Writing Sample by nLoyal


									                                         Writing Sample- Part I:
      The following is a segment of a motion in limine written while interning at the Department of
       Justice. Due to a plea, the motion was never filed—but it remains privileged work product.

 1                               UNITED STATES DISTRICT COURT
                                 CENTRAL DISTRICT OF ILLINOIS
 2                                   SPRINGFIELD DIVISION

 3   UNITED STATES OF AMERICA,           )                 No. CR __ ____ __
 4         Plaintiff                     )                 GOVERNMENT’S MOTION IN
                                         )                 LIMINE TO ALLOW TESTIMONY
 5     v.                                )                 OF ELIZABETH WEAVER OVER
                                         )                 DEFENDANT’S INVOCATION OF
 6   JUSTIN D. WEAVER                    )                 MARITAL PRIVILEGE
 7         Defendant                     )

 8                                      I.          INTRODUCTION

 9          The United States hereby moves this Court to allow the testimony of Elizabeth

10   Weaver over the attempted invocation of marital privilege by her husband, Defendant Justin D.

11   Weaver. Since the Defendant cannot invoke the marital testimonial privilege adversely against

12   his wife and since the Defendant’s statements to third parties waived the marital confidential

13   communications privilege, it would be improper for this Court to allow the Defendant to apply

14   the marital privilege here to prevent Mrs. Weaver from testifying. The government thus

15   respectfully requests that the Defendant be enjoined from invoking the marital privilege against

16   Mrs. Weaver and that she be permitted to provide testimony regarding non-confidential marital

17   communications made by the Defendant.

18                                    II. STATEMENT OF FACTS

                                      (redacted for content and size)

19                                           III.    ARGUMENT

20      A. The Defendant Cannot Invoke the Marital Privilege to Prevent His Wife’s

                                           Writing Sample- Part I:

 1          Testimony Because He Cannot Adversely Exclude Her Testimonial Statements and
            because His Confessions Were Not Presented to Her Within the Private Scope of
 2          their Marriage.

 3          Since Federal Rule of Evidence 501 has enabled courts to consider the application of

 4   testimonial privileges on a case-by-case basis, this Court should prevent the Defendant from

 5   applying a marital privilege in this particular case. United States v. Trammell, 445 U.S. 40, 47

 6   (1980). Privilege exclusions are generally disfavored by courts for impeding the search for truth,

 7   but since spousal communications are “regarded as so essential to the preservation of the

 8   marriage relationship as to outweigh the disadvantages to the administration of justice which the

 9   privilege entails”, two separate privilege exclusions have been found to exist between spouses.

10   See United States v. Griffin, 440 F.3d 1138, 1142 (9th Cir. 2006); see also Jaffee v. Redmond,

11   518 U.S. 1, 11 (1996) (upholding privilege to ensure marital harmony).

12          Within the marital relationship, both the “testimonial privilege”, which allows a party to

13   refuse to testify adversely against his or her spouse, and the “confidential communications

14   privilege”, which allows either spouse to prevent the adverse disclosure of private

15   communications made within the marriage, work to protect privacy. United States v. White, 974

16   F.2d 1135, 1138 (1992). However, the scope of all these privileges must be narrowly construed if

17   society's interest in the administration of justice is to be fulfilled. Id. Since the scope of spousal

18   protection has been reserved for only those communications that justifiably require protection,

19   the public statements of the Defendant here cannot be allowed to be so excluded.

20          1.      The Defendant, as a Non-Testifying Spouse, Cannot Adversely Invoke the
                    Testimonial Privilege Against His Wife As Doing So Would Unlawfully
21                  Expand the Scope of the Marital Privilege.

                                                Writing Sample- Part I:

 1           The Defendant should not be able to apply the testimonial privilege, as doing so would

 2   work against this Court’s interest in construing privileges narrowly to ensure the proper

 3   administration of justice. White, 974 F.2d at 1138. Although the testimonial and confidential

 4   communications privileges were originally established to support domestic harmony in the

 5   course of criminal investigations, this Court must remember that the breath of those provisions

 6   has been tightened in order to ensure proper evidentiary admissions. Jaffee, 518 U.S. at 11; see

 7   Trammel, 445 U.S. at 53 (1980).1

 8           Although both the testimonial and confidential communications privileges could

 9   originally be invoked adversely by either spouse regardless of circumstances, the ability of one

10   spouse to unilaterally prevent the other from testifying has since been abolished. Hawkins v.

11   United States, 358 U.S. 74, 79 (1958); compare with Trammell, 445 U.S at 47. In Trammell, the

12   Court eliminated a spouse’s ability to unilaterally and adversely apply the testimonial privilege

13   by allowing the defendant’s wife to make statements regarding her husband’s drug activities over

14   his adverse invocation of the privilege. Id.; see also United States v. Fulk, 816 F.2d 1202, 1205

15   (7th Cir. 1987) (allowing similar testimony over adverse invocation). The Trammell court found

16   that invocation of privilege by an adverse party was too sweeping of an application, and noted

17   that any compulsion or foreclosure of statements made in the testimonial context would be

18   improper by definition. Id. Thus, only the testifying party could invoke the testimonial privilege.

19           This restriction should prevent the Defendant from adversely preventing Mrs. Weaver’s

20   testimony based on the testimonial marital privilege. Just as the defendant in Trammell could

       Trammel modified the holding from Hawkins v. United States, 358 U.S. 74, 79 (1958), which established the
     testimonial privilege within a framework that would have enabled a non-testifying spouse to prevent the testimony
     of his or her testifying partner on any topic by refusing to consent to such an action. Thus, only under the
     confidential communications privilege can spouses currently prevent one another’s testimony.

                                           Writing Sample- Part I:

 1   not prevent his wife from testifying as to her observations of his drug activity, Weaver should

 2   not be able to prevent his wife from testifying as to any observations or opinions she may have

 3   had or developed about the Defendant’s activities. (Statement of Facts ¶ 3). Since the

 4   observations made by Mrs. Weaver were solely her own, only she can properly subject them to

 5   the testimonial privilege—it cannot be applied against her. Just as in Trammell where

 6   circumstances led to the evidentiary need to provide the court with the personal observations of

 7   witnesses, this Court should and would do well to protect Mrs. Weaver’s testimonial

 8   independence by preventing the Defendant from invoking the testimonial marital privilege.

 9          In all, the tightening of evidentiary standards and the Defendant’s need to adversely

10   exclude Mrs. Weaver’s testimony should lead this Court to prevent the Defendant from invoking

11   the testimonial privilege. However, unlike in Trammell, where the defendant’s wife obtained her

12   knowledge through participation in the crimes, Mrs. Weaver also obtained at least partial

13   knowledge of the Defendant’s proclivities through his own personal confessions to her (SF ¶ 3).

14   Since this privilege will not apply to confessions made to third parties outside of the marital unit,

15   this Court would also do well to identify the Defendant’s statements as non-confidential and not

16   subject to the confidential communication privilege.

     (The remainder of the motion, discussing the inapplicability of the confidential communications
                 privilege, has been omitted for length and factual content purposes)

                      Writing Sample- Part 2:
The following is a section of my case note, which will be
published in Volume 55 of the Saint Louis University Law Journal.

                     Bills to Pay and Mouths to Feed


        Until the Supreme Court takes up the interaction between
due process and forfeiture in a case with a justiciable conflict,1
potential litigants will be forced to walk the convoluted path of
forfeiture litigation without having any idea of what result will
await them. When that day comes, though, how should the court
rule? To answer this, the merits of Alvarez must be considered.

A. Post-Seizure Hearings Protect the Due Process Rights of those
Subjected to Forfeiture

        It is clear that due process is “conferred not by legislative
grace but by constitutional guarantee.”2 As such, there is no
question that its constitutional authority will require certain
procedural benchmarks for any seizure. 3 A more pressing question,
though, is whether the forfeiture proceedings provided for in
forfeiture statutes are sufficient to satisfy due process.      In
Mathews, the court held that determining whether due process
required a statute to provide additional procedural protection
depended on consideration of the parties’ private interest, the risk
of wrongful deprivation related to the benefits of additional
safeguards, and the government’s interest in avoiding further
burdens on its seizure power.4 This standard is flexible and calls
for protections to be provided as a particular situation demands—
ensuring that neither the government nor the party subject to
forfeiture will be unduly burdened.

  The court can only rule on active cases or controversies. U.S. CONST. art. III, §
2. For more on the Court’s inability to issue a ruling on the merits of inactive
cases, see supra Section IV.
  Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (internal punctuation omitted).
  Goldberg v. Kelly, 397 U.S. 254, 263 (1970) (“[individual’s] interest in
avoiding loss outweighs the government’s interest in summary adjudication.”).
  Mathews v. Eldridge, 424 U.S. 319, 340 (1976).

                      Writing Sample- Part 2:
The following is a section of my case note, which will be
published in Volume 55 of the Saint Louis University Law Journal.

                     Bills to Pay and Mouths to Feed

        Mathews’ pattern of requiring further procedural action was
exemplified in Good when it was applied to determine what
procedures were required prior to forfeiture.5 The Court in James
Daniel Good found that due process required individuals be given
notice and an opportunity to be heard before the government
deprived them of real property, and that only in extraordinary
situations where a government interest was at stake could that
hearing be postponed until after a seizure occurred.6 Although it
was argued that the ultimate forfeiture proceedings in the seizure
statute would fulfill this goal, the Court applied Mathews and held
that an additional hearing was required for a government actor to
engage in the seizure of real property.7 The provision of such a
hearing allowed the court to prevent property from being seized in
situations where owners would have to wait months to present
valid defenses at ultimate forfeiture proceedings.8
        The application of this standard to personal property could
later be seen in Krimstock. 9m There, the court applied Mathews to
a New York forfeiture statute that was challenged after several
automobiles were seized under its provisions. 10 Then-Judge
Sotomayor, writing for the court, applied the Mathews test to
balance the substantial individual interest in uninterrupted use of
an automobile 11 against the government’s interest in retaining
vehicles that it believed it could eventually take possession of

  United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993)
(Mathews balancing was applied to determine whether a post-seizure hearing
was required for the government to take possession of real property).
  Id. at 55.
  See generally Krimstock v. Kelly, 306 F.3d 40 (2d. Cir. 2002).
   Id. at 60 (using due process to determine the propriety of N.Y.C. Code § 14-
   Stypmann v. City & County of San Francisco, 557 F.2d 1338, 1342-43 (9th
Cir. 1977) (finding that uninterrupted use of a vehicle need be protected as
something on which the owner's “ability to make a living” may depend).

                      Writing Sample- Part 2:
The following is a section of my case note, which will be
published in Volume 55 of the Saint Louis University Law Journal.

                      Bills to Pay and Mouths to Feed

through forfeiture.12 Under this framework, Judge Sotomayor
found that since the procedures provided for by statute presented
such a remarkably high risk of erroneous or excessive deprivation,
and since this deprivation had the potential to so drastically impact
the livelihood of those impacted, further procedural constraints on
the statute were required to satisfy the concerns of due process. 13
Through Mathews, Judge Sotomayor was able to determine in
Krimstock e that a prompt, post-seizure hearing needed to be
provided prior to final forfeiture proceedings to fulfill the
requirements of due process.14
        Because of Mathews’ flexibility in application and its
pedigree of use in due process actions, it could be easily applied to
the merits in Alvarez and very well lead to a similar result.

B. Post-Seizure Hearings are Unnecessary and Redundant

   Krimstock, 305 F.3d at 64. The government’s interest amounted to the fact
that it didn’t want to release vehicles it knew it could eventually seize out of fear
that those vehicles may never come back into its possession. See also Calero-
Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668 (1974) (stating that
when property is easily transportable, the need to retain custody to prevent the
property from absconding is heightened).
   The court justified the additional constraints by noting that that the availability
of forfeiture proceedings may not adequately compensate parties for losses
caused by improper seizure. (“Given the congested civil dockets in federal
courts, a claimant may not receive an adversary hearing until many months after
the seizure, and even then the owner cannot recover the lost use of a vehicle by
prevailing in a forfeiture proceeding . . . [That] loss is felt in the owner's
inability to use a vehicle that continues to depreciate in value as it stands idle in
the police lot.” Id. at 63–64.
   The similarity of the facts in Krimstock begs the question of why that case, too,
was not held to be moot. Judge Sotomayor explained that “the ‘relation back’
doctrine is properly invoked to preserve the merits of the case for judicial
resolution.” Krimstock, 305 F.3d at 70 (citing County of Riverside v.
McLaughlin, 500 U.S. 44, 51-52 (1991). By relating back the claims of the later
class certification to the representative individuals—mootness was avoided.
This suggests that had the Respondents in Alvarez appealed their class
certification and received a supportive ruling, they too could have later invoked
the protections of class action.

                      Writing Sample- Part 2:
The following is a section of my case note, which will be
published in Volume 55 of the Saint Louis University Law Journal.

                     Bills to Pay and Mouths to Feed

        Despite its flexibility, Mathews is not the only test that
could be applied by the Court to determine whether post-seizure
hearings are required to protect due process in forfeiture actions
under DAFPA. 15 A number of cases, applying the speedy trial test
of Barker v. Wingo, have found that forfeiture statutes such as
DAFPA do not violate due process because their ultimate
forfeiture proceedings provide those from whom property has been
seized with a sufficient opportunity to be voice their complaints. 16
If the Court in Alvarez were to adopt this approach, post-seizure
hearings such as those provided for by the Seventh Circuit would
not be required.17
        In Barker, the Court found that due process entitled a
defendant to a speedy trial and that determining whether this
standard was met was based on the weight of four factors: length
of delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant.18 Although initially limited
to criminal trials, these factors have been used to determine
whether delays in civil proceedings represent violations of due
        In United States v. Von Neumann, the court applied Barker
in finding that the delay between the seizure of the plaintiff’s car
and the ultimate forfeiture proceedings did not represent a
violation of due process.20 In that case, the plaintiff’s car was
seized by customs agents and held pursuant to the payment of a
bond or a forfeiture proceeding. Although the plaintiff paid the
bond, he filed suit for a violation of due process.21 The court,
applying Barker, held that the delay between seizure and release of
   See Barker v. Wingo, 407 U.S. 514, 530 (1972).
   See, e.g., United States v. $8,850, 461 U.S. 555, 556 (1983); United States v.
Von Neumann, 474 U.S. 242, 243 (1986).
   This is not meant to suggest that no proceedings whatsoever would be
required. Rather, the Barker line of cases puts forth the opinion that the ultimate
forfeiture proceeding sufficiently fulfills all relevant due process concerns.
   Barker, 407 U.S. at 530.
   $8,850, 461 U.S. at 563.
   Von Neumann, 474 U.S. at 250–251.

                      Writing Sample- Part 2:
The following is a section of my case note, which will be
published in Volume 55 of the Saint Louis University Law Journal.

                      Bills to Pay and Mouths to Feed

the vehicle did not violate due process because the available
forfeiture proceedings would have provided a sufficient forum for
contesting the seizure and because the delay between seizure and
those proceedings did not prejudice plaintiff’s defense.22
        Under Barker, only the most extreme delays between
seizure and final disposition violate due process. Essentially, so
long as a forfeiture proceeding is provided that enables the plaintiff
to eventually challenge the propriety of a seizure, the speedy trial
standard will be satisfied. This was the case in United States v.
$8,850, where the Court found that an eighteen-month delay
between seizure and forfeiture proceedings did not violate
Barker.23 There, the court recognized that the delay constituted a
“substantial period of time,” but found it reasonable as “[t]he
Government must be allowed some time to decide whether to
institute forfeiture proceedings.”24
        If Barker could apply to eighteen-month delays and cars
seized by customs officials it is only proper to think it could apply
equally well to delays of up to 187 days and cars seized under
statute. Based on the simplicity of Barker’s speedy trial result, it
could very well be applied by the Court in Alvarez to streamline
forfeiture jurisprudence.

   Id. at 250–251.
   Id. at 36 (citing $8,850, 461 U.S. at 562).
   $8,850, 461 U.S. at 569–570.


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