*1 Jury Empanelled of Grand Matter In the 18, 1979.
October (MALFITANO).
Appeal Witness
No. 80-1627. Appeals, States Court
Third Circuit.
Argued May 1980.
Decided June Barry
J. (argued), Cocoziello Podvey & Sаchs, Newark, N.J., appellant. for Tufo, Robert J. Del Atty., U. S. Samuel Alito, Jr., A. Asst. U. Atty. (argued), S. Newark, N.J., appellee. SEITZ,
Before Judge, Chief and GIB- ROSENN, BONS and Judges. Circuit OPINION OF THE COURT SEITZ, Judge. Chief Ruth appeals from an order of the district holding her in contempt refusing questions answer before a federal jury based aon claim of the 'privilege against testimony. I.
A
empanelled
was
in October
investigate
of 1979 to
alleged
attempt by
Malfitano,
Samuel
others to secure a loan from the Teamsters
Union Pension
Fund. The
be-
lieves that there
a conspiracy
was
involving
appellant’s husband,'other
individuals, and
several corporate entities to secure this loan
by paying a 10% kickback in violation of 18
1341, 1343, 1954, 371,
U.S.C. §§
and 1962.
*2
by
able is to
secretary of five of
be determined
“the principles
the
is
appellant
they
the
of
and her husband
the сommon law as
corporations,
be inter
these
preted by
five.
the
of the same
the courts of
United States
president
light
experience.”
reason
the
of
Fed.R.
subpoenas
investigation,
to the
Pursuant
Evid. 501.
In this case we are concerned
and her husband.
appellant
on
were served
privilege against
adverse
being
in her individual
served
In addition
testimony.2 The crux of this privilege is
served
hеr
appellant
the
was
capacity,
person may
a
not be forced
a
to be
secretary
corporations
capacity as
his
her
witness
in crimi
a
receiving
subpoena,
the
the
After
question.
proceeding.
nal
inform the
attorney
had her
Unit-
appellant
by
Attorney
letter
that she in-
ed States
many
justifica
While
the original
of
priv-
invoke a marital testimonial
tended to
vаlid,
for
privilege
longer
tions
the
are no
any questions asked before the
ilege as to
recently
the
Court in Trammel v.
appellant’s
jury. The
husband also
he
a
letter that
was
by
was notified
(1980),
decided that
priv
the
jury.
the grand
of
ilege against
spousal testimony
re
appellant appeared
the
May
On
a
principle
mains
viable
of federal law and
ques-
grand jury and was asked
the
privilege by
modified the
vesting it
topics. The
dealing with two
first
tions
solely
spouse.
testifying
id.,
the
corpo-
to her as
questions, directed
series of
Moreover,
at 914.
privilege
con
secretary,
telephone records
concerned
rate
apply
tinues to
jury proceedings.
during
period
of
corporations
See,
g.,
Calandra,
e.
United States v.
The second set of
alleged conspiracy.
were
to her in
addressed
questions,
(1974);
re
In
grounds,
906, 63
theory behind this rule is that where the
(1980).
The
therefore
L.Ed.2d 186
unstable,
marriage is
it should not be en-
considering
proposed exception
in
dangered
by pitting
further
spouses
circumstances mean that the
whether such
against one another in criminal proceedings.
is not served
of the
rationale
Hawkins
v. United
abrogates
present case. 1A rule that
78-79,
spouses
pаrt
have been
privilege where
variety
possible
on a
of
in crime rests
ners
We fail to see how the source of that
justify an excep
none of which
premises,
instability, whether it be normal domestic
tion. j
difficulties or
spouses’ joint
criminal
possibility
initial
rests on a factual
An
activity,
any
makes
difference in applying
marriages: where mar-
of such
assessment
the privilege. We are
publiс
aware of no
crime,
riage partners are involved
is policy requiring that a marriage be dis-
marriage is unstable.
likely that
more
partners
solved when the
engage in crime.
marriages
usually beyond hope,
are
If such
As
as neither state nor federal sub-
protect
is no need
fact
them.
stantive law
any
attaches
such penalty to
joint
spouses,
crimes of
it is inappropriate
nothing in the record or other-
There is
to use evidentiary
impose
rules to
such a
marriages
that
with crimi-
wise to indicate
penalty.
disintegrate
and dissolve.
nal overtones
may
happy.
in fact
be
spouses
very
Second, it
entirely
is not
beyond doubt
Moreover, the fact that under Trammel the
that such marriages are
deserving
of
spouse
witness
is the holder of the
protection.
assumptiоn
seems to be
any
completely satisfies
concern that
that
may
because of what
be an isolated
marriages
privilege not be extended to
act,
criminal
the marriage has no social
protection.
in fact need no
value whatsoever. This may not be true.
on the
explicitly
Court
relied
fact
if Marriage is a social bond that
only
ties
spouse willing
testify,
then
the witness
togеther
individuals
but also can tie the
marriage probably
beyond salvage.
individuals into certain social norms and
patterns.
The Court seems to have assumed that this
behavioral
Thus
marriage
provides adequate safeguards
may
insofar as the
well serve as a restraining influence on
apart
couples
has fallen
due to the crimi-
against future antisocial acts and
spouses,
at
aсtivity
may
help
nal
of
least one of the
tend to
integration
future
of the
spouses
and the same would seem to be true where
society.
back into
involved.
both
We make these
say
observations not to
distinguished from the notion that the
As
that one
or the
view
other is valid. Rule
protection,
marriage may
requires
not need
a second 501
us to look at
experi-
common
underlying
proposed exception
premise
ence in determining the contours of the
marriages
partners
engage
privileges.
various
We merely find suffi-
protected. Argu-
in crime should not be
cient uncertainty
to counsel
assum-
Although appellant
co-conspirator by
is not a
of the
that Ruth Malfitano is a
rea-
grand jury,
knowledge
object
filed
affidavit
son of her
spiracy
of the
of the con-
stating:
cooperating
“I have received information from a
and her facilitation of the attainment of
indicating
object
conspiracy.”
witness in this matter
requirements are
procedural
imposed
what
marriages never
such
ing that
claim
government’s
on the
witness-
value.
social
partner
is a
criminal conduct.
to as
inappropriate
might be
if it
Even
testify,
Where the
does not want
deserving
marriages
are
sume
way
her
get
will be to
able
courts were
general, if
protection
put pressure
her.
accuse
her to
mar
utility
particular
the social
assess
testify, perhaps
expense
proposed
riages the
spouse,
protect
herself.4 Given the inti
However, we are
might
justifiable.
lege
macy marriage
conspir
fact that
can assess
that courts
cоnfident
acy
concept,
is a rather flexible
will be
marriages
particular
worthiness
social
allege
quite easy
marriages for the
particular
need
partners.
Ironically,
closer
mar
Compare Unit
protection
*4
likely it
riage,
appear
the more
will
Brown,
389,
(8th
396
v.
ed States
Here,
spouses
both
are involved.
even as
so
duration and
was of short
Cir.) (marriage
prosecutоr
specific
is
suming the
more
and
protection of
deserve the
as
not
to
unstable
endanger
not
investigation,
this does
972,100
denied,
U.S.
444
cert.
privilege),
difficulty
will not
be much
assert
Ryan
(1979), with
387
62 L.Ed.2d
involved
ing
is
even
Revenue, 568
of Internal
v. Commissioner
she is
even a
though
not
1977) (marriage was
(7th Cir.
543
F.2d
recognition
Thus
an
jury.
exception
so stable that
and
long duration
such
it can
said that
where
be
both
are
denied,
needed),
439
cert.
protection
to
involved
tend
undermine
mar
(1978).
111
58 L.Ed.2d
riage precisely
in the manner that
way of
absolutely no
Indeed,
here we
designed
prevent.5
lege is
to
marriage appellant
knowing
type
what
justification
As an alternative
no
there was
have because
her husband
and
exception, the
to
district court seemed
think
question.
into the
inquiry
government
promised
because
has
should
say that courts
is not to
This
testimony
use
appellant’s
not to
future
marriage
valid
into whether the
inquire
proceedings against her
the appel-
fraud, something
sham or
not some
and
lant has no reason to invoke the
Nevertheless,
here.
appellant’s testimony
Even if
is not used in
empirical difficul-
the theoretical and
given
proceedings,
nothing
later
seems there
utility
such
assessing the social
ties
to prevent
considering
this
from
case,
general or in each
marriages, either in
appellant’s
testimony
deciding
should “condi-
not think that courts
we do
no
indict. There is
indication
judicial
. on a
tion
government
intends to somehow
marriage
happy
is a
determination
sever the husband’s indictment from that of
Lilley,
v.
one.”
States
or successful
other
defendants
ensure that
1978).
(8th Cir.
F.2d
appellant’s
not use
does
testimo-
against
very
conspiracy ny
her husband. Cf. United
Finally, the
nature
States
Fields,
1972)(error
no
v.
exception,
matter
F.2d
Cir.
cautions
spousal
attorney
distinguish
priv-
important
tions between the
and his client con-
It is
cerning
protected
ilege
self incrimina-
are
future crimes
—but
Although
attorney-client privi-
fifth
removes
the
spouse
amendment
tion.
that
lege
because
pressure
extent the testi-
on the
to the
it is
fact of
communication that
her,
mony
it would not re-
protected
incriminate
do
communications
not de-
in-
pressure to
she
the extent
can
protection.
regard,
move
serve
In this
the difference
incriminating
husband without
criminate her
privi-
between the confidential communication
designed
pressure
herself. That is
testimony
lege
spousal
privi-
and the adverse
and is all we
avoided
lege
significant.
becomes
With
considering in this context.
spousal testimony privilege, it is not disclosure
protected
that is
of communications
but rather
attorney-client privi-
analogy
5. Nor is
impact
testimony
marriage.
on the
lege appropriate.
It is
that communica-
true
Germany
trial from that of
husband’s
and has
not sever
a hard
time under-
testimony given standing English. Moreover,
where wife’s
co-defendants
this was the
trial;
because wife’s
first time she ever
judicial
error harmless
had contact
joint
damaging
husband),
proceedings in
America.
testimony not
She states that
thought
she
denied,
had to
answer the judge
answering
and that
not affect
right to continue to refuse to testify before
grand jury will consider
The fact that the
grand jury.
All the circumstances show
possibly
indict
did not make a knowing,
put
on thе basis of it will
her husband
intelligent waiver of the privilege.
marriage. The husband will
on their
strain
In any case where
proposed
to an indictment
subjected to a trial due
to a
is asserted there must be a
part
appellant’s testimony.
based
balancing of the need for the evidence
on the
is no less of a strain
against the validity of the privilege. On
appellant testified at his trial.6
than if the
hand,
the one
we fail to see
how the
(1st
In re
this constituted a waiver of the The order of the district court finding the in contempt will be reversed. No matter what standard of waiver is applied, knowing. must the waiver The GIBBONS, Judge, Circuit concurring. appellant steadfastly invoked the privilege except appel- join for this one instance. The I Judge Chief opinion Seitz’s affidavit, government lаnt’s which the does the extent recognizes that it the continued dispute, states that she was born in viability of the marital privilege testimonial applying privilege generally Wigmore It is true that denies on Evidence §§ 2230-2240 evidence, (McNaughton 1961). but that is the inevita- parties rev. ed. The applying privilege issues, argued ble result of express these and we no event, any jury proceedings. except point In view on them applying out that privilege may hamper not absolute: it does not shield all procedures may protect suggests. nor does it bar as much as it testimony. spouse from the effect of the See spouse was participant an active of that or a applicability mere and Moreover, witness. allegedly co-conspirators. relation- who Moreover, Judge’s rejec- ship itself does not advance the join accomplish- in the I Chief objects; ment of the criminal a contention that close friend of the Government’s tion secretary do as I could much to by this witness. advance was waived objects. those however, that the con- his conclusion reject, rea- be reversed. For citation must tempt court, In this case the district in ordering herein, recognize I explained to be sons testify, recognized Mrs. may be im- contempt sanction coercive a marital testimonial The court therefore the case and that in this posed that she held could assert the privilege, holding Mrs. Malfitano order however, order withhold testimony remanded to the be vacated and should that would be to corporations court. district partiеs. holding third That is undoubtedly In re sound. 502 F.2d to do so I hold If I were free 1974). (1st Cir. transcript of the pro Hawkins v. United rule of ceedings in the district court makes it clear (1958), proceeded that the court upon the assump spouse not to of one recognizing testimony, that her tion other, fruits the interest testify thereof, could not be used in overruled, subse based because should quent prosecution husband. In impact such tеsti- upon supposititious posi Government endorses that interspousal relationship in mony upon that tion, authorities on which the dis future, impact support has no announcing trict court relied in it. science evidence. Ro- Brief any behavioral 10-14; Law, see Government of Appellee New Looks in Marq. senberg, Virgin Smith, Islands v. Court, L.Rev. 1980); United States v. Her 970-74 Cir. opportunity to reconsid- presented man, 1191, 1204(3d F.2d *6 the Hawkins rule Rule 501 of when er denied, 441 99 U.S. S.Ct. 60 was adopted, Rules Evidence Federal 386 recognize Those cases chose, instead, rely to continue to on this power grant that the court has inherent testimony compelled by one belief immunity purpose use-fruits for the of ob would have an the other spouse taining testimony favorable to defense marriage. Thus in impact on their adverse whiсh is otherwise unavailable. States, Trammel v. United contends, agree, Government and I (1980), it L.Ed.2d 186 held that S.Ct. has no power less inherent to confer testimony was as whose so immunity use-fruits in order obtain testi privilege it should be sought asserted mony which virtue of the assertion of Id., at 913-14. Al- recognized. the marital testimonial would be Tram- though I believe that the rationale of otherwise unavailable. The Government v. United Stаtes empirically unfound- mel urges that because the court assumed Mrs. ed, Judge Seitz that it agree I with Chief Malfitano’s could not be used who, while mar- applicable to fully against her the order directing her ried, of a join the commission crime testify grand jury before the was valid marriage relationships an judgment contempt should be af activities cannot to advance criminal used firmed. with that ratiоnale. Such be reconciled always apply, withhold- exception While I accept the Government’s argu- ad- inculpating testimony always ing the grant ment that of use-fruits immunity the sense that it criminal activities in vance so as to insulate Mrs. Malfitano from testi- prosecution make more diffi- fying will tend to her husband is a complete That is sense answer claim of marital cult. I relevant, operatiоn agree judgment and its do not privilege is undisputed can be It is sense is no different affirmed. that Mr. jury ais tes which Mrs. Malfitano’s investigation The marital testimonial sought.
timony is only at trial but in is available Blau v. as well. proceeding 332, 333-34, U.S. (1951). If the testi 95 L.Ed. to the other’s
mony of
interest, the trial of a co-defend used at effec required in order
ant, a severance factfinder from the
tively to insulate States v. information. United
privileged
Fields, 1198-99 denied, 412 (1973). There is no L.Ed.2d 154 insulating means
effective information other privileged
jury from the Government requirement
than husband, grow any indictment seek as to which wife
ing of the incidents out
testifies, grand jury. before a different in con- holding Mrs. Malfitano
The order an order is vacated. If
tempt should be seek directing that the Government
entered another indictment before
her husband’s trial on such in-
grand jury, and that from that of co-de-
dictment will be severed
fendants indicted sought,
which Mrs. Malfitano’s held in testify be ordered to
contempt if she refuses. *7 Jury Empanelled
In the Matter of Grand
October 1979.
Appeal of Edwin J. HUGHES
Alfred C. DeCotiis.
No. 80-1356. Appeals, Court of States
Third Circuit.
Argued May 1980.
Decided June 1980.
As Amended Oct.