Opposition Brief — Doe, Petitioner v. United States

Supreme Court briefSep 9, 2019

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No. 18-1522

3fn tfje Supreme Court of tfje ®ntteb States;

Doe, petitioner

United States of America

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(REDACTED FOR PUBLIC FILING)

Noel J. Francisco

Solicitor General

Counsel of Record

Richard E. Zuckerman

Principal Deputy Assistant

Attorney General

S. Robert Lyons

Stanley J. Okula, Jr.

Alexander P. Robbins

Attorneys

Department of Justice

Washington, D.C. 20530-0001

Supreme CtBriefs @us doj. gov

(202) 5U-2217

QUESTION PRESENTED

Whether the lower courts correctly determined that

the spousal-testimonial privilege provided no basis for

petitioner to avoid responding to a subpoena for her for

eign bank records because the testimonial aspects of

her act of production would not adversely affect her

husband’s case.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (C.D. Cal.):

In re: Grand Jury Subpoena, Dated March 21, 2018,

No. 18-cm-771 (Aug. 31, 2018) (decision below)

United States Court of Appeals (9th Cir.):

In re: Grand Jury Subpoena, Dated March 21, 2018,

No. 18-50321 (Dec. 28, 2018) (decision below)

(II)

TABLE OF CONTENTS

Page

Opinions below

Jurisdiction.....

Statement.......

Argument........

Conclusion......

TABLE OF AUTHORITIES

Cases:

Exxon Co., U.S.A v.Sofec, Inc., 517 U.S. 830 (1996)

7,8

Fisher v. United States, 425 U.S. 391 (1976).........

Grand Jury, In re, 111 F.3d 1083 (3d Cir. 1997).... 6,10,11

Grand Jury Investigation M.H., In re,

648 F.3d 1067 (9th Cir. 2011), cert, denied,

567 U.S. 934 (2012)...................................... .........

Grand Jury Proceedings, In re, 664 F.2d 423

(5th Cir. 1981), cert, denied, 455 U.S. 1000 (1982)

Hoffmanv. United States, 341 U.S. 479 (1951)......

Shillitani v. United States, 384 U.S. 364 (1966).....

6,12

Trammel v. United States, 445 U.S. 40 (1980).......

United States v. Archer, 733 F.2d 354 (5th Cir.),

cert, denied, 469 U.S. 861, and 469 U.S. 862 (1984)...

United States v. Bright, 596 F.3d 683 (9th Cir. 2010)..

United States v. Chapman, 866 F.2d 1326 (11th Cir.),

cert, denied, 493 U.S. 932 (1989)............................

United States v. Hubbell, 530 U.S, 27 (2000)............ 7,8,10

United States v. Johnston, 268 U.S. 220 (1925).........

United States v. Lefkowitz, 618 F.2d 1313 (9th Cir.),

cert, denied, 449 U.S. 824 (1980)............................

United States v. Mendoza, 574 F.2d 1373 (5th Cir.),

cert, denied, 439 U.S. 988 (1978).............................

(HI)

Cases—Continued:

United States v. Van Cauwenberghe, 827 F.2d 424

(9th Cir. 1987), cert, denied, 484 U.S. 1042 (1988)...

Witness Before the Grand Jury, In re, 791 F.2d 234

(2d Cir. 1986)..........................................................

Page

Constitution, statutes, regulation, and rules:

U.S. Const. Amend. V............................

Bank Secrecy Act, 31 U.S.C. 5311 et seq.

31 U.S.C. 5314(a)..............................

31 U.S.C. 5322(a)..............................

31 C.F.R. 1010.420.................................

Fed. R. Evid.:

Rule 501............................................

Rule 901(a)........................... ............

Sup. Ct. R. 10.........................................

3, 4,7

5,6

3fn tf)e Supreme Court of tf)e Untteb States?

No. 18-1522

Doe, petitioner

United States of America

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is

not published in the Federal Reporter but is reprinted

at 747 Fed. Appx. 575. The orders of the district court

(Pet. App. 4-7, Pet. App. 8-18) are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

December 28,2018. A petition for rehearing was denied

on February 12, 2019 (Pet. App. 19). The petition for a

writ of certiorari was filed on May 13, 2019, and the mo

tion for leave to file the petition under seal was granted

on June 10, 2019. The jurisdiction of this Court is in

voked under 28 U.S.C. 1254(1).

STATEMENT

Following petitioner’s refusal to comply with a sub

poena issued by a grand jury in the Central District of

(1)

California, the district court held petitioner in con

tempt. Pet. App. 4-7. The court of appeals affirmed.

Id. at 1-3.

1. Under the Bank Secrecy Act, 31 U.S.C. 5311

et seq., a United States citizen or resident must keep

records when she “makes a transaction or maintains a

relation for any person with a foreign financial agency,”

as prescribed by the Secretary of the Treasury. 31 U.S.C.

5314(a). According to Treasury regulations, those rec

ords must contain:

the name in which each such account is maintained,

the number or other designation of such account, the

name and address of the foreign bank or other per

son with whom such account is maintained, the type

of such account, and the maximum value of each such

account during the reporting period.

31 C.F.R. 1010.420. The records must be maintained for

five years and “shall be kept at all times available for

inspection as authorized by law.” Ibid. A person who

willfully fails to maintain such records may be crimi

nally prosecuted under 31 U.S.C. 5322(a).

2. a. A federal grand jury investigating petitioner’s

husband issued a subpoena to petitioner for records of

her foreign bank activity for the years 2011 through 2016.

Pet. App. 2. The subpoena demanded production of:

__________________________________ The gov

ernment moved the district court to compel petitioner

to comply with the subpoena, and petitioner responded

by asserting that the spousal-testimonial privilege

protected her from producing documents in response to

the subpoena because at that time the grand jury was

investigating whether her husband committed tax crimes.

Pet. App. 2} Petitioner also sought to invoke her Fifth

Amendment privilege against self-incrimination and

the marital-communications privilege. Id. at 2 n.l.

b. The district court ordered petitioner to comply

with the subpoena. Pet. App. 8-18.

1 Before the subpoena was issued to petitioner, a federal grand

jury had indicted petitioner’s husband on offenses unrelated to fail

ing to report foreign bank accounts. Gov’t C.A. Br. 4 n.3. Later,

while petitioner’s appeal was pending before the court of appeals,

the grand jury returned a superseding indictment against peti

tioner’s husband that additionally charged him with offenses involv

ing foreign bank accounts. Ibid. In June 2019, petitioner’s husband

was convicted following a trial. See p. 5, infra.

'•

After petitioner continued to refuse to produce her

foreign bank account records as required by the sub

poena, the district court held her in civil contempt. Pet.

App. 2.

c. In an unpublished memorandum opinion, the

court of appeals affirmed. Pet. App. 1-4. The court ob

served that petitioner had waived her Fifth Amendment

and martial-communications privilege claims by de

clining to press those claims on appeal. Id. at 2 n.l. And

the court found that the distinct court had correctly re

jected petitioner’s invocation of the spousal-testimonial

privilege. Id. at 2. The court of appeals explained that,

“[fjor the spousal testimonial privilege to apply, the

.anticipated testimony must in fact be adverse to the

nonwitness spouse.” Ibid, (brackets, citation, and in

ternal quotation marks omitted). The court found that

the privilege did not apply on the facts of the case be

cause “th[e] bare testimonial aspect of [petitioner’s] act

of production [would] not itself adversely affect her hus-

band’s case.” Id. at 3. Accordingly, the court deter

mined that petitioner was “not relieved of her obligation

to produce foreign bank account records over which she

has care, custody, or control.” Ibid.

d. In January 2019, after the court of appeals issued

its mandate,

and the term of the grand jury

that issued the subpoena expired.

In June 2019, petitioner’s hus

band was convicted following a trial.

At pe

titioner’s husband’s trial,

ARGUMENT

Petitioner renews her contention (Pet. 5-16) that the

spousal-testimonial privilege should excuse her compli

ance with the grand jury subpoena for records of her

foreign banking activity. The lower courts correctly

found that the act of producing those records would not

be adverse to her husband. That factbound finding does

not warrant this Court’s review, and the court of ap

peals’ unpublished decision does not conflict with any

decision of this Court or any other court of appeals. The

procedural posture of this case also makes it an unsuit

able vehicle for review. The petition.for a writ of certi

orari should be denied.

1. The lower courts correctly found that petitioner

could not invoke spousal-testimonial privilege because

she had not established that her act of producing docu

ments would be adverse to her husband.

a. The spousal-testimonial privilege is a commonlaw evidentiary privilege authorized by Federal Rule of

Evidence 501, which permits federal courts to apply or

modify common-law privileges “in the light of reason and

experience.” Fed. R. Evid. 501. The burden of dem

onstrating the existence of a privilege falls on the party

asserting the privilege. See, e.g., Hoffman v. United

States, 341 U.S. 479, 486 (1951) (self-incrimination);

United States v. Bright, 596 F.3d 683, 691 (9th Cir.

2010) (self-incrimination); In re Witness Before the

Grand Jury, 791 F.2d 234, 237 (2d Cir. 1986) (spousaltestimonial privilege). And in Trammel v. United

States, 445 U.S. 40 (1980), this Court observed that the

spousal-testimonial privilege “must be strictly construed”

because “[testimonial exclusionary rules and privileges

contravene the fundamental principle that ‘the public

has a right to every man’s evidence.’” Id. at 50 (citation

and ellipsis omitted).

As petitioner recognizes (Pet. 8), “[cjourts have con

sistently recognized that the [spousal-testimonial] priv

ilege only applies to testimony that is ‘adverse’ to the

other spouse.” In re Grand Jury, 111 F.3d 1083, 1087

(3d Cir. 1997) (citing cases). Courts accordingly have

rejected claims of privilege when the witness failed to

demonstrate that her testimony would in fact be ad

verse to her spouse. See, e.g., United States v. Van

Cauwenberghe, 827 F.2d 424, 431 (9th Cir. 1987), cert,

denied, 484 U.S. 1042 (1988); In re Grand Jury Proceed

ings, 664 F.2d 423, 429-431 (5th Cir. 1981) (per curiam),

cert, denied, 455 U.S. 1000 (1982).

b. In this case, the lower courts correctly deter

mined that petitioner had failed to demonstrate that her

act of producing records in response to the subpoena

would convey information adverse to her husband,

as would be necessary to trigger application of the

spousal-testimonial privilege.

Under the “act of production” doctrine, this Court

has recognized that an individual may invoke the Fifth

Amendment privilege against self-incrimination when

the act of producing records responsive to a subpoena

may incriminate that individual by communicating that

the documents exist, are in the individual’s possession

or control, and reflect that the individual believes “that

the papers are those described in the subpoena.”

Fisher v. United States, 425 U.S. 391, 410 (1976); see id.

at 409-410. But the doctrine does not apply when in

crimination comes from the content of the documents,

rather than from the act of producing them. See id. at

410-411. This Court has explained that whether “[t]he

act of producing evidence in response to a subpoena

nevertheless has communicative aspects of its own,

wholly aside from the contents of the papers produced”—

and whether any such communicative aspects are

“incriminating”—are questions that “do not lend them

selves to categorical answers,” and “instead depend on

the facts and circumstances of particular cases or clas

ses thereof.” Id. at 410.

Here, the court of appeals found that petitioner had

not established that her act of responding to a subpoena

for her foreign bank accounts would communicate infor

mation adverse to her husband. Pet. App. 3. The court

correctly recognized the distinction between incrimina

tion based on the act of production and incrimination

based on the content of records, observing that “‘the

testimonial aspect of [petitioner’s] response to [the]

subpoena duces tecum does nothing more than establish

the existence, authenticity, and custody’ of any respon

sive foreign bank account records.” Ibid, (quoting

United States v. Hubbell, 530 U.S. 27, 40-41 (2000)).

And the court affirmed the district court’s enforcement

of the subpoena because petitioner had not shown that

“this bare testimonial aspect of [her] act of production”

would “itself adversely affect her husband’s case.”

Ibid.', see id. at 17

The lower courts’ resolution of that factual issue was

correct. The compelled act of production in this case

would have required petitioner to admit only that she

had foreign bank accounts and access to records of

those accounts. See Pet. App. 2 (subpoena sought “rec

ords of her foreign bank activity for the years 2011

through 2016”) (emphasis added). The government did

not ask petitioner to produce her husband's foreign

banking records;

________________ Petitioner’s analogy (Pet. 6) to a

hypothetical scenario where a subpoena specifically de

mands the production of money received by or provided

to a spouse is therefore inapposite. Whatever testimony

may be implicit in one spouse being compelled to iden

tify and produce the other spouse’s documents or assets,

that is not what happened here.

The possibility that “the contents of the papers pro

duced” could have incriminated petitioner’s husband

does not show that the “communicative aspects” of her

act of production would themselves be adverse to her

husband. Fisher, 425 U.S. at 410 (emphasis added).2 If

2 Petitioner suggests (Pet. 14) that her act of responding to the

subpoena could “authenticate” whatever documents she produced

for use in a criminal prosecution against her husband, see Fed. R.

Evid. 901(a). But as the government made clear to the court of ap-

petitioner had complied with the subpoena and deliv

ered a box of documents to the grand jury, the govern

ment would have known as soon as it saw the box that

petitioner had foreign bank accounts and kept records

of those accounts. But the government would have

learned nothing at all about petitioner’s husband with

out opening the box and reading the documents. The

lower courts thus correctly found that the “bare testi

monial aspect of [petitioner’s] act of production does not

adversely affect her husband’s case.” Pet. App. 3; see

id. at 17.

Petitioner erroneously states (Pet. 4) that “[t]he

government has never asserted that [petitioner’s]

production would not be, as a matter of fact, adverse to

[her husband], and neither the district court nor the

Ninth Circuit found otherwise.” To the contrary, the

government consistently maintained below that the

testimonial aspects of petitioner’s act of production

would not convey information adverse to her husband,

Gov’t C.A. Br. 17-22, and that was the very basis for the

lower courts’ decisions rejecting her claim of spousaltestimonial privilege, Pet. App. 3, 17. While petitioner

disputes (Pet. 11-12) the lower courts’ factual

determination that her act of production would not

incriminate her husband, that factbound issue does not

warrant this Court’s review. See Sup. Ct. R. 10 (“A

petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings

or the misapplication of a properly stated rule of law.”);

United States v. Johnston, 268 U.S. 220, 227 (1925)

(explaining that the Court “do[es] not grant * * *

peals, it “was not seeking [petitioner’s] authentication of the respon

sive documents, nor was the government seeking informa tion about

where or how [she] obtained” the documents. Gov’t C.A. Br. 7-8.

certiorari to review evidence and discuss specific facts”);

see also Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830,

841 (1996) (noting special deference to “concurrent

findings of fact by two courts”) (citation omitted).

2. Petitioner errs in contending (Pet. 8-14) that the

unpublished decision below conflicts with this Court’s

decision in Hubbell and the Third Circuit’s decision in

In re Grand Jury.

In Hubbell, this Court held that the government

could not make derivative use of the testimonial aspects

of a defendant’s act of production after he had received

immunity. 530 U.S. at 40-46. Petitioner contends (Pet.

9) that the court of appeals in this case “overlooked” this

Court’s recognition in Hubbell that the act of production

can have communicative aspects. But the court of ap

peals in fact relied on Hubbell in recognizing that peti

tioner’s act of production had a ‘“testimonial aspect’”

insofar as it “‘established] the existence, authenticity,

and custody’ of any responsive foreign bank account

records.” Pet. App. 3 (quoting Hubbell, 530 U.S. at 4041). The court rejected petitioner’s invocation of privi

lege not because it thought the act of production could

not be testimonial, but because the testimonial aspects

of the act of production would not be adverse to peti

tioner’s husband. Ibid.

Nor does any conflict exist between the decision

below and the Third Circuit’s decision in In re Grand

Jury, which likewise rejected a claim of spousaltestimonial privilege. In that case, the Third Circuit

held that a witness could not invoke that privilege after

the government had granted immunity to the spouse

that “eliminate[d] the possibility that the testimony

w[ould] be used to prosecute the witness’s spouse.”

Ill F.3d at 1087. Petitioner contends (Pet. 13) that the

Third Circuit “recognized that the witness properly in

voked the privilege in response to the subpoena seeking

production of tapes,” which involved “conversations be

tween the witness’s husband and others which [the

witness] illegally recorded,” In re Grand Jury, 111 F.3d

at 1084. But the Third Circuit had no occasion to

consider whether the production of those tapes, stand

ing alone, would qualify for protection under the spousaltestimonial privilege because the government also

sought the witness’s in-court testimony and voluntarily

elected to offer immunity to prevent any invocation of

privilege. See ibid. In any event, no conflict exists be

cause, contrary to petitioner’s assertion (Pet. 13), the

court of appeals in this case did not find “the privilege

inapplicable as a matter of law to a subpoena duces

tecum,” but instead found as a factual matter that the

testimonial aspects of the act of production were not

adverse to petitioner’s husband. In that respect, the

decision accords with In re Grand Jury, which itself em

phasized that “the privilege only applies to testimony

that is ‘adverse’ to the other spouse.” Ill F.3d at 1087.3

3 The court of appeals had no occasion to determine whether the

spousal-testimonial privilege in fact applies to a spouse’s act of pro

ducing documents in response to a subpoena, because it found that

such an act would not be adverse to petitioner’s husband on the facts

of this case. Pet. App. 3. Notably, however, the courts to have con

sidered the issue have all held that the spousal-testimonial privilege

is limited to a spouse’s in-court testimony. See, e.g., United States

v. Chapman, 866 F.2d 1326, 1332-1333 (11th Cir.), cert, denied,

493 U.S. 932 (1989); United States v. Archer, 733 F.2d 354, 358

(5th Cir.), cert, denied, 469 U.S. 861, and 469 U.S. 862 (1984); United

States v. Lefkowitz, 618 F.2d 1313, 1318 (9th Cir.), cert, denied,

449 U.S. 824 (1980); United States v. Mendoza, 574 F.2d 1373,1379

(5th Cir.), cert, denied, 439 U.S. 988 (1978). Those decisions accord

with this Court’s recognition in Trammel that “[i]t is only the

3. In any event, the unusual procedural posture of

this case further renders it unsuitable for review.

As noted, see p. 5, supra, after the court of appeals

issued its mandate in this case

and peti

tioner’s husband was tried and convicted

____ No issue was raised at petitioner’s husband’s

trial regarding any use by the government of any act of

production by petitioner. In addition, the term of the

grand jury that issued the subpoena to petitioner ex

pired in January 2019. When a grand jury’s term ex

pires, so does any obligation to comply with a subpoena

issued by that grand jury, as well as any contempt order

based on a witness’s failure to do so. See Shillitani v.

United States, 384 U.S. 364, 371 (1966).

Petitioner has not attempted to explain what future

harm might occur to her without this Court’s review or

even what relief she seeks in the district court now that

she is no longer subject to the contempt order,

Even if the case were not

formally moot, any potential practical effect of a deci

sion by this Court would be so remote as to render re

view unwarranted for that reason alone.

spouse’s testimony in the courtroom that is prohibited.” 445 U.S. at

52 n.12.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.