                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-1997

In Re: Grand Jury (Pt. II)
Precedential or Non-Precedential:

Docket 97-7018




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http://digitalcommons.law.villanova.edu/thirdcircuit_1997/91


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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 97-7018




                          IN RE: GRAND JURY




         On Appeal from the United States District Court
                  for the District of Delaware
                      (D.C. No. 96-mc-00093)




                     Argued March 26, 1997

                Before: SLOVITER, Chief Judge,
             STAPLETON and ALDISERT, Circuit Judges

                 (Opinion filed April 25, 1997)




James A. Backstrom, Jr. (Argued)
Vaira, Backstrom & Riley
Philadelphia, PA 19103

     Attorney for Appellant

Colm F. Connolly (Argued)
Office of the United States Attorney
Wilmington, DE 19899-2046

     Attorney for Appellee


                         OPINION OF THE COURT

SLOVITER, Chief Judge.

          On this appeal we must consider whether the

government’s grant of use and derivative use immunity (use-fruits


                                  1
immunity) to the spouse of a witness is sufficient to defeat the

witness’s privilege against adverse spousal testimony.     This is a

question of first impression for this court in the context in

which it is presented.
                                  I.

             A witness before a grand jury who asserted her

privilege not to testify as a witness against her husband in a

criminal proceeding appeals from the contempt order entered by

the district court.     The witness is the wife of John Doe 2, who

is not the target but is a subject of a grand jury investigation.

             In order to secure the testimony of the spouse-witness,

whom it had subpoenaed, the district court, at the request of the

government, granted the witness personal immunity under 18 U.S.C.

§ 6002 and 6003.    The witness appeared before the grand jury and

answered only preliminary questions, refusing to answer the bulk

of the questions, and invoked the adverse spousal testimonial

privilege.     That day the grand jury issued a subpoena duces tecum

requiring the witness to provide tapes of conversations between

the witness’s husband and others which she illegally recorded.1

Nonetheless, the witness again asserted her spousal testimonial

privilege before the grand jury and refused to answer various

questions on the ground that to do so would force her to be a

witness against her husband in a criminal proceeding.
     1
       All parties agree that these recordings are “testimony”
and are subject to the adverse spousal testimonial privilege.
The non-witness spouse and the grand jury target have also moved
to quash the subpoena duces tecum on different grounds. Their
motions are the subject of a separate appeal in a related case in
this court, In re Grand Jury, No. 97-7016/17, which has been
decided in an opinion issued contemporaneously with this one.



                                  2
           The matter came to issue when the witness filed a

motion to quash the subpoena on the basis of the privilege.     On

the same day, the government filed a motion to compel the

witness’s testimony and supplied an affidavit by the Assistant

United States Attorney in charge of the grand jury investigation

in which he promised the witness that the government would give

use-fruits immunity to her husband in exchange for her testimony.

 Specifically, the government promised that it would “not use the

testimony of [the witness spouse] or the fruits thereof in any

way, either directly or indirectly, in any criminal proceeding

against her husband . . . [and] the United States will not

present to this grand jury an indictment in which [her husband]

is named as a defendant.”   App. at 50.   The government also

represented in papers filed with the court that “in the event

that a separate grand jury indicted [the husband], the government

would bear the burden of establishing that the evidence it used

to indict [the husband] and the evidence it would use at [the

husband’s] trial were derived from legitimate sources wholly

independent of [the witness’s] testimony and production of the

tapes.”   App. 59.

           In support of its motion, the government argued that

immunizing the witness’s husband from any adverse effects of her

testimony necessarily made inapplicable the asserted privilege.

The district court denied the motion to quash and granted the

government’s motion to compel the witness’s testimony, with the

exception of answers or material that would reveal confidential

attorney-client or marital communications.    As to the spousal


                                3
     privilege, the court agreed that the government’s promise not to

     use the testimony against the husband sufficiently insulated the

     witness’s spouse so as to overcome the spousal privilege.

               The witness appeared before the grand jury the next day

     but still refused to testify or produce the subpoenaed material,

     asserting her privilege against adverse spousal testimony and her

     marital communications privilege.   The parties stipulated to the

     record, and the district court found the witness to be in

     contempt, but stayed imposition of sanctions pending this appeal.
                                   II.

              Rule 501 of the Federal Rules of Evidence provides, in

    relevant part, that:
    Except as otherwise required by the Constitution of the
              United States or provided by Act of Congress
              or in the rules proscribed by the Supreme
              Court pursuant to statutory authority, the
              privilege of a witness
              . . . shall be governed by the principles of the
              common law as they may be interpreted by the courts
              of the United States in the light of reason and
              experience.



Federal courts have recognized two kinds of marital privilege: the

    privilege that protects confidential marital communications and

    the privilege that protects a witness from testifying against

    his/her spouse.   It is only the latter privilege that is now

    before this court.

              It is, we note at the outset, a privilege that has been

    sharply criticized by the Supreme Court of the United States.    In

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

     Professor Wigmore’s statement that the privilege against adverse



                                    4
spousal testimony is “‘the merest anachronism in legal theory and

an indefensible obstruction to truth in practice.’”    Id. at 44-

45.   Noting that “[n]o other testimonial privilege sweeps so

broadly,” id. at 51, the Court cited its authority to use

“‘reason and experience,’” id. at 46 (quoting Fed. Rule Evid.

501), to “‘develop rules of privilege on a case-by-case basis,’”

id. at 46 (quoting 120 Cong. Rec. 40891 (1974) (statement of Rep.

Hungate)).   The Court explained that unlike the marital

communications privilege which protects private communications,

the spousal privilege seeks “to exclude evidence of criminal acts

and of communications made in the presence of third persons” in

order to preserve marital harmony.   Id. at 51.

           The specific question in Trammel was whether a criminal

defendant may invoke the privilege against adverse spousal

testimony so as to exclude the voluntary testimony of his wife.

In the course of its “all-but-unanimous opinion,” id. at 53

(Stewart, J., concurring), the Court stated that “[t]he ancient

foundations for so sweeping a privilege have long since

disappeared,” id. at 52.   It analyzed “whether the privilege

against adverse spousal testimony promotes sufficiently important

interests to outweigh the need for probative evidence in the

administration of criminal justice.”   Id.   Rather than follow the

action of many states and abolish the privilege in its entirety

in favor of a privilege for confidential marital communications,

which had been recommended by the National Conference of

Commissioners on Uniform State Laws, the Court limited its

holding to the issue before it - the right of one spouse to use


                                5
the privilege to prevent testimony by a willing spouse.

             The Trammel Court held that only the witness spouse,

not the non-witness spouse, could invoke the privilege against

adverse spousal testimony.     See id. at 53.   Although the issue

presented here is different, since at this time the witness

spouse is not willing to provide the testimony, the Supreme

Court’s discussion in Trammel informs our analysis.

             The district court here relied on the government’s

promise of use-fruits immunity in holding that the non-witness

spouse would be adequately insulated from the effects of the

witness spouse’s testimony.     The witness argues on appeal that

because the mere utterance of her testimony, regardless of the

criminal consequences, would adversely affect marital harmony,

the government’s promise not to use her testimony against her

husband is insufficient to overcome the spousal testimonial

privilege.     She asserts that the privilege involves “a basic

right to refuse to provide testimony that implicates [a spouse].”

 Appellant’s Reply brief at 2.     Citing Trammel, 445 U.S. at 53,

the witness argues that “with the adverse spousal testimony

privilege, it is not disclosure of communications that is

protected but rather the impact of the testimony on the

marriage.”    Id. at 3.
             This court has never suggested that the privilege is so

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

example, in United States v. Fields, 458 F.2d 1194, 1199 (3d Cir.

1972), cert. denied, 412 U.S. 927 (1973), the witness-spouse was
called to testify by a co-defendant of her husband.     Both



                                  6
defendants were convicted.    On appeal, we rejected the non-

witness spouse’s contention that the trial court committed

reversible error by permitting his spouse’s testimony.     We

explained that the spousal testimonial privilege did not prevent

a spouse from testifying at a trial in which her spouse was one

of two defendants.     Although the trial court should have severed

the defendant husband, it was harmless error as her testimony was

not adverse to her spouse.     See also United States v. George, 444

F.2d 310, 313-14 (6th Cir. 1971) (witness could not claim adverse

spousal testimonial privilege to avoid testifying before a grand

jury investigating conspiracy involving gambling information

merely because his wife, who was not involved in the conspiracy,

had filed joint income tax returns with him).

          Nor are we persuaded by the witness’s argument in this

case that she can assert the privilege despite the promise of

use-fruits immunity.     The grant by the government of use-fruits

immunity is a well-established prosecutorial tool to compel

testimony that is otherwise privileged.     Although the

constitutional guarantee against self-incrimination is the most

important of privileges and “reflects a complex of our

fundamental values and aspirations, and marks an important

advance in the development of our liberty,” Kastigar v. United

States, 406 U.S. 441, 444 (1972), the Supreme Court in Kastigar

allowed grants of use-fruits immunity to obviate the Fifth

Amendment privilege.    Id. at 448.   The Court explained that

grants of immunity “seek a rational accommodation between the

imperatives of the privilege and the legitimate demands of


                                  7
government to compel citizens to testify.”     Id. at 446.

          Kastigar built upon the earlier holding of the Court in

Ullmann v. United States, 350 U.S. 422, 430-31 (1956), where the

petitioner argued that grants of immunity would not protect his

privilege against self-incrimination because they could not

shield him from such adverse consequences as job-loss and

“general public opprobrium.”   Id.    Rejecting this argument, the

Ullmann Court explained that the Fifth Amendment only applies

where a witness is asked “to give testimony which may possibly

expose him to a criminal charge.     But if the criminality has

already been taken away, the amendment ceases to apply.”     Id. at

431 (internal quotations omitted).

          The witness’s argument that her spousal testimonial

privilege protects the very act of testifying, regardless of

whether the government could use the information to prosecute her

husband, overlooks the significance of adversity in determining

the scope of the privilege.    Courts have consistently recognized

that the privilege only applies to testimony that is “adverse” to

the other spouse.   See, e.g., United States v. Van Cauwenberghe,

827 F.2d 424, 431 (9th Cir. 1987)(refusing to recognize the

spousal privilege where the witness failed to demonstrate that

the testimony was adverse to her spouse’s penal interests), cert.
denied, 484 U.S. 1042 (1988); In re Martenson, 779 F.2d 461, 464

(8th Cir. 1985)(same); In re Grand Jury Proceedings, 664 F.2d

423, 430 (5th Cir. 1981) (same), cert. denied, 455 U.S. 1000

(1982).   These cases make clear that the privilege is “not

available unless the anticipated testimony would in fact be


                                 8
adverse to the non-witness spouse.”    Martenson, 779 at 463

(internal quotations omitted).

             We thus hold that once the government grants immunity

that eliminates the possibility that the testimony will be used

to prosecute the witness’s spouse, the witness may no longer

invoke the testimonial privilege.2    This is the position adopted

by all courts of appeal which have addressed this issue.       In

United States v. Doe, 478 F.2d 194, 195 (1st Cir. 1973), a

husband and wife were both summoned to appear before the grand

jury in connection with joint criminal activity.     They both

claimed their Fifth Amendment privilege and were subsequently

granted immunity.     Each then claimed the spousal testimonial

privilege, stating that their testimonies would be adverse to the

other.   The court found no privilege “when both are immunized

from prosecution and are asked questions about the same

transaction.”     Id. at 195.

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

husband and wife were subpoenaed to appear before the grand jury.

 The wife refused to testify, asserting her Fifth Amendment

privilege.     The husband was granted use-fruits immunity to compel

     2
        Judge Aldisert does not join in this one sentence of the
opinion, and adds this concurring statement: “I object to the
sweep of this statement because it goes beyond the facts in this
case. Being an unreconstructed follower of the Roscoe Pound
tradition that a holding in a case announces a specific legal
consequence attached to a definite state of facts, I prefer that
this sentence read: ‘We thus hold that under the facts of this
case, in which the government’s specific grant of immunity
eliminates the possibility that the testimony will be used to
prosecute the witness’s spouse, the witness may no longer invoke
the testimonial privilege’.”



                                  9
his testimony over Fifth Amendment objections but he still

refused to answer questions, claiming that to compel him to do so

would violate his spousal testimonial privilege.       The government

filed an affidavit in which it promised that neither his

testimony nor its fruits would be used in any way in a proceeding

against his wife.   Id. at 111-12.     The court held that this

promise “nullifies any claim of privilege as grounds for [the

husband’s] refusal to testify.”      Id. at 112.   This decision was

followed by the Second Circuit in Grand Jury Subpoena of Ford v.

United States, 756 F.2d 249, 255 (2d Cir. 1985), where the court

held that use-fruits immunity that “is fully co-extensive with

the scope of the privilege against adverse spousal testimony”

sufficiently meets the claim of the privilege by the testifying

spouse.

           In recognizing that the grant of immunity will defeat

the adverse spousal testimonial privilege, we merely make

explicit that which was implicit in our earlier decisions.        In In

re Grand Jury (Malfitano), 633 F.2d 276, 278 (3d Cir. 1980), we

upheld the wife’s entitlement to assert her spousal testimonial

privilege even though both she and her husband were allegedly

involved in the criminal acts being investigated.       We also

rejected the government’s argument that because it had promised

not to use the wife’s testimony in any future proceedings against

her husband, the wife could no longer claim the privilege.        Id.
at 279.   We found this limited immunity to be insufficient to

overcome the spousal privilege since “there is nothing to prevent

this grand jury from considering the [spouse’s] testimony in


                                  10
deciding whether to indict.    There is no indication that the

government intends to . . . ensure that the grand jury does not

use [the wife’s] testimony against her husband.”      Id.   We

distinguished the decision in In re Snoonian on the ground that

in that case “the witness’ spouse was not a target, and the

government expressly promised that ‘this Grand Jury has no intent

to prosecute your wife on the basis of your testimony here.’

Contrary to the present case, it was clear that the grand jury

before which the husband would testify would not use his

testimony to indict his spouse.”      Id. at 280 (quoting Snoonian,

502 F.2d at 111).    We nonetheless noted that “the [spousal

testimonial] privilege is not absolute: it does not shield all

testimony nor does it bar procedures that may protect the spouse

from the effect of the testimony.”     Id. at 280 n.6.

          Two years later in In re Grand Jury Matter, 673 F.2d

688, 689 (3d Cir.), cert. denied, United States v. Doe, 459 U.S.

1015 (1982), we affirmed the order of the district court denying

the government’s motion to compel a witness to testify before a

grand jury after she had asserted her privilege against adverse

spousal testimony.    The witness had already pled guilty to her

involvement in the drug operation and her husband was a target of

the grand jury investigation.    In order to compel her testimony,

the government initially appeared to promise the witness that it

would confer on her husband immunity that was coextensive with

the statutory use and derivative use immunity.      Id. at 690.
Ultimately, the government promised the witness only that it

would not present an indictment to that particular grand jury


                                 11
naming her husband as a defendant.   If the wife’s testimony

implicated a third party who was then willing to testify against

her husband, the government would impanel a separate grand jury

to seek her husband’s indictment.    See id.

          In our analysis of whether this government promise was

sufficient protection of the spousal testimonial privilege, we

explained that in Malfitano “[b]y implication we suggested that

if the Government ‘sever(ed) the husband’s indictment from that

of the other defendants to ensure that the grand jury does not

use the appellant’s testimony against her husband,’ the privilege

might thereby be respected.”   Id. at 692 (quoting Malfitano, 633

F.2d at 279).

          However, we found that the government’s promise not to

present an indictment to this particular grand jury was

inadequate to preserve the integrity of the privilege against

adverse spousal testimony because the only change from the

Malfitano undertaking was that “the impact of the spouse’s

testimony is delayed,” as the wife’s “testimony is sought with

the expectation that it may lead to his indictment by a

subsequent grand jury.”   Id. at 693.
          In the case before us now, the government makes the

promise that the witness’s testimony cannot be used directly or

indirectly in order to indict her husband either before the

present grand jury or a future grand jury.     This is essentially

the offer of broad use-fruits immunity that was made and then

withdrawn in In re Grand Jury Matter.   See id. at 690.   This

promise is broad enough to overcome the concerns raised in



                                12
Malfitano that the government not use the spouse’s testimony to

indict before the existing grand jury, as well as the concerns

raised in In re Grand Jury Matter that the testimony not be used

to indict in any future proceeding.

           The witness asserts that the principal rationale for

the privilege would be undermined by the very act of testifying,

regardless of its incriminating impact.   Taking the witness’s

argument to its logical conclusion, even transactional immunity

would be insufficient, because the harm to be avoided occurs at

the moment of the witness’s testimony, regardless of the lack of

any potential adverse legal consequences to the spouse flowing

from that testimony.

           But no court has suggested the privilege sweeps that

broadly.   Indeed, as we explained in Malfitano, the rationale for

the privilege is “that it protects the marriage from the discord

that occurs when one spouse testifies against the other.”

633 F.2d at 277 (emphasis added); see also Trammel, 445 U.S. at

44.   With use-fruits immunity, as the government has granted

here, the witness’s testimony will not have adverse legal

consequences to her spouse, so the purpose of the privilege is in

no way undermined.

           The Supreme Court rejected an argument similar to the

witness’s in the Fifth Amendment context in Kastigar. There the
Court explained that the grant of immunity must be coextensive

with the privilege, but need not be broader.   See Kastigar, 406

U.S. at 453.   “Transactional immunity, which accords full

immunity from prosecution for the offense to which the compelled


                                13
testimony relates, affords the witness considerably broader

protection than does the Fifth Amendment privilege.    The

privilege has never been construed to mean that one who invokes

it cannot subsequently be prosecuted.”   Id.

          In summary, in the case before us the government

promised the witness that it would not use her testimony, or the

fruits thereof, in any criminal proceeding against her husband or

seek an indictment before the same grand jury before which she

was testifying.   The government has undertaken the burden of

showing the independent source of any evidence it uses should it

subsequently indict the witness’s husband.     This use-fruits

immunity is sufficient in the Fifth Amendment context to defeat

the privilege against self-incrimination, see Kastigar, 406 U.S.

at 453, and we hold that it is equally sufficient to defeat the

privilege against adverse spousal testimony and to compel the

witness to testify.
                               III.

          For the reasons set forth we will affirm the district

court’s order holding the witness in contempt for refusing to

answer questions before the grand jury and continuing to assert

her spousal privilege even though the government had promised

that it would not use her testimony or the fruits thereof in any

criminal proceeding against her husband.




                                14
