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United States v. Merksick

United States District Court, D. Nebraska

October 23, 2019



          Michael D. Nelson, United States Magistrate Judge.

         This matter is before the Court on the Motion in Limine (Filing No. 29) and Motion to Suppress (Filing No. 31) filed by Defendant, Tony Merksick. The government opposes both motions (Filing No. 38; Filing No. 39).

         On September 30, 2019, the Court held a telephone conference with counsel for the parties regarding Defendant's motions. The audio file of the telephone conference was filed on the same date. (Filing No. 43). An evidentiary hearing on Defendant's motion to suppress was held on October 1, 2019. Defendant was present with his attorney, Steve Lefler. The government was represented by Assistant United States Attorney, Sean Lynch. Former Internal Revenue Service (“IRS”) criminal investigation special agent, Timothy Kasun (“S.A. Kasun”), and current IRS criminal investigation special agent, Edward Sealock (“S.A. Sealock”), testified on behalf of the government. Exhibit 101 offered by Defendant was received by the Court over the government's objection. A transcript (TR.) of the hearing was prepared and filed on October 4, 2019. (Filing No. 49). The matter is now fully submitted to the Court. For the reasons stated on the record during the September 30, 2019, telephone conference, Defendant's motion in limine is denied. And the undersigned magistrate judge will recommend Defendant's motion to suppress also be denied.


         Defendant is charged in a two-count Indictment with willfully making and subscribing false tax returns under 26 U.S.C § 7206(1). The Indictment alleges that Defendant committed the violations on or about April 13, 2013, and March 24, 2014. (Filing No. 4). As part of the investigation leading to the charges in the Indictment, S.A. Kasun and S.A. Sealock interviewed Defendant in his home in Council Bluffs, Iowa on May 18, 2016. On that date, the agents parked approximately half a block away from Defendant's house on the opposite side of the street, approached Defendant's residence, and knocked on the front door. (TR. 9-10). When Defendant opened the door, the agents showed Defendant their badges and identified themselves as special agents with the U.S. Treasury, IRS criminal investigation, and told Defendant they had some questions for him. Defendant invited the agents inside. (TR. 10-11).

         Defendant led the agents to the living room. The agents sat together on Defendant's couch and Defendant sat by himself on a chair approximately three to four feet away. The agents explained to Defendant that they were conducting a criminal investigation into his tax returns, not an audit, and told him he did not have to answer a question if he did not want to answer. Defendant agreed to answer questions. (TR. 11-14; 56). The agents did not provide Defendant with Miranda warnings before beginning the interview. (TR. 43).

         S.A. Kasun testified that Defendant seemed to understand the agents' questions and the nature of their visit, did not appear under the influence of any substances, did not ask to stop answering questions, did not request an attorney, and did not ask the agents to leave. S.A. Kasun testified he and S.A. Sealock did not threaten Defendant, make promises, or make physical contact with Defendant beyond a handshake. Defendant refused to answer certain questions throughout the interview. (TR. 15-16; 46). Defendant used his cell phone during the interview and the agents did not try to prevent him from using it. (TR. 17, 57). The agents did not handcuff or restrict Defendant's ability to move in his house and did not block the front door; Defendant answered the front door more than once during the interview. (TR. 16-17, 59-60). The interview lasted approximately two and a half to three hours. The agents ended the interview when Defendant's wife came home. (TR. 18). S.A. Kasun testified the overall tone of the interview was “as friendly as it can be under the circumstances.” (TR. 52). S.A. Kasun testified they did not record the interview because it was their policy to only record custodial interviews. (TR. 14).

         At some point during the investigation, the government obtained electronic devices from Defendant's ex-wife without a warrant or Defendant's consent. (Filing No. 32 at p. 8). Defendant now moves to suppress any evidence taken from the electronic devices seized during the investigation without a warrant, in violation of the Fourth Amendment. (Filing No. 31). Defendant also moves to suppress any evidence and statements obtained by the government during the May 18, 2016, interview. (Filing No. 31). Defendant asserts that he was not properly advised of his Miranda rights prior to the interview and that therefore any statements he made must be excluded pursuant to the Fifth Amendment. Additionally, although Defendant does not raise the issue in his motion, Defendant argues in his brief and at the hearing that his due process rights were violated because agents did not record the interview. (Filing No. 32 at p. 7; TR. 64).

         The government intends to call Defendant's ex-wife, Patricia Merksick, to testify at trial. In his motion in limine, Defendant seeks to prevent her from testifying by asserting the marital communications privilege. (Filing No. 29).


         I. Motion in Limine

         Defendant requests that the Court exclude any testimony elicited from his ex-wife on the basis that such testimony is subject to the marital communications privilege. (Filing No. 30 at pp. 3-5). Federal courts recognize two marital privileges: the marital confidential communications privilege and the adverse spousal testimony privilege. United States v. Espino, 317 F.3d 788, 795 (8th Cir. 2003)(citing United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000)). The adverse spousal testimony privilege provides that an individual “may be neither compelled to testify nor foreclosed from testifying” against the person to whom he or she is married at the time of trial. Bad Wound, 203 F.3d at 1075. The marital confidential communications privilege prohibits testimony regarding private intra-spousal communications during the marriage. United States v. Evans, 966 F.2d 398, 401 (8th Cir. 1992). For the privilege to apply, the communication (1) must be made during a valid marriage; (2) must be words or acts by one spouse that are intended as a communication to the other spouse, and (3) must be made in confidence. See id.

         Defendant requests the Court to prohibit “any and all testimony that may be elicited from Defendant's former spouse” on the basis that such testimony is privileged by the marital confidential communications privilege. This privilege is not as broad as Defendant asserts and does not prohibit his ex-wife from testifying regarding any matters outside of private intra-spousal communications made during their marriage. Additionally, the government responded both in its brief (Filing No. 39) and during the September 30, 2019, telephone conference that it does not intend to introduce any testimony or evidence of private communications between the Merksicks during their marriage. (Filing No. 39 at p. 3; Filing No. 43). Based on the information before the Court, Defendant's objection on marital confidential communications privilege grounds is denied, subject to reassertion at trial if the testimony would meet the three requirements as set forth in Evans, 966 F.2d 398, above.

         To the extent Defendant attempts to invoke the adverse spousal testimony privilege, he does not have standing to raise the privilege on behalf of his ex-wife. SeeBad Wound, 203 F.3d at 1075 (“The privilege therefore rests with the testifying spouse, who may waive the privilege without the consent of the defendant spouse.”). In any event, this privilege is inapplicable as the parties stipulated that Defendant and his ex-wife legally divorced in 2018. SeeBad Wound, 203 F.3d at 1075 (noting that the ...

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