* District Judge of the Eastern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-2900

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARLEENE ELIZABETH BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(January 11, 1994)

Before POLITZ, Chief Judge, GARWOOD, Circuit Judge, and PARKER *

, District Judge.

POLITZ, Chief Judge:

Convicted of embezzlin g union funds and of making false

e ntries in union records, Darleene Elizabeth Brown appeals.

Concluding that the manner in which the testimonial privileges of

Brown's husband and son were handled tainted the fairness of the

trial, we vacate the convictions and remand.2 Background

Brown was employed as secretary and bookkeeper of Local 1111

of the International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, AFL-CIO. In that capacity she

paid herself amounts in excess of her regular salary and charged

substantial sums to the union's oil company credit cards. Charges

were made on the credit cards by her husband, Homer Brown, and her

son, Austin Wright. After an investigation by the United States

Department of Labor's Office of Labor Management Standards, Brown

was indicted for embezzlement in violation of 29 U.S.C. § 501(c)

and falsi fying union records in contravention of 29 U.S.C.

§ 439(c). A jury rejected her defense that the credit card usage

and the extra salary allowances were authorized by the local's

business manager, Lynn Wells, and convicted her of all counts.

Sentenced to prison for 12 months, Brown timely appealed.

Analysis

Brown advance s numerous challenges to her convictions. We

find one dispositive

-- the handling of the testimonial privileges

asserted by her husband and son.

Before calling Homer Brown to the sta nd the government knew

that he would invoke the marital privilege and refuse to testify

against his spouse. Homer Brown's attorney informed the government

in writing prior to trial and did so orally in open court prior to

voir dire

. The government, nonetheless, called Homer Brown as its

witness in the presence of the jury. Counsel immediately1 See S an Fratello v. United States

, 340 F.2d 560 (5th Ci r

.

1965).

2 United States v. Coveney , 995 F.2d 578 (5th Cir. 1993).

3 United States v. Watson

, 591 F.2d 1058, 1062 (5th Cir.),

cert

. denied , 441 U.S. 965 (1979) (citing Namet v. United States

, 373 U.S. 179 (1963)).

3 conferenced at the bench and the court sustained Homer Brown's

invocation of the spousal privilege. The court did not instruct

the jury to disregard the fact that he had been called to the

stand. That left the jury free to draw the obvious negative

inference that his testimony would have been damaging to his wife. 1

The government called Austin Wr ight over defense counsel's

objection. After a few preliminary questions the prosecutor asked

Wright whether his mother gave him a gasoline credit card belonging

to Local 1111. Wright invoked his fifth amendment right not to

i ncriminate himself. The court sustained this invocation of the

privilege but denied defense counsel's request to admonish the jury

to draw no negative inferences t herefrom. Wright was dismissed

without further questioning. As with Homer Brown, there is a

reasonable probability that the jury inferred guilty knowledge on

the part of both the defendant and the witness from Wright's

refusal to testify.

Under certain circu mstances the forced invocation of a

testimonial privilege in the presence of the jury will warrant

r eversal. 2 One such circumstance is when the government makes a

"conscious and flagrant effort to build a case based on the

unfavorable inferences which inure from a claim of the privilege." 34 Id

.

5 See San Fratello ; United States v. Ritz

, 548 F. 2d 510 (5th

Cir. 1977).

6 Ritz

.

7 Trammel v. United States , 445 U.S. 40 (1980).

4 Another is when those inferences add critical weight to the

government's case in a form that is not subject to

cross-examination. 4 Both circumstances appertain herein. Business

manager Lynn Wells testified that Darleene Brown was authorized to

charge $50 a week on the credit cards, wh ether for personal or

business use. Silence on the part of Brown's husband and her son

suggested the contrary. Their claim of privileges impressed their

conduct

-- and hers

-- with the stamp of criminality. 5 Because the

two did not testify, defense counsel had no opportunity to

c ross-examine them in an effort to dispel the adverse inferen ces

arising fromtheir silence. 6 Unlike in W atson

, on which the

government relies, the trial court did not give a l imiting

instruction that might have offset the prejudice.

The record also reflects the spectre of prosecutorial

misconduct with respect to Homer Brown. It is Hornbook law that

one cannot be forced to t estify against a spouse in a criminal

proceeding. 7 Once formally notified that Brown intended to invoke

that privilege, the government should have abandoned its plans to

call him as a witness. At the very least the government should

have carefully insulated its actions from the jury. At trial the

government urged the district court to break new ground in this8 United States v. Archer

, 733 F.2d 354 (5th Cir.), c ert

.

denied

, 469 U.S. 861-62 (1984); United States v. Mendoza

, 574 F.2d

1373 (5th Cir.), cert

. denied

, 439 U.S. 988 (1978). The privilege

protecting confidential communications between spouses may be

invoked by the de fendant spouse and is limited to such

communications. The rule against adverse spousal testimony bars

the prosecution from forcing the defendant's spouse to te stify

against the def endant if the spouse does not wish to do so.

2 Wright, Federal Practice and Procedure: Criminal 2d § 405 at

435, § 406 at 437-439 (1982 and 1993 Supp.).

5 circuit by extending th e "joint crimes" exception, heretofore

limited to confidential marit al communications, to the privilege

not to testify against one's spouse. 8 That is a slender reed upon

which to rest the prosecution's decision to call Homer Brown to the

stand and thus dramatize to the jury his refusal to testify. Any

legitimate objections to the application of the spousal privilege

should have been raised in limine and resolved out of the presence

of the jury.

The convictions a nd sentences are VACATED and the matter is

REMANDED for further proceedings consistent herewith.