United States v. Thomas Ray Roberson

This appeal presents the question whether a husband or wife may invoke the marital communications privilege when, at the time of the relevant communication, the couple is separated and their marriage has failed.

Thomas Roberson was tried and convicted under 18 U.S.C. § 2031 of a rape that took place on a federal enclave. At trial, the prosecution offered the testimony of his estranged wife. Roberson objected, asserting the marital communications privilege. After an offer of proof and arguments by counsel, the court refused to allow the privilege. We affirm.

BACKGROUND

Thomas and Rosie Roberson had been separated two months when he called and told her that he raped and choked Judy Gonzalez. He did not call to seek spousal forgiveness or understanding, but to alert her that she might need to move. He anticipated the possibility of a jail sentence from his conduct on the previous night and that the sentence would prevent him from continuing regular house payments.

Two months earlier, Thomas Roberson, who here seeks to invoke the marital privilege, had instituted an action for dissolution of the marriage and moved out of the home he shared with his wife. Near that time, Mrs.…