United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1502 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOBIAS DIGGS, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cr-185-1 — Gary Feinerman, Judge. ____________________

ARGUED JANUARY 10, 2023 — DECIDED SEPTEMBER 5, 2023 ____________________

Before SCUDDER, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges. KIRSCH, Circuit Judge. A jury convicted Tobias Diggs of armed robbery and other associated crimes after he and three others held up an Illinois jewelry store. Two evidentiary rul- ings form the basis of Diggs’s appeal. First, Diggs argues that the district court should not have permitted his wife to testify against him. The district court concluded that she was a co- conspirator, so the spousal testimonial privilege did not 2 No. 22-1502 apply. Second, Diggs argues that certain hearsay testimony from the case agent should have resulted in a mistrial. But any evidentiary error was harmless, and the district court did not abuse its discretion in refusing to grant a mistrial, so we af- firm. I A jury found that Tobias Diggs and three others robbed the Razny Jewelers store in Hinsdale, Illinois, on March 17, 2017. At trial, the government’s evidence established that when the store opened at 10 am, Diggs and two others exited a blue Lexus SUV bearing Michigan license plates. They en- tered the store with guns raised and equipped with hand- Œžěœ, sporting masks, and gloves. They quickly subdued and ‘Š—ŒžěŽȱ‘Žȱœ˜›ŽȂœȱœŽŒž›’¢ȱžŠ›ȱand dragged a sales as- sociate to a back room where they ‘Š—ŒžěŽȱ and pistol- whipped her. One of the men encountered another sales asso- ciate, put a gun to her head, locked her in the bathroom, and told her he’d kill her if she tried to get out. A fourth man in the crew, Joshua McClellan, sat in the Lexus and listened to the robbery unfold on his cellphone before driving the men— and their haul of more than $400,000 in watches and jewelry— to temporary safety. Three days later, Diggs and McClellan drove from Chicago to Atlanta to liquidate their haul. They met with a jeweler—A.P. the Jeweler—who initially ex- pressed interest but eventually demurred due to the asking price. After returning to Chicago, McClellan found a willing buyer. Eventually, the law caught up with Diggs and McClellan. (Marvon Hamberlin and the fourth man remain at large.) A grand jury indicted the pair on charges of Hobbs Act robbery, conspiring to do the same, brandishing a firearm during a No. 22-1502 3 crime of violence, and transporting stolen goods. Diggs and McClellan pleaded not guilty and were tried together. The jury convicted both men on all counts. Diggs preserved his two challenges, which we turn to now. II Before trial, Diggs informed the court that his wife, Devinn Adams (who was his girlfriend at the time of the robbery), would invoke the spousal testimonial privilege if called to tes- tify. The district court denied the privilege on the grounds that Adams fell within the joint-participant exception. See United States v. Clark, 712 F.2d 299, 301 (7th Cir. 1983) (no spousal testimonial privilege when the defendant and spouse jointly participated in the criminal conduct). The district court found that t‘Žȱ˜ŸŽ›—–Ž—Ȃœȱ™›˜ěŽ›ŽȱŽŸ’Ž—ŒŽȱœ‘˜ Žȱthat Adams became a co-conspirator on the day of the robbery and only withdrew a few days later when she told police that Diggs had used her car for the rob