Appeal from the United States District Court for the Northern District of California. D.C. No. CR-90-20044-JW. James Ware, District Judge, Presiding.
Before: J. Clifford Wallace, Chief Judge, Herbert Y. C. Choy, and Cecil F. Poole, Circuit Judges. Opinion by Judge Choy.
Joseph Lamont White was convicted on one count of involuntary manslaughter under 18 U.S.C. § 1112. He appeals that conviction on several grounds. Finding no error in his conviction, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
White was convicted of causing the death of his two-year-old stepdaughter, Jasmine Jones. Jasmine died from severe head injuries she incurred while she was in White's care at a military personnel residence at Fort Ord, California. White's wife Jayne was serving in the Army and stationed at Fort Ord. White was responsible for caring for Ms. White's two children.
In January 1990, White expressed some frustration to Ms. White over his role as caretaker of the children. This frustration allegedly escalated into a threat to kill Jasmine and Ms. White should he have to continue to care for the children.
Just over a week after the threat, White called his wife while she was on duty and told her that Jasmine was "breathing funny" and suffering from convulsions. Ms. White rushed home to find Jasmine unconscious. The Whites rushed Jasmine to the hospital where medical examinations revealed that Jasmine suffered a massive subdural hematoma. Surgeons performed emergency surgery in an unsuccessful attempt to relieve the pressure caused by the massive swelling in the child's brain. After two days in the Intensive Care Unit with no change in Jasmine's condition, doctors removed life support equipment, and she died shortly thereafter.
White was indicted for voluntary manslaughter, 18 U.S.C. § 1112, and assault resulting in serious bodily injury, 18 U.S.C. § 113(f). Before trial, White filed a motion in limine to exclude the statements he made to his wife that conveyed a threat to kill her and her daughter. After the hearing, the district court denied the motion. The trial that began in January 1991 culminated in a guilty verdict on the lesser included offense of involuntary manslaughter.
The Presentence Report (PSR) was filed in March 1991 and recommended a two-point upward adjustment for obstruction of Justice, United States Sentencing Guidelines (U.S.S.G) § 3C1.1, and a two-point upward adjustment for commission of a crime that involved a vulnerable victim, U.S.S.G. § 3A1.1. Judge Ware sentenced White to thirty-six months imprisonment and one year supervised release. He ordered that White pay $2,560 in restitution and that he have no contact with Jayne White absent permission of the court.
A. Marital Communications Privilege
White objects to the introduction of the following ...