In Re Grand Jury Matter. Appeal of United States of America

673 F.2d 688, 1982 U.S. App. LEXIS 21136, 10 Fed. R. Serv. 13

• Court: Court of Appeals for the Third Circuit
• Decided: March 9, 1982
• Docket: 81-1402
• Status: Published

Opinions

OPINION OF THE COURT

ROSENN, Circuit Judge.

The United States appeals from an order of the United States District Court for the Eastern District of Pennsylvania denying the Government’s motion to compel the testimony of a witness¹ before a grand jury. The witness has asserted the privilege against adverse spousal testimony,² claiming that any testimony by her directed to the activity of a third party would indirectly implicate her husband, who the United States has conceded is a target of the same investigation. We agree with the district court that the witness is entitled to assert the privilege and we therefore affirm its order.³

I.

Following her plea of guilty to one count of conspiracy to possess with intent to distribute and to distribute methamphetamine, a non-narcotic controlled substance, and one count of aiding and abetting the distribution of methamphetamine, the witness was subpoenaed to testify before a grand jury investigating the drug operation in which she had participated. She was immunized under 18 U.S.C. § 6002 (1976),⁴ but exercised her privilege against adverse spousal testimony before the grand jury. The Government then moved to compel her testimony and in support of the motion filed an affidavit with the district court certifying that nothing said by the witness before the grand jury would be used, “either directly or indirectly, against her husband in any legal proceedings.” (Emphasis added.) In effect, the Government appeared to promise the witness that it would confer upon her husband immunity coextensive with the statutory use and derivative use immunity conferred on the witness, as a way of respecting the witness’ privilege against adverse spousal testimony while pursuing other members of the drug operation.⁵

In a subsequent affidavit, however, the Government retreated from its initial offer of a broad grant of immunity protecting the husband. The affidavit provides: ed that if the wife’s testimony implicated a third party, and that person was willing to testify against the husband, then a separate grand jury would be empaneled from which the United States would seek the husband’s indictment.

[T]he government will not present to the Grand Jury empaneled January 28, 1981 an indictment in which [witness’] spouse ... is named as a defendant or as an unindicted co-conspirator. By this procedure, the government intends to effectively prevent the possibility that the Grand Jury empaneled on January 28, 1981 will consider [witness’] testimony in deciding whether to indict her spouse....

To respect the wife’s privilege against adverse spousal testimony, the Government ultimately promised only to refrain from naming the witness’ husband in an indictment presented to this particular grand jury. The Government confirmed at a hearing before the district court that her husband was indeed a target of its investigation. Moreover, the Government conced-

Under her claim of privilege the witness refused to answer a series of questions concerning the involvement of the third party and others in the drug operation. Based on the Government’s representations at the hearing, the district court upheld the claim of marital privilege and denied the Government’s motion to compel her testimony. In holding that the indirect use contemplated by the Government of the witness’ testimony would violate the privilege, the district court relied on this court’s analysis in In re Grand Jury (Malfitano), 633 F.2d 276 (3d Cir. 1980); it distinguished In re Snoonian, 502 F.2d 110 (1st Cir. 1974), relied on by the Government. In Snoonian, the court permitted government attorneys to file affidavits promising not to prosecute the nontestifying spouse as a way of accommodating a claim of the privilege against adverse spousal testimony. The court held that “the speculative nature of the threat to [the nontestifying spouse], coupled with the Government’s unequivocal and convincing promises not to use any of the testimony against her,” id. at 113, nullified any claim of privilege as grounds for the witness’ refusal to testify. Id.6 In Malfitano, in contrast, this court refused to find that the Government’s promise not to use one spouse’s testimony against the other vitiated the privilege, since the nontestifying spouse was a target of the grand jury before which the spouse was called to testify. 633 F.2d at 279-80.⁷

In the case at bar, the district court concluded that Malfitano controlled.

The only difference that exists in the present case from the Malfitano decision is that the testimony of the wife here will not directly implicate her husband before the same grand jury before which she is testifying. Rather, it will indirectly implicate her husband in a future legal proceeding. As such, the effect is the same; the danger to the marital relationship is as manifest.

In re Grand Jury, No. 80-121-4, slip op. at 6-7 (E.D.Pa. Feb. 13,1981). The court also concluded that the Government was attempting to renege on its initial sworn promise not to use the witness’ testimony, “either directly or indirectly, against her husband ... in any legal proceedings.”

II.

A.

If, as Wigmore points out, “the fear of causing marital dissension or disturbing the domestic peace” were the genuine fundament of the privilege, then the privilege should apply to any perjorative testimony toward the other spouse. 8 J. Wigmore, Evidence § 2234, at 230-31 (McNaughton rev. 1961). But this broad application of the privilege was rejected at common law and its scope confined to only such testimony as is adverse to the other spouse’s legal interests in the very case under consideration. In re Snoonian, supra, 502 F.2d at 112; J. Wigmore, Evidence, supra, § 2234, at 231. Despite this restriction, the privilege against adverse spousal testimony has in modern times been subject to considerable criticism,⁸ and the empirical basis of the privilege has been seriously called into question.⁹ Nonetheless, the privilege remains

an important obstacle to the admission of certain testimony in federal court. Rule 501 of the Federal Rules of Evidence provides in relevant part: “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.” In Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), the Supreme Court recently redefined the scope of the privilege against adverse spousal testimony in federal court. The Court modified the rule of Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), which had permitted a non witness spouse to invoke the privilege to prevent the witness spouse from testifying against him, and held that the privilege ran only to the witness spouse. 445 U.S. at 53, 100 S.Ct. at 914. Thus one spouse may now voluntarily testify against the other. The Court refused, however, to further limit the privilege, as had been suggested by the Conference on United States Laws and others, to one protecting only confidential communications. Id. at 48-50. The Court examined the modern justification for the privilege, viz. “its perceived role in fostering the harmony and sanctity of the marriage relationship,” id. at 44, and concluded that it had continuing vitality. Id. at 53.

This court had occasion to review the import of the Trammel decision in In re Grand Jury (Malfitano), 633 F.2d 276 (3d Cir. 1980). We concluded that in Trammel the Supreme Court had “decided that the privilege against adverse spousal testimony remains a viable principle of federal law and only modified the privilege by vesting it solely in the testifying spouse.” Id. at 277. 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.” Id.

In Malfitano we held the privilege applicable to spousal testimony before a grand jury where both husband and wife were alleged to have participated in the crime under investigation. We first rejected the notion that because both spouses were under criminal investigation they were not deserving of the protection against potential marital discord which the privilege affords.

The fact that the grand jury will consider appellant’s testimony and possibly indict her husband on the basis of it will put a strain on their marriage. The husband will be subjected to an indictment based in part on appellant’s testimony. This is no less of a strain on the marriage than if the appellant testified at his trial.

633 F.2d at 280 (footnote omitted). The argument that the Government’s promise never to use the witness spouse’s testimony abrogated the need to invoke the privilege was also found unpersuasive. We observed that there was no way of preventing the grand jury from considering the witness spouse’s testimony in deciding whether to indict the nonwitness spouse. Id. at 279. By 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 appellant’s testimony against her husband,” id., the privilege might thereby be respected. It is the question of the adequacy of this latter procedural safeguard which is now posed to this court.

B.

In the present appeal, we^ must decide whether the testimony which the Government is eliciting from the witness amounts to testimony “against ... her spouse in a criminal proceeding.” In re Grand Jury (Malfitano), supra, 633 F.2d at 277. We hold that when, as in the present case, the Government openly seeks one spouse’s testimony concerning the activity 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 testimony. As in Malfitano, the wife’s testimony is sought with the understanding that it is likely to implicate her husband.¹⁰ The sole difference between the decisions is that here the Government seeks to accomplish indirectly what in Malfitano we prohibited it from doing directly. The potential disruption to marital harmony is in no sense diminished because the impact of the spouse’s testimony is delayed. Therefore, if the integrity of the privilege is to be maintained, a wijfLer who asserts the privilege should not/be compelled to testify before a qrand/júry when her spouse is a target of the "same underlying investigation as the party, against whom she is called to testify and her testimony is sought with the expectation that it may lead to his indictment i/y a subsequent grand jury. ¡

In Malfitano, we suggested that ¿he Government might have avoided the effect of the privilege by severing the husband’s indictment from that of the other defendants “to ensure that the grand jury does not use appellant’s testimony against her husband.” 633 F.2d at 279. We now conclude that having the Government simply forswear bringing an indictment against the nonwitáiess spouse before the same grand jury b/efore which the witness spouse testifies dies not adequately “protect the spouse from,/the effect of the testimony.” 633 F.pá& at 280 n.6.¹¹ To permit the Govern-m/ent to effectuate its promise, made under tn« constraint of our decision in Malfitano, that nothing said by the witness spouse will be used, either directly or indirectly, against her hupband, by the mere expedient of not indictiing the nonwitness'spouse before the same grand jury “transforms that sworn promise l into a worthless opinion.” In re Grand Jury, No. 80-121-4, slip op. at 7 (E.D.Pa. Feb. 13, 1981).

T/iie continued recognition of the privilege' agáinst adverse spousal testimony is not without its costs. It may result in probative evidence of guilt being withheld from the grand jury or at trial. If the testimony of a witness spouse who invokes /the privilege is the only evidence of guilt against the other spouse, the latter cannot be cc evicted. Thus, the possibility that a crimin al may not be convicted for the commissioin of a crime because of the privilege is thV. price which the judicial system accepts in order to further the societai goal of marital harmony. But this feature of the privilege was carefully considered by the Court in Trammel and this court in Malfitano.

Accordingly, the order of the district court will be affirmed.¹²

1 . Because the record in this case has been ordered sealed, we will not disclose the names of the interested parties. See generally 3d Cir.R. 21(3)(a).

2 . The privilege against adverse spousal testimony, which protects the right of one spouse not to testify against the other, is to be distinguished from the privilege which protects private marital communications. Both are sometimes referred to as the “marital privilege.”

3 . Although Judge Sloviter disagrees, the author of this opinion believes that the district court may have the power to insulate the witness’ husband from the effect of her testimony without forcing the Government to forego her testimony about the activity of the third party. See note 12 infra.

4 . 18 U.S.C. §§ 6001-05 (1976), enacted as § 201(a) of Title II of the Organized Crime Control Act of 1970, Pub.L.No. 91-452, 84 Stat. 927 (1970), authorizes a United States Attorney to grant use and derivative use immunity to an individual who refuses to testify before a court or grand jury proceeding on the basis of the privilege against self-incrimination. The person so immunized may then be compelled to testify since the compelled testimony cannot be used directly or indirectly against the witness in any criminal proceeding. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

5 . Such a procedure was first used in In re Snoonian, 502 F.2d 110 (1st Cir. 1974). See note 6 and accompanying text infra.

6 . In Snoonian, a husband testifying before a grand jury investigating extortionate extensions of credit attempted to assert the privilege on the ground that his testimony would subject his wife, because they had executed a joint tax return, to liability for tax fraud. 502 F.2d at 112.

7 . The spouse whose testimony was sought worked as secretary for five corporations in which her husband was president. The corporations, the husband, and others were charged with conspiracy to secure a loan from the Teamsters Union Pension Fund by paying a kickback in violation of 18 U.S.C. §§ 1341, 1343, 1954, 371 and 1962. 633 F.2d at 276-77. None of the parties disputed the probability that the wife’s testimony would implicate her husband. Id. at 277.

8 . See, e.g., C. McCormick, Handbook of the Law of Evidence § 66 (2d ed. 1969); 8 J. Wig-more, Evidence § 2228 (McNaughton rev. 1961); Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn.L.Rev. 675 (1929); Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif.L.Rev. 1353 (1973).

9 . See Rosenberg, The New Looks in Law, 52 Marq.L.Rev. 539, 541 (1969).

10 . In Malfitano, the Government wanted to ask the witness questions about telephone records of the five corporations in which her husband was president, 633 F.2d at 277; see note 7 supra, and about a meeting presumably attended by the witness and a number of others, 633 F.2d at 277. The Government conceded that it assumed that her answers would implicate her husband in the illegal kickback scheme under investigation. Id.

Although in this case the witness has not been asked questions about her husband’s involvement in the drug operation, as a colloquy before the district court reveals, the Government, despite its representations to the contrary, hopes to use her testimony in order to get to her husband.

THE COURT: I don’t know. Is he [the husband] a target; do you know, Mr. Purdy, at this time?

MR. PURDY: I would say yes, Your Honor

THE COURT: Then I will sustain Mr. Scutti’s position. What do you want her testimony for?

MR. PURDY: Against [third party], Your Honor. We want to present an indictment which is already drafted to the grand jury impanelled January 28, 1981, naming [third party] in that conspiracy that [the witness spouse] pleaded guilty to.

THE COURT: What if the target surfaces in some other grand jury testimony offered by you in this testimony against him?

MR. PURDY: Your Honor, we have presented the affidavit saying we will not use what she says or use the fruits of what she says against her husband in any proceeding. We are following the dictates of the Third Circuit in Malfitano and their reliance on Snoonian. We have met the requirements, we submit, and we do not have to say that he will not be a target.

* * * * * *

THE COURT: Let me ask one thing, Mr. Purdy: Is [the husband’s] status as a target in any way connected or affiliated with [fourth party] or [fifth party] or [third party]?

MR. SCUTTI: Sir, it is the same investigation.

♦ * * * * *

MR. PURDY: But in the event that [third party] would cooperate and we could obtain [third party’s] testimony against [the husband], which we submit is legitimate, given that we had his name before we had any information about tapes or spouses or whatever, and if you listen — if I may make—

THE COURT: Just go on, yes. Then, you would — ?

MR. PURDY: Then we would hope to use [third party’s] and [fifth party’s] testimony against—

THE COURT: —[The husband?]

MR. PURDY: —[The husband.]

Transcript of Hearing before Hon. Louis C. Bechtle, February 11, 1981, at 71-74, quoted in In re Grand Jury, No. 80-121-4, slip op. at 2-4 (E.D.Pa. Feb. 13, 1981).

11 . The dissent argues that our decision represents an unjustifiable expansion of Trammel We disagree for several reasons. First, although Trammel traced the antipathy with which the privilege has been treated by commentators, the court nonetheless “declined to abandon completely the privilege... . ” Dissenting opinión, at 697. Second, in Malfitano this court plainly indicated that the privilege against adverse spousal testimony remains a forceful one in this circuit. Third, we note that we take as guidance for the scope of our authority in this case Fed.R.Evid. 501, which directs us to apply the exception “in the light of reason and experience.” We believe that our decision properly executes that directive. * We also must disagree with the dissent’s attempt to distinguish this case on the ground that the link between the wife’s testimony and her husband’s future indictment is too speculative and therefore does not threaten to “ ‘tear asunder’ the marital union.” Dissenting opinTon, at 698. Although we agree that in certain circumstances the link between one spouse’s testimony and its potential adverse impact on the other spoúse may be too attenuated to warrant invocation of the privilege, we do not believe this to be such a case. As noted above, all who are party to the action understand that , the wife’s testimony is sought, inter alia, in the hope that her husband will be indicted. Her 'testimony is thus, in our opinion, sufficiently adverse to her husband’s interests for her to be able to invoke'’the privilege.

Finally, we dq not believe that the simple expedient of bringing the husband’s indictment before a separate grand jury adequately respects the privilege. Although, as the dissent points out, the privilege could not be invoked at common law when the testimony was “not used in the proceeding in which the non-witness spouse [was] a party,” dissenting opinion, at 698, we do not believe that the Government should be permitted to bootstrap into two proceedings a prosecution based on a single common scheme for the sole purpose of circumventing the privilege. It would be anomalous to permit the Government to do indirectly what it is forbidden to do directly.

12 . The author of this opinion is somewhat troubled with our categorical enforcement cf u o privilege against adverse spousal testin which thereby protects a third party wh*t> has no entitlement whatsoever to the benefits of the privilege. I believe that the district court can respect the witness’ privilege against adverse spousal testimony without also; interfering with the Government’s attempted prosecution of the third party, about whose activity the' wife is being asked to testify. Writiftig in concurrence in Malfitano, Judge Gibboijjs recognized that the district court has the ¡inherent . authority to confer use-fruits immunity oi!| the witness’ spouse. In re Grand Jury (Malfitano), supra, 633 F.2d at 281. In other words] the court has the power to order that neither the witness’ testimony, nor the fruits thereof, ^an be used in any subsequent prosecution against her husband. Once the wife’s testimony is immunized, the Government bears the burden *".n any subsequent prosecution of establishing that the evidence it proposes to use agains* the husband is derived from a legitimate source wholly independent of his wife’s testimony. See generally Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1664, 32 L.Ed.2d 212 (1972) (discussing the scope of use-fruus immunity, also referred to as use and derivative use immunity, under 18 U.S.C. § 6002). The wife’s testimony can then be compelled without abrogating the privilege. Cf. United States v. Doe, 478 F.2d 194, 195 (1st Cir. 1973) (where both spouses are granted immunity they can no longer invoke the privilege against adverse spousal testimony). v

This court has already recognized that the district court has the inherent power to grant use-fruits immunity to a witness for the purpose of obtaining testimony favorable to the defense which is otherwise unavailable because the witness has invoked the privilege against self-incrimination. In re Grand Jury (Malfitano), supra, 633 F.2d at 281; see Government of the Virgin Islands v. Smith, 615 F.2d 964, 970-74 (3d Cir. 1980); United States v. Herman, 509 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). The district court should therefore have no less inherent power to confer use-fruits immunity to permit testimony otherwise unavailable by virtue of the assertion of the privilege against adverse spousal testimony. 633 F.2d at 281 (Gibbons, J., concurring). Smith and Herman recognized that a federal court has the inherent authority to fashion “a new remedy .o protect an established right.” Government of the Virgin Islands v. Smith, 515 F.2d at 971; see United States v. Herman, 509 F.2d at 1204. Devising a mechanism to protect the ¿ütiv.dye against adverse spousal testimony, with its roots in the common law, is particularly suited to judicial action. Moreover, court conferred immunity based on the privilege against ad-terse spousal testimony does not run afoul of i he. basic problem raised by Smith of judicial usurpation of the prosecutorial decision whether to grant immunity to one person in order to obtain evidence against another. Although the immunity fashioned here is judicially created, it is the Government which ultimately can decide whether the risk of immunizing the husband from prosecution outweighs its desire to obtain evidence from the wife against the third party. The district court would decide whether a certain line.of questioning will produce answers sufficiently adverse to the nonwitness spouse to justify application of the privilege. If the court concludes that the testimony is entitled to the protection of the privilege, the Government would then decide whether, and to what extent, to question the witness spouse. Thus, the important due process considerations which were necessary to justify intervention in the prosecutorial function in Smith need not be present to justify judicial action here.

The district court should therefore have the authority to hold a hearing to determine whether or not a claim of the privilege is bona fide. If, as in this case, the Government concedes that the nonwitness spouse is a target of the investigation, or if the witness otherwise meets the burden of establishing that the other spouse may be adversely implicated by the required testimony, the district court can indicate to the prosecution that if it desires the witness’ testimony, then the court will confer on the nonwitness spouse use-fruits immunity and thereby protect that spouse from the testimony of the family counterpart. Of course, any subsequent indictment of the nonwitness spouse must be brought, under Malfitano, before a separate grand jury.

Although the concurrence objects to the inclusion of the foregoing observations as advisory, the law is to the contrary. An advisory opinion is a gratuitous expression of legal opinion by a court lacking either jurisdiction or a justiciable controversy before it. See Weinstein, Rendering Advisory Opinions — Do We, Should We?, 54 Judicature 140 (1970), reprinted in R. Leflar, Appellate Judicial Opinions 63 (1974). To avoid being merely advisory, a court’s judgment must resolve “ ‘a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts.’ ” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (emphasis added) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)).

I make three observations. First, this note expresses a personal comment only, as does the concurrence, and is not a judgment of the court. Second, the footnote is not an abstract statement, cut off from a live controversy, of what the law should be. We are confronted with just such a controversy and must resolve a difficult question concerning the proper scope of the privilege against adverse spousal testimony. Finally, the issue of whether the scope of the privilege should be coextensive with use and derivative use immunity, thus requiring a ¡Castigar -type hearing before evidence against the husband can be introduced in any subsequent prosecution of him, was raised by the Government in its brief to us.