# Opposition Brief — Kapnison v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1862%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1015

## Text

>) | FILED
re MAR 26 i985
No. 84-971 :
ALEXANDER L. STEVag,
ee a

Sn the Supreme Court of the Mnited States

Octoser Term, 1984

Nick KAPNISON, PETITIONER
Vv.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee
Solicitor General

GLENN L. ARCHER, Jr.
Assistant Attorney General

Rosert E. LInDsAy
Attorney
Department of Justice

Washington, D.C. 20530
(202) 633-2217

a

QUESTIONS PRESENTED

1. Whether petitioner was deprived of due process of law
by the trial court’s exclusion of deposition testimony of
petitioner’s co-defendant, taken in a civil proceeding to
which the United States was not a party.

2. Whether admission of testimony by petitioner's ex-
wife violated the confidential marital communications
privilege.

3. Whether the trial court selectively enforced the confi-
dential marital communications privilege.

(1)

TABLE OF CONTENTS

Page
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cee aksevereeescevecces |
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SC CCsREceGs ahh ede ssboeccccrsocscccses 4
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TABLE OF AUTHORITIES
Cases:
Chambers v. Mississippi, 410 U.S. 284 ......... 5
Clark v. United States, 289 U.S.1 ............. 8
Government of the Canal Zone v. P. (Pinto),
EE ee 5
Grand Jury Subpoena, United States of
America, Hana Koecher, In re, No. 85-1033
eee y
Malfitano, Appeal of, 633 F.2d 276 ...... saneas 9
Pereira v. United States, 347 U.S. 1 ............ 7
Trammel v. United States, 445 U.S. 40 ......... 7
United States v. Ammar, 714 F.2d 238,
cert. denied, 464 U.S. 936 ..............6-. 8,9
United States vy. Benveniste, 564 F.2d
SS ae 5
United States v. Broome, 732 F.2d 363,
cert. denied, No. 84-118 (Oct. 1, 1984) ........ &
United States v. Entrekin, 624 F.2d 597,
Se WE SU, PE coc cwecaccccccsvece &

(IIT)

IV

Cases—Continued:

United States v. Fisher, 518 F.2d 836,
cert. denied, 423 U.S. 1033 .............244-- 7

United States v. Kahn, 471 F.2d 191,
cert. denied, 411 U.S. 986, rev’d,

Eee ee ee es 8
United States v. Lanci, 669 F.2d 391,

cert. denied, 457 U.S. 1134 .................. 5
United States v. Mendoza, 574 F.2d 1373,

cert. denied, 439 U.S. 988 ..............-005- 8

United States v. Neal, 743 F.2d 1441,
cert. denied, No. 84-5951 (Mar. 25,

eed») eee eee eee 4,9

United States v. Price, 577 F.2d 1356,

cert. denied, 439 U.S. 1068 .................. 8
United States v. Sims, No. 82-1523

Se, Bs OE So chose bdr ccconessnes 8
United States v. Wingate, 520 F.2d 309,

cert. denied, 423 U.S. 1074 ................ 5,6
Wolfle v. United States, 291 U.S.7 ............ 7
Zeigler v. Callahan, 659 F.2d 254 ............ 5,6

Constitution, statutes and rules:

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PE OE Ccltiacecavyssuaseenabaaaeueuwe 2
elas PE. va i cdnncceducevaseasssseausens l

SD Wi OED ce ccessevitechesceteensereonens 2

V

Page
Statutes and rules—Continued:
Se TE SEED Kak acarevessicccedccuccnes 1-2
= es 8 A Serer TT erer Terri TT rrr rT 6
Fed. R. Evid. :
| PPP EP TELE CCT TTT rT ETT Te 6
PEED bb ccwecccoavicievenseeeveen 3
PED LED ccc eccvvcccssccdscceeoses 5, 6
Rule 804(b)\(3) advisory committee note ..... 5
SED 8 60s ceca cvdcdecverdencunees 6
Miscellaneous:

8 J. Wigmore, Wigmore on Evidence
(McNaughton reved. 1961) ...........eee005- 7

Jn the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-971
NICK KAPNISON, PETITIONER
v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. al-a25) is
reported at 743 F.2d 1450.

JURISDICTION

The judgment of the court of appeals was entered on
September 4, 1984. A petition for rehearing was denied on
October 22, 1984. The petition for a writ of certiorari was
filed on December 19, 1984. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court
for the District of New Mexico, petitioner was convicted on
one count of conspiring to impede the United States in its
collection of income taxes, in violation of 18 U.S.C. 371;
one count of making a false tax return, in violation of 26

(1)

2

U.S.C. 7206(1); six counts of participating in the misappli-
cation of funds of a bank insured by the Federal Deposit
Insurance Corporation, in violation of 18 U.S.C. 656; and
seven counts of participating in a loan kickback scheme, in
violation of 18 U.S.C. 215. Petitioner was sentenced to two
years’ imprisonment on the conspiracy count. In addition,
he was fined $10,000 on the conspiracy count and $5,000
each on the tax count and one of the banking counts.
Petitioner’s sentences on the remaining counts were sus-
pended in favor of five years’ probation, conditioned on
performance of certain community service requirements.!

1. The evidence at trial showed that petitioner, an Albu-
querque, New Mexico businessman, along with Ben Bron-
stein, the owner of the First National Bank of Clovis, and
Henry Harenberg, the president of the bank, conspired to
obtain loans for various borrowers, received kickbacks
from the borrowers, and divided the kickbacks among
themselves without correctly reporting their respective
incomes. Petitioner or Bronstein would initiate the loans,
petitioner would guarantee or broker the loans and receive
a fee from the proceeds of the loans, and Harenberg would
cause the loans to be approved. The proceeds of the fees
paid to petitioner were divided among the three.

Petitioner was tried separately from his co-conspirators.
Prior to petitioner’s trial, Bronstein filed an affidavit stating

1Petitioner’s co-conspirator Henry Harenberg was convicted at a
separate trial on most of the same counts as petitioner. Harenberg was
sentenced to 18 months’ imprisonment on the conspiracy count and was
fined $10,000 on the conspiracy count and $5,000 each on a tax count
and one of the banking counts; his sentences on the remaining counts
were suspended in favor of five years’ probation, conditioned on per-
formance of certain community service requirements. Co-conspirator
Ben Bronstein pleaded guilty to four counts of the indictment; he was
sentenced, to a two-year term of imprisonment and a total of $20,000 in
fines.

2

| ad

3

that if called to testify he would invoke his Fifth Amend-
ment privilege and refuse to testify on behalf of petitioner.
The government conceded that Bronstein was “unavaila-
ble” within the meaning of Fed. R. Evid. 804(a)(1). Pet.
App. al5. During his trial, petitioner attempted to offer in
evidence the transcript of a deposition of Bronstein, which
had been taken during the course of a civil action then
pending in state court. In that civil action, the First
National Bank of Clovis had sued a borrower who had
defaulted on a loan he had obtained by paying a kickback to
petitioner, Bronstein, and Harenberg. In the deposition,
Bronstein denied working on the loan or receiving any
benefit in connection with the making of the loan. The
district court excluded the deposition from evidence. /d. at
al5-al6.

At trial, a number of witnesses testified against peti-
tioner, including his ex-wife Natalyn Kapnison. The trial
court ruled that Mrs. Kapnison could testify about acts,
petitioner’s statements made in the presence of third parties,
and her own statements, but not about anything petitioner
related to her during the course of their marriage (Pet. App.
a7-a8). Direct and cross-examination were confined to
these matters (id. at a8). At the conclusion of her testimony,
Mrs. Kapnison asserted the marital communications privi-
lege with respect to any confidential communications she
had made to petitioner during their marriage (8 Tr.
1480-1481).

2. The court of appeals affirmed petitioner’s convictions
(Pet. App. al-a25). The court held that Mrs. Kapnison
testified voluntarily and that her testimony did not violate
either the privilege against adverse spousal testimony or the
privilege for confidential marital communications (id. at
a3-al0). The court further held, inter aiia, that the trial
court did not err in denying petitioner’s motion for sever-
ance of some counts (id. at al0-a1 1); that petitioner was not

4

unfairly prejudiced by pretrial publicity (id. at all-al2);
that the trial court properly applied the privilege for confi-
dential marital communications (id. at al3); that charts and
summary testimony of an expert witness for the govern-
ment were properly admitted (id. at al3-al5); that the trial
court properly excluded from evidence the deposition tes-
timony of Bronstein (id. at al5-al8); and that there was
sufficient evidence in the record to support the convictions
(id. at a22-a23).?

ARGUMENT

1. Petitioner contends (Pet. 11-14) that the exclusion of
co-conspirator Bronstein’s deposition testimony deprived
him of due process of law. Petitioner did not allege below
that exclusion of the testimony amounted to a constitu-
tional violation. See Appellant’s C.A. Opening Br. 60-68; 13
R. 2482-2483. In any event, his contention is without merit.

Bronstein’s deposition was taken in a civil proceeding
involving the First National Bank of Clovis and one of its
borrowers. The United States was not a party to that pro-
ceeding. In the course of his deposition Bronstein denied
that he had participated in the processing of the loan at issue
in the civil case or that he had derived any benefit from the
loan.

*Judge Logan and District Judge Jenkins, sitting by designation,
concurred, but declined to join in Judge Barrett's application of the
“crime-fraud” exception to the confidential marital communications
privilege, citing their concurring opinions in United States v. Neal, 743
F.2d 1441 (10th Cir. 1984), cert. denied, No. 84-5951 (Mar. 25, 1985).
Judges Logan and Jenkins concluded that petitioner's claim based on
the privilege was without merit because the testimony he challenged did
not involve confidential marital communications. Pet. App. a24-a25.
In Neal, the same panel rejected a claim that the confidentia! marital
communications privilege had been violated. As in this case, Judge
Barrett rested his conclusion on application of the crime-fraud excep-
tion to the privilege, while Judges Logan and Jenkins concluded that
the testimony involved did not involve confidential marital communi-
cations.

5

It is clear that Bronstein’s deposition testimony was not
admissible under Fed. R. Evid. 804(b)(1); indeed, peti-
tioner does not contend otherwise. Rule 804(b)(1) provides
that former testimony is not excluded by the hearsay rule “if
the party against whom the testimony is now offered, or, in
a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.” The plain language
of the rule precludes the use of prior testimony when the
party against whom the evidence is offered did not have a
meaningful opportunity in the prior proceeding to develop
that testimony. See, e.g., United States v. Lanci, 669 F.2d
391, 394 (6th Cir.), cert. denied, 457 U.S. 1134 (1982);
Government of the Canal Zone vy. P. (Pinto), 590 F.2d
1344, 1353-1354 (Sth Cir. 1979); United States v. Wingate,
520 F.2d 309, 315-316 (2d Cir. 1975), cert. denied, 423 U.S.
1074 (1976). Since the United States was not a party to the
civil proceeding in which Bronstein’s deposition was taken,
it had no opportunity to cross-examine him. Thus, the
deposition testimony constituted inadmissible hearsay as
against the government.

Petitioner nevertheless contends that the Bronstein depo-
sition testimony should have been admitted because it bore
sufficient indicia of reliability. In support of that conten-
tion, he relies on Chambers vy. Mississippi, 410 U.S. 284
(1973); United States v. Benveniste, 564 F.2d 335 (9th Cir.
1977); and Zeigler v. Callahan, 659 F.2d 254 (ist Cir.
1981). However, Chambers and Benveniste both involved
declarations against penal interest. Such declarations gen-
erally are regarded as reliable because persons do not nor-
mally make statements that are damaging to themselves
unless they believe them to be true. See Chambers, 410 U.S.
at 299; Fed. R. Evid. 804(b)(3) advisory committee note.
Bronstein’s self-serving deposition testimony, in which he
merely denied his involvement in the crime, clearly does not

6

bear the same indicia of reliability as a declaration against
interest. Compare, e.g., United States v. Wingate, 520 F.2d
at 316.

Nor does Zeigler v. Callahan support petitioner’s con-
tention. There the court of appeals held that, assuming the
admissibility of grand jury testimony of an absent witness
who denied his involvement in the crime, the trial court’s
failure to admit that testimony was harmless error in light of
the strength of the government’s evidence and because it
was most unlikely that the jury would have believed the
absent witness’s self-serving account. 659 F.2d at 270. Here,
as in Zeigler, admission of the testimony at issue would not
have affected the outcome of the case. Numerous witnesses
testified concerning petitioner’s participation in the kick-
back scheme, while both petitioner and Harenberg testified
that they had not engaged in any wrongdoing. Admission of
Bronstein’s similar self-serving denials would have added
little to petitioner’s defense.’

2. Petitioner also contends (Pet. 14-18) that admission of
testimony by his ex-wife violated the privilege for confiden-
tial marital communications.‘ Petitioner does not specify

*Petitioner suggests (Pet. 13-14) that the courts are divided concern-
ing admissibility under various hearsay exceptions (e.g., Fed. R. Evid.
804(b)\5)) of grand jury testimony and testimony given at a preliminary
hearing. This case does not involve those categories of testimony.
Moreover, petitioner's counsel did not seek to introduce the Bronstein
testimony on grounds other than Rule 804(b)\ 1). See 13 Tr. 2482-2484;
Fed. R. Evid. 103(a); Fed. R. Crim. P. 51. In any event, the cases cited
by petitioner are not in conflict; the outcomes rested primarily on the
courts’ differing evaluations of the reliability of the testimony in each
case. Here the government's lack of opportunity to cross examine
Bronstein, the self-serving nature of his testimony, and the absence of
significant corroborating evidence establish that Bronstein’s testimony
did not bear sufficient indicia of reliability to be admissible, even if
petitioner's counsel had sought its admission under Rule 804(b)5).

‘Petitioner and his ex-wife were married during the time of the events
described in the indictment.

7

what portions of his ex-wife’s testimony he regards as hav-
ing violated the privilege. However, in the court of appeals
he objected primarily to Mrs. Kapnison’s testimony about
the splitting of the loan fees among Bronstein, Harenberg,
and petitioner (see Pet. App. a8-a9). This Court has recog-
nized the existence of a privilege for confidential marital
communications. See Trammel v. United States, 445 U.S.
40, 45 n.5, 51 (1980). The court of appeals correctly con-
cluded, however, that the privilege does not apply in the
circumstances of this case.*

The privilege may shield the acts of a spouse from disclo-
sure if those acts were intended to be communicative and
confidential. See, e.g., 8 J. Wigmore, Wigmore on Evidence
$ 2337, at 657-658 (McNaughton reved. 1961). But the
privilege does not prevent a witness-spouse from testifying
about noncommunicative acts she has observed or about
conversations that took place in the presence of third par-
ties. See, e.g., Pereira vy. United States, 347 U.S. 1, 6-7
(1954); Wolfle v. United States, 291 U.S. 7, 14-15 (1934).
The trial court in this case specifically ruled that Mrs.
Kapnison would not be allowed to testify about anything
petitioner related to her outside the presence of third parties
during the course of their marriage; the court concluded
that Mrs. Kapnison “can testify as to acts. She can testify as
to statements that were made in the presence of others * * *.
She also may testify as to anything that she may have said,
but not in a manner that would repeat what [petitioner] had

‘Even if the privilege might have applied in this case, it is doubtful
whether petitioner preserved it. At the trial of co-conspirator Haren-
berg, which was held approximately a month before petitioner’s trial,
Mrs. Kapnison testified to several private conversations with petitioner.
Petitioner did not invoke the privilege in an attempt to prevent his
ex-wife from testifying at Harenberg’s trial. Thus, it is at least arguable
that petitioner waived his privilege. Compare United States v. Fisher,
518 F.2d 836, 840-841 (2d Cir.), cert. denied, 423 U.S. 1033 (1975).

told her or would indicate the answer or statement that
[petitioner] had made to her.” Pet. App. a7-a8. That ruling
was enforced throughout the trial (id. at a8). Mrs. Kapnison
testified, inter alia, that she attended meetings with Bron-
stein, Harenberg, and petitioner at which she participated
in distributing the loan fees and that she herself withdrew
large amounts of cash from the bank and distributed pro
rata shares of the loan fees to Bronstein and Harenberg (id.
at a8-a9). Judges Logan and Jenkins concluded (id. at
a24-a25) that Mrs. Kapnison’s testimony did not involve
any confidential communications. That fact-bound conclu-
sion, which is fully supported by Judge Barrett’s descriptioa
of Mrs. Kapnison’s testimony (id. at a8-a9), does not war-
rant review by this Court.

Assuming arguendo that Mrs. Kapnison’s testimony
concerned confidential marital communications, it never-
theless was admissible under the “crime-fraud” exception to
the privilege. Under that exception, confidential marital
communications are not protected by the privilege if the

are made in furtherance of joint criminal activity of th , SPovSeS, —

e.g., United States v. Sims, No. 82-1523 (6th Cir. Feb. 28,
1985), slip op. 8-9; United States v. Broome, 732 F.2d 363,
365 (4th Cir. 1984), cert. denied, No. 84-118 (Oct. 1, 1984);
United States v. Ammar, 714 F.2d 238, 257-258 (3d Cir.),
cert. denied, 464 U.S. 936(1983); United States v. Entrekin,
624 F.2d 597, 598 (Sth Cir. 1980), cert. denied, 451 U.S. 971
(1981); United States v. Price, 577 F.2d 1356, 1364-1365
(9th Cir. 1978), cert. denied, 439 U.S. 1068 (1979); United
States v. Mendoza, 574 F.2d 1373, 1379-1381 (Sth Cir.),
cert. denied, 439 U.S. 988 (1978); United States v. Kahn,
471 F.2d 191, 194-195 (7th Cir. 1972), cert. denied, 411 U.S.
986 (1973), rev’d on other grounds, 415 U.S. 143 (1974). Cf.
Clark vy. United States, 289 U.S. 1, 15 (1933) (describing
crime-fraud exception to attorney-client privilege). Con-
trary to petitioner’s suggestion, there is no disagreement
among the courts of appeals concerning the existence of this

- 9

exception to the marital communications privilege.* This
Court recently declined to grant review on this issue in a
case decided by the same panel that decided this case. Neal
v. United States, No. 84-5951 (Mar. 25, 1985). See page 4
note 2, supra. The present case, in which (as in Neal) only
one member of the panel relied on the crime-fraud excep-
tion, clearly does not call for a different disposition.

3. Petitioner contends finally (Pet. 17-18) that the dis-
trict court violated his due process rights by selectively
enforcing the confidential marital communications privi-
lege, thereby preventing him from confronting his ex-wife.
He also suggests (id. at 11) that Mrs. Kapnison’s answers to
certain questions constituted a waiver of the privilege, but
that she was then permitted to use the privilege to prevent
petitioner from testifying about confidential communica-
tions. Those contentions are without merit.

Petitioner’s claim of selective enforcement rests on the
incorrect premise that his ex-wife was permitted to testify in
violation of the marital communications privilege. As we
explained above (page 7), the trial court strictly enforced its
ruling barring Mrs. Kapnison from disclosing any confi-
dential marital communications. Moreover, petitioner had
ample opportunity to confront his ex-wife; his counsel
cross-examined Mrs. Kapnison at considerable length. See
8 R. 1352-1472. And contrary to petitioner’s present

‘In support of his contention that there is a conflict among the circuits
on this point, petitioner cites Appeal of Malfitano, 633 F.2d 276 (3d Cir.
1980). However, the court in Malfitano declined to adopt a crime-fraud
exception only with respect to the separate privilege against adverse
spousal testimony. See also In re Grand Jury Subpoena, United States
of America, Hana Koecher, No. 85-1033 (2d Cir. Feb. 28, 1985), peti-
tion for rehearing pending. As petitioner acknowledges (Pet. 14-15),
subsequent to Malfi tano the Third Circuit expressly recognized a

crime-fraud exception to the confidential marital communications _
ilege. United States v. Ammar, 714 F.2d at 257-258.

10
‘

contention, Mrs. Kapnison did not waive the confidential
marital communications privilege during her testimony. In
cross-examining Mrs. Kapnison, petitioner’s counsel him-
self took particular care to ensure that the privilege
remained intact. See 8 R. 1381-1383, 1458-1459, 1462. In
any event, petitioner has identified no specific prejudice
that he suffered as a result of the alleged selective enforce-
ment. In this Court, as in the courts below (see Appellant’s
C.A. Opening Br. 46-52; 13 R. 2543-2544), petitioner has
made no proffer concerning communications to which he
might have testified if his ex-wife had been barred from
asserting the confidential marital communications privi-
lege. Thus, he has failed to present an adequate foundation
for his selective enforcement claim.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitied.

Rex E. Lee
Solicitor General

GLENN L. ARCHER, JR.
Assistant Attorney General

RosBert E. LINDSAY
Attorney

MARCH 1985

DO}J-1985-03

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1862%3A2. Public record. Not legal advice.