Opposition Brief — Evans v. Tohono O'Odham Nation

Saypreme Court, U.S.

r FILED

No. 98-1756 JUN 2 1999 :

vga CLERK

Supreme Court of the United-States—

+

WAYNE EVANS and MADELYN EVANS,

husband and wife,

Petitioners,

TOHONO O’ODHAM NATION; WILLIE GILBERT;

DAWSON RILEY and DAVINA RILEY; HAROLD

MARCONDA; LINDA MARTIN and JACK MARTIN;

JEREMY EVANS; DANIEL EVANS; HUNTINGTON

CONSTRUCTION, INC.; WESTERN PACIFIC

CONSTRUCTION, INC.; and VOICE OF GOD

RECORDINGS, INC.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

RESPONDENT TOHONO O’ODHAM NATION’S

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

.

Davip P. FRANK LANE D. ODEN

ATTORNEY GENERAL OF Counsel of Record

THE TOHONO L. ANTHONY FINEs

O’oODHAM NATION Fines & Open, P.L.C.

P.O. Box 1202 627 North Sixth Avenue

Sells, AZ 85634 Tucson, AZ 85705-8330

(520) 383-2221 (520) 882-6788

June 2, 1999 Counsel for Respondent

The Tohono O'odham Nation

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

REVISED STATEMENT OF

QUESTIONS PRESENTED FOR REVIEW

Respondent suggests that a more accurate statement

of the Questions Presented is as follows:

1. Whether the court below, like all other courts

which have decided the issue, properly con-

cluded that the federal common law privilege

against adverse spousal testimony (also referred

to as the anti-marital fact privilege) applies only

in criminal proceedings where life or liberty is at

stake.

2. Whether the court below correctly concluded that

in a federal question jurisdiction case, as opposed

to diversity jurisdiction case, federal common

law governs the application of privilege law.

il

TABLE OF CONTENTS

Page

pee Be maa 8 i Pere ee rere ey Tee TT ye iii

SIAC mee. OF Lise CARB: oo cccceenvensesessees 1

A. TRO Meabetias FOO ics cc hve sicecekeise tess 1

B. The Proceedings and Decisions Below.......... 3

REASONS FOR DENYING THE WRIT............. 5

I. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE SCOPE

OF THE PRIVILEGE AGAINST ADVERSE

SPOUSAL TESTIMONY HAS BEEN SETTLED

BY THIS COURT AS WELL AS CIRCUIT APPEL-

wis Bee) 2) rrr rere ee mn ly >

A. The Privilege Against Adverse Spousal Tes-

timony Does Not Apply In Federal Civil

ROGUE oo ecinaiscd ns 0neesckvaneeeniee eee 5

B. Even In Criminal Cases, The Privilege

Against Adverse Spousal Testimony Does

Not Insulate A Spouse From Giving Testi-

mony Because The Privilege Is Unavailable

Unless The Anticipated Testimony Is In Fact

Adverse To The Non-Witness Spouse ...... 13

II. EVIDENCE RULE 501 MANDATES THE APPLI-

CATION OF THE FEDERAL COMMON LAW OF

PRIVILEGES WHERE, AS HERE, JURISDICTION

IS BASED ON FEDERAL QUESTION .......... 15

CULAR bp icccctxccdsteupiseele ee 19

ili

TABLE OF AUTHORITIES

Page

Cases:

Abbott v. Kidder, Peabody & Co., 1997 WL 337228

i PE sree hbsudes¥ivacveconvececsseneeeses 11

Branzburg v. Hayes, 408 U.S. 665 (1972).............. 17

Brunt v. Hunterdon County, 183 F.R.D. 181 (D.N.J.

CP TRUCS CSS See veuh eee pede es vecessacvebestees 16

Engelmann v. Nat'l Broadcasting Co., 1995 WL

EE, SURE sobs tsevidsovenecvervesdvess 11

Flexmaster Aluminum Awning v. Hirschberg, 173

Ariz. 83, 839 P.2d 1128 (Ct. App. 1992) ............ 3

Funk v. United States, 290 U.S. 371 (1933)........ 6, 7, 8

Hancock v. Dobson, 958 F.2d 1367 (6th Cir. 1992)..... 15

Hancock v. Hobbs, 967 F.2d 462 (11th Cir. 1992)...... 16

Hawkins v. United States, 358 U.S. 74 (1958)

i att ee hud ees cenke dee aes ee 8s 7, 8, 9, 10, 12

In re Grand Jury Matter, 673 F.2d 688 (3rd Cir.), cert.

ee, GOP WD. BOTS CEE)... nc cceccvcccccccsececs 12

In re Grand Jury (Malfitano), 633 F.2d 276 (3d Cir.

se Dd dik anne heehee See wahesebeeseeres 14

In re Grand Jury Proceedings, 664 F.2d 423 (5th Cir.

1981), cert. denied, 455 U.S. 1000 (1982)............ 14

In re Martenson, 779 F.2d 461 (8th Cir. 1985)......... 14

In re Shur, 225 B.R. 295 (E.D.N.Y. 1998) ............. 11

Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455

i Ms veces ees ceneeeucensessveesecesses 16

iv

TABLE OF AUTHORITIES —- Continued

Page

Ryan v. Commissioner of Internal Revenue, 568 F.2d

531 (7th Cir. 1977), cert. denied, 439 U.S. 820

GUPPE +a cds rcvcsncnscdvcekdwsysesusepeenasiaveei 9, 10

Securities and Exch. Comm’‘n v. Lavin, 111 F.3d 921

ee GO TH Reece n enced ersevadescdescotisdnscens 11

Smith v. Alice Peck Day Memorial Hosp., 148 F.R.D.

D6 TEPC: DOOEE occ achincenasvecevesecicvnscvesves 18

Spencer Sav. Bank v. Excell Mortgage Corp., 960

Fame. Gab GOED. FOGG cc cncsesevecvnvcsvessese 16

Stein v. Bowman, 38 U.S. 209 (1839) ................ 6, 7

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

United States v. Cauwenberghe, 827 F.2d 424 (9th

Cir. 1987), cert. denied, 484 U.S. 1042 (1988) ....13, 14

United States v. Nixon, 418 U.S. 683 (1973)......... 6, 17

United States v. Premises Known as 281 Soysset

Woodbury Rd., 71 F.3d 1067 (2d Cir. 1995)......... 11

United States v. State of Illinois, 148 F.R.D. 587

8 ee err er ree or Pree r ery ere 16

United States v. Van Drunen, 501 F.2d 1393 (7th

Cir.), cert. denied, 419 U.S. 1091 (1974)............. 12

University of Pennsylvania v. Equal Employment

Opportunity Comm'n, 493 U.S. 182 (1990)........ 6, 17

Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671

ae Bee Ge GO FE so cccecuccecsveesavenses 16, 17

—

Vv

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND RULES:

BB UGC, BO Wisi vc ccd cctccccccscssanacs tasecsucuats 3

TB UGE. BUD oo sv vectcccdccccscccttasvivccssccsseves 3

Ariz. Rev. Stat. Arti. § 25-212... ccccccccvcccccccvess 2

Sree rte 5, 10, 15, 18

OTHER AUTHORITIES:

CHARLES A WRIGHT & KENNETH W.

GRAHAM, JR., FEDERAL PRACTICE AND

PROCEDURE, EVIDENCE § 5434 at 862 (1980) ....17

JACK B. WEINSTEIN & MARGARET A. BERGER,

WEINSTEIN’S FEDERAL EVIDENCE

§ 501.02[3][b] (Matthew Bender 2d ed. 1997)...... 16

STATEMENT OF THE CASE

A. The Material Facts.

Respondent, the Tohono O’odham Nation (the

“Nation”), is a federally recognized Indian tribe, which

by legislative resolution established a Farming Authority

(the “Farming Authority”) to, among other things, com-

mercially manage the Nation’s agricultural resources, and

generate profits from such operations for the Nation’s

benefit and related purposes. In December 1994, the

Farming Authority hired Petitioner Wayne Evans

(“Evans”) to serve as its interim general manager. He

later entered into written contract with the Farming

Authority to serve as its general manager.

The complaint alleges that Evans, while serving as

the general manager for the Farming Authority, engaged

in a fraudulent scheme to misappropriate money from the

Farming Authority that involved multiple forgeries,

counterfeit invoices, the use of U.S. and private mail, and

the use of interstate telephone communications. Using a

forged contract, Evans engaged Huntington Construction,

Inc. (“Huntington”), a company in which he had an inter-

est and which, for all intents and purposes, he controlled

to perform work for the Farming Authority. After hiding

and lying about his interest in Huntington, Evans caused

the Farming Authority to pay Huntington nearly $1.6

million for work that cost Huntington less than $300,000,

thereby giving Huntington an unearned profit of approxi-

mately $1.3 million. Evans also gave Farming Authority

money to Western Pacific Construction, Inc. (“Western

Pacific”), another company in which Evans had an inter-

est, for work and services that Western Pacific could not

have performed. Once in the hands of Huntington, the

Farming Authority’s money was then distributed at the

direction of Evans directly to himself (or for his benefit),

to his family members, to Western Pacific, to the Church

of the Word of God, to Voice of God Recordings, Inc.

(“Voice of God”) and to others who performed no ser-

vices for the Farming Authority. Evans caused $820,000 of

the monies received by Huntington from the Farming

Authority to be sent to Voice of God in Jeffersonville,

Indiana. The Farming Authority learned of the $820,000

transfer to Voice of God, several days after it was made.

Thereafter, Evans was terminated from his position with

the Farming Authority.

Based on these facts, the Nation asserted: (1) federal

and state RICO claims against Evans and Huntington

(and others); (2) an unjust enrichment claim against

Huntington and Western Pacific; (3) a conversion claim

against Huntington, Evans, Western Pacific (and others);

(4) a constructive trust claim against Huntington, Western

Pacific, Evans (and others); (5) a breach of contract claim

against Evans; and (6) a breach of fiduciary duty claim

against Evans. Contrary to Petitioners’ assertions in their

statement of the case, the Nation has not asserted any

claims directly against Madelyn Evans.

Under Arizona law, it is necessary to name the

spouse of a party who has engaged in wrongdoing in

order to obtain a judgment enforceable against their

jointly owned community property. In Arizona, ali prop-

erty acquired during marriage (with certain exceptions

not pertinent here) is presumptively community property,

in which both spouses have an interest. See Ariz. Rev.

Stat. Ann. § 25-211 (1973). Madelyn Evans was thus

named as a party because she is a necessary and proper

party in a suit to “obtain and execute a judgment against

community” property under Arizona law. Flexmaster Alu-

minum Awning v. Hirschberg, 173 Ariz. 83, 88, 839 P.2d

1128, 1123 (Ct. App. 1992). The Nation has not alleged

that Madelyn Evans has done anything that would make

her individually liable to the Nation.

B. The Proceedings and Decisions Below.

In September 1997, the Nation filed suit against

defendants in the United States District Court in Tucson,

Arizona. Several months later, the Nation amended its

complaint to add additional parties and assert additional

claims. The essence of the Nation’s amended complaint is

summarized in the preceding section. Federal court juris-

diction is based on federal question jurisdiction under 28

U.S.C. § 1331 and 18 U.S.C. § 1964.

The Nation noticed the depositions of defendants

Wayne and Madelyn Evans. A few days before the depo-

sitions were scheduled, the Evanses moved for a protec-

tive order to excuse them from giving depositions on the

grounds that they intended: (1) to assert their fifth

amendment privilege against self incrimination as to

every question asked of them after a request for their

names; and (2) to assert the privilege against adverse

spousal testimony (also referred to as the anti-marital fact

privilege). In its opposition papers, the Nation pointed

out that defendants cannot make a blanket assertion of

their fifth amendment privilege, and that, under prevail-

ing federal law, the privilege against adverse spousal

testimony is not recognized in a federal civil case. At oral

argument on the Evanses’ motion, the Nation also

brought to the district court’s attention cases holding

that, like the fifth amendment privilege, the adverse testi-

mony privilege does not create a blanket privilege.

Rather, the privilege may only be asserted on a question-

by-question basis.

The district court denied the Evanses’ motion. The

district court found that the federal common law on

privileges governs “when jurisdiction is based on a fed-

eral question, as opposed to diversity.” (Petitioners’ App.

B, p. 6a) The district court further concluded that the

privilege against adverse spousal testimony “applies only

to adverse testimony, and does not create a blanket privi-

lege.” (Petitioners’ App. B, p. 6a) Finally, the district court

held that, under prevailing federal law, there is no privi-

lege against adverse spousal testimony “in a federal civil

case.” (Petitioners’ App. B, p. 7a)

The Evanses filed a petition for writ of mandamus

with the Ninth Circuit Court of Appeals, contending that

the district court improperly denied their motion for a

protective order because the court failed to recognize the

privilege against adverse spousal testimony in a federal

civil case. Thereafter, the district court granted the

Evanses a stay of their depositions pending the Ninth

Circuit’s ruling on their petition for writ of mandamus.

(Petitioners’ App. C, p. 8a) A few weeks later, the Ninth

Circuit concluded that the Evanses had “not demon-

strated that this case warrants the intervention of this

court by means of the extraordinary remedy of man-

damus” and denied the petition. (Petitioners’ App. A, p.

la)

By order dated April 9, 1999, the district court contin-

ued the stay of the depositions for 60 days to allow the

Evanses to pursue a petition for writ of certiorari with

this Court. (Petitioners’ App. C, p. 11a)

+

REASONS FOR DENYING THE WRIT

I. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE SCOPE OF

THE PRIVILEGE AGAINST ADVERSE SPOUSAL

TESTIMONY HAS BEEN SETTLED BY THIS

COURT AS WELL AS CIRCUIT APPELLATE

COURTS.

A. The Privilege Against Adverse Spousal Testi-

mony Does Not Apply In Federal Civil Cases.

The Evanses claim that the district court erred by

failing to accept their assertion of the privilege against

adverse spousal testimony in this civil case. The privilege

has never been recognized in a federal civil case and,

given this Court’s policy that privileges should be nar-

rowly construed because they block the judicial fact-

finding function, there is no justifiable reason to expand

the privilege.

Testimonial privileges of a witness are “governed by

the principles of common law as they may be interpreted

by the courts of the United States in light of reason and

experience.” Fed. R. Evid. 501. In enacting Rule 501,

“Congress manifested an affirmative intention not to

freeze the law of privilege. Its purpose rather was to

‘provide the courts with the flexibility to develop rules of

privilege on a case-by-case basis. ...’ ” Trammel v. United

States, 445 U.S. 40, 47 (1980) (quoting 120 Cong. Rec.

40,891 (1974)). When deciding privilege issues, this Court

has recognized that privileges must be narrowly con-

strued because they interfere with the search for the

truth. United States v. Nixon, 418 U.S. 683, 710 (1973)

(Privileges “are not lightly created nor expansively con-

strued, for they are in derogation of the search for

truth.”). As a result, this “Court has been disinclined to

exercise [its] authority expansively” to interpret privi-

leges. University of Pennsylvania v. Equal Employment

Opportunity Comm'n, 493 U.S. 182, 189 (1990).

Relying on Stein v. Bowman, 38 U.S. 209 (1839), the

Evanses contend (Petition at 9) that there has been a long-

established rule recognizing the privilege against adverse

spousal testimony in a federal civil case. Stein did not

specifically address the privilege issue. Rather, in that

case, the Court addressed the rule of spousal disqualifica-

tion, which provided “that neither husband nor wife can

be a witness for or against the other.” Id. at 222 (emphasis

added). The rule of law applicable at the time also pre-

vented a party from being “a witness in his own case”

because of the perceived strong temptation to give per-

jured testimony. Id. at 219.

Moreover, the rule stated in Stein was limited in Funk

v. United States, 290 U.S. 371, 376 (1933). There, this Court

explained that the basic rule in Stein preventing a spouse

from giving testimony for or against her spouse had been

modified “partially by legislation and partially by judicial

construction.” This Court noted that Congress had subse-

quently enacted legislation “that no witness should be

excluded from testifying in any civil action, with certain

exceptions, because he was a party to or interested in the

issue tried.” Id. at 377. The exclusion of a spouse from

—————————————————

giving testimony for or against his or her spouse “was

based upon his or her interest in the event.” Id. at 380. In

short, Funk abolished the spousal testimonial disqual-

ification in federal courts to permit a spouse of a defen-

dant to testify on his behalf, reasoning that the beliefs “to

admit such testimony is against public policy because it

would endanger the harmony and confidence of the mari-

tal relations, and, moreover, would subject the witness to

the temptation to commit perjury” had been rejected. Id.

at 381. Funk did not actually confront the privilege

against adverse spousal testimony.

There does not appear to be any reported federal

court case which has applied the privilege against

adverse spousal testimony in a civil case. The privilege

has been applied only in criminal cases, which have

accorded great significance to the connection between the

criminal aspect of the case and the spousal testimony. In

Hawkins v. United States, 358 U.S. 74 (1958), in deciding

that the non-witness spouse held the privilege, this Court

explained that the rule of law regarding adverse spousal

testimony has “refused to pit wife against husband or

husband against wife in a trial where life or liberty is at

stake... ,” thereby limiting application of the privilege to

a criminal proceeding. Id. at 77 (emphasis added). In his

concurring opinion, Justice Stewart echoed the limited

application of this privilege to criminal cases when he

explained that “it has now become simply a privilege of

the criminal defendant to prevent his spouse from testify-

ing against him.” Id. at 81 (emphasis added).'

1 The Hawkins case also explained that the “rule stated in

Stein v. Bowman was followed by this and other federal courts

Several years after the Hawkins decision, the privilege

against adverse spousal testimony was criticized by this

Court in Trammel, a criminal case, where the Court quoted

Professor Wigmore’s statement that the privilege is the

“ ‘merest anachronism in legal theory and an indefensible

obstruction to truth in practice.’ ” 445 U.S. at 45. Noting

that “[n]o other testimonial privilege sweeps so broadly”

this Court explained that “[t]he ancient foundations for

so sweeping a privilege have long since disappeared.” Id.

at 51, 52. Rather than abolish the privilege entirely, how-

ever, the Court limited its holding to the issue before it -

the right of one spouse to use the privilege to prevent

testimony by the willing spouse. The Court modified the

privilege, holding that only the witness spouse, not the

non-witness spouse, could invoke the privilege against

adverse spousal testimony. Id. at 53 (“[W]Je conclude that

the existing rule should be modified so that the witness-

spouse alone has the privilege to refuse to testify

adversely; the witness may neither be compelled to tes-

tify nor foreclosed from testifying.”).

Although the issue presented here is slightly differ-

ent, the discussion and analysis in Trammel illustrates that

the privilege against adverse spousal testimony is limited

to criminal cases and has no bearing in civil cases. For exam-

ple, the Court framed the issue before it as follows:

“whether the privilege against adverse spousal testimony

promotes sufficiently important interests to outweigh the

until 1933 when this Court decided Funk v. United States” and

that the Funk case left open the question “which allowed either

spouse to exclude adverse testimony by the other.” 358 U.S. at

76.

need for probative evidence in the administration of crim-

inal justice.” Id. at 51 (emphasis added). This Court fur-

ther 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

(emphasis added). The Trammel opinion also refers to the

privilege against adverse spousal testimony as applying

to “an accused.” Id. at 48, 49, 51, 52 (emphasis added).

Finally, the opinion notes that the “modification — vesting

the privilege in the witness-spouse — furthers the impor-

tant public interest in marital harmony without unduly

burdening legitimate law enforcement needs.” Id. at 53

(emphasis added).

All Circuit Courts of Appeal and District Courts that

have addressed the issue since the decisions in Hawkins

and Trammel have limited the privilege against adverse

spousal testimony to criminal cases. Recognition of the

marital privilege only in criminal cases was found to be

the rule in the Seventh Circuit in Ryan v. Commissioner of

Internal Revenue, 568 F.2d 531 (7th Cir. 1977), cert. denied,

439 U.S. 820 (1978). Relying on Hawkins, the court

affirmed a decision of the Tax Court holding in contempt

of court a taxpayer husband and wife who, on the

grounds of the martial privilege, refused to answer inter-

rogatories propounded by the Commissioner of the IRS.

The court concluded that the privilege had been recog-

nized only in criminal cases and that the Supreme Court

had preserved the privilege in trials where life or liberty

was at stake. Moreover, the court relied on “Proposed

Rule of Evidence 505, which was adopted by the Supreme

10

Court but rejected by Congress” as providing guidance in

interpreting the privilege because the Proposed Rule

“would have restricted the privilege to criminal cases.”

531 F.2d at 543.2 The court in that case also concluded

that “no independent policy reasons” would justify

extending the privilege in that case. 531 F.2d at 544.%

The Second Circuit also has refused to extend the

privilege, observing that the “adverse spousal testimony

privilege has traditionally been limited to criminal cases.”

2 Limiting the privilege against adverse spousal testimony

to criminal cases is consistent with the Supreme Court’s

proposed rule of evidence regarding husband-wife privileges.

Proposed Federal Rule of Evidence 505 “would have codified

the Hawkins rule” [Trammel, 445 U.S. at 47] and would have

restricted the privilege to criminal proceedings [see Proposed

Rule 505(a) (“An accused in a criminal proceeding has a

privilege to prevent his spouse from testifying against him.”)].

Although this rule was not adopted, it provides guidance for

interpreting the scope of the privilege against adverse spousal

testimony. According to the Advisory Committee Notes

accompanying Rule 501, “the action of Congress should not be

understood as disapproving any recognition . . . of the

enumerated privileges contained in the Supreme Court rules.”

3 Petitioners contend that the Ryan case should be

disregarded because it “preceded Hawkins, and in Hawkins this

Court rejected most of the policy arguments Ryan rested upon.”

(Petition at 14) That simply is not true because Hawkins was

decided in 1958 and Ryan was decided in 1977. In fact, Ryan

based its decision upon Hawkins. Petitioners also attack the Ryan

decision because of a statement in the case that the fifth

amendment “applies only to criminal cases.” A thorough

reading of the case reveals that the gist of that statement was

that the privilege against self-incrimination extends to instances

where the witness has reasonable cause to fear prosecution from

answering certain questions.

rl aaa

11

United States v. Premises Known as 281 Soysset Woodbury

Rd., 71 F.3d 1067 (2d Cir. 1995). That case involved a civil

forfeiture proceeding that arose out of a drug trafficking

conviction. The court rejected the argument that the priv-

ilege should apply in a civil forfeiture dispute because

forfeiture is quasi-criminal. Id. at 1070. The Petitioners

here criticize this case, contending that its holding is

based upon secondary sources that cite no authoritative

case law for the criminal/civil dichotomy regarding the

privilege against adverse spousal testimony. They mis-

read this case because the decision, in large part, fol-

lowed Trammel and its reasoning.

The Court of Appeals for the District of Columbia

has also noted that the privilege is limited to criminal

cases. Securities and Exch. Comm'n v. Lavin, 111 F.3d 921,

925 (D.C. Cir. 1997) (The privilege against adverse spou-

sal testimony “allows a spouse called as a witness against

his or her spouse in a criminal proceeding to refuse to

testify.”) (citing Trammel, 445 U.S. at 53). District courts

have consistently adhered to the same rule. See In re Shur,

225 B.R. 295, 300 (E.D.N.Y. 1998) (“The anti-marital facts

privilege is limited to criminal matters ‘where one spouse

is a party and the other spouse is called to testify.’ ”);

Abbott v. Kidder, Peabody & Co., 1997 WL 337228, *4 (N.D.

Ill. 1997) (“The federal common law marital privilege

against adverse spousal testimony applies only in crimi-

nal cases.”); Engelmann v. Nat'l Broadcasting Co., 1995 WL

214500, *2 (S.D.N.Y. 1995) (“[T]he privilege against

adverse spousal testimony is only applicable in criminal

actions and hence has no bearing in this civil action.”). In

federal criminal cases where the privilege has been

applied, courts have cautiously stated that the privilege is

12

limited to criminal cases. See, e.g., In re Grand Jury Matter,

673 F.2d 688, 691-92 (3d Cir.) (“We have concluded that in

Trammel the Supreme Court had ‘decided that the privi-

lege against adverse spousal testimony remains a viable

principle of federal law and only modified the privilege

by vesting it solely in the testifying spouse.’ As we then

noted, ‘The crux of the privilege is that a person may not

be forced to be a witness against his or her spouse in a

criminal proceeding.’ ”) (citations omitted), cert. denied,

459 U.S. 1015 (1982); United States v. Van Drunen, 501 F.2d

1393, 1396 (7th Cir.) (explaining that the privilege against

adverse spousal testimony may excuse a spouse from

testifying against her spouse “in a criminal case”), cert.

denied, 419 U.S. 1091 (1974).4

The decisions by the federal courts below are unani-

mous. The Petitioners stand alone in their position that

the privilege against adverse spousal testimony applies in

a federal civil case. Under their suggested approach, both

spouses would be able to escape testifying in a civil case

where one spouse is party because state community prop-

erty law requires that both be named in the suit. The

primary wrongdoer - here Evans - would be able to

escape giving deposition testimony. Such a result would

run afoul of controlling Supreme Court law and the

search for truth in the quest to administer justice. See

Trammel, 445 U.S. at 50-51 (“Testimonial exclusionary rules

and privileges contravene the fundamental principle that

4 Petitioners have criticized the district court decisions that

have concluded that the privilege applies only in criminal cases

as having no real authoritative support. These decisions find

support in and are consistent with Hawkins and Trammel.

13

‘the public .. . has a right to every man’s evidence.’ As

such, they 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

of transcending the normally predominant principle of

utilizing all rational means for ascertaining the truth.”)

(citations omitted).

B. Even In Criminal Cases, The Privilege Against

Adverse Spousal Testimony Does Not Insulate

A Spouse From Giving Testimony Because The

Privilege Is Unavailable Unless The Antici-

pated Testimony Is In Fact Adverse To The

Non-Witness Spouse.

Petitioners suggest that the privilege against adverse

spousal testimony ought to completely insulate them

from giving any testimony. This argument, that the spou-

sal testimony privilege protects the very act of testifying,

overlooks the significance of adversity in determining the

scope of the privilege. Neither Trammel, nor the Circuit

Appellate Courts that have addressed the adverse spou-

sal testimony privilege, have suggested that the privilege

is so broad as to protect any testimony at all by a spouse.

As stated in Trammel, the rule applies only to testimony

that is adverse to the spouse’s penal interests. Id. at 53

(explaining that the rule gives the witness-spouse “a priv-

ilege to refuse to testify adversely”). Trammel did not

create a blanket privilege from giving any testimony.

Moreover, Circuit Appellate Courts have consistently

recognized that the privilege only applies to testimony

that is adverse to the other spouse’s penal interest. See,

e.g., United States v. Cauwenberghe, 827 F.2d 424, 431 (9th

14

Cir. 1987) (refusing to recognize the spousal privilege

where the witness failed to demonstrate that the testi-

mony 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) (holding that the privilege is “not

available unless the anticipated testimony would in fact

be adverse to the non-witness spouse.”); In re Grand Jury

Proceedings, 664 F.2d 423, 429-430 (Sth Cir. 1981) (similar),

cert. denied, 455 U.S. 1000 (1982). In In re Grand Jury

(Malfitano), 633 F.2d 276, 280 n.6 (3d Cir. 1980), the court

acknowledged that “the [spousal testimony] privilege is

not absolute: it does not shield all testimony nor does it

bar procedures that may protect the spouse from the

effects of the testimony.”

A prerequisite to raising the privilege requires that

the testimony be adverse. It must be offered against a

spouse who is a party in the case and bear harmfully on

that spouse’s penal interests. Courts have not applied the

privilege to prevent testimony on objective facts having

no effect on the party spouse. Consequently, even in

criminal cases, blanket assertions of the privilege are not

permitted because the privilege is not a general one. As

with asserting the fifth amendment privilege against self-

incrimination, the privilege against adverse spousal testi-

mony “must be asserted as to particular questions” and,

consistent with the district court’s holding in this case,

cannot be made as a blanket assertion against giving any

testimony at all. Cauwenberghe, 827 F.2d at 431.

15

Il. EVIDENCE RULE 501 MANDATES THE APPLICA-

TION OF THE FEDERAL COMMON LAW OF

PRIVILEGES WHERE, AS HERE, JURISDICTION

IS BASED ON FEDERAL QUESTION.

Petitioners urge that review is also necessary to

establish that state privilege law applies in cases where

state law claims are raised along with federal question

claims. Federal Rule of Evidence 501 and cases following

it have uniformly rejected this notion, making review

unnecessary here.

Rule 501 of the Federal Rules of Evidence provides in

pertinent part that “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

light of reason and experience. However, in civil actions

and proceedings, with respect to an element of a claim or

defense as to which State law supplies the rule of deci-

sion, the privilege of a witness . . . shall be determined in

accordance with State law.” The Advisory Committee

Notes explain that “state privilege law will generally

apply in diversity cases” and, conversely, “[i]n nondiver-

sity jurisdiction civil cases, federal privilege law will

generally apply.”

Courts have invariably found that in cases such as

this, involving federal question jurisdiction and pendent

state law claims, the federal law of privileges applies. See

Hancock v. Dobson, 958 F.2d 1367, 1373 (6th Cir. 1992)

(“Since the instant case is a federal question case by

virtue of the appellant’s section 1983 claim, we hold that

the existence of pendent state law claims does not relieve

16

us of our obligation to apply the federal law of privi-

lege.”); Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671

F.2d 100, 103 (3d Cir. 1982) (“[I]n federal question cases

the federal common law of privileges applies.”); United

States v. State of Illinois, 148 F.R.D. 587, 588, 590 (N.D. Ill.

1993) (“[A] state law privilege is limited in a case in

federal court governed by substantive federal law”; “It is

therefore the Federal Common Law of privilege that is

supreme.”); Perrignon v. Bergen Brunswig Corp., 77 F.R.D.

455, 459 (N.D. Cal. 1978) (“[I]n federal question cases

where pendent state claims are raised the federal com-

mon law of privileges should govern all claims of privi-

lege raised in the litigation.”). Other recent cases

addressing the issue have likewise held that the federal

law of privilege controls in federal question jurisdiction

cases “even if the witness-testimony is relevant to a pen-

dent state law count which may be controlled by a con-

trary state law privilege.” Hancock v. Hobbs, 967 F.2d 462,

467 (11th Cir. 1992) (per curiam); accord Spencer Sav. Bank

v. Excell Mortgage Corp., 960 F.Supp. 835, 836 (D.N.J. 1997)

(“[T]he federal law of privileges governs” where a “plain-

tiff has asserted both federal and state law causes of

action.”); Brunt v. Hunterdon County, 183 F.R.D. 181, 185

(D.N.J. 1998) (similar).

Leading commentators on evidence have reached the

same conclusion. Weinstein explains that “in federal

question cases where pendent state claims are raised the

federal common law of privileges should govern all

claims of privilege raised in the litigation.” 3 JACK B.

WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S

FEDERAL EVIDENCE § 501.02[3][b] (Matthew Bender 2d

ed. 1997). Wright & Graham also assert that the most

17

appropriate approach is to conclude that because the

provision requiring federal courts to look to state privi-

lege law in certain circumstances is an exception to the

general rule that federal privilege law applies in federal

court, “courts should always follow the federal rule when

the same evidence is relevant to both a state law and

federal claim.” 23 CHARLES A. WRIGHT & KENNETH

W. GRAHAM, JR., FEDERAL PRACTICE AND PRO-

CEDURE, EVIDENCE § 5434 at 862 (1980).

There is logic to applying the rule that federal privi-

lege law governs in a federal question case, where pen-

dent state law claims are also asserted, because federal

law favors admissibility and disfavors privileges not con-

stitutionally based. Wm. T. Thompson Co., 671 F.2d at 104.

Indeed, this Court has cautioned federal courts to create

or expand federal privileges only with extreme reluc-

tance. University of Pennsylvania, 493 U.S. at 189; Nixon,

418 U.S. at 710 n.18. A strict construction of privileges is

appropriate in federal question cases because “privileges

obstruct the search for truth,” Branzburg v. Hayes, 408 U.S.

665, 690 n.29 (1972), and “contravene the fundamental

principle that the ‘public . . . has a right to every [per-

son’s] evidence.’ ” University of Pennsylvania, 493 U.S. at

189; accord Trammel, 445 U.S. at 50 (“Privileges must be

strictly construed and tolerated only to the very limited

extent that . . . excluding relevant evidence has a public

good transcending the normally predominant principle of

utilizing all rational means for ascertaining the truth.”).

Federal courts may, however, “resort to state law

analogies for the development of a federal common law

of privileges in instances where the federal rule is unset-

tled.” Wm. T. Thompson Co., 671 F.2d at 104. Federal law

18

on the privilege against adverse spousal testimony has

been settled in the federal courts — a result that makes it

unnecessary to look to or adopt Arizona law on the issue.

Nevertheless, Petitioners urge this Court to adopt the

approach to consider state law privileges used by the

district court in Smith v. Alice Peck Day Memorial Hosp.,

148 F.R.D. 51 (D.N.H. 1993). Contrary to Petitioner’s

argument, Smith is entirely consistent with the approach

described above. That case involved seven state law

claims, three federal claims, and jurisdiction was based

on both diversity and federal question. Consistent with

Rule 501 and federal cases on choice of law with respect

to privileges, the court concluded that “in cases such as

this one, where jurisdiction is based on both diversity of

citizenship and the presence of federal claims, federal

common law controls any claim of privilege.” Id. at 53.

The question before the court was not whether state or

federal privilege law applied, but whether “a federal

court should recognize a state [quality assurance privi-

lege applicable to hospitals] as a matter of federal com-

mon law.” Id. The court refused to adopt the “quality

assurance privilege . . . even if the state courts would

apply the privilege in such cases.” Id. at 56.

In the instant case, there is no reason to stray from

settled federal law and apply Arizona law with respect to

the privilege against adverse spousal testimony. Nor

should Arizona law be substituted for the federal rule

governing this privilege in light of unanimous federal

law to the contrary.

ne

19

CONCLUSION

This case does not merit further review by this Court.

For the foregoing reasons, the Court should deny the

petition for writ of certiorari.

Respectfully Submitted,

Davip P. Frank Lane D. Oven

/ AttTorNeY GENERAL OF Counsel of Record

THE TOHONO L. ANTHONY Fines

O’oDHAM NATION Fines & Opben, P.L.C.

P. O. Box 1202 627 North Sixth Avenue

Sells, AZ 85634 Tucson, AZ 85705-8330

(520) 383-2221 (520) 882-6788

June 2, 1999 Counsel for Respondent

The Tohono O'odham Nation