United States District Court, D. Nebraska
ORDER AND FINDINGS AND RECOMMENDATION
Michael D. Nelson, United States Magistrate Judge.
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).
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
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).
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.
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).
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).
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).
Motion in Limine
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.
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,
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 ...