United States v. Montgomery

384 F.3d 1050 (9th Cir. 2004)

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Nature of the Case

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Facts

D and his wife formed Sun Village Realty a property management business. The company entered into contracts with the owners of vacation houses and in return for a twenty-five to thirty percent commission, rented out the properties. The contract did not provide for, nor expressly prohibit, use of the vacation houses, or 'units,' by Sun Village, its employees or its guests without notice and compensation to the owner. D's wife oversaw the reservation office from 1989 until October 1992, when O'Connor (D1) moved to Sunriver to assist D, her brother, with legal issues unrelated to this case. O'Connor assumed responsibility for the owners' statements. In 1994, D's wife noticed 'very unusual situations with reservations and money.' She suspected that D1 was diverting money from owners by assigning reservations to units that were no longer managed by Sun Village and by deleting reservations. D's wife discussed the matter in a letter to D expressing outrage and possible criminal activity. But she subsequently joined the conspiracy and began omitting one night rentals from the owners' statements and creating inaccurate owners' statements. Owners became suspicious. Ds used the excuse that a computer or bookkeeping error had probably occurred. They also allowed staff and themselves to occupy the units without paying. The IRA executed a search of Sun Village's business records and D's residence. D's wife's letter was seized from their bedroom. D's wife agreed to cooperate with the government and to testify against D and D1. Ds were convicted. D appealed contending that the district court erred by not permitting him to claim the marital communications privilege to exclude from trial his wife's correspondence and his wife's testimony about conversations with him.