In Re: Grand Jury (Pt. II)

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-25-1997
In Re: Grand Jury (Pt. II)
Precedential or Non-Precedential:
Docket 97-7018
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 97-7018
IN RE: GRAND JURY
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 96-mc-00093)
Argued March 26, 1997
Before: SLOVITER, Chief Judge,
STAPLETON and ALDISERT, Circuit Judges
(Opinion filed April 25, 1997)
James A. Backstrom, Jr. (Argued)
Vaira, Backstrom & Riley
Philadelphia, PA 19103
Attorney for Appellant
Colm F. Connolly (Argued)
Office of the United States Attorney
Wilmington, DE 19899-2046
Attorney for Appellee
OPINION OF THE COURT
SLOVITER, Chief Judge.
On this appeal we must consider whether the
government’s grant of use and derivative use immunity (use-fruits
1
immunity) to the spouse of a witness is sufficient to defeat the
witness’s privilege against adverse spousal testimony. This is a
question of first impression for this court in the context in
which it is presented.
I.
A witness before a grand jury who asserted her
privilege not to testify as a witness against her husband in a
criminal proceeding appeals from the contempt order entered by
the district court. The witness is the wife of John Doe 2, who
is not the target but is a subject of a grand jury investigation.
In order to secure the testimony of the spouse-witness,
whom it had subpoenaed, the district court, at the request of the
government, granted the witness personal immunity under 18 U.S.C.
§ 6002 and 6003. The witness appeared before the grand jury and
answered only preliminary questions, refusing to answer the bulk
of the questions, and invoked the adverse spousal testimonial
privilege. That day the grand jury issued a subpoena duces tecum
requiring the witness to provide tapes of conversations between
the witness’s husband and others which she illegally recorded.1
Nonetheless, the witness again asserted her spousal testimonial
privilege before the grand jury and refused to answer various
questions on the ground that to do so would force her to be a
witness against her husband in a criminal proceeding.
1
All parties agree that these recordings are “testimony”
and are subject to the adverse spousal testimonial privilege.
The non-witness spouse and the grand jury target have also moved
to quash the subpoena duces tecum on different grounds. Their
motions are the subject of a separate appeal in a related case in
this court, In re Grand Jury, No. 97-7016/17, which has been
decided in an opinion issued contemporaneously with this one.
2
The matter came to issue when the witness filed a
motion to quash the subpoena on the basis of the privilege. On
the same day, the government filed a motion to compel the
witness’s testimony and supplied an affidavit by the Assistant
United States Attorney in charge of the grand jury investigation
in which he promised the witness that the government would give
use-fruits immunity to her husband in exchange for her testimony.
Specifically, the government promised that it would “not use the
testimony of [the witness spouse] or the fruits thereof in any
way, either directly or indirectly, in any criminal proceeding
against her husband . . . [and] the United States will not
present to this grand jury an indictment in which [her husband]
is named as a defendant.” App. at 50. The government also
represented in papers filed with the court that “in the event
that a separate grand jury indicted [the husband], the government
would bear the burden of establishing that the evidence it used
to indict [the husband] and the evidence it would use at [the
husband’s] trial were derived from legitimate sources wholly
independent of [the witness’s] testimony and production of the
tapes.” App. 59.
In support of its motion, the government argued that
immunizing the witness’s husband from any adverse effects of her
testimony necessarily made inapplicable the asserted privilege.
The district court denied the motion to quash and granted the
government’s motion to compel the witness’s testimony, with the
exception of answers or material that would reveal confidential
attorney-client or marital communications. As to the spousal
3
privilege, the court agreed that the government’s promise not to
use the testimony against the husband sufficiently insulated the
witness’s spouse so as to overcome the spousal privilege.
The witness appeared before the grand jury the next day
but still refused to testify or produce the subpoenaed material,
asserting her privilege against adverse spousal testimony and her
marital communications privilege. The parties stipulated to the
record, and the district court found the witness to be in
contempt, but stayed imposition of sanctions pending this appeal.
II.
Rule 501 of the Federal Rules of Evidence provides, in
relevant part, that:
Except as otherwise required by the Constitution of the
United States or provided by Act of Congress
or in the rules proscribed by the Supreme
Court pursuant to statutory authority, the
privilege of a witness
. . . shall be governed by the principles of the
common law as they may be interpreted by the courts
of the United States in the light of reason and
experience.
Federal courts have recognized two kinds of marital privilege: the
privilege that protects confidential marital communications and
the privilege that protects a witness from testifying against
his/her spouse. It is only the latter privilege that is now
before this court.
It is, we note at the outset, a privilege that has been
sharply criticized by the Supreme Court of the United States. In
Trammel v. United States, 445 U.S. 40 (1980), the Court quoted
Professor Wigmore’s statement that the privilege against adverse
4
spousal testimony is “‘the merest anachronism in legal theory and
an indefensible obstruction to truth in practice.’” Id. at 44-
45. Noting that “[n]o other testimonial privilege sweeps so
broadly,” id. at 51, the Court cited its authority to use
“‘reason and experience,’” id. at 46 (quoting Fed. Rule Evid.
501), to “‘develop rules of privilege on a case-by-case basis,’”
id. at 46 (quoting 120 Cong. Rec. 40891 (1974) (statement of Rep.
Hungate)). The Court explained that unlike the marital
communications privilege which protects private communications,
the spousal privilege seeks “to exclude evidence of criminal acts
and of communications made in the presence of third persons” in
order to preserve marital harmony. Id. at 51.
The specific question in Trammel was whether a criminal
defendant may invoke the privilege against adverse spousal
testimony so as to exclude the voluntary testimony of his wife.
In the course of its “all-but-unanimous opinion,” id. at 53(Stewart, J., concurring), the Court stated that “[t]he ancient
foundations for so sweeping a privilege have long since
disappeared,” id. at 52. It analyzed “whether the privilege
against adverse spousal testimony promotes sufficiently important
interests to outweigh the need for probative evidence in the
administration of criminal justice.” Id. Rather than follow the
action of many states and abolish the privilege in its entirety
in favor of a privilege for confidential marital communications,
which had been recommended by the National Conference of
Commissioners on Uniform State Laws, the Court limited its
holding to the issue before it - the right of one spouse to use
5
the privilege to prevent testimony by a willing spouse.
The Trammel Court held that only the witness spouse,
not the non-witness spouse, could invoke the privilege against
adverse spousal testimony. See id. at 53. Although the issue
presented here is different, since at this time the witness
spouse is not willing to provide the testimony, the Supreme
Court’s discussion in Trammel informs our analysis.
The district court here relied on the government’s
promise of use-fruits immunity in holding that the non-witness
spouse would be adequately insulated from the effects of the
witness spouse’s testimony. The witness argues on appeal that
because the mere utterance of her testimony, regardless of the
criminal consequences, would adversely affect marital harmony,
the government’s promise not to use her testimony against her
husband is insufficient to overcome the spousal testimonial
privilege. She asserts that the privilege involves “a basic
right to refuse to provide testimony that implicates [a spouse].”
Appellant’s Reply brief at 2. Citing Trammel, 445 U.S. at 53,
the witness argues that “with the adverse spousal testimony
privilege, it is not disclosure of communications that is
protected but rather the impact of the testimony on the
marriage.” Id. at 3.
This court has never suggested that the privilege is so
broad as to protect any testimony at all by a spouse. For
example, in United States v. Fields, 458 F.2d 1194, 1199 (3d Cir.
1972), cert. denied, 412 U.S. 927 (1973), the witness-spouse was
called to testify by a co-defendant of her husband. Both
6
defendants were convicted. On appeal, we rejected the non-
witness spouse’s contention that the trial court committed
reversible error by permitting his spouse’s testimony. We
explained that the spousal testimonial privilege did not prevent
a spouse from testifying at a trial in which her spouse was one
of two defendants. Although the trial court should have severed
the defendant husband, it was harmless error as her testimony was
not adverse to her spouse. See also United States v. George, 444
F.2d 310, 313-14 (6th Cir. 1971) (witness could not claim adverse
spousal testimonial privilege to avoid testifying before a grand
jury investigating conspiracy involving gambling information
merely because his wife, who was not involved in the conspiracy,
had filed joint income tax returns with him).
Nor are we persuaded by the witness’s argument in this
case that she can assert the privilege despite the promise of
use-fruits immunity. The grant by the government of use-fruits
immunity is a well-established prosecutorial tool to compel
testimony that is otherwise privileged. Although the
constitutional guarantee against self-incrimination is the most
important of privileges and “reflects a complex of our
fundamental values and aspirations, and marks an important
advance in the development of our liberty,” Kastigar v. United
States, 406 U.S. 441, 444 (1972), the Supreme Court in Kastigar
allowed grants of use-fruits immunity to obviate the Fifth
Amendment privilege. Id. at 448. The Court explained that
grants of immunity “seek a rational accommodation between the
imperatives of the privilege and the legitimate demands of
7
government to compel citizens to testify.” Id. at 446.
Kastigar built upon the earlier holding of the Court in
Ullmann v. United States, 350 U.S. 422, 430-31 (1956), where the
petitioner argued that grants of immunity would not protect his
privilege against self-incrimination because they could not
shield him from such adverse consequences as job-loss and
“general public opprobrium.” Id. Rejecting this argument, the
Ullmann Court explained that the Fifth Amendment only applies
where a witness is asked “to give testimony which may possibly
expose him to a criminal charge. But if the criminality has
already been taken away, the amendment ceases to apply.” Id. at
431 (internal quotations omitted).
The witness’s argument that her spousal testimonial
privilege protects the very act of testifying, regardless of
whether the government could use the information to prosecute her
husband, overlooks the significance of adversity in determining
the scope of the privilege. Courts have consistently recognized
that the privilege only applies to testimony that is “adverse” to
the other spouse. See, e.g., United States v. Van Cauwenberghe,
827 F.2d 424, 431 (9th Cir. 1987)(refusing to recognize the
spousal privilege where the witness failed to demonstrate that
the testimony was adverse to her spouse’s penal interests), cert.
denied, 484 U.S. 1042 (1988); In re Martenson, 779 F.2d 461, 464
(8th Cir. 1985)(same); In re Grand Jury Proceedings, 664 F.2d
423, 430 (5th Cir. 1981) (same), cert. denied, 455 U.S. 1000(1982). These cases make clear that the privilege is “not
available unless the anticipated testimony would in fact be
8
adverse to the non-witness spouse.” Martenson, 779 at 463
(internal quotations omitted).
We thus hold that once the government grants immunity
that eliminates the possibility that the testimony will be used
to prosecute the witness’s spouse, the witness may no longer
invoke the testimonial privilege.2 This is the position adopted
by all courts of appeal which have addressed this issue. In
United States v. Doe, 478 F.2d 194, 195 (1st Cir. 1973), a
husband and wife were both summoned to appear before the grand
jury in connection with joint criminal activity. They both
claimed their Fifth Amendment privilege and were subsequently
granted immunity. Each then claimed the spousal testimonial
privilege, stating that their testimonies would be adverse to the
other. The court found no privilege “when both are immunized
from prosecution and are asked questions about the same
transaction.” Id. at 195.
In In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974), a
husband and wife were subpoenaed to appear before the grand jury.
The wife refused to testify, asserting her Fifth Amendment
privilege. The husband was granted use-fruits immunity to compel
2
Judge Aldisert does not join in this one sentence of the
opinion, and adds this concurring statement: “I object to the
sweep of this statement because it goes beyond the facts in this
case. Being an unreconstructed follower of the Roscoe Pound
tradition that a holding in a case announces a specific legal
consequence attached to a definite state of facts, I prefer that
this sentence read: ‘We thus hold that under the facts of this
case, in which the government’s specific grant of immunity
eliminates the possibility that the testimony will be used to
prosecute the witness’s spouse, the witness may no longer invoke
the testimonial privilege’.”
9
his testimony over Fifth Amendment objections but he still
refused to answer questions, claiming that to compel him to do so
would violate his spousal testimonial privilege. The government
filed an affidavit in which it promised that neither his
testimony nor its fruits would be used in any way in a proceeding
against his wife. Id. at 111-12. The court held that this
promise “nullifies any claim of privilege as grounds for [the
husband’s] refusal to testify.” Id. at 112. This decision was
followed by the Second Circuit in Grand Jury Subpoena of Ford v.
United States, 756 F.2d 249, 255 (2d Cir. 1985), where the court
held that use-fruits immunity that “is fully co-extensive with
the scope of the privilege against adverse spousal testimony”
sufficiently meets the claim of the privilege by the testifying
spouse.
In recognizing that the grant of immunity will defeat
the adverse spousal testimonial privilege, we merely make
explicit that which was implicit in our earlier decisions. In In
re Grand Jury (Malfitano), 633 F.2d 276, 278 (3d Cir. 1980), we
upheld the wife’s entitlement to assert her spousal testimonial
privilege even though both she and her husband were allegedly
involved in the criminal acts being investigated. We also
rejected the government’s argument that because it had promised
not to use the wife’s testimony in any future proceedings against
her husband, the wife could no longer claim the privilege. Id.
at 279. We found this limited immunity to be insufficient to
overcome the spousal privilege since “there is nothing to prevent
this grand jury from considering the [spouse’s] testimony in
10
deciding whether to indict. There is no indication that the
government intends to . . . ensure that the grand jury does not
use [the wife’s] testimony against her husband.” Id. We
distinguished the decision in In re Snoonian on the ground that
in that case “the witness’ spouse was not a target, and the
government expressly promised that ‘this Grand Jury has no intent
to prosecute your wife on the basis of your testimony here.’
Contrary to the present case, it was clear that the grand jury
before which the husband would testify would not use his
testimony to indict his spouse.” Id. at 280 (quoting Snoonian,
502 F.2d at 111). We nonetheless noted that “the [spousal
testimonial] privilege is not absolute: it does not shield all
testimony nor does it bar procedures that may protect the spouse
from the effect of the testimony.” Id. at 280 n.6.
Two years later in In re Grand Jury Matter, 673 F.2d
688, 689 (3d Cir.), cert. denied, United States v. Doe, 459 U.S.
1015 (1982), we affirmed the order of the district court denying
the government’s motion to compel a witness to testify before a
grand jury after she had asserted her privilege against adverse
spousal testimony. The witness had already pled guilty to her
involvement in the drug operation and her husband was a target of
the grand jury investigation. In order to compel her testimony,
the government initially appeared to promise the witness that it
would confer on her husband immunity that was coextensive with
the statutory use and derivative use immunity. Id. at 690.
Ultimately, the government promised the witness only that it
would not present an indictment to that particular grand jury
11
naming her husband as a defendant. If the wife’s testimony
implicated a third party who was then willing to testify against
her husband, the government would impanel a separate grand jury
to seek her husband’s indictment. See id.In our analysis of whether this government promise was
sufficient protection of the spousal testimonial privilege, we
explained that in Malfitano “[b]y implication we suggested that
if the Government ‘sever(ed) the husband’s indictment from that
of the other defendants to ensure that the grand jury does not
use the appellant’s testimony against her husband,’ the privilege
might thereby be respected.” Id. at 692 (quoting Malfitano, 633
F.2d at 279).
However, we found that the government’s promise not to
present an indictment to this particular grand jury was
inadequate to preserve the integrity of the privilege against
adverse spousal testimony because the only change from the
Malfitano undertaking was that “the impact of the spouse’s
testimony is delayed,” as the wife’s “testimony is sought with
the expectation that it may lead to his indictment by a
subsequent grand jury.” Id. at 693.
In the case before us now, the government makes the
promise that the witness’s testimony cannot be used directly or
indirectly in order to indict her husband either before the
present grand jury or a future grand jury. This is essentially
the offer of broad use-fruits immunity that was made and then
withdrawn in In re Grand Jury Matter. See id. at 690. This
promise is broad enough to overcome the concerns raised in
12
Malfitano that the government not use the spouse’s testimony to
indict before the existing grand jury, as well as the concerns
raised in In re Grand Jury Matter that the testimony not be used
to indict in any future proceeding.
The witness asserts that the principal rationale for
the privilege would be undermined by the very act of testifying,
regardless of its incriminating impact. Taking the witness’s
argument to its logical conclusion, even transactional immunity
would be insufficient, because the harm to be avoided occurs at
the moment of the witness’s testimony, regardless of the lack of
any potential adverse legal consequences to the spouse flowing
from that testimony.
But no court has suggested the privilege sweeps that
broadly. Indeed, as we explained in Malfitano, the rationale for
the privilege is “that it protects the marriage from the discord
that occurs when one spouse testifies against the other.”
633 F.2d at 277 (emphasis added); see also Trammel, 445 U.S. at
44. With use-fruits immunity, as the government has granted
here, the witness’s testimony will not have adverse legal
consequences to her spouse, so the purpose of the privilege is in
no way undermined.
The Supreme Court rejected an argument similar to the
witness’s in the Fifth Amendment context in Kastigar. There the
Court explained that the grant of immunity must be coextensive
with the privilege, but need not be broader. See Kastigar, 406
U.S. at 453. “Transactional immunity, which accords full
immunity from prosecution for the offense to which the compelled
13
testimony relates, affords the witness considerably broader
protection than does the Fifth Amendment privilege. The
privilege has never been construed to mean that one who invokes
it cannot subsequently be prosecuted.” Id.In summary, in the case before us the government
promised the witness that it would not use her testimony, or the
fruits thereof, in any criminal proceeding against her husband or
seek an indictment before the same grand jury before which she
was testifying. The government has undertaken the burden of
showing the independent source of any evidence it uses should it
subsequently indict the witness’s husband. This use-fruits
immunity is sufficient in the Fifth Amendment context to defeat
the privilege against self-incrimination, see Kastigar, 406 U.S.
at 453, and we hold that it is equally sufficient to defeat the
privilege against adverse spousal testimony and to compel the
witness to testify.
III.
For the reasons set forth we will affirm the district
court’s order holding the witness in contempt for refusing to
answer questions before the grand jury and continuing to assert
her spousal privilege even though the government had promised
that it would not use her testimony or the fruits thereof in any
criminal proceeding against her husband.
14