No. 21-1489 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellant,

v.

Donavan Jay White Owl, also known as DJ,

lllllllllllllllllllllDefendant - Appellee. ____________

Appeal from United States District Court for the District of North Dakota - Western ____________

Submitted: February 18, 2022 Filed: July 5, 2022 ____________ Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges. ____________ COLLOTON, Circuit Judge.

Donovan White Owl is charged in the district court with arson and felony murder after allegedly starting a cabin fire that killed an occupant of the dwelling. White Owl moved in limine to prevent the government from introducing incriminating statements that he made to his wife in private after the fire. The district court granted the motion based on the marital communications privilege. The court concluded that a spousal-victim exception to the privilege did not apply, because White Owl’s spouse was not a victim of the charged offenses. The government appeals, and we conclude that a related exception applies—one that vitiates the privilege in a case where a spouse is charged with a crime against a third person that is committed in the course of committing a crime against the defendant’s spouse. We therefore reverse the order excluding the testimony of White Owl’s spouse.

I.

White Owl and Tera Cooke have been married since May 2014. On the night of April 3-4, 2019, White Owl and Cooke were at a bonfire with friends Cody Serdahl and Winnifred Smith. All four were living in a cabin in Mandaree, North Dakota, that belonged to Serdahl’s mother. The bonfire was in the yard outside the dwelling.

During the gathering, White Owl started to yell at Cooke during an argument. Serdahl intervened and told White Owl to stop yelling. After that exchange, White Owl concluded that Cooke was having an affair with Serdahl. Cooke left the bonfire and hid from White Owl in the back of their Chevrolet Tahoe vehicle. Shortly thereafter, the cabin burned down, and Smith was killed in the fire.

White Owl entered the Tahoe and drove away without realizing that Cooke was hiding in the back. White Owl eventually discovered Cooke when he stopped for gas in Circle, Montana, about 150 miles from the cabin.

Some time thereafter, when the two were alone together, White Owl made incriminating statements to Cooke. White Owl said that he thought she was inside the cabin after their argument at the bonfire, so he decided to pour gasoline through the bedrooms, kitchen, stairs, and deck of the cabin. He told Cooke that he poured the gasoline because he believed that she was hiding in the cabin. He said that he took this action because he thought Cooke was sleeping with Serdahl.

-2- A grand jury charged White Owl with arson within Indian country, see 18 U.S.C. §§ 81, 1153, and felony murder within Indian country based on the death of Winnifred Smith. See 18 U.S.C. §§ 1111, 1153. In preparation for trial, White Owl moved in limine to exclude any private communications to Cooke, including his statement that he poured gasoline in and around the cabin, on the basis that they were privileged marital communications. The government urged the court to recognize an exception to the privilege for a criminal case in which one spouse commits a crime against the other spouse.

The district court granted White Owl’s motion and declared inadmissible any communications th