Petition — United States v. Doe

;

OCTOBER TERM, 1982

UNITED STA7ES OF AMERICA, PETITIONER

v.

JANE Dor

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Rex E. Lee

Solicitor General

D, LoweLt JENSEN

Assistant Attorney General

Anprew L, Frey

Deputy Solicitor General

Caro.yn F, Corwin

Assistant to the Solicitor General

Joe. M. Gershowrrz

Aitorney

of Justice

Washington, D.C. 20530

| (202) 633-2217

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QUESTIONS PRESENTED

1. Whether a witness should be permitted to invoke

the privilege against adverse spousal testimony before a

grand jury where the sole ground for invoking the privi-

lege is that his or her testimony may incriminate a third

party, who in turn may incriminate the witness’s spouse

in some future proceeding.

2. Whether the privilege against adverse spousal

testimony should extend to testimony about joint crimi-

nal activity of the spouse®

TABLE UF CONTENTS

Page

REN os vvdndsbecswcrenicccsocntccadadocssncece 1

PS ds cc ocakedes celetbocecnctesgcekaseedieaae 1

DG cnh:) tenes ehsud sae bubs due dadsvebs ceeds twee 2

Reasons for granting the petition ...............e0eee00s 6

iinnd cusouaens ts otan cd) suesdanbiinsssceeadsu 19

SILI enue ce nquvannedvcenccue segs vdbesoseset esas la

BOD fon Gbnvcsevecteccddcedeweysuedsbaccveccased 25a

EES vnc svn daws'ensads ccvandenededsiesopoessaces 26a

SLD cwteiien ccna wbanedes Goddcceccodupectcccsnes 27a

TABLE OF AUTHORITIES

Cases: Page

Branzburg v. Hayes, 408 U.S. 665 ...........00008s 8

Callanan v. United States, 364 U.S. 587 ............ 17

Clark v. United States, 289 U.S.1 ........60000000s 18, 19

Doe, Im re, G61 F.2d 809 ..... cc ccc c ewe eee ceeeeees 18

Elkins v. United States, 364 U.S. 206 .............. ll

Gannett Co. v. DePasquale, 443 U.S. 368 ........... 19

Gill v. Commonwealth, 374 S.W. 2d 848 ............ 18

Grand Jury (Malfitano), In re, 683 F.2d 276 ........ 5, 16

Grand Jury Proceedings (Appeal of Vannier), In re, 664

F.2d 423, cert. denied, Nos. 80-1071 and 81-1108 (Mar.

Te ED vcice denumstnsbadedbagdtsrceSccvdsvcs 12, 15, 16

Halback v. Hill, 261 F. 1007 ..... 06.6... ccceeeveee 12

Hawkins v. United States, 358 U.S. 74 ............. 10

Hyde Construction Co. v. Koehring Co., 455 F.2d 337 18

Kastigar v. United States, 406 U.S. 441 ............ 4

Manness v. Meyers, 419 U.S. 449 ..... 0.6... 6.5 cues ll

People v. Langtree, 64 Cal. 256, 30 P. 818 .......... 12

People v. Watkins, 89 Misc. 2d 870, 3938 N.Y.S. 283 . 18

Ryan v. Commissioner, 568 F.2d 531 .............. 12, 17

Smith v. State, 344 So. 24 915... 66. ccc ee ceeeeees 18

Snoonian, In re, 502 F.2d 110 ..........6055: 12, 14, 15, 16

(ib

er*

he

x

Cases—Continued

Page

BOG Ts Vs B ike TB akc c cee i cas cccccccccceees 12

State v. Parrott, 79 N.C. G15 .........-..-5-0ee000- 12

State v. Smith, 384 A.2d G87... 2.6... ccc cc cece eees 18

Trammel v. United States,

ep Weer Gr 4 < civetececkss 4, 5, 6, 7, 11, 12, 13, 17, 18

United States v. Allery, 526 F.2d 1362 ............. 12

United States v. Armstrong, 476 F.2d 313 .......... 14, 15

United States v. Burks, 470 F.2d 482 ............... 12

United States v. Calandra, 414 U.S. 338 ............ »

United States v. Cameron, 556 F.2d 752 ............ 12

United States v. Dionisio, 410 U.S. 1............... 8

United States v. Friedman, 445 F.2d 1076, cert. denied,

GE a Ei Vb nbbc Coc bnndndahsbedecbdasocece 18

United States v. George, 444 F.2d 310 .............. 10

United States v. Kahn, 471 F.2d 191, cert. denied, 411

GD. tab bn coche. Ph WRbadedeeees co vebvwecie 18

United States v. Mendoza, 574 F.2d 1878 ........... 18

United States v. Trammel, 583 F.2d 1166, aff'd, 445 U.S.

Tal ntie oad 6b ddan take cnekaancenhccatena 16

United States v. Van Drunen, 501 F.2d 1393, cert. de-

ek ee ee eee re 16, 17

United States v. Weinberg, 439 F.2d 743 ............ 14, 15

Statutes and rule:

Miscellaneous:

3 Wharton's Criminal Evidence (12th ed. 1955) ...... 14

8 Wigmore on Evidence (McNaughton rev. 1961) .... 12

4

In the Supreme Court of the Ginited States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JANE DOE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Third Circuit

in this case.'

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra) is

reported at 673 F.2d 688. The memorandum opinion of

the district court (App. D, infra) is not reported.

JURISDICTION

The judgment of the court of appeals (App. B, infra)

was entered on March 9, 1982. A petition for rehearing

'The record in this case has been ordered sealed. See App. A,

infra, 1a n.1. Following the approach of the court of appeals, we do

not disclose the names of the interested parties. Respondent is refer-

red to in the caption as “Jane Doe.” The district court memorandum

and order, which are reprinted in Appendix D, have been altered so

as to substitute fictitious names for the names of interested parties.

(1)

was denied on May 4, 1982 (App. C, infra). On June 24,

1982, Justice Brennan extended the time within which to

file a petition for a writ of certiorari to and including

August 2, 1982. The jurisdiction of this Court is invoked

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

STATEMENT

1. A grand jury in the United States District Court

for the Eastern District of Pennsylvania is investigating a

large drug ring engaged in the distribution of metham-

phetamine, a non-narcotic controlled substance. Respon-

dent, one of the participants in the ring, pleaded guilty to

one count of conspiracy to possess with intent to dis-

tribute and to distribute methamphetamine, in violation

of 21 U.S.C. 846, and one count of aiding and abetting the

distribution of methamphetamine, in violation of 21

U.S.C. 841. The government then subpoenaed respon-

dent to testify before the grand jury concerning events

alleged to be part of the conspiracy. The questions did not

relate to respondent’s husband, but rather to activities of

other alleged members of the conspiracy (see C.A. App.

23a-26a). Respondent was granted immunity against self-

incrimination under 18 U.S.C. 6002, but she refused to

testify, invoking the privilege against adverse spousal

testimony. Respondent contended that, even though the

government’s questions concerned members of the opera-

tion other than her husband, her answers might be used

against her husband.’

* Respondent also claimed that some of the questions that the

government proposed to ask her were the product of an illegal in-

terception of an oral communication, and therefore could not be asked

before the grand jury. The district court sustained the claim, and the

government did not raise the issue on appeal.

The government moved to compel respondent to

answer the questions (C.A. App. 8a-12a). In support of

the motion, the government filed an affidavit (id. at 27a)

certifying that “nothing said by [respondent] will be used,

either directly or indirectly, against her husband * * * in

any legal proceedings.” In a subsequent affidavit (id. at

32a-33a) the government clarified its commitment, stat-

ing:

[TJhe government will not nt to the Grand

Jury empaneled January 28, 1981 an indictment in

[respondent’s] s * * * is named as a de-

fendant or as an co-conspirator. By this

procedure, the government yo to effectively

sens the a ean that the Grand Jury

empaneled on January 28, 1981 will consider [respon-

dent’s} ytd in deciding whether to indict her

spouse *

At a hearing Sites the district court the government

acknowledged that the respondent’s husband was a

target of the investigation (id. at 154a). However, the

government reiterated that the husband would not be

indicted or named as an unindicted co-conspirator by the

grand jury before which respondent was to testify and

that respondent’s testimony would not be used against

her husband in any proceeding (id. at 153a, 155a). Rather,

if respondent's testimony implicated a third party, and if

the third party were thereafter willing to testify against

the husband, a separate grand jury would be empaneled

from which the government would seek the husband's

indictment (id. at 157a, 159a).

The district court upheld respondent’s invocation of the

spousal privilege, rejecting the government’s arguments

that the privilege would not be infringed because the

questions addressed to respondent did not relate to her

husband and because her husband was not a target of the

January 28, 1981, grand jury. The court reasoned (App.

4

D, infra, 31a) that respondent’s testimony could nonethe-

less be “indirectly” adverse to her husband in that, under

the government’s scenario, it would implicate a third

party whose cooperation the government might then

obtain in seeking an indictment against the husband be-

fore a different grand jury.

2. Adivided panel of the court of appeals affirmed the

district court’s order upholding the claim of privilege

(App. A, infra). The majority noted that even after this

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

limited the privilege against adverse spousal testimony to

protect only the right of the witness spouse to refuse to

testify aguinst the nonwitness spouse, the rationale for

the privilege remained the same: the preservation of

marital harmony (App. A, infra, 6a). It then went on to

hold that “when, as in the present case, the Government

openly seeks one spouse’s testimony concerning the activ-

ity of a third party, who is alleged to have engaged in a

common criminal scheme with a husband and his wife, and

the Government thereby hopes also to reach the non-

witness spouse, the testimony sought is sufficiently

adverse to the interests of the absent spouse to permit

invocation of the privilege against adverse spousal testi-

mony” (id. at 7a). The court reasoned that to compel the

testimony of the witness spouse in these circumstances

would be to permit the government to do indirectly what

it could not do directly (id. at 7a-8a). The court. further

stated that “(the potential disruption to marital harmony

is in no sense diminished because the impact of the

beeen a ee 4 cles at 8a-9a).

court acknowledged that continued recognition of

ei tabtnan itech wire meee anaes meee

sult in the withholding of probative evidence from the

grund jury or at trial and may even allow a guilty party to

escape punishment (id. at 10a-1la). However, the court

did not analyze the relevance of this concern to the case

before it, but simply observed that this feature of the

privilege had been carefully considered by this Court in

Trammel and by the Third Circuit in an earlier opinion.’

In his dissent, Judge Adams concluded (App. A, infra,

16a) that the majority’s holding “unduly extends the

marital privilege” and is inconsistent with the dictates of

this Court’s decisiou. in Trammel. Judge Adams observed

between the marital partners” (id. at 19a), and that

traditionally the privilege had been limited to testimony

used in the very proceeding at which the nonwitness

spouse was indicted or tried (id. at 20a). Judge Adams

concluded (id. at 23a) that the theoretical link between

* The opinion referred to was Jn re Grand Jury (Malfitano), 633

F.2d 276 (1980), in which the Third Circuit had held the privilege

applicable to spousal testimony before a grand jury where both

spouses were alleged to have participated in the crime under in-

vestigation and where the grant of immunity did not appear to extend

to immunity from indictment by that grand jury.

Judge Rosenn, author of the majority opinion in the present case,

did add a footnote expressing his concern about the fact that the

effect of the court’s holding was to protect a third party “who has no

entitlement whatsoever to the benefits of the privilege” (App. A,

infra, lla n.12). In that footnote, in which Judge Sloviter explicitly

declined to concur, Judge Rosenn suggested that the district court

could avoid this result by offering to give a nonwitness spouse use-

fruits immunity respecting the witness spouse’s testimony unless the

government decided to forgo that testimony. Judge Sloviter in her

concurring opinion (id. at 12a-)6a) and Judge Adams in his dissent

(id. at 24a n.7) questioned whether the judicial branch has authority

in a nonconstitutional setting to order that such immunity be con-

the respondent’s testimony and the pogsible future indict-

ment of her husband was “attenuated at best” and was

insufficient to justify extension of the privilege beyond its

traditional boundaries.

The government’s suggestion of rehearing en banc was

rejected, with three judges dissenting.

REASONS FOR GRANTING THE PETITION

This case presents important and recurring questions

concerning the scope of the privilege against adverse

spousal testimony.‘ The court of appeals held that respon-

dent could invoke the privilege before a grand jury on the

sole ground that her testimony might incriminate a third

party who in turn might incriminate respondent’s spouse

in some future proceeding. This holding expands the tra-

ditional scope of the privilege in a manner that Judge

Adams rightly termed “improvident and unnecessary”

(App. A, infra, 23a), creating significant obstacles to the

government’s law enforcement efforts. Procedurally, the

holding disrupts the important investigative function of

the grand jury by recognizing premature claims of the

privilege that operate to cut off unnecessarily the grand

jury’s access to relevant evidence. On the merits, this

expansion of the privilege contravenes the admonition of

this Court in Trammel v. United States, 445 U.S. 40

(1980), that testimonial privileges must be strictly con-

strued, as well as the Congressional mandate, embodied

in Fed. R. Evid. 501, that the federal courts should use

“reason and experience” in determining the scope of a

privilege. In addition, the court of appeals’ failure to

recognize an exception to the privilege where spouses are

‘The present case does not involve the privilege against disclosure

of confidential marital communications. See App. A, infra, la n.2.

;

“wit

4 a

ea —

.

4

«

partners in crime places the Third Circuit in square con-

’ Se

did not reach it in that case.

1. The court of appeals’ holding expands the privilege

against adverse spousal testimony in a manner that frus-

that her answers would implicate him; (b) the govern-

ment has affirmed that it will not seek an indictment of

respondent would testify and has promised that respon-

dent’s testimony will not itself be used against her spouse

in any future proceeding; and (c) respondent’s testimony

is vital to the investigation of criminal activities of third

parties.

The court of appeals’ holding is a novel one with

potentially drastic consequences for law enforcement

efforts. We are aware of no other case in which a court has

government in a serious quandary. Although it carefully

avoids questions relating to activities of the witness’s

spouse, the government nevertheless is forced to choose

between foregoing important testimony concerning

third-party members of a criminal enterprise and

abandoning all efforts to indict the witness’s spouse, who

may also be a major figure in the enterprise.

a. This Court has recognized the importance of the

investigative function of the grand jury. It has stressed

the grand jury’s right to every man’s evidence and has

warned against obstacles that delay and impede the

grand jury’s investigation. See, e.g., Branzburg v.

Hayes, 408 U.S. 665, 688 (1972); United States v. Calan-

dra, 414 U.S. 338, 350 (1974), quoting United States v.

Dionisio, 410 U.S. 1, 17 (1973). The holding of the court of

appeals works against these principles. The result of

application of the privilege in this case is that the grand

jury is deprived of relevant evidence about third parties

who cannot claim any interest in the witness’s marital

privilege. The present case cannot be regarded as an

isolated instance, since it is not uncommon that witnesses

called to testify before grand juries are married to per-

sons who conceivably have involvement in the matters

or her spouse, but also about the activities of any third

party who may have had some connection with the non-

witness

spouse.

This sort of interference with the grand jury’s function

effect on the witness’s spouse is wholly speculative. For

example, in the present case there cannot be even an

allegation of adverse effect unless (a) respondent’s testi-

mony leads to indictment of a third party; (b) the third

party decides to cooperate with the government; (c) a

subsequent grand jury is authorized to investigate the

same criminal enterprise; and (d) the third party’s testi-

mony before the subsequent grand jury results in indict-

ment of the spouse. Even if all these events were to occur,

it still would be necessary to determine whether the

connection between the testimony of the witness spouse

and the indictment of the nonwitness spouse was signifi-

cant enough to justify application of the privilege.

Given the speculative nature of any adverse effect on

the nonwitness spouse, a witness such as respondent

should be required to testify before a grand jury, so long

as the witness’s spouse will not be indicted by that grand

jury. A ruling on the claim of privilege can be deferred

until such time, if ever, as any arguable adverse impact

develops. Such a procedure strikes a fair and reasonable

balance between the government’s right to investigate

suspected criminal activities of third parties and the wit-

ness’s interest in marital harmony.

This type of procedure is well established in cases in

which a witness asserts the constitutional privilege

against compelled self-incrimination. See Kastigar v.

United States, 406 U.S. 441 (1972). In such cases, once

the witness receives a grant of immunity that meets

minimum constitutional requirements, he may not tie up

a grand jury proceeding with arguments about potential

future uses of his testimony, but must proceed to testify.

If the government later attempts to use the witness’s

testimony or fruits thereof against him, a hearing is held

to determine whether the government’s action violates

the witness’s constitutional privilege against self-

incrimination. Jd. at 460-461.

10

Such a procedure is a fortiori appropriate in the case of

the privilege against adverse spousal testimony. Unlike

the privilege against self-incrimination, the privilege

against spousal testimony is not rooted in the Constitu-

tion, but is based on policy considerations. See Hawkins

v. United States, 358 U.S. 74, 77-78 (1958). Fed. R. Evid.

501 requires federal courts to evaluate particular applica-

tions of the privilege in the light of “reason and experi-

ence,” rather than to consider the privilege in the ab-

stract. Such an analysis must take into account factors

such as the nature of the testimony, the manner in which

it is used, and the nature of any impact on the nonwitness

spouse — factors that as a practical matter can be ade-

quately evaluated only at such time as an actual adverse

impact on the nonwitness spouse appears likely to

materialize.°

The marital privilege is fuliy satisfied, without ex-

travagant costs to other societal interests, by the practic-

al measure of postponing consideration of a witness’s

whose spouse is not a target of the grand jury. See, ¢.g., United

:

|

5

|

g

ie.

11

proceeding in violation of the privilege, a court can then

consider whether the privilege should apply under the

circumstances and take steps to prevent any improper

use of the testimony. Cf. Manness v. Meyers, 419 U.S.

449, 474-475 (1975) (White, J., concurring). Unlike the

result produced by the court of appeals holding, this

approach minimizes the costs to law enforcement, since

the grand jury is enabled to obtain evidence about third

parties who can claim no interest in a witness’s marital

privilege.

b. Even if it were sometimes appropriate to honor a

witness’s invocation of the privilege before a grand jury

investigating only third parties, recognition of the privi-

lege was improper in the circumstances of this case. The

court of appeals expanded the privilege in a manner that

conflicts with this Court’s statements in Trammel and

with the Congressional mandate that common law pri-

vileges should be interpreted in the light of “reason and

experience” (Fed. R. Evid. 501). This Court in T'rammel

admonished that testimonial privileges “must be strictly

construed and accepted ‘only to the very limited extent

that permitting a refusal to testify or excluding relevant

evidence has a public good transcending the normally

predominant principle of utilizing all rational means for

ing truth.’” Trammel v. United States, supra,

445 U.S. at 50, quoting Elkins v. United States, 364 U.S.

206, 234 (1960) (Frankfurter, J., dissenting).

Rather than strictly construing the privilege against

adverse spousal testimony, the court of appeals has —

broadened it considerably beyond its traditional scope.

As Judge Adams pointed out in his dissent, the privilege

was never meant to bar all testimony that affects the

relationship between marital partners (App. A, injra,

19a). Under the common law, the privilege was limited to

12

testimony that “disfavors the other spouse’s legal in-

terests in the very case in which the testimony is offered.”

8 Wigmore on Evidence § 2234, at 231 (McNaughton rev.

1961). (emphasis in original). Federal and state courts

have characterized the privilege in this manner. See, ¢.g.,

In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974); United

States v. Burks, 470 F.2d 432, 425-436 & n.6 (D.C. Cir.

1972); Halback v. Hill, 261 F. 1007, 1009-1010 (D.C, Cir.

1919); People v. Langtree, 64 Cal. 256, 30 P. 813 (1883);

State v. Parrott, 79 N.C. 615, 617-618 (1878); State v.

Briggs, 9 R.1. 361, 365-366 (1869). The court of appeals

went far beyond the traditionai scope of the privilege by

upholding its invocation on the basis of speculation about

the nexus it might have to other evidence adduced in a

hypothetical future proceeding.

Fed. R. Evid. 501 requires the federal courts to apply

“reason and experience” in determining the scope of com-

mon law privileges, not simply to extend them relentiess-

ly to the outer limits of their conceivable application. This

Court in Trammel recognized that the courts must weigh

the purpose served by the privilege — the public interest

in marital harmony — against the burden on legitimate

law enforcement needs in a particular factual setting. 445

U.S. at 52-53. The lower courts generally have applied

such a case-by-case analysis, in which the public interest

in disclosure of evidence is balanced against the extent to

which the policy underlying the privilege would be ad-

vanced by permitting invocation of the privilege in the

particular case. See, e.g., In re Grand Jury Proceedings

(Appeal of Vannier), 664 F.2d 423, 429 (Lith Cir. 1981),

cert. denied, Nos. 80-1071 and 81-1108 (Mar. 8, 1982);

Ryan v. Commissioner, 568 F.2d 531, 543 (7th Cir. 1977);

United States v. Cameron, 556 F.2d 752, 756 (5th Cir.

1977); United States v. Allery, 526 F.2d 1362, 1366-1367

(8th Cir, 1975).

13

Here, the court of appeals appears not to have engaged

in the sort of balancing analysis prescribed in Trammel,

but instead produced what Judge Rosenn acknowledged

was a “categorical enforcement” of the privilege (App. A,

infra, lla n.12). In fact, however, a balancing of the two

interests in the light of “reason and experience” indicates

that the extension of the privilege in this case is unwar-

ranted. Because respondent’s testimony will not impli-

cate her husband directly and because the grand jury

before which she testifies will not indict her husband,

there is no direct adverse impact of the type that is

normally thought to strain the marital relationship.’ Any

indictment of the husband at a later time would result

directly froin testimony of a third party. As Judge Adams

suggests, the relationship between the respondent’s

testimony and any possible adverse impact on her spuuse

is “attenuatd at best” (App. A, infra, 23a). Common

sense suggests that any strain on the marital relationship

arising from these circumstances must be far less than

that resulting from direct implication of a spouse in a

proceeding in which the spouse is a target. As Judge

Adams observes, there is a “qualitative difference” in the

impact of the testimony in these two circumstances (App.

A, infra, 19a).

On the other hand, as described above, the burden on

legitimate law enforcement that results from honoring a

witness's assertion of the privilege in a case such as the

present one is significant. Here, the result has been

frustration of the government’s efforts to obtain relevant

testimony against an individual who is thought to be an

important member of the drug ring under investigation.

*In addition, grand jury proceedings are secret and therefore

faa ee ee

Pe Ee Rae eS ae om ee ae, ee eer aS +

14

Allowing the privilege to be invoked benefited not the

spouse, but a third party who had no interest in the

witness’s privilege. Balancing of the interests in these

circumstances clearly indicates that the privilege should

not be recognized.

The court of appeals holding is at odds with the ap-

proach taken by other circuits, which have not recognized

indirect effects of spousal testimony as grounds for

permitting a witness not to testify before a grand jury.

For example, in United States v. Weinberg, 439 F.2d 743

(9th Cir. 1971), the court upheld a claim of privilege

asserted before a grand jury where the questions con-

cerned the identity and conduct of persons present during

meetings of alleged conspirators, who apparently in-

cluded the witness’s husband. The court observed, how-

ever, that the questicns could be reframed so as “not to

require [the wife] to disclose whether or not her husband

was present or participated.” /d. at 750 n.10. The court

did not suggest that there would be any difficulty if the

husband’s co-conspirators were to testify against him in

the future; in fact, the court apparently did not even

require the government to promise that the husband

would not be indicted by the grand jury before which his

wife testified.

In United States v. Armstrong, 476 F.2d 313 (Eth Cir.

1973), the court held that a wife could not refuse to testify

before a grand jury against her husband’s co-defendants

where the testimony did not implicate her husband and

where her husband’s case had been severed from that of

his co-defendants. Jd. at 315, citing 3 Wharton’s Criminal

Evidence § 777, at 113-114 (12th ed. 1955). The court

noted that the wife could be called as a witness at the

trials of the husband’s co-defendants and that the same

rule would apply to testimony before the grand jury. /bid.

See also Jn re Snoonian, supra, 502 F.2d at 112, in which

Pie ae eee ee

15

the First Circuit stated that the marital privilege would

not excuse the witness from testifying at a trial in which

his wife was not a defendant even if she had been indicted

and was being tried separately. In Armsirong and Snoo-

nian, as in Weinberg, the courts indicated no concern

about the possibility, as much present in those cases as in

this, that the husband’s co-defendants might later testify

against the husband.

The court of appeals’ holding in the present case also is

inconsistent with the explicit holding of the Fifth Circuit

in Appeal of Vannier, supra, that the scope of protection

of the privilege against adverse spousal testimony is nar-

rower than that of the privilege against self-incrimina-

tion. In Vannier the majority refused to allow invocation

of the privilege where questions addressed to the wife

were objective and contained no reference to her hus-

band, even though the husband was a target of the grand

jury. The majority quoted from the First Circuit’s opinion

in In re Snoonian:

The privilege has not ordinarily been construed to

llats tac epanin taddilinn ta Gabi inane) because

the testimony may incrimate [sic] the other. Wig-

more, supra at 231, n.2.

Appeal of Vannier, supra, 664 F.2d at 429, quoting Jn re

Snoonian, supra, 502 F.2d at 112. The court in Vannier

supported its conclusion by pointing to the difference in

the purposes and social values that are fostered by the

two different privileges. 664 F.2d at 429.

In sum, the holding in the present case represents an

unprecedented departure from the generally prevailing

understanding of the marital testimonial privilege, limit-

ing the availability of the privilege to circumstances in

which the content of the testimony is adverse to the

spouse and is sought to be elicited in a proceeding

directed against the spouse. And even if it were deemed

16

appropriate at this time to introduce into the marital

testimonial privilege a “fruits” component, the court of

appeals has adopted an extravagant and unacceptable

formulation of the concept, which threatens serious inju-

ry to the investigations of this and future grand juries and

confers wholly unjustified windfall benefits on third par-

ties who are suspected of criminal activities and who are

plainly outside the intended shelter of the privilege. Such

a drastic departure from the existing understanding of

the proper scope of the marital testimonial privilege re-

quires review by this Court.

2. Anindependent and equally significant error of the

court of appeals in this case is its recognition of the

privilege against adverse spousal testimony where the

evidence suggests that the spouses were joint partici-

pants in criminal activity.’ Respondent has pleaded guilty

to participation in a drug conspiracy that is thought to

have included her husband, and the testimony sought

from her involves the activities of other individuals in that

same conspiracy. The Third Circuit’s refusal to recognize

an exception to the privilege in such circumstances con-

flicts squarely with decisions of the Seventh Circuit and

the Tenth Circuit. Those courts, in United States v. Van

Drunen, 501 F.2d 1393 (7th Cir.), cert. denied, 419 U.S.

1091 (1974), and United States v. Trammel, 583 F.2d 1166

(10th Cir. 1978), aff'd on other grounds, 445 U.S. 40

(1980), have held that the privilege is unavailable where

the spouses are joint participants in a criminal enterprise.

’The government raised this issue in its petition for rehearing en

banc. The government’s argument previously had been rejected by a

Third Circuit panel in Jn re Grand Jury (Malfitano), 633 F.2d 276,

278-279 (1980). The government noied in its rehearing petition that it

had not raised the argument prior to the rehearing stage because one

panel cannot overrule another panel of the same circuit.

17

The Seventh and Tenth Circuits have reasoned correct-

ly that society’s interest in preserving marital harmony is

outweighed by the injury inflicted on the public by use of

the marital relationship for illicit purposes. As the

Seventh Circuit observed:

f ving the family] d

Laattee ac acted thal be ean anlion tho ait

spouse poe

Van Drunen, supra, 501 F.2d at 1396. See also Trammel,

supra, 583 F.2d at 1169-1170; Ryan v. Commissioner,

supra, 568 F.2d at 543-544. The Seventh Circuit in Van

Drunen noted that the privilege made the most sense in

cases “where a spouse who is neither a victim nor a

participant observes evidence of the other spouse’s

crime.” 501 F.2d at 1397.

This view is consistent with reason and experience.

Where spouses are co-conspirators, the injury inflicted on

the public by use of the marital relationship for illicit

purposes outweighs any societal interest in preserving

Sustind Geentene Collective criminal agreement is recog-

nized as in itself a serious danger to the public. Callanan

v. United States, 364 U.S. 587, 593-594 (1961). Permit-

ting invocation of the privilege in the case of conspiracy

may frustrate the government’s ability to obtain relevant

evidence relating to key members of a conspiracy who

happen to be married. At the same time, the purpose

served by the privilege is weak in such circumstances.

Society's interest in fostering harmony in marriages,

which ordinarily may be thought to contribute to the

rehabilitation of a defendant-spouse, is not well served by

providing an incentive for recruiting one’s spouse into

criminal activity," thereby encouraging abuse of the rela-

tionship that the privilege is designed to protect. The

decisions of the Seventh and Tenth Circuits embody the

better view, and the Third Circuit decision in the present

case should be reversed on this ground.

The analysis of the Seventh and Tenth Circuits accords

with exceptions to other privileges in cases where the

privileged relationship is similarly abused. Thus, it is well

established that a client who uses his attorney to obtain

guidance in the commission of a crime is not protected by

the attorney-client privilege against his attorney’s taking

the stand to testify about their conversations. Clark v.

United States, 289 U.S. 1, 15 (1983); In re Doe, 551 F.2d

899 (2d Cir. 1977); Hyde Construction Co. v. Koehring

Co., 455 F.2d 337, 342 (5th Cir. 1972); United States v.

Friedman, 445 F.2d 1076, 1086 (9th Cir.), cert. denied,

404 U.S. 958 (1971). It has also been held that the privi-

confidential! communications between

husband and wife does not apply to communications in

furtherance of criminal activity. See United States v.

Mendoza, 574 F.2d 1373, 1379-1381 (5th Cir. 1978);

United States v. Kahn, 471 F.2d 191, 194 (7th Cir. 1972),

cert. denied, 411 U.S. 986 (1973); State v. Smith, 384 A.2d

687, 693-694 (Me. 1978); People v. Watkins, 89 Mise. 2d

870, 393 N. Y.S. 2d 283 (Sup. Ct. 1977); Gill v. Common-

wealth, 374 S.W. 2d 848, 851 (Ky. 1964); but see Smith v.

State, 344 So. 2d 915, 919 (Fla. Dist. Ct. App. 1977). The

Third Circuit view, unlike that of the Seventh and Tenth

Circuits, fails to recognize that the privilege against

adverse testimony by a spouse, like other privileges,

* As this Court observed in Trammel, quoting Jeremy Bentham,

the privilege “goes far beyond making ‘every man’s house his castle,’

SME ~~ acai aecieneet anc pommel’ "(445

at

19

should “take[ } flight if the relation is abused” (Clark v.

United States, supra, 289 U.S. at 15), and that the mari-

tal relation is clearly abused where the spouses jointly

participate in crime.’

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Auoust 1982

* There is no question of mootness in the present case. The term of

the grand jury, which was convened on January 28, 1981, has ex-

pired. However, the government would seek to question respondent

before a new grand jury it it were ultimately to prevail in this case.

Accordingly, a clear controversy exists, th. formal elements of which

are virtually certain to recur between the same parties. See Gannett

Co. v. DePasquale, 443 U.S. 368, 377-378 (1979), and cases there