ 5913 (2006) (providing exception to privilege “in any crimi-
nal proceeding against either [spouse] for bodily injury or vio-
lence attempted, done or threatened upon . . . any minor child
2268 UNITED STATES v. BANKS
in [the] care or custody [of either spouse]”); Tenn. Code. Ann.
§ 24-1-201 (2007) (“privilege shall not apply to proceedings
concerning abuse of . . . a minor in the custody of or under
the dominion and control of either spouse”); Wash. Rev. Code
§ 5.60.060(1) (2007) (providing exception to privilege where
either spouse or domestic partner is considered parent or
guardian of victim).
In its opinion, the majority notes that several states, includ-
ing Idaho, have enacted statutes “encompassing an even
broader concept” than a limitation of the marital communica-
tion privilege to the “functional equivalent of a birth or step-
child,” Majority Opinion at 2234-35. The majority has failed
to explain, however, why it has ignored the fact that Idaho,
and many other states, have adopted an exception to the mari-
tal communications privilege in prosecutions for crimes
against children. The majority has also failed to consider or
explain the paradoxical impact on the public’s perception of
the rule of law that will result from the fact that an accused’s
admissions of the abuse of any child are admissible in most
state courts, but cannot be presented into evidence in the fed-
eral court across the street.
Most of the states within the Ninth Circuit have adopted
laws that extend the marital communications exception
beyond our holding in White. Indeed, Arizona, Idaho, Nevada,
and Oregon have eliminated the privilege entirely where the
communication relates to a crime against any child while in
the custody or control of either spouse. See Ariz. Rev. Stat.
Ann. §§ 13-4062 & 13-604 (eliminating the privilege in cases
involving any “dangerous crime against children” and
“[s]exual conduct with a minor under fifteen years of age”);
Idaho Code Ann. §9-203 (precluding use of the privilege in
“any case of physical injury to a child where the injury has
been cause as a result of physical abuse or neglect by one or
both of the parents” and “any case of lewd and lascivious con-
duct or attempted lewd and lascivious conduct where either
party would otherwise be protected by this privilege”); Nev.
UNITED STATES v. BANKS 2269
Rev. Stat. § 49.295(2)(e)(2) (2007) (eliminating the privilege
if the crime is against “a child in the custody or control of
either spouse”); Ore. Rev. Stat. § 419B.040 (“the husband-
wife privilege, shall not be a ground for excluding evidence
regarding a child’s abuse, or the cause thereof, in any judicial
proceeding”).
The Washington legislature has created an exception to the
privilege where either spouse or domestic partner is consid-
ered the parent or guardian of a child victim. Wash. Rev.
Code. § 5.60.060(a) (2007). The Supreme Court of Washing-
ton held in State v. Waleczek, 90 Wash. 2d 746 (1978) that a
husband and wife who hosted a seven-year-old girl for an
overnight sleepover (during the course of which she was sex-
ually assaulted), were considered “guardians” under Wash.
Rev. Code § 5.60.060(1). Waleczek, 90 Wash. 2d at 753. In
Waleczek, the court explained:
Defendant and his wife voluntarily undertook duties
that are normally characterized as parental: They
agreed to let Theraesa sleep at their house, wake her
up in the morning, provide her with breakfast, and
make sure she went to school. In addition, we have
no doubt that Theraesa, being only 7 years old,
would trust, respect, and obey defendant and his wife
principally because she had been left in their care by
her own mother.
Id.
In California, the legislature has created an exception to the
marital communications privilege when a spouse is charged
with “[a] crime against the person or property of the other
spouse or of a child, parent, relative, or cohabitant of either.”
Cal. Evid. Code § 972(c)(1) (emphasis added). Hawaii has
eliminated the privilege “in proceedings in which one spouse
is charged with a crime against . . . a third person residing in
the household.” Haw. R. Evid. 505(c)(1)(C).
2270 UNITED STATES v. BANKS
The statutes in Arizona, Idaho, Nevada, and Oregon have
unambiguously eliminated the privilege entirely where the
communication relates to a crime against any child while in
the custody or control of either spouse. The majority has
failed utterly to discuss the impact of state-created exceptions
to the marital communications privileges or “recognize state
privileges where this can be accomplished at no substantial
cost to federal substantive and procedural policy.” Shadur,
664 F.2d at 106. In declining to consider the evolutionary
development of the law throughout the United States rejecting
the marital communications privilege where the victim of a
spouse’s crime is their grandchild, the majority has cobbled
together an amorphous standard that limits the exception to
the functional equivalent of a child or stepchild. This unde-
fined concept will no doubt baffle anyone who tries to apply
it.
CONCLUSION
In explaining its reasons for admitting the testimony of
Banks’s spouse concerning his admission that he produced the
video depicting the crime Banks committed against his grand-
child, the district court, unlike the majority in this matter,
scrupulously fulfilled its duty to apply Rule 501 as interpreted
by the Supreme Court in Trammel. The district court reasoned
as follows:
The question then is under those relevant facts, does
the exception to the marital communications privi-
lege apply? And does the court extend or interpret
the Ninth Circuit’s decision in White to apply to
those circumstances? In making that determination,
you have to look to the reasons for the privilege.
And the reasons for the privilege are discussed by
the Ninth Circuit in White.
First of all, the Ninth Circuit cautions us that the
privilege must be narrowly construed because it
UNITED STATES v. BANKS 2271
obstructs the truth seeking process. And they say the
use of the privilege in criminal proceedings requires
a particularly narrow construction because of soci-
ety’s strong interest in the administration of justice.
The public policy reasons for the privilege are to
protect the integrity of marriages and insure that
spouses are able to freely communicate with each
other. There has to be somebody that you can go to
to bear your soul. But the privilege says if it isn’t
your priest, if it isn’t your lawyer, it’s your spouse.
But when you balance the interests involved, the
court in White found that threats against the spouse
or the spouse’s children don’t further the purposes of
the privilege. Likewise, abuse of the spouse or abuse
of the spouses’ children don’t further the privilege.
It doesn’t further the privilege to allow someone to
talk about abusing the spouse or the spouse’s chil-
dren with impunity. It doesn’t further the sanctity of
the marriage or the family relationship.
Well, when you have grandchildren who under the
facts of this case have that kind of relationship to the
grandparents, it is not even a small step from what
the court ruled in White. It is almost exactly the
same.
Transcript of Record at 501-02, Banks, Case No. 1:06-CR-
00051-S-BLW-WBS.
The district court also noted “that in determining the princi-
ples of the common law as they are interpreted in the courts
of the United States in light of reason and experience, the
court looks to the state laws of not just Idaho but other states
for the reasoning in those decisions and statutes and the expe-
rience in those states.” Id.
2272 UNITED STATES v. BANKS
I would affirm the district court’s well-reasoned assessment
of common law jurisprudence and the law of Idaho and other
states regarding the child victim exception to the marital com-
munications privilege. Accordingly, I respectfully dissent
from the majority’s holding that an accused’s admission to his
spouse that he produced a video depicting his masturbation of
their grandchild was inadmissible under Rule 501.