137 S.W.3d 630 (2003)
STATE of Tennessee
v.
Leslie Thurman MITCHELL.
Court of Criminal Appeals of Tennessee, at Knoxville.
January 22, 2003 Session.
August 1, 2003.
Application for Permission to Appeal Denied December 1, 2003.
*632 Robert L. Jolley, Jr., Knoxville, Tennessee, for the Appellant, Leslie Thurman Mitchell.
Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney General, for the Appellant, State of Tennessee.
Application for Permission to Appeal Denied by Supreme Court December 1, 2003.

*631 OPINION
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA McGEE OGLE, J., joined.
The State of Tennessee appeals the Knox County Criminal Court's suppression and exclusion of evidence in the second-degree murder prosecution of Leslie Thurman Mitchell. The evidence consists, first, of the defendant's statements to law enforcement officers pertaining to the homicide following his arrest for an unrelated matter, and second, of the defendant's wife's testimony regarding marital communication pertaining to the alleged crime. We granted the state's application for interlocutory appeal, see Tenn. R.App. P. 9, and upon review, we reverse the lower court's rulings.
The defendant is charged with second-degree murder for the stabbing death of Juan Blanco-Guerra, which occurred on or about October 20, 2001, following an evening in which the defendant, his wife, and the victim had socialized together.
The defendant was suspected of the crime, and on or about October 21, 2001, the defendant was arrested on an outstanding child support warrant. After he was taken into custody, two Knoxville Police Department officers questioned the defendant about the death of Mr. Blanco-Guerra. The defendant gave an inculpatory statement and was ultimately indicted for second-degree murder.
Apparently, the defendant also made inculpatory statements about Mr. Blanco-Guerra's death to his wife, Kimberly Dotson, shortly after the relevant events took place. Ms. Dotson's testimony about those communications was offered at the preliminary hearing, and her testimony was potential evidence for the state in the criminal trial of the defendant.
During pre-trial proceedings, the defendant filed a motion to suppress the statements he made to Officers Jones and Moyers, a motion to suppress any statements the defendant made to his wife on the basis of the marital communications privilege, and a motion to dismiss the indictment because it was based entirely upon evidence which was violative of the marital communications privilege.

Defendant's Statement to Law Enforcement Officers
At the suppression hearing relative to the defendant's own statement, the state presented evidence via the testimony of the two law enforcement officers who questioned the defendant after his arrest on an outstanding child support capias. The first to testify was Sergeant Gary Moyers. According to Sergeant Moyers, the defendant was questioned in the early morning hours of October 21, 2001. The defendant was advised of his rights and *633 refused to sign an advice of rights form. The defendant refused to discuss anything with the officers and asked why he was there. After being told that he was suspected of being involved in a stabbing, the defendant said something like, "I think I may need an attorney," or "I think I need an attorney." According to Sergeant Moyers, Investigator Gary Jones then advised the defendant that he would be charged with murder. The defendant asked why he would be charged, and Investigator Jones explained in detail the evidence against the defendant. The defendant then said, "I need to tell you what happened." The defendant then gave an incriminating statement, during which he became emotional. The officers left the room, allowed the defendant to compose himself, and then returned. The officers administered a second admonition of rights, obtained the defendant's signature on a waiver of rights form, and took a tape-recorded statement from the defendant regarding his involvement in the stabbing death of the victim.
Sergeant Moyers admitted that the defendant was not provided a lawyer after he mentioned that he might need one. Sergeant Moyers likewise admitted that he did not seek to clarify the defendant's statement by questioning the defendant further about whether he wanted an attorney.
The state also offered the testimony of Investigator Gary Jones. Investigator Jones affirmed that the testimony of Sergeant Moyers was consistent with his recollection of events relative to the interrogation of the defendant. Investigator Jones testified that the defendant believed he was in custody for charges relative to nonpayment of child support. Jones told the defendant that they were also investigating a murder case, and the defendant professed that he had been at home and did not know anything about the murder. Before Jones advised the defendant of his rights, the defendant asked, "Do you think I need a lawyer?" Jones replied, "That's up to you." When Jones mentioned first-degree murder charges, the defendant told Jones that he wanted to explain his side of the story. Jones then advised the defendant of his rights, and the defendant refused to sign the admonition form. Jones claimed that he did not hear the defendant say to Sergeant Moyers, "I think I need a lawyer," although he did not dispute that this may have happened. By his own admission, Investigator Jones did nothing to procure an attorney for the defendant. Later, when the defendant indicated his willingness to talk on tape to the officers about the murder investigation, Investigator Jones heard the defendant say, "I changed my mind," when asked about his previous statement about a lawyer.
Near the beginning of the recorded statement, the following exchange occurred:
Moyers: The time is now 3:39 a.m. Leslie, earlier Gary and I were talking to you and during the process of that talking, we had in conversation, we advised you of your rights and during that conversation we had, you said that you thought that you needed to talk with an attorney, is that correct?
Defendant: Yeah. I changed my mind.
Moyers: You changed your mind. Okay, we told you that what we were investigating and the potential charges that you were looking at, is that correct?
Defendant: Yeah, that's true.
Moyers: And when we told you what the potential charges was [sic] and we explained to you the evidence we had and you asked why and all that we, we explained that to you, did we not?
Defendant: Right.

*634 Moyers: And after that conversation we told you that you were looking at a murder charge and that the guy had died. You told us that you wanted to tell us what took place, is that correct?
Defendant: Yes sir.
Moyers: Okay. At this time, we acknowledge the fact that you do understand what your, your rights are and that you are going, are willing to talk to us at this time. We read your rights to you earlier, is that correct?
Defendant: Um hmm.
Moyers: Do you remember what they were? We'll go over them again.
Defendant: Right to an attorney.
Moyers: Let me, let me read them to you.
[unintelligible because Moyers and Defendant talking simultaneously]
Defendant: ... have the right to an attorney. I have the right to, you know, not to say nothing [sic] if I don't want to.
Moyers: That's correct. You have all those rights and you also have the right to, to, to have an attorney present.
Defendant: Present, yeah.
Moyers: And you understood all those, is that correct?
Defendant: Yeah.
Moyers: Okay, did, you did, we're gonna go over them again just to make sure that you, that you understand.
Defendant: Or should I wait for this right here, for my attorney, cause like y'all got a written thing?
Moyers: It just makes it more clear that, that we don't misunderstand, misunderstand, or....
Defendant: [unintelligible] I mean, I don't, I don't need no attorney. I don't know why you even ask me that.
[Moyers then proceeds to explain Defendant's rights to him, and Defendant acknowledges each of them. Defendant admits that he stabbed the victim during a confrontation.]
In support of his suppression motion, the defendant took the stand at the hearing. He claimed that he asked why he was brought to the police station but was not told about the murder investigation. Rather, Investigator Jones said, "You know why you're here." The defendant claimed that he was asked questions about the homicide before he was advised of his rights. When he was later advised of his rights, the defendant refused to sign the admonition form and said that he needed to see a lawyer. According to the defendant's testimony, the officers did not cease discussion of the homicide at this point. Investigator Jones told him that if he did not explain what happened, he would be charged with first-degree murder. The defendant did not want to tell his side of the story, but as the discussion continued, Sergeant Moyers made him feel like what had happened would be more or less understandable. The defendant decided to tell the officers about the homicide. The defendant admitted that although he was very emotional, no one forced him to give a statement. The defendant claimed that he had been confused when he said he changed his mind about talking to an attorney.
Following hearings, the court suppressed the defendant's statements.[1] The *635 state sought permission to pursue an interlocutory appeal, which this court and the lower court granted.

Defendant's Statements to His Wife
The lower court also had before it the defendant's motion (1) to exclude evidence of the defendant's statements to his wife about the alleged crime, and (2) to dismiss the indictment because it was returned based entirely upon such evidence, which violates the marital communications privilege.
The lower court conducted a hearing at which Kimberly Dotson testified that she had been married to the defendant since October 30, 1998. At the time of the hearing, Ms. Dotson had not filed for divorce because she could not afford to do so, but she was saving money for that purpose. Ms. Dotson recounted that she and the defendant had been separated for approximately six months in October 2001 and had seen each other three or four times during the separation. Although they were working towards reconciliation, they were not living together. For two to three days prior to October 19, which was Ms. Dotson's birthday, the defendant spent the night at Ms. Dotson's residence. They engaged in sexual relations on October 19 prior to going out in the evening.
Ms. Dotson did not testify in any detail about the events leading up to Mr. Blanco-Guerra's death. However, she testified that after Mr. Blanco-Guerra left her home, the defendant told her that he had been upset by the way the victim had touched Ms. Dotson's bottom during their earlier visit to a nightclub. Ms. Dotson asked about Mr. Blanco-Guerra's whereabouts, and the defendant said that he "killed the m____ f____." Ms. Dotson asked, "You for real? [sic]" The defendant responded, "No, I know I didn't; I just stabbed him right here in his shoulder." According to Ms. Dotson, the marriage was "over" once this conversation transpired. However, Ms. Dotson also testified that they later went to bed and spent the night together but did not have sexual relations until the next day when, according to Ms. Dotson, "[the defendant] took the sex from me."
Based upon this evidence, the lower court ruled that any statements the defendant made to Ms. Dotson regarding the alleged crime were privileged marital communications that could not be used as evidence in the prosecution of the defendant. It does not appear from the record that the court ruled on the motion to dismiss.
The state sought permission to pursue an interlocutory appeal of the marital communications ruling, which this court and the lower court granted.
Both the suppression and exclusion issues have now been presented by the parties in their briefs and oral arguments, and they are before us for disposition.

I
We consider first the suppression of the defendant's statements given to Officers Jones and Moyers of the Knoxville Police Department.
This case presents issues which are interesting both legally and factually. Legally, the issue is whether law enforcement officers have any duty to inquire and clarify when a suspect makes an ambiguous statement regarding his desire for counsel. Factually, the issue is whether the defendant's statements regarding his desire for counsel were ambiguous.
With respect to these issues, the state takes the position that the defendant's statements about counsel were equivocal; therefore, Officers Moyers and Jones had no duty to inquire. Further, the state argues that the defendant then initiated *636 discussion of the crime, effectively waiving his right to counsel. The defendant, however, posits that he first made an equivocal statement when he asked, "Do you think I need a lawyer?" He claims he then made an unequivocal assertion of his right to counsel when he said, "I think I need an attorney." In light of the second, allegedly unequivocal statement, the defendant argues that it is unnecessary for this court to determine whether there was a duty to clarify the first statement, for the reason that the officers clearly breached their duty to cease questioning upon an unequivocal statement of a desire for counsel.
We begin with consideration of the legal issue. Under the United States Constitution, an ambiguous invocation of a suspect's right to counsel does not trigger any duty that the interrogating officer stop substantive questioning of the suspect and clarify the suspect's desire regarding counsel. Davis v. United States, 512 U.S. 452, 460-61, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). Under the Tennessee Constitution, however, the question is not so easily answered.
The Tennessee Supreme Court most recently addressed the issue as a matter of state constitutional law in State v. Stephenson, 878 S.W.2d 530, 548 (Tenn.1994), which was decided prior to Davis. In Stephenson, Tennessee's high court held that the state and federal constitutions require that when a suspect makes an equivocal statement about the need for an attorney, the law enforcement officer must limit further questioning to clarifying whether the suspect wanted an attorney. Stephenson, 878 S.W.2d at 548.
Two years after Stephenson, the Tennessee Supreme Court considered the issue as a matter of federal constitutional law in State v. Huddleston, 924 S.W.2d 666 (Tenn.1996). The court acknowledged the interim Davis holding that a suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable officer [in the circumstances] would understand the statement to be a request for an attorney" and that absent such an unambiguous statement, substantive questioning need not cease. Huddleston, 924 S.W.2d at 670 (quoting Davis, 512 U.S. at 458, 114 S.Ct. at 2355). Without commenting on the bearing, if any, that the Tennessee Constitution had on the issue or overruling Stephenson, the court held that the facts in Huddleston did not present a case in which the defendant made an unambiguous request for counsel. Id.
The question of the effect of the Tennessee Constitution is a significant one. This court has held that Article I, section 9 of the state constitution provides, in some respects, broader protections of a suspect's individual rights than does the Fifth Amendment. State v. Farmer, 927 S.W.2d 582, 594 (Tenn.Crim.App.1996) (citing State v. Crump, 834 S.W.2d 265, 268 (Tenn.1992)). In the wake of the Tennessee Supreme Court's silence in Huddleston on the issue as a matter of state constitutional law, this court has struggled to define the parameters of a suspect's rights under Tennessee constitutional law. See, e.g., State v. Gerald E. Saylor, No. E2001-00604-CCA-R3-CD, slip op. at 7-10, 2002 WL 1482721 (Tenn.Crim.App., Knoxville, July 11, 2002), perm. app. granted (Tenn., Dec. 2, 2002); Slater Belcher v. State, No. E1999-02287-CCA-R3-PC, slip op. at 4-5, concurring slip op. at 1, 2001 WL 1191392 (Tenn.Crim.App., Knoxville, Oct. 10, 2001), perm. app. denied (Tenn.2002); State v. James Clayton Young, Jr., No. 01C01-9605-CC-00208, slip op. at 22-29, 1998 WL 258466 (Tenn.Crim.App., Nashville, May 22, 1998); State v. Jack Jay North, Jr., No. 02C01-9512-CC-00369, slip op. at 25-31, 1996 WL 711473 (Tenn.Crim.App., *637 Jackson, Dec. 9, 1996), perm. app. denied (Tenn.1997).
Recently, a panel of this court interpreted Huddleston to overrule Stephenson relative to the equivocal request for an attorney under the Tennessee Constitution. Gerald E. Saylor, slip op. at 10. That panel noted that its interpretation of Huddleston's effect on Stephenson was consistent with decisions of other panels of this court. Id. (citing James Clayton Young, Jr. and Jack Jay North, Jr.); cf. State v. Kerry L. Dowell, No. M2002-00630-CCA-R3-CD, 2003 WL 21486978 (Tenn.Crim.App., Nashville, June 27, 2003) (following Huddleston's rule that unambiguous request for counsel is necessary to foreclose further questioning, without discussing its effect on Stephenson). The Tennessee Supreme Court has accepted review of Saylor; in the interim, we agree with the result reached by the Saylor panel of this court.
Thus, the defendant in this case is entitled to suppression of his statement if he unequivocally requested counsel and that request was not honored.
The lower court interpreted the defendant's statements about counsel to be ambiguous. The lower court analogized the facts to those of Stephenson, in which the suspect made an equivocal statement regarding his desire to have counsel. The lower court found that the defendant declined to sign a rights waiver, inquired whether the interrogating officers thought he needed a lawyer, and made statements such as "I think I need a lawyer." It further found that the officers had a duty to clarify the request for counsel, which they failed to do. Rather, they pursued a discussion of the basis for the charge. Based upon the lack of clarification and the further substantive discussion, the lower court suppressed the defendant's statement.
The lower court's determination that the defendant made equivocal statements about counsel is a question of fact. State v. Darryl Gene Farmer, No. 01C01-9804-CC-00166, slip op. at 3, 1999 WL 236424 (Tenn.Crim.App., Nashville, Apr. 23, 1999) (citing State v. Farmer, 927 S.W.2d 582, 594 (Tenn.Crim.App.1996)), perm. app. denied (Tenn.1999); see also State v. Gdongalay P. Berry, No. M2001-02023-CCA-R3-DD, slip op. at 15, 2003 WL 1855099 (Tenn.Crim.App., Nashville, Apr. 10, 2003), app. docketed (Tenn. Apr. 28, 2003); State v. Wayne Joseph Burgess, Jr., No. M1999-02040-CCA-R3-CD, slip op. at 8, 2001 WL 43216 (Tenn.Crim.App., Nashville, Jan. 18, 2001), perm. app. denied (Tenn.2001). The lower court's findings of fact are binding on this court unless the evidentiary record preponderates to the contrary. Darryl Gene Farmer, slip op. at 3 (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996)). In this case, the evidence of record does not so preponderate. The defendant had a duty to "articulate his desire to have counsel present sufficiently clearly that a reasonable officer [in the circumstances] would understand the statement to be a request for an attorney." Huddleston, 924 S.W.2d at 670 (quoting Davis, 512 U.S. at 458, 114 S.Ct. at 2355). The lower court found that the statements attributed to the defendant fell short of such articulation. We defer to the lower court's factual determination that the defendant's statements regarding counsel were equivocal.
The next step is application of the law to the lower court's factual determination. In this respect, we hold that the lower court erred. As stated above, we believe that Stephenson, upon which the lower court relied, was implicitly overruled by Huddleston and that the correct analysis is that which is embodied by the principles of *638 Huddleston and Davis. Those cases support a conclusion that Officers Moyers and Jones had no duty to curtail substantive questioning of the defendant when he made equivocal statements regarding his desire for counsel. Moreover, the officers had no duty to clarify the defendant's statements before continuing with substantive questioning about the crime under investigation. Accordingly, the defendant's inculpatory statement was not properly subject to suppression on this basis. The lower court's order suppressing the statement is reversed.

II
We now consider the lower court's ruling excluding evidence of the defendant's statements to his wife about the alleged crime. This issue requires us to examine the law relative to the marital communications privilege. The rule relative to that privilege is defined by statute, which says
In a criminal proceeding a marital confidential communication shall be privileged if:
(A) The communications originated in a confidence that they will not be disclosed;
(B) The element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties;
(C) The relation must be one which, in the opinion of the community, ought to be sedulously fostered; and
(D) The injury to the relation by disclosure of the communications outweighs the benefit gained for the correct disposal of litigation.
Tenn.Code Ann. § 24-1-201(c)(1)(A)-(D) (2000). If a communication is found to be privileged, it is inadmissible upon objection of either spouse.[2]Id. § 24-1-201(c)(2) (2000).
The lower court found that all four factors existed and ordered suppression of the defendant's statements to his wife about the alleged crime. On appellate review, we must defer to the lower court's findings of fact that all four factors exist unless the evidence preponderates to the contrary. See State v. Price, 46 S.W.3d 785, 802 (Tenn.Crim.App.2000), perm. app. denied (Tenn.2001).
Resolution of this case turns on whether the time of analysis for the presence or absence of the four factors is when the communication occurs or at the time of the trial court's inquiry into the application of the privilege. That determination is critical where, as here, the marriage was in a very different state at the time of the marital communication than it is when the trial court later rules on the applicability of the privilege. For the reasons that follow, we hold that factor (A) focuses on the expectation of the communicating spouse at the time of the communication, whereas assessment for the presence of factors (B), (C) and (D) must be done from the facts as they exist at the time of the trial court's ruling.
Factor (A) considers whether "[t]he communications originated in a confidence that they will not be disclosed." Tenn.Code Ann. § 24-1-201(c)(1)(A) (2000). Because the straightforward language of this factor focuses on when the communication "originated" and uses past tense language, we conclude that this factor requires the trial court to consider the intent and belief of the parties to the communication at the time of the communication. See State v. *639 Gosnell, 62 S.W.3d 740, 747 (Tenn.Crim.App.) (evaluating subjective intent of spouses regarding confidentiality at time of surreptitiously recorded conversation), perm. app. denied (Tenn.2001).
Unlike factor (A)'s focus on the communication itself, the remaining three factors focus on the relationship of the parties and the effect on the relationship of spousal testimony about marital communications. A second distinction is that these factors use present-tense languagefocusing on whether confidentiality is essential to the relationship, the relationship ought to be sedulously fostered, and injury from disclosure outweighs the benefit of correct disposition of the litigation. See id. § 24-1-201(c)(1)(B)-(D). From this, we conclude that the trial court must conduct its inquiry relative to factors (B), (C), and (D) by assessing the present status of the marital relationship at the time it is called upon to do so, rather than at the time of the communication in question.
This is consistent with the historic purpose of the privilege at common law, which was to foster "the sacredness of the home and the peace of families." State v. Price, 46 S.W.3d 785, 799 (Tenn.Crim.App.2000) (citing McCormick v. State, 135 Tenn. 218, 186 S.W. 95, 97 (1916)), perm. app. denied (Tenn.2001). Recognition of the privilege will tend to promote continued marital harmony, provided it exists at the time that the spouse is called upon to testify; however, recognition of the privilege would do nothing to promote marital harmony which does not already exist, even if it did at some previous time.
We are likewise persuaded by the decision of a panel of this court in State v. Price. The panel in that case considered the effect that spousal testimony would have on the current state of the marriage, finding that "the defendant's marriage was already failing, whether his wife testified at this trial or not." Id. at 802. Although this finding was made relative to factor (D), we find it persuasive with respect to factors (B) and (C), as well, given the previously mentioned similarities among factors (B), (C), and (D). But cf. State v. Ralph C. Hauck, No. 01C01-9105-CR-00151, slip op. at 5-6, 1992 WL 75832 (Tenn.Crim.App., Nashville, Apr. 16, 1992) (factors (B) and (C) do not exist where defendant via force or threat of harm seeks to involve witness-spouse in ongoing criminal enterprise for which defendant is on trial; focusing on relationship at time of communication), perm. app. dismissed (Tenn.1992).
Turning, then, to the case at bar, the state concedes that factors (A) and (C) are present but claims that the lower court erred in finding that factors (B) and (D) apply. We believe that the state's concession regarding factor (A) is apt; we disagree with respect to factor (C). Considering first factor (A), the record supports the lower court's conclusion that the defendant made statements to his wife in confidence that they would not be disclosed. The defendant and his wife were discussing their marital situation, including Ms. Dotson's behavior with the victim, when the defendant made inculpatory admissions. This occurred at a time when they were attempting to reconcile their differences in furtherance of their marital relationship. Up until the time that the defendant made the inculpatory admissions, it was Ms. Dotson's desire to reconcile her differences with the defendant and maintain the marital relationship.
We disagree with the state that the record supports the lower court's finding with regard to factor (C) that the relation was one which, by community standards, should be sedulously fostered. At the time of the hearing, the defendant and Ms. Dotson were estranged. Ms. Dotson wanted to *640 divorce the defendant after he confessed his involvement in Mr. Blanco-Guerra's death, and only her financial situation kept her from doing so. Given these circumstances, it cannot be said that community opinion would be that this relationship should be encouraged and maintained.
We now turn to the contested portion of the issue, that is, whether the evidence preponderates against the lower court's findings that factors (B) and (D) exist. Factor (B) exists when "[t]he element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties." Tenn.Code Ann. § 24-1-201(c)(1)(B) (2000). On this point, the lower court found, "[T]he relationship between the parties and their marriage was the reason for the conversation. The element of the confidential communication that bound them together. [sic]" In advocating that this factor does not exist, the state points to evidence that Ms. Dotson's marriage to the defendant "had been languishing for six months prior to his confession to her" and was "over with" once she learned of the homicide. Further, the state highlights Ms. Dotson's testimony that she had not yet initiated divorce proceedings because she could not afford to do so, but she was saving money for that purpose. The defendant claims that the lower court correctly found that factor (B) existed based upon evidence that the continued maintenance of the marital relationship was what caused the conversation to occur, and further, Ms. Dotson voluntarily slept with the defendant after the conversation took place.
The evidence demonstrates that at the time of the lower court's ruling, the Dotson/Mitchell marriage was not one in which confidentiality of the previous, inculpatory communications was essential to full and satisfactory maintenance of the relationship. To be sure, the parties were separated, Ms. Dotson had harbored no desire for reconciliation since learning that the defendant was involved in Mr. Blanco-Guerra's death, and Ms. Dotson was saving money for a divorce. Thus, the lower court erred in finding the presence of factor (B).
Finally, factor (D) requires consideration of whether "[t]he injury to the relation by disclosure of the communications outweighs the benefit gained for the correct disposal of litigation." Id. § 24-1-201(c)(1)(D) (2000). In the present case, the lower court focused on the fact that although the defendant and Ms. Dotson were separated, they "would have continued to work on reconciliation in the marriage had these incidents not occurred." However, as we have discussed above, we believe the proper point in time for evaluating the potential for injury to the marriage is at the time of the trial court's ruling. See Price, 46 S.W.3d at 802. Had the lower court examined the state of the defendant's marriage at the time of the hearing, it would have concluded that the marriage was over, with lack of money being the only reason that Ms. Dotson had not yet filed for divorce. In this situation, the benefit gained from the correct disposal of the litigation would far outweigh the damage to the marital relationship. Thus, the lower court erred in finding that factor (D) existed.
Based upon the absence of factors (B), (C), and (D), we hold that the lower court erred in ruling that Ms. Dotson's testimony regarding the defendant's inculpatory statements should be excluded based upon the marital communications privilege.
We have reached this conclusion notwithstanding the defendant's attempt to place evidence before us that he and Ms. Dotson have reconciled since the evidentiary hearing. On the day of oral argument in this court, defense counsel filed a "Motion *641 for Consideration of Post-Judgment Fact." The motion is based upon facts contained in an order of the trial court pertaining to the defendant's bond, in which the trial court recites that the defendant and Ms. Dotson have reconciled. The trial court order was entered nunc pro tunc October 14, 2002, several months after the hearing and ruling on admissibility of the marital communication evidence. The state filed a response vigorously opposing this court taking notice of this fact. The state concedes the relevance of the information to the merits of the issue, but it contends that consideration of such factual information is improper under Tennessee Rule of Appellate Procedure 14. See Tenn. R.App. P. 14, Advisory Comm'n Comments ("[Rule allows the appellate court to consider post-judgment facts,] unrelated to the merits and not genuinely disputed, [which] are necessary to keep the record up to date.... This rule is not intended to permit a retrial in the appellate court."); see also Book-Mart v. National Book Whse., 917 S.W.2d 691, 693 (Tenn.Ct.App.1995); Town of Dandridge v. Patterson, 827 S.W.2d 797, 802 (Tenn.Ct.App.1991).
Given the scope of Rule 14 and the interlocutory nature of this appeal, we do not believe it proper for us to consider any information of a matrimonial reconciliation occurring after the hearing on the admissibility of the marital communication evidence. Rather, we view the issue before us to be limited to the propriety of the lower court's ruling on the evidence that was before it. Should either party desire that the lower court take into account new evidence and revisit the ruling as it stands following remand, that party may direct a motion to the lower court to do so. At such time, the lower court will have the opportunity to hear evidence on the then-existing state of the marriage.
In conclusion, we reverse the lower court's ruling suppressing the defendant's statement to law enforcement officers. We likewise reverse the lower court's ruling excluding Ms. Dotson's testimony about the defendant's inculpatory statements to her. The matter is remanded to the lower court for further proceedings consistent with this opinion.
NOTES
[1]  Initially, the lower court denied the motion to suppress the defendant's statements to law enforcement. Upon motion to reconsider, however, it reversed the earlier ruling and suppressed the statements.
[2]  There are certain exceptions, which are not pertinent here. See Tenn.Code Ann. § 24-1-201(c)(2) (2000).


526 F.3d 1170 (2008)
ADVANCE AMERICA SERVICING OF ARKANSAS, INC., d/b/a/ Advance America Cash Advance; Advance America Cash Advance Centers of Arkansas, Inc.; Advance America, Cash Advance Centers, Inc., Plaintiffs-Appellants,
v.
Brenda McGINNIS, Defendant-Appellee.
No. 07-2770.
United States Court of Appeals, Eighth Circuit.
Submitted: March 13, 2008.
Filed: May 23, 2008.
*1171 Lewis Steven Wiener, argued, Phillip E. Stano, Washington, DC, Claire Shows Hancock, Gary D. Marts, Jr., on the brief, Little Rock, AR, for appellant.
Christoper A. Averitt, argued, Jonesboro AR, Todd M. Turner, on the brief, Arkadelphia AR, for appellee.
Before MURPHY, BRIGHT, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
Advance America Servicing of Arkansas, Inc. (Advance America) and associated entities[1] brought this action against Brenda McGinnis seeking to compel arbitration of their dispute over a series of loan agreements. McGinnis moved to dismiss for lack of subject matter jurisdiction. The district court[2] granted the motion after determining that the amount in controversy was below the requisite minimum for diversity jurisdiction, and Advance America appeals. We affirm.
Underlying this lawsuit are six loan transactions which Advance America and McGinnis entered into between September 2006 and February 2007. Advance America offers cash loans in exchange for personal checks drawn on the customer's bank account. Under the terms of the loan Advance America agrees not to cash the customer's check for a specified period of time. At the end of that period, the customer must redeem the loan for the full amount of the check or may renew it by paying the interest due on the original loan and presenting a new check for the original loan amount with interest for the extended term. The loan agreement provides for arbitration for any dispute pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
*1172 McGinnis brought a putative class action in Arkansas state court on February 27, 2007, alleging that she had been charged more than 150% interest in violation of usury laws and that Advance America had engaged in deceptive, oppressive, and unconscionable conduct in violation of the Arkansas Deceptive Trade Practices Act (ADTPA), Ark.Code. Ann. § 4-88-101, et seq. Her complaint sought invalidation of the contracts, twice the amount of interest paid by each member of the class, enforcement of a prior settlement agreement involving Advance America, and attorney fees and costs. Advance America filed an answer and motion to compel arbitration in the state court action; its motion had not been decided at the time of briefing in this case.
Advance America brought this action against McGinnis in federal district court to compel arbitration and to stay the state court proceedings, initially asserting jurisdiction on the basis of the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d). McGinnis moved to dismiss, pointing out that Advance America had not removed the state action and that its federal complaint contained no class action allegations as required by CAFA. Advance America then amended its complaint to allege diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Such jurisdiction exists if there is complete diversity of citizenship and the amount in controversy is greater than $75,000. Capitol Indem. Corp. v. Russellville Steel Co., 367 F.3d 831, 835 (8th Cir.2004). McGinnis moved to dismiss on the grounds that Advance America could not satisfy the $75,000 amount in controversy requirement for diversity cases.
The district court granted McGinnis' motion after concluding that Advance America had failed to establish that at least $75,000 is at issue in this action. No class has been certified to date, and the district court found that the state court damage claim is worth less than $1,000.[3] First acknowledging that it must view the value of the right sought to be enforced from Advance America's perspective, the district court went on to reject its argument that the costs of defending the state court class action and any potential judgment in favor of a class should be considered part of the amount in controversy here. The district court relied on New England Mortgage Sec. Co. v. Gay, 145 U.S. 123, 12 S.Ct. 815, 36 L.Ed. 646 (1892), in deciding that the amount in controversy should be determined by looking at what is involved in the case before the court rather than by trying to predict possible effects resulting from a judgment.
Advance America argues on appeal that the district court erred by focusing on the amount of McGinnis' possible recovery in the state action, rather than the consequential damages it could suffer from an adverse judgment. To support its argument, Advance America submitted a declaration by its corporate counsel stating that its potential liability in the state court action includes compensatory damages, class action exposure, and business cessation in Arkansas, and that its potential liability could easily exceed $75,000.[4] It *1173 cites to the Supreme Court's decision in Hunt v. Washington State Apple Advert. Comm., which held that "[t]he value of [the right sought to be enforced] is measured from the losses that will follow from the [challenged state] statute's enforcement." 432 U.S. 333, 347, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
McGinnis points out that Advance America could have attempted to remove her state court action to federal court under diversity jurisdiction but instead chose to bring an action under the Federal Arbitration Act seeking a declaratory judgment and injunctive relief to enforce the arbitration provision in their contract. She argues that the object of the litigation here is limited to the amount involved in the arbitration between the two parties. Asserting that the value of her damage claims was less than $1,000, McGinnis submits that the district court appropriately determined that Advance America failed to meet the jurisdictional threshold. She contends that the courts must look to the possible award resulting from the arbitration which Advance America seeks in this action in order to determine whether the requisite amount in controversy is satisfied. Advance America's other potential future damages and contingent costs are therefore not relevant she argues.
The Federal Arbitration Act does not create independent federal question jurisdiction. Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 26 n. 32, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Rather, § 4 of the Act "provides for an order compelling arbitration only when the federal district court would have jurisdiction over a suit on the underlying dispute; hence, there must be diversity of citizenship or some other independent basis for federal jurisdiction before the order can issue." Id. We review de novo the district court's ruling that it had no subject matter jurisdiction over Advance America's claim. See Minnesota Ass'n of Nurse Anesthetists v. Allina Health Syst. Corp., 276 F.3d 1032, 1040 (8th Cir.2002). The party invoking federal jurisdiction has the burden to prove the requisite amount by a preponderance of the evidence. Rasmussen v. State Farm Mut. Auto. Ins. Co., 410 F.3d 1029, 1031 (8th Cir.2005). A complaint will be dismissed for lack of subject matter jurisdiction if it appears to a legal certainty that the value of the claim is less than the required amount of $75,000. In re Minnesota Mut. Life Ins. Co. Sales Practices Litigation, 346 F.3d 830, 834 (8th Cir.2003).
In our circuit the amount in controversy is determined by the value to the plaintiff of the right sought to be enforced. Massachusetts State Pharm. Ass'n v. Fed. Prescription Serv., Inc., 431 F.2d 130, 132 (8th Cir.1970). In the case just cited, the plaintiff was a group of pharmacies seeking to bring a class action to enjoin the defendant from filling prescriptions at discount prices. We pointed out that to value the jurisdictional amount from the point of view projected by the defendant would effectively permit plaintiffs to aggregate their individual claims without having to fulfill the normal class action aggregation requirements. See id. at 132 n. 1. Under the plaintiff's viewpoint rule, value is measured by focusing on the object of the particular litigation brought by the plaintiff. See Hunt, 432 U.S. at 347, 97 S.Ct. 2434.
Although Advance America may suffer substantial costs as a result of an adverse class action judgment, possibly exceeding $75,000 in damages, the object of the action before the court is to compel arbitration of the dispute between McGinnis and Advance America concerning their loan transactions which have a small monetary value. Advance America's amended complaint in this action asserts that it has *1174 been injured by her refusal to honor the loan agreement and to submit her dispute to the arbitration process. The object of this litigation is thus the value at stake in the arbitration dealing with the loan transactions between these two parties. Cf. We Care Hair Dev., Inc. v. Engen, 180 F.3d 838, 841 (7th Cir.1999) ("[S]ince the present suit is not a removal suit but rather an independent federal suit, it is the stakes of the arbitration and not the possible state court award that control.").
While we adhere to the circuit rule that the value of the underlying controversy must be viewed from the perspective of the federal plaintiff, see Massachusetts State Pharm. Ass'n, 431 F.2d at 132, Advance America seeks to extend this principle to include costs of its potential exposure in the uncertified class action in state court and its increased costs in defending such a suit compared to the two party arbitration sought here. The cases cited by Advance America in support of its argument are inapposite or distinguishable. It relies on an unpublished opinion, Fitzgerald Railcar Serv. of Omaha, Inc. v. Chief Indus., Inc., 141 Fed.Appx. 491 (8th Cir. 2005), holding that the losses of a commercial tenant from breach of a lease, including likely termination of a profitable business and relocation, should be considered in the value of the litigation. Those losses were directly involved in that action since the tenant's contractual rights under the lease included an option to renew for many years for a specified amount, easily exceeding $75,000. See id. at 492-93. Also in contrast to the case before the court, no other lawsuit was implicated in their dispute.
Advance America cites another unpublished opinion, Republic Bank & Trust Co. v. Kucan, 245 Fed.Appx. 308, 314 (4th Cir.2007), which stated that while it is the "possible award in the requested arbitration that is determinative of the amount-in-controversy question," courts may "look through the petition to compel to the controversy underlying the arbitration request." The plaintiff bank, a payday lender, argued that it would suffer potential damages exceeding $75,000 if a class action were certified in an underlying state case and its loan agreements became unenforceable. See id. The Fourth Circuit found it significant that the bank had not sought to intervene in or remove the putative state court class action, but rather had "initiated an independent action in federal court naming only the three borrowers and seeking arbitration of only their claims." Id. The case had originally been dismissed in the district court for lack of standing so the record on jurisdictional amount had not been developed. Id. at 310. Despite the small loan amounts involved in the requested arbitration with three borrowers ($500 or less), the Fourth Circuit took note of the fact that they were seeking injunctive relief in the state action which could result in costs of compliance and thought it fair to remand to give the bank "the opportunity to establish that the amount in controversy in the arbitration ... exceeds $75,000." Id. at 315. Here in contrast, the record shows that Advance America had an opportunity to submit evidence in the district court and did submit a declaration by its corporate counsel seeking to show that the amount in controversy in the arbitration of its contractual dispute with McGinnis exceeds $75,000. The district court found that Advance America had not met its burden of proof on the jurisdictional amount. We conclude that the district court did not err in finding counsel's conclusory declaration insufficient to establish that the amount of the possible award in the arbitration would exceed $75,000. See Republic Bank, 245 Fed.Appx. at 314 (possible award in arbitration determines amount in controversy question).
*1175 The Seventh Circuit has similarly refused to adopt the view that the value of the object of the federal litigation should be measured by the potential value of avoiding state court litigation, pointing out that courts must look to the pecuniary result which the plaintiff would receive from the arbitration it seeks to compel. See America's MoneyLine, Inc. v. Coleman, 360 F.3d 782, 786 (7th Cir.2004). The Second Circuit's decision in Doctor's Assocs., Inc. v. Hamilton, 150 F.3d 157 (2d Cir.1998), is also consistent with the principle that it is the possible arbitration award that determines the amount in controversy on the jurisdictional issue. The damages sought in a state action may nevertheless help inform "the possible award resulting from the desired arbitration." Id. at 160. In Hamilton, the value of the dispute exceeded the jurisdictional minimum amount because the underlying state court complaint between the parties alleged actual and punitive damages over $1 million. Id. at 161. See also Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir.1995) ("[T]he amount in controversy in a petition to compel arbitration ... is determined by the underlying cause of action that would be arbitrated."); Webb v. Investacorp, Inc., 89 F.3d 252, 257 n. 1 (5th Cir.1996) (per curiam) (applying the plaintiff's point of view and holding that the amount in controversy is the difference "between winning and losing the underlying arbitration"); 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction § 3569, at 172-73 (2d ed.1984) ("amount is measured by the possible award that might reasonably result from an arbitration").
Even the Sixth Circuit's unpublished opinion in Woodmen of the World/Omaha Woodmen Life Ins. Soc. v. Scarbro, 129 Fed.Appx. 194 (6th Cir.2005) (per curiam), fails to support Advance America's argument that the amount in controversy here is the value of avoiding the underlying state court litigation. In Woodmen, Scarbro sought damages of $20,000 under an insurance policy, plus attorney fees and compensatory and punitive damages. Id. at 196. Because of these possible damage claims against the insurer, the Sixth Circuit concluded that there was no legal certainty that the value of the arbitration would be below $75,000 in light of the insurer's potential liability in the underlying state court litigation. Id. In contrast, the value of the object of the litigation between Advance America and McGinnis has not been shown to exceed $75,000. While it may be true that an adverse finding could cast doubt on other Advance America contracts, future contingent losses not directly arising from its dispute with McGinnis should not be considered in evaluating the amount in controversy between these two parties. See Wabash Ry. Co. v. Vanlandingham, 53 F.2d 51, 52 (8th Cir.1931).
Advance America also asserts that the potential costs of litigating McGinnis' claims in state court, as opposed to conducting a less costly arbitration, should be considered in analyzing the amount in controversy. To advance this argument, it relies on cases which found relevant to the amount in controversy the additional cost of conducting arbitration proceedings at an alternate location. In Richard C. Young & Co., Ltd. v. Leventhal, 389 F.3d 1 (1st Cir.2004), the First Circuit affirmed the district court's finding that the amount in controversy requirement had been met because of the expense of holding the arbitration in California instead of Boston. Similarly, in S.J. Groves & Sons Co. v. American Arbitration Ass'n, 452 F.Supp. 121 (D.Minn.1978), the district court held that costs associated with the location of an arbitration come into play when determining the amount in controversy. These cases are not relevant to our inquiry because *1176 they address the question of where, rather than whether, to arbitrate. McGinnis rightly points out that if the difference in cost between arbitration and ordinary court litigation were considered, virtually every petition to compel arbitration would meet the amount in controversy requirement, regardless of the size of the individual dispute at issue.
Advance America submits that even if the amount at stake in the arbitration is considered the object of the litigation, that amount exceeds $75,000 in light of McGinnis' possible claims for attorney fees. We agree with McGinnis, however, that there is nothing in the record supporting Advance America's speculation that attorney fees awarded by the arbitrator could possibly exceed $75,000 when the value of the disputed loan transactions was found by the district court to be below $1,000. For the same reason, Advance America's argument that McGinnis could seek to recover damages for emotional distress through the arbitration is unfounded. Nothing in her state court complaint alleges such damages, prohibiting recovery under the Arkansas Deceptive Trade Practices Act. See FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490, 502-03 (2005) (no mental anguish award absent allegation of physical injury or intentional infliction of mental distress under ADTPA). Since McGinnis has not alleged that she suffered physical injury or that Advance America sought intentionally to inflict mental distress on her, the argument that she might recover damages for emotional distress exceeding the $75,000 amount in controversy requirement is inconsistent with established Arkansas law.
For these reasons we affirm the judgment of the district court.
NOTES
[1]  Plaintiffs include other corporate entities  Advance America Servicing of Arkansas; Advance America Cash Advance; Advance America Cash Advance Centers of Arkansas, Inc.; Advance America, Cash Advance Centers, Inc.
[2]  The Hon. Robert T. Dawson, United States District Judge for the Western District of Arkansas.
[3]  Only one of the contracts between McGinnis and Advance America is in the record. The agreement provides that McGinnis was to receive $250 in cash in return for a $278.83 check and shows an annual percentage interest rate of 150.32%.
[4]  Counsel's declaration rested on conclusory speculations about potential costs and damages arising from an adverse state court judgment. Since Advance America uses the same form contract with all of its customers in Arkansas, it asserts that invalidation of its agreement with McGinnis would affect its other contracts in the state, resulting in unspecified damages over $75,000. Counsel did not address the potential value of an adverse arbitration award.


601 F.2d 246
202 U.S.P.Q. 625
Milford A. CAMPBELL, Plaintiff-Appellant,andCampbell Machines Company, Third-Party-Defendant-Appellant,v.SPECTRUM AUTOMATION COMPANY, Defendant-Third-Party-Plaintiff-Appellee.
No. 77-1525.
United States Court of Appeals,Sixth Circuit.
Argued April 17, 1979.Decided June 27, 1979.

Charles W. Chandler, Gifford, Chandler, Sheridan & Sprinkle, Birmingham, Mich., for plaintiff-appellant.
Robert G. Mentag, Donnelly, Mentag & Harrington, Detroit, Mich., for appellee.
Before WEICK and LIVELY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PHILLIPS, Senior Circuit Judge.

1
Milford A. Campbell and Campbell Machines Company (hereinafter jointly referred to as Campbell) appeal from an order of the district court awarding Spectrum Automation Company (Spectrum) costs and attorneys' fees in this patent infringement case, previously decided on its merits by this court in Campbell v. Spectrum Automation Co., 513 F.2d 932 (6th Cir. 1975).

2
Campbell presents a number of challenges concerning both the propriety and the amount of the district court's award of costs and attorneys' fees to Spectrum.  The principal issue raised by Campbell is whether the district court properly awarded attorneys' fees to Spectrum under Fed.R.Civ.P. 37(c),1 and 35 U.S.C. § 285.2

3
We conclude that the contentions of Campbell are without merit and affirm the order of the district court.

4
* Previous litigation in this case involved the validity and infringement of two patents on which Campbell's name appeared as the inventor.  United States Patent No. 3,002,600 (patent '600) disclosed and claimed a rectangular, flexible tube for feeding workpieces between two work stations (flexible feed track) and United States Patent No. 3,224,553 (patent '553) disclosed and claimed a vibratory work feeding and orienting machine.

5
On July 2, 1970, Campbell filed suit against Spectrum for infringement of patent '553.  Spectrum responded, asserting that patent '553 was invalid and counterclaiming that the district court should declare the patent invalid and not infringed.  By further counterclaim, Spectrum sought a declaratory judgment of invalidity and non-infringement of patent '600.  Subsequently, Campbell counterclaimed for infringement of patent '600 by Spectrum.

6
Spectrum filed a Motion for Summary Judgment, requesting the district court to declare patent '553 invalid as a matter of law under 35 U.S.C. § 102(b) because the invention described and claimed therein was on sale and in public use more than one year prior to Campbell's application for the patent.  Following a hearing, the district court granted Spectrum's Motion for Summary Judgment, declaring patent '553 invalid and dismissing Campbell's complaint against Spectrum for infringement, without prejudice.

7
Subsequently, Spectrum filed a motion under Fed.R.Civ.P. 37(c) for expenses incurred in proving the invalidity of patent '553.  Prior to filing its Motion for Summary Judgment, Spectrum had requested Campbell to admit, pursuant to Fed.R.Civ.P. 36, that the patented device had been offered for public sale and sold more than one year prior to the patent application.  Campbell neither admitted nor denied that assertion.  Rather, Campbell stated that he did not personally recall exactly when the patented machine was first sold or offered for sale, but that all business records relating to any such sales or offers had been destroyed in the regular course of business.  The district court granted the motion, but reserved the question of the amount of the award for a future hearing.

8
A trial was had during August and September 1973 concerning the alleged infringement by Spectrum of Campbell's patent '600.  During the course of discovery in this patent action, Spectrum requested that Campbell admit, pursuant to Rule 36, that Campbell was not the inventor of patent '600, but that Richard D. Zimmerman (the founder and president of Spectrum and a former employee of Campbell) was the inventor.  Campbell denied the request, without elaboration.  On June 26, 1974, the district court handed down its opinion, incorporating 68 findings of fact, in which it held that Campbell patent '600 was invalid, among other reasons, because Zimmerman was the inventor of the flexible feed track.  The court also held that Spectrum had not infringed patent '600.  In its judgment of June 26, 1974, the court declared Campbell patents '553 and '600 invalid and not infringed by Spectrum.3  The court further ordered that the question of attorneys' fees be determined upon motion and that Spectrum was entitled to recover its costs in the action.

9
Campbell appealed the judgment of the district court with respect to patent '600.  The judgment of invalidity and non-infringement of patent '600 was affirmed by this court on the ground that Campbell was not the inventor of the patent in suit.

10
Thereafter, Campbell timely moved the district court for relief from judgment under Fed.R.Civ.P. 60 on the grounds of newly discovered evidence which he contended could not have been discovered by due diligence in time to move for a new trial under Rule 59(b).  The district court denied this motion on the merits.4  The court held that correspondence between Campbell and his patent attorney concerning the patent application for the flexible feed track, which Campbell sought to introduce, was not "newly discovered" because it had been in his possession at all times during the trial.  The court pointed out that Spectrum had requested Campbell to produce for trial all such information concerning the application for patent '600.  The court further noted that Campbell had responded to that request by stating that his attorney had all the requested information in his possession.  The court stated that neither Campbell's testimony at trial regarding his efforts to locate such materials nor his affidavit accompanying his Rule 60 motion offered any reasonable explanation why these documents could not have been produced at the trial.

11
Campbell also sought to introduce, as "newly discovered" evidence, the testimony of a former employee.  The district court found that Campbell had known of the existence of this witness at all relevant times prior to the filing of his Rule 60 motion.  The court concluded that the fact Campbell had made no inquiry of this former employee concerning patent '600 did not make her testimony "newly discovered."  The court further noted that the affidavit submitted by this former employee concerning her testimony indicated that her testimony either would contradict other testimony offered by Campbell or was cumulative and of only slight probative value.

12
On March 31, 1976, Spectrum filed a Motion for Attorneys' Fees and Expenses and for Taxation of Costs incurred by it as a result of the litigation regarding patent '600.5  This motion also included a request for determination of the award relating to the proof of invalidity of patent '553,6 which award the court had previously allowed but the amount of which had not been determined.

13
After a hearing on the motion, on September 29, 1976, the district court awarded Spectrum $45,680 for attorneys' fees, costs and expenses incurred by it in the patent litigation.  Included in this amount were attorneys' fees of $31,363.15 incurred in the course of preparation and trial of the case concerning the validity of patent '600 and $1,995 for attorneys' fees incurred in opposing Campbell's Rule 60 motion, both awarded by the court under § 285.  The award also included $7,024 for expenses and attorneys' fees incurred by Spectrum in establishing the invalidity of patent '553.  These fees and expenses were awarded under Rule 37(c).

14
With respect to the award of attorneys' fees for patent '600, the district court found that, in accordance with § 285, exceptional circumstances existed to warrant such an award.  In that regard, the court stated:

15
(Exceptional) circumstances exist in this case.  The Court found plaintiff was not the inventor of the Patent numbered 3,002,600.  Defendant, on April 17, 1972, asked plaintiff to admit that he was not the inventor of this patent, but that defendant's president, Mr. Zimmermann, was the inventor.  Plaintiff denied the same.  Had he not denied it the litigation would have ended there.  A denial could not have been based on lack of recollection.  Giving plaintiff the benefit of the doubt that he was not aware when he filed for the patent that he must be the inventor and not his employee and that his statement to to the patent office was not made in bad faith or with fraudulent intent, there can be no explanation of the false answer to the demand for admission.

16
With respect to the attorneys' fees award under Rule 37(c), the court observed that if Campbell had answered in good faith the request concerning when patent '553 had first been offered for sale or sold, Spectrum would not have been put to the expense of establishing alternative defenses.  Therefore, the court concluded, attorneys' fees were appropriate with respect to proof of invalidity of patent '553.

17
Both Spectrum and Campbell moved the court to alter or amend its judgment of September 29, 1976.  Spectrum's motion to amend concerned a clerical error that had been made in the September 29 judgment.  Campbell requested an evidentiary hearing regarding the hours actually spent by Spectrum's attorney in establishing the invalidity of the patents.  However, Campbell's motion challenged not only the amount of the district court's award, but also its propriety.  In particular, Campbell argued that, with respect to patent '600, he had "reasonable grounds" to believe that he might prevail in the matter and he was therefore justified in refusing to admit, as Spectrum had requested, that he was not the inventor of the flexible feed track.  Thus, Campbell suggested, there was no basis for the court treating the case as an "exceptional" case justifying the award of attorneys' fees under 35 U.S.C. § 285.  In that regard, Campbell requested an evidentiary hearing concerning the issue of "reasonable grounds," or whether he in good faith believed he was the inventor of the flexible feed track.  At that hearing, Campbell intended to offer the evidence previously rejected by the court in his Rule 60 motion.

18
Following additional hearings on the issue of attorneys' fees, the district court amended its judgment of September 29, 1976, reducing the award of attorneys' fees in the prosecution of patent '600.  The court found that certain of the fees previously awarded, in the amount of $272.50, were not properly allowable because they were not for legal services rendered.  Due to a clerical error, however, the court found the total amount for attorneys' fees, costs and expenses was understated by $2,908.10, and added this amount to the award.

19
The court denied that part of Campbell's motion requesting an evidentiary hearing on the issue of his good faith in believing that he invented the flexible feed track and that he therefore had reasonable grounds to believe he would prevail in the action.  On that part of the motion the court stated:

20
Plaintiff further requested an evidentiary hearing as to whether attorney fees should be awarded regarding Patent No. 3,002,600 at which hearing plaintiff sought to show that he had in fact invented this device, contrary to the finding of the Court at trial, and that, therefore, his actions were all in good faith and no attorney fees should be allowed.  This portion of plaintiff's Motion IS DENIED for the reason that this evidence was proffered at the time the Court denied plaintiff's Motion for Relief From Judgment under Rule 60 on September 15, 1975.  At that time the Court found on the same offered proofs that plaintiff was not entitled to relief from judgment.  The Court is of the opinion that the plaintiff is not entitled at this time to relitigate the factual issues that were the subject matter of the trial, and that the determination as to whether attorney fees should be awarded or not is to be based upon the trial of this action, supplemented by the Motion for Relief from Judgment under Rule 60, heard and denied over a year before plaintiff's present motion was filed.

21
Campbell was ordered to pay Spectrum $48,495.00 in attorneys' fees, costs, and other expenses.

22
This appeal followed.

II
A. Attorneys' fees Patent '600

23
Section 285 permits an award of attorneys' fees in patent cases to the prevailing party where the circumstances of the case are "exceptional."  This court has previously held exceptional circumstances to include conduct that is fraudulent, malicious, in bad faith, Hoge Warren Zimmerman Co. v. Nourse & Co., 293 F.2d 779 (6th Cir. 1961), and unfair, inequitable, unconscionable, or similar conduct.  Deyerle v. Wright Manufacturing Company, 496 F.2d 45 (6th Cir. 1974).  See also Eltra Corporation v. Basic Incorporated, 599 F.2d 745, No. 77-3364 (6th Cir.  May 21, 1979).

24
An award of attorneys' fees under § 285 is intended to compensate the prevailing party for costs that it would not have incurred but for the conduct of the losing party and is within the sound discretion of the district court.  However, an award is proper only where the district court had made specific findings that bring the case within the "exceptional" definition.  Maurice A. Garbell, Inc. v. Boeing Co., 546 F.2d 297, 300 (9th Cir. 1976), Cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977); Uniflow Manufacturing Co. v. King-Seeley Thermos Co., 428 F.2d 335 (6th Cir. 1970).  An award of attorneys' fees will not be reversed unless the district court has abused its discretion or unless there has been an erroneous conception of the law on the part of the district judge.  Maurice A. Garbell, Inc., 546 F.2d at 300; Uniflow Manufacturing Co., 428 F.2d at 341.

25
In this case, the district court stated, in its findings of fact and conclusions of law, that Campbell was not the inventor of the flexible feed track, but that Richard Zimmerman invented it while he was employed by Campbell.  The court specifically discredited the testimony of Campbell as it related to his contention that he was the inventor of the flexible feed track.  The court also pointed out the peculiar circumstance present in this patent infringement action of two persons who worked together both claiming to be the inventor of the object.  The court concluded that, as such, Campbell was not confronted by matters not within his personal knowledge.  This court affirmed the findings and conclusions of the district court.  513 F.2d 932, 935.

26
Furthermore, in its opinion awarding attorneys' fees and other costs, the district court noted that Spectrum had requested Campbell to admit that he was not the inventor of the flexible feed track.  As the district court pointed out, had Campbell admitted that fact the litigation concerning patent '600 would have ended.  The district court reiterated that the facts pertinent to the requested admission were known by Campbell.  Thus, the district court reasoned, there could be no explanation for Campbell's false answer to the request for admission.  Based on this, the court concluded the circumstances of the case were "exceptional" and awarded attorneys' fees to Spectrum.

27
The district court suggested that the conduct of Campbell may not have amounted to bad faith or intent to defraud the Patent Office.  However, the district court's findings that Campbell was not the inventor, that his testimony was unbelievable, and that he was aware of the facts surrounding the invention because of his relationship with Zimmerman were more than ample to support a determination of bad faith on the part of Campbell for his inexplicable failure to respond truthfully to the request for admission, which had the effect of prolonging the litigation in this suit.  We agree with the district court that such conduct was sufficient to justify classifying the case as "exceptional" and awarding attorneys' fees to Spectrum.  We find no abuse of discretion or misapplication of the law.

28
Campbell argues that the district court erred in denying him an opportunity to introduce evidence regarding his good faith in refusing to admit that he was not the inventor of the flexible feed track.  Campbell contends that this question was first raised after trial by Spectrum's motion for attorneys' fees, and therefore, he was entitled to a hearing to present all the evidence regarding his good faith, even though such evidence was available for presentation at the trial.

29
An award of attorneys' fees under § 285 is addressed to the sound discretion of the district court based on an evaluation of the conduct of the parties to the litigation.  A request for attorneys' fees made after a trial on the merits ordinarily will allow the court to dispose of the request on the basis of the record, since the issues relevant to that determination will have been brought out at trial.  Cf. W. L. Gore & Associates, Inc. v. Oak Materials Group, Inc.,  424 F.Supp. 700, 702 (D.Del.1976) (disposition of a request for § 285 attorneys' fees where there has been less than a full trial (e. g. summary judgment) may require the taking of additional evidence, including an adversary hearing).  We do not view a request for attorneys' fees under § 285 as necessarily requiring different or additional evidence from that adduced over the course of the litigation.  Whether additional evidence will be allowed on the issue of attorneys' fees after a full trial on the merits of a patent action should be left to the sound discretion of the district court.

30
A troublesome question can be presented as to whether a litigant should be given an opportunity to explain a denial when an admission would mean the loss of his lawsuit.  If a reasonable doubt existed as to whether Campbell acted in good faith in refusing to admit that he was not the inventor, an evidentiary hearing should have been conducted on the issue of good faith.  In the present case, however, the matters that Campbell denied were peculiarly within his own personal knowledge.  Without extrinsic evidence, he knew whether or not he was the inventor.  After hearing the evidence and observing the demeanor of the witnesses, the district judge included the following sentence in the findings of fact: "The court does not believe Mr. Campbell's testimony."  513 F.2d at 934, 940.

31
Furthermore, the issue of good faith or reasonable belief that Campbell was the inventor of the flexible feed track was before the court when it litigated the primary issues of validity and infringement.  Any evidence that could have been introduced to support Campbell's contention that he was the inventor of the flexible feed track would necessarily have involved the presentation of facts from which the district court would determine whether exceptional circumstances existed or whether his contention was made in good faith.  Indeed, the evidence that Campbell sought to bring before the court on the issue of attorneys' fees was the identical evidence he had previously proffered to the court in his Motion for Relief from Judgment, on the basis that the evidence was newly discovered and relevant to the factual issues that were the subject matter of the trial.  Moreover, the record clearly demonstrates the district court's determination to award attorneys' fees under § 285 was based upon a review of the record developed at trial supplemented by the evidence proffered in Campbell's Rule 60 motion.  We therefore conclude that the district court did not abuse its discretion in denying Campbell's motion for a hearing on the question of good faith.

B. Attorneys' fees Patent '553

32
An award of reasonable expenses, including attorneys' fees, shall be made under Rule 37(c) for costs incurred in proving the truth of the matters contained in a Request for Admission under Rule 36, unless (1) the request was held objectionable under Rule 36(a), or (2) the admission sought was of substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

33
In this case, Spectrum requested Campbell to admit that patent '553 had been offered for public sale and sold more than one year prior to his application for a patent, which Campbell did not admit.  Subsequently, Spectrum made a Motion for Summary Judgment on the issue of his infringement of patent '553.  The district court granted Spectrum's motion, finding that Campbell's patented device was in public use or on sale more than one year prior to his application for a patent and that Spectrum was therefore entitled to judgment as a matter of law.  Thereafter, the district court allowed Spectrum expenses, including attorneys' fees, incurred in proving that patent '553 had been on sale or sold one year prior to Campbell's application for the patent.

34
In assessing whether the award of expenses under Rule 37(c) was proper, we note initially that Spectrum's Request for Admission was not objectionable under Rule 36(a).  Rule 36(a) expressly permits requests to encompass "any matters within the scope of Rule 26(b)."  Rule 26(b) permits discovery of "any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party."  That a request seeks admissions on "ultimate facts," or is dispositive of the entire case, is irrelevant.  City of Rome v. United States, 450 F.Supp. 378, 383 (D.D.C.1978); Kaehni v. Diffraction Company, 342 F.Supp. 523, 537-38 (D.Md.1972), Aff'd mem., 473 F.2d 908 (4th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 151, 38 L.Ed.2d 103 (1973); 4A Moore's Federal Practice P 36.04(8).  The rule expressly states that a party may not refuse to respond to a request on the sole ground that the "matter of which an admission has been requested presents a genuine issue for trial."  Thus, the fact that an admission of prior sales of the patented device by Campbell would have effectively ended the litigation did not make objectionable the request for such admission.

35
The admission sought by Spectrum was clearly of substantial importance since it was dispositive of Campbell's claim of infringement of patent '553.  Our review of the record indicates that Campbell had no reasonable ground to believe that he might prevail in the action.  Specific sales of the patented device by Campbell more than one year prior to Campbell's application for the patent were brought to his attention by Spectrum well in advance of its request for an admission of that fact.  Finally, Campbell offers no good reason, nor is one suggested by our examination of the record, for his failure to admit the prior sales, as requested.  Accordingly, we find the award of expenses to Spectrum under Rule 37(c) appropriate.

36
The court has considered fully the other grounds asserted by Campbell for reversal and finds them to be without merit.

37
The judgment of the district court is affirmed.

1
 Rule 37(c) provides, as follows:
(c) Expenses on Failure to Admit.  If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees.  The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

2
 Section 285 provides for the award of attorneys' fees in patent actions, as follows:

285
 Attorney fees.  The court in exceptional cases may award reasonable attorney fees to the prevailing party

3
 Prior to this time a final judgment had not been entered relative to patent '553

4
 We note that the district court expressed considerable doubt whether it could grant a Rule 60(b) motion reopening a judgment, unless this court first granted leave to do so, since the judgment had been affirmed on appeal and the mandate of this court had been issued

5
 Spectrum requested attorneys' fees pursuant to 35 U.S.C. § 285, or alternatively under Rule 37(c).  Spectrum sought an award of costs and other expenses in accordance with the provisions of 28 U.S.C. §§ 1821, 1920 and 1923

6
 This request was made pursuant to Rule 37(c), or alternatively under 35 U.S.C. § 285


149 U.S. 264 (1893)
INTERSTATE COMMERCE COMMISSION
v.
ATCHISON, TOPEKA AND SANTA FÉ RAILROAD COMPANY.
No. 1275.
Supreme Court of United States.
Submitted April 24, 1893.
Decided May 1, 1893.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA.
*265 Mr. George R. Peck, Mr. A.T. Britton and Mr. A.B. Browne for the motion.
Mr. W.A. Day opposing.
THE CHIEF JUSTICE:
The motion to dismiss is granted. McLish v. Roff, 141 U.S. 661; Lau Ow Bew v. United States, 144 U.S. 47; Hubbard v. Soby, 146 U.S. 56; Railway Company v. Osborne, 146 U.S. 354.
Appeal dismissed.


468 F.2d 269
Matthew OTTOMANO, Defendant-Appellant,v.UNITED STATES of America, Appellee.UNITED STATES of America, Appellee,v.Matthew OTTOMANO, Defendant-Appellant.
Nos. 72-1139, 72-1093.
United States Court of Appeals,First Circuit.
Argued Sept. 5, 1972.Decided Oct. 11, 1972.Certiorari Denied Jan 15, 1973.See 93 S.Ct. 948.

Frederic A. Johnson, New York City, with whom Seymour Barash, New York City, was on brief, for appellant.
Paul F. Ware, Jr., Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY,* Senior Circuit Judge.
McENTEE, Circuit Judge.

1
Matthew Ottomano was tried and convicted for selling cocaine in violation of 26 U.S.C. Sec. 4705(a)1 and was sentenced to imprisonment for a term of five years.  Subsequently, he was called as a defense witness in the trial of an alleged co-conspirator, Michael Russell, and was sentenced to an additional two months imprisonment for his refusal to testify.  Ottomano appeals from this contempt order as well as from the denial of his motion to vacate the original sentence.  For the reasons set forth below, we affirm the denial of the motion to vacate but reverse the contempt conviction.

2
Ottomano was tried on two counts of a three count indictment alleging that he and two codefendants, Albert Wassberg and Michael Russell, had conspired to sell and had sold cocaine in violation of 18 U.S.C. Sec. 371 and 26 U.S.C. Sec. 4705(a).  In support of the conspiracy count, the indictment charged that Wassberg and Ottomano had participated in the overt act of selling a quantity of cocaine to a federal agent at Logan International Airport in Boston on September 15, 1969.  The substantive count alleged Ottomano's participation in the same narcotics transaction.

3
The evidence at trial revealed that on the afternoon of September 15, 1969, Ottomano and Wassberg met Special Agents Egan and Foderaro at the Eastern Airlines Terminal at Logan International Airport.  The four men then proceeded to the Savarin Cocktail Lounge where they engaged in a conversation concerning a cocaine transaction.  Wassberg told the agents that the price for a half a kilogram of cocaine would be $10,000, and Ottomano stated that he had cut the cocaine and packaged it in one ounce quantities.  Ottomano also stated that he had previously sold some of the cocaine, and both he and Wassberg assured the agents that it was of high quality.

4
After this discussion, Wassberg and Egan left the cocktail lounge and entered a men's room in the Terminal lobby, while Ottomano and Foderaro remained at their table.  In the men's room, Wassberg sold Egan approximately one quarter of a kilogram of cocaine for $5,000.  He also told Egan that the latter could always obtain more cocaine by contacting Ottomano.  The two then returned to the cocktail lounge where they rejoined Ottomano and Foderaro.  During the ensuing conversation, Ottomano made further statements concerning the quality of the cocaine which Egan had just purchased.  Shortly thereafter Egan and Foderaro left.

5
At the close of the prosecution's case, the court granted Ottomano's motion for a judgment of acquittal on the conspiracy count but denied a similar motion as to the substantive charge.  Ottomano was ultimately convicted of selling cocaine in violation of 26 U.S.C. Sec. 4705(a) on the theory that he had aided and abetted the sale by Wassberg.

6
On March 6, 1972, codefendant Michael Russell was tried on the same indictment before another judge.  Ottomano was called as a defense witness but refused to testify, relying on his fifth amendment privilege against selfincrimination.

7
Ottomano's main contention on appeal is that he could not be constitutionally convicted of selling cocaine on a theory of aiding and abetting after being acquitted of conspiracy to commit the same offense.  In making this argument, appellant relies on the double jeopardy clause of the Constitution and the doctrine of collateral estoppel incorporated in that provision by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L. Ed.2d 469 (1970).

8
It is clear, of course, that prosecution of a particular defendant for both conspiracy and the substantive offense does not ordinarily constitute double jeopardy.  Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Sarno, 456 F. 2d 875, 878-879 (1st Cir. 1972).  As stated by the court in United States v. Tierney, 424 F.2d 643, 645 (9th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 53, 27 L.Ed.2d 87 (1970):

9
"Conspiracy and aiding and abetting are separate offenses. . . . An acquittal for conspiracy does not preclude conviction for aiding and abetting unless the acquittal results in a finding of fact in favor of the defendant which is essential to the substantive offense."  (Citations omitted.)

10
It is the contention of the appellant, however, that his acquittal on the conspiracy charge constituted just such an essential determination in his favor.  He reasons that on the facts of this case the jury could have found him guilty of aiding and abetting only by inferring an agreement between himself and Wassberg; that the court's judgment of acquittal on the conspiracy count was a determination that such an agreement did not exist; and that his conviction on the substantive charge therefore violated the principles of double jeopardy and collateral estoppel enunciated in Ashe v. Swenson, supra.

11
In advancing these arguments, appellant relies on Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948).  In that case, the defendant was tried and acquitted of conspiring to defraud the United States by submitting false invoices to a government rationing board in connection with the sale of a rationed commodity.  Subsequently, Sealfon was tried and convicted of aiding and abetting the submission of these same false invoices.  In both instances, the government's case turned upon proof that a letter from Sealfon to a codefendant had been written pursuant to an agreement to violate the law. On the basis of an examination of "the facts adduced at each trial and the instructions under which the jury arrived at its verdict," 332 U.S. at 579, 68 S.Ct. at 239, the Court concluded that the first jury's acquittal of the defendant on the conspiracy count could only have been based on a finding that the alleged illegal agreement did not exist.  The Court thus determined that Sealfon's conviction on the substantive charge depended upon a fact necessarily adjudicated in his favor at the first trial and therefore reversed his conviction.

12
In the instant case, we are presented with a different situation.  Here, the district court made no findings of fact in acquitting Ottomano of conspiracy.  Unlike the situation in Sealfon, there is no basis for concluding that the conspiracy acquittal determined in defendant's favor an issue essential to his conviction for the substantive offense.  The indictment under which Ottomano was tried alleged his participation in a conspiracy with Wassberg and Russell lasting from September 15 to November 23.  The government introduced no evidence at the trial tending to connect Ottomano with Wassberg after September 15, and no evidence at all regarding Russell.  The reasonable conclusion, therefore, is that the court acquitted Ottomano on the conspiracy count due to a fatal variance between the facts alleged in the indictment and the proof offered at trial.  Cf. United States v. Pappas, 445 F.2d 1194 (3d Cir.), cert. denied sub nom.  Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971).  Indeed, the very fact that the judge denied the motion for acquittal on the substantive count militates against the appellant's interpretation of the court's action.

13
The doctrine of collateral estoppel is applicable only when a factual issue was necessarily determined in a previous litigation.  In re Potts, 142 F.2d 883, 889 (6th Cir. 1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945); The Evergreens v. Nunan, 141 F.2d 927, 928 (2d Cir.), cert. denied, 323 U.S. 720, 65 S.Ct. 49, 89 L.Ed. 579 (1944); National Lead Co. v. Nulsen, 131 F.2d 51, 57 (8th Cir. 1942), cert. denied, 318 U.S. 758, 63 S.Ct. 533, 87 L. Ed. 1131 (1943).  See United States v. Kramer, 289 F.2d 909, 913-916 (2d Cir. 1961).  In Ashe v. Swenson, supra, the Supreme Court described the relevant test as being "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."  (Emphasis added.) 397 U.S. at 444, 90 S.Ct. at 1194.  Nothing in the facts of this case indicates that the court's decision could only have been based on the absence of an agreement between Ottomano and Wassberg.  We therefore conclude that appellant's contentions on this point are without merit.

14
In a related argument, appellant contends that his acquittal on the conspiracy count was an adjudication that he lacked the requisite criminal intent to sustain a conviction for conspiracy and that he therefore could not be convicted of aiding and abetting the substantive offense.  In light of our holding above, it is unnecessary to comment further on this contention.  We would only note that while specific criminal intent is undoubtedly an element of the crime of conspiracy, United States v. Bradley, 455 F.2d 1181, 1188 (1st Cir. 1972), cert. granted, 407 U.S. 908, 92 S.Ct. 2438, 32 L.Ed.2d 682 (1972), no such specific intent need be proven in a prosecution for the substantive offense of violating 26 U.S.C. Sec. 4705(a).  United States v. Bradley, supra at 1188; United States v. Jones, 438 F.2d 461, 466 (7th Cir. 1971).

15
Similarly intertwined with the concept of collateral estoppel is appellant's argument that he was unfairly prejudiced by the admission of an alleged hearsay statement at his trial.  Specifically, he complains of agent Egan's testimony as to his men's room conversation with Wassberg, in which the latter indicated that Ottomano would always be a ready source of cocaine.  According to the appellant, these statements were no longer properly in evidence once he had been acquitted of the conspiracy count.  He therefore argues that the court should have declared a mistrial by analogy to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), or at least have instructed the jury to disregard the testimony relating to Wassberg's out-of-court statements.

16
It is well established that the applicability of the "co-conspirator" exception to the hearsay rule is not conditioned on the presence of a conspiracy count in the indictment.  Rather, the out-of-court statements of one "partner in crime" will be admissible against a confederate when made in furtherance of a joint criminal venture and when there is sufficient evidence independent of these statements to indicate the existence of such a venture.  United States v. Mendell, 447 F.2d 639 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 535, 30 L. Ed.2d 542 (1971); United States v. Williams, 435 F.2d 642, 645 (9th Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533 (1971); United States v. Branker, 418 F.2d 378 (2d Cir. 1969); United States v. Olweiss, 138 F.2d 798 (2d Cir. 1943).  Thus, appellant is thrown back upon his familiar contention that the conspiracy acquittal conclusively established his innocence of any criminal association with Wassberg.  We have already rejected this contention for the reasons set forth above.

17
Ottomano also objects to the reception of Wassberg's statements on the ground that his sixth amendment right to confrontation was thereby violated.  Since these statements were fully admissible under a recognized exception to the hearsay rule, appellant's argument is clearly without merit.  See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L. Ed.2d 213 (1970).

18
Finally, we turn to appellant's contempt conviction.  We note at the outset that appellant's testimony at his own trial did not constitute a waiver of his fifth amendment privilege against self-incrimination.  The great weight of authority is to the effect that waiver of the privilege in one proceeding does not affect the rights of a witness or the accused in another independent proceeding.  United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958); In re Neff, 206 F.2d 149 (3d Cir. 1953); Poretto v. United States, 196 F.2d 392 (5th Cir. 1952); United States v. Steffen, 103 F. Supp. 415 (N.D.Cal.1951).  But see Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791 (1969).  The government argues, however, that since Ottomano had already been convicted on the same indictment under which Russell was being tried, he was subjected to no real danger of further incrimination by the requirement that he testify.  We disagree.  At the time Ottomano was called to testify at Russell's trial, he had a motion to vacate sentence pending before the district court.  Had this motion been granted, Ottomano could conceivably have been retried for the sale of cocaine.  In the event of such a retrial, any testimony given by the appellant at Russell's trial would have been admissible against him.  Under these circumstances, we cannot say that the possibility of further incrimination was so remote as to deprive appellant of his fifth amendment rights.

19
The denial of the motion to vacate the conviction is affirmed and the judgment of contempt is reversed.

*
 Of the Ninth Circuit, sitting by designation

1
 Repealed Pub.L. 91-513, Sec. 1101(b)(3) (A), October 27, 1970, 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513, Sec. 1105(a)