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United States v. Davis

United States District Court, N.D. Georgia, Atlanta Division

February 17, 2017

UNITED STATES OF AMERICA,
v.
JOSHUA DAVIS, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Government's Motion to Admit Testimony of Philicia Morris [43] (“Motion to Admit”).

         I. BACKGROUND

         A. Facts

         1. Incident and Ms. Morris's FBI Interview

         On October 15, 2015, Defendant Joshua Davis (“Defendant”), who then worked as a Brink's driver, allegedly stole $170, 160.00 in Robins Federal Credit Union (“RFCU”) funds. That day, the Defendant drove a Brink's truck route with his co-worker, Naheem Carrington. The Defendant serviced the RFCU ATMs and, in the process, allegedly took approximately $20, 000 to $30, 000 from each of eight separate RFCU ATMs he serviced. After servicing the RFCU ATMs, the Defendant drove the Brink's truck to Atlanta, where it ran out of gas. A tow truck was called. The Defendant called his then-girlfriend, Philicia Morris, to pick him up while Mr. Carrington waited in the back of the truck for the two truck to arrive. A month later, on November 15, 2015, the Defendant was indicted.

         On January 7, 2016, Ms. Morris voluntarily submitted to an interview by Federal Bureau of Investigation (“FBI”) Special Agent Samone Brown and Task Force Officer Darline Scott. The interview was audio recorded. (Philicia Morris Interview[1]). Ms. Morris stated to the agents that, after the Brink's truck broke down, the Defendant called to ask Ms. Morris to pick up Defendant so they could purchase food. (Id.). Ms. Morris drove to the Brinks truck location in her car, and she and the Defendant drove to a nearby Wendy's. (Id.). When the Defendant and Ms. Morris were at Wendy's, Mr. Carrington called the Defendant from the Brink's truck. (Id.). He asked the Defendant to return because the police were at their Brink's vehicle. (Id.). Ms. Morris heard Mr. Carrington say to the Defendant: “somebody got out with a black bag and it had money in it.” (Id.). Ms. Morris asked the Defendant, “what money, what are you talking about . . . you got money on you or something?” (Id.). Ms. Morris stated that the Defendant responded “yes.” Ms. Morris told investigators that she “freaked out” and “told him to . . . just get it out of [her] car.” (Id.).

         Ms. Morris told the agents that the Defendant stuffed the stolen money into a pink bag that was in Ms. Morris's car. (Id.). The Defendant then “threw [the pink bag filled with money] out” of the car window “on the side of the road somewhere.” (Id.). Ms. Morris told agents that she did not know what happened to the money after it was thrown out of her car. (Id.). She drove the Defendant back to the Brink's truck where the police were waiting. (Id.). The police searched the Defendant's black bag, which was in Ms. Morris's car. Officers located Defendant's firearm and ammunition, but did not locate any money. (Id.). After the tow truck arrived, Ms. Morris was allowed to leave. (Id.). Ms. Morris stated: “after that, [she and the Defendant] stopped talking for one or two months.” (Id.).

         2. The Defendant and Ms. Morris's Relationship

         The Defendant contends that, at the time of the alleged theft on October 15, 2015, he and Ms. Morris “were in a long term relationship and already had plans to get married even though they were not married on that date.” ([45] at 2).[2] Ms. Morris states that she met the Defendant in 2008, and that the two began an intimate relationship. ([54.1] at 1). She states that she and the Defendant lived together for three months beginning in June 2013, until she moved to South Carolina to finish school. (Id. at 2). When she finished school in December 2013, she returned to Atlanta and lived with the Defendant and his family until March 2014, when Defendant moved to Indiana to attend truck driving school. (Id.).

         Ms. Morris states that, in September 2014, the Defendant asked her to marry him, and she “told him that she would.” (Id. at 2). In October 2014, the two again lived together at the Defendant's mother's home. Ms. Morris states she did not sleep in the same room with Defendant during this time because the Defendant's mother did not think it was proper. (Id.). In December 2014, the Defendant and Ms. Morris moved to Forest Park, Georgia. In May 2015, Ms. Morris states they moved to a rental home. On November 20, 2015, Ms. Morris claims she and Defendant “decided that they love[d] each other and it was time to make a permanent commitment. On April 5, 2016, they went down to city hall and got married.” (Id. at 3). These statements are generally corroborated by the interviews of Ms. Morris's cousin and friend. ([54.2], [54.3]).

         The Government notes that the Defendant and Ms. Morris married shortly after Mr. Morris gave her statement to the FBI, and after the Defendant was indicted. It notes also that the Defendant described Ms. Morris as a “female associate” during a recorded interview with FBI agents on December 9, 2015. ([55] at 13). The Government also points out that, after the events of October 15, 2015, Ms. Morris stated that she and Defendant “stopped talking for one or two months.” (Philicia Morris Interview).

         B. Procedural History

         On November 15, 2016, a First Superseding Indictment [31] charged Defendant with (1) theft of credit union funds, in violation of 18 U.S.C. § 2113(b), and (2) possession of stolen credit union funds, in violation of 18 U.S.C. § 2113(c). On December 1, 2016, the parties filed their respective motions in limine [36], [37].

         On December 13, 2016, the Court held a teleconference with the parties. During the teleconference, the Court denied, as moot, the Government's Motions in Limine after defense counsel represented that he currently does not intend to introduce (1) evidence of general good character and of specific instances of good conduct, (2) evidence that could promote jury nullification, and (3) evidence of the penalties associated with the charged offenses. ([39]). The Court also denied, as moot, Defendant's motion to exclude “Mr. Carrington's [telephone] statement that somebody told Mr. Carrington that they saw Mr. Davis get out with a bag or a bag with money in it, ” after the Government represented that it does not intend to use that testimony by Mr. Carrington. (Id.).

         During the teleconference, defense counsel stated that he also seeks to exclude, on the basis of hearsay, testimony by Philicia Morris about the comments she overheard during the telephone call between the Defendant and Mr. Carrington. The Court, considering the hearsay argument and that Ms. Morris is married to the Defendant, required the parties to brief the following issues:

         (1) whether Ms. Morris's testimony regarding the telephone call is hearsay, and

         (2) whether any marital privileges apply to her testimony. ([39]).

         On December 20, 2016, the Government filed its Motion to Admit the testimony of Ms. Morris. The Government argues that, because Ms. Morris overheard the telephone call before she married Defendant, the spousal testimonial privilege does not apply. It argues that, even if the privilege applied to pre-marital communications, the privilege does not apply because the marriage was collusive. The Government contends further that Ms. Morris's testimony is not hearsay, because it will be offered to explain the effect it had on Ms. Morris, and is not offered for the truth of the matter asserted.

         On January 13, 2017, the Court set a briefing schedule on the specific issue of the adverse spousal testimonial privilege. ([52]). Counsel for Ms. Morris has invoked the adverse spousal ...


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