In re Grand Jury Subpoena Koecher

• Decision Date: 11 December 1984
• Docket Number: No. M 11-188 (ELP).,M 11-188 (ELP).
• Citation: 601 F. Supp. 385
• Parties: In re GRAND JURY SUBPOENA Hana KOECHER.
• Court: U.S. District Court — Southern District of New York

601 F. Supp. 385

In re GRAND JURY SUBPOENA Hana KOECHER.

No. M 11-188 (ELP).

United States District Court, S.D. New York.

December 11, 1984.

Rudolph W. Giuliani, Bruce A. Green, Barry Bohrer, Asst. U.S. Attys., New York City, for U.S.

Michael Kennedy, New York City, for witness.

OPINION

PALMIERI, District Judge.

Hana Koecher is being detained as a material witness in a prosecution of her husband Karl F. Koecher for acts of foreign espionage in violation of Sections 794(a) and (c) of 18 United States Code entitled "Gathering or Delivering Defense Information to Aid Foreign Government."

A criminal complaint filed against him on November 27, 1984 resulted in his arrest and incarceration without bail. No charges have been filed against Hana Koecher. She appeared before a grand jury sitting in this district as a subpoenaed witness on November 29, 1984. After being advised of her constitutional rights, Mrs. Koecher was asked a number of questions concerning her activities which were plainly material to the investigation of which her husband was the target. She steadfastly refused to answer any of the questions asserting, after consulting with counsel, her marital privileges against disclosure of confidential communications with her husband and the giving of testimony potentially adverse to the interests of her husband.¹

On November 29, 1984, the United States Attorney for this district moved this Court for an order directing Mrs. Koecher to testify notwithstanding her claims of privilege. It was conceded by both sides at the hearing before this Court that the questions before the grand jury involved no confidential communications between husband and wife so that the sole issue here is whether Mrs. Koecher can validly assert her marital disqualification to testify with respect to her actions at a period of time when her husband was allegedly involved in espionage activity on behalf of the Czechoslovakian intelligence apparatus.

The issue squarely presented is whether Hana Koecher can be compelled to give testimony potentially adverse to her husband despite her claimed disqualification.² At a hearing before this Court on December 4, 1984, this Court explained its grounds for holding that her claim of privilege was invalid. The basis for this decision was, essentially, that the testimonial disqualification sought by Mrs. Koecher should not be permitted to stand as a bar to testimony concerning a joint criminal enterprise in which a husband and wife are allegedly both engaged.³ In the face of reiterated refusal to answer the questions put to her before the grand jury, Mrs. Koecher was thereupon held to be in civil contempt of the Court in violation of 28 U.S.C. § 1826 and committed to jail for a period of 18 months or for the life of the grand jury or until such time as she decided to answer the questions, whichever period was shortest. She has remained committed since December 4, 1984.

The discussion which follows is intended to explicate and amplify the oral ruling already referred to. The law regarding the privilege against adverse spousal testimony is unclear. Two Supreme Court decisions since 1958 have dealt with the privilege, but neither decision provides an unequivocal answer to the question facing this Court. The decisions in the Second Circuit similarly yield no clear guidance. The circuits that have addressed the privilege against adverse spousal testimony have reached differing conclusions. For this reason, a brief review of the relevant jurisprudence is necessary.

I The Supreme Court Decisions

The common law rule regarding the marital testimonial privilege has an ancient and fascinating lineage. The development of the privilege has been extensively discussed by the Supreme Court in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), and Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), and need not be treated in detail in this opinion.

The Hawkins case involved the conviction of a husband for a Mann Act violation. His wife had testified voluntarily against him over his objection. The Supreme court reversed the conviction holding that the privilege against adverse spousal had been violated. In effect, the Hawkins decision permitted the accused to exclude all adverse spousal testimony. Over twenty years later, the Supreme Court again addressed the claim of spousal privilege in the Trammel case and modified the Hawkins rule. The Trammel case concerned a husband and wife who had been jointly engaged in the illegal importation of heroin. At the husband's trial, the wife—an unindicted co-conspirator—voluntarily testified against her spouse. The 10th Circuit Court of Appeals affirmed the defendant-spouse's conviction holding that where a husband and wife were joint participants in criminal activities and where the wife gave incriminating testimony at trial under a grant of immunity, the privilege against adverse spousal testimony does not bar the witness-wife's testimony.⁴ 583 F.2d 1166 (10th Cir.1978). The Supreme Court affirmed the conviction—but on a different theory. The Court ignored the "joint participants" theory articulated by the circuit court, and instead limited its holding to vesting the right to assert the privilege solely in the witness-spouse. In reaching this conclusion, the Supreme Court stated that testimonial exclusionary rules and privileges "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 transcending the normally predominant principle of utilizing all rational means for ascertaining truth'." Trammel, 445 U.S. at 50, 100 S.Ct. at 912 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J. dissenting). A careful reading of the Court's opinion reveals the "discomfort" with which the Court viewed the privilege. In re Grand Jury Matter, 673 F.2d 688, 697 (3rd Cir.), cert. denied, sub nom., United States v. Doe, 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982) (Adams, J. dissenting). The Court reviewed the sharp criticism directed towards the privilege against adverse spousal testimony (Trammel, 445 U.S. at 44-45⁵, 100 S.Ct. at 909-910) and the steady erosion of the privilege both in state jurisdictions (Id. at 48-49, nn. 9-10, 100 S.Ct. at 911-912 nn. 9-10) and in the federal courts (Id. at 46 n. 7, 100 S.Ct. at 910 n. 7). It noted that Fed.R.Evid. 501,

"acknowledges the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted in the light of reason and experience.... In rejecting the proposed Rule 505 and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege."

Id. at 47, 100 S.Ct. at 910 (emphasis added). Acting on this intention, the Court stated that the appropriate analysis in a case involving the testimonial privilege is to

"decide 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. at 51, 100 S.Ct. at 912. While finding it unnecessary to abandon the rule completely, (See Respondent's Brief at 6 n. 3), the Court concluded that the privilege should be severely constricted.

II The Second Circuit Decisions

While the Second Circuit has not expressly adopted the joint participants exception to the privilege in question, it has leaned very far, by way of dictum, in that direction. In fact, the Fifth Circuit went so far as to say that the Second Circuit had adopted the joint participants exception to the privilege against adverse spousal testimony. United States v. Mendoza, 574 F.2d 1373, 1381 (5th Cir.), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978). But the case which it cited for the proposition, United States v. Cotroni, 527 F.2d 708 (2d Cir.1975), contained an express reservation on the point. The Second Circuit opinion stated, at 712-13:

"We therefore do not reach the question whether they conversations between husband and wife were admissible because ... both spouses were participants in patently illegal activity."

Citing United States v. Kahn, 471 F.2d 191 (7th Cir.1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973)—a case discussed below.

An earlier Second Circuit case, United States v. Mackiewicz, 401 F.2d 219 (2d Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258 (1968), decided twelve years before the Supreme Court's decision in Trammel, expressed approval of the common law rule against adverse spousal testimony although its holding was that extra-judicial statements by one spouse were not barred by the testimonial privilege.

In an even earlier case in which Judge Learned Hand wrote for the Second Circuit, it was held that a wife's extra-judicial statements to a police officer may be admitted in a criminal prosecution of the husband if the spouses were involved in a joint criminal undertaking. United States v. Pugliese, 153 F.2d 497, 500-01 (2d Cir. 1945).

At least one judge of this Court has recognized a joint participants exception to the related privilege protecting confidential marital communications in reliance upon the Fifth Circuit decision in Mendoza, 574 F.2d at 1381. See United States v. Shipp, 578 F.Supp. 980, 991 (S.D.N.Y.1984) (Weinfeld, J.).

In light of the absence of a clear holding concerning a joint participants exception to the privilege against adverse spousal testimony, this Court concludes that the issue is still an open question in the Second Circuit.

III The Other Circuits

The circuit courts that have addressed the issue of a joint participants exception to the privilege against adverse testimony have reached differing conclusions. Both the Seventh...