Appeal of Malfitano

• Decision Date: 18 October 1979
• Parties: 6 Fed. R. Evid. Serv. 225 In the Matter of Grand Jury Empanelled
• Court: U.S. Court of Appeals — Third Circuit

Page 276

633 F.2d 276

6 Fed. R. Evid. Serv. 225

In the Matter of Grand Jury Empanelled October 18, 1979.

Appeal of Witness (MALFITANO).

No. 80-1627.

United States Court of Appeals, Third Circuit.

Argued May 20, 1980.

Decided June 26, 1980.

J. Barry Cocoziello (argued), Podvey & Sachs, Newark, N.J., for appellant.

Robert J. Del Tufo, U. S. Atty., Samuel A. Alito, Jr., Asst. U. S. Atty. (argued), Newark, N.J., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Ruth Malfitano appeals from an order of the district court holding her in contempt for refusing to answer questions before a federal grand jury based on a claim of the privilege against adverse spousal testimony.

I.

A grand jury was empanelled in October of 1979 to investigate an alleged attempt by appellant's husband, Samuel Malfitano, and others to secure a loan from the Teamsters Union Pension Fund. The government believes that there was a conspiracy involving appellant's husband, other individuals, and several corporate entities to secure this loan by paying a 10% kickback in violation of 18 U.S.C. §§ 1341, 1343, 1954, 371, and 1962. The appellant is the secretary of five of these corporations, and her husband is the president of the same five.

Pursuant to the investigation, subpoenas were served on appellant and her husband. In addition to being served in her individual capacity, the appellant was served in her capacity as secretary to the corporations in question. After receiving the subpoena, the appellant had her attorney inform the United States Attorney by letter that she intended to invoke a marital testimonial privilege as to any questions asked before the grand jury. The appellant's husband also was notified by letter that he was a target of the grand jury.

On May 1, 1980, the appellant appeared before the grand jury and was asked questions dealing with two topics. The first series of questions, directed to her as corporate secretary, concerned telephone records for the corporations during the period of the alleged conspiracy. The second set of questions, which were addressed to her in an individual capacity, concerned a meeting in June 1975 presumably attended by the appellant and a number of other persons. The questions were designed to discover whether the alleged kickback scheme had been discussed at this meeting. After consulting with her attorney, the appellant refused to answer either set of questions on the ground of marital privilege.

After proceedings before it, the district court ruled that appellant's claim of privilege was invalid and ordered her to answer the questions before the grand jury. When she again refused, the court then found her in contempt and ordered her confined for the term of the grand jury or until she agreed to testify. ¹ This appeal followed.

II.

Under the federal rules of evidence, the question of whether a privilege is available is to be determined 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." Fed.R.Evid. 501. In this case we are concerned with the privilege against adverse spousal testimony. ² The crux of this privilege is that a person may not be forced to be a witness against his or her spouse in a criminal proceeding.

While many of the original justifications for the privilege are no longer valid, recently the Supreme Court in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), 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. See id., 100 S.Ct. at 914. Moreover, the privilege continues to apply to grand jury proceedings. See, e. g., United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974); In re Snoonian, 502 F.2d 110 (1st Cir. 1974); Fed.R.Evid. 1101(d)(2).

Here, appellant has invoked the privilege, which is the proper course under Trammel. Moreover, all of the questions would seem to implicate her husband. He is the president of all of the corporations involved, and the questions about the June 15 meeting would implicate him either if he attended it or because it was held at one of the corporate offices. Indeed, the government has not argued that the testimony would not implicate appellant's husband. Thus unless there is something that indicates that the rationale for the privilege does not apply here, reversal of the contempt citation is required.

The main rationale for the privilege today is that it protects the marriage from the discord that occurs when one spouse testifies against the other. See Trammel supra. The major justification offered by the government for not according appellant the privilege is the fact that she was allegedly involved in the criminal acts of her husband. ³ This position is supported, either by dictum or holding, in a number of cases. E. g., United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978), aff'd on other grounds, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The question therefore in considering the proposed exception is whether such circumstances mean that the rationale of the privilege is not served in the present case. A rule that abrogates the privilege where the spouses have been partners in crime rests on a variety of possible premises, none of which justify an exception.

An initial possibility rests on a factual assessment of such marriages: where marriage partners are involved in crime, it is more likely that the marriage is unstable. If such marriages are usually beyond hope, there is no need in fact to protect them.

There is nothing in the record or otherwise to indicate that marriages with criminal overtones disintegrate and dissolve. The spouses in fact may be very happy. Moreover, the fact that under Trammel the witness spouse is the holder of the privilege completely satisfies any concern that the privilege not be extended to marriages that in fact need no protection. The Supreme Court explicitly relied on the fact that if the witness spouse is willing to testify, then the marriage probably is beyond salvage. The Court seems to have assumed that this provides adequate safeguards insofar as the marriage has fallen apart due to the criminal activity of at least one of the spouses, and the same would seem to be true where both may be involved.

As distinguished from the notion that the marriage may not need protection, a second premise underlying this proposed exception is that marriages with partners that engage in crime should not be protected. Arguably, such marriages are bad or otherwise not deserving of any protection through evidentiary rules. Such a premise is inappropriate for several reasons.

First, the traditional rule with adverse spousal testimony has been that all valid marriages, even those with existing domestic difficulties, should be protected. The theory behind this rule is that where the marriage is unstable, it should not be endangered further by pitting the spouses against one another in criminal proceedings. See Hawkins v. United States, 358 U.S. 74, 78-79, 79 S.Ct. 136, 139, 3 L.Ed.2d 125 (1958).

We fail to see how the source of that instability, whether it be normal domestic difficulties or the spouses' joint criminal activity, makes any difference in applying the privilege. We are aware of no public policy requiring that a marriage be dissolved when the partners engage in crime. As long as neither state nor federal substantive law attaches any such penalty to joint crimes of spouses, it is inappropriate to use evidentiary rules to impose such a penalty.

Second, it is not entirely beyond doubt that such marriages are not deserving of protection. The assumption seems to be that because of what may be an isolated criminal act, the marriage has no social value whatsoever. This may not be true. Marriage is a social bond that not only ties the individuals together but also can tie the individuals into certain social norms and behavioral patterns. Thus the marriage may well serve as a restraining influence on couples against future antisocial acts and may tend to help future integration of the spouses back into society.

We make these observations not to say that one view or the other is valid. Rule 501 requires us to look at common experience in determining the contours of the various privileges. We merely find sufficient uncertainty to counsel against assuming that such marriages never have any social value.

Even if it might be inappropriate to assume that such marriages are not deserving of protection in general, if courts were able to assess the social utility of particular marriages the proposed exception to the privilege might be justifiable. However, we are not confident that courts can assess the social worthiness of particular marriages or the need of particular marriages for the protection of the privilege. Compare United States v. Brown, 605 F.2d 389, 396 (8th Cir.) (marriage was of short duration and so unstable as to not deserve the protection of the privilege), cert. denied, 444 U.S. 972, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979), with Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 543 (7th Cir. 1977) (marriage was of such long duration and so stable that protection not needed), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978). Indeed, here we have absolutely no way of knowing what type of marriage appellant and her husband have because there was no inquiry into the question.

This is not to say that courts should not inquire into whether the marriage is valid and not some sham or fraud, something that is not in question here. Nevertheless, given the theoretical and empirical difficulties of assessing the social utility of such marriages, either in general or in each case, we do not think that courts should "condition the...