Seal v. United States

• Decision Date: 16 June 2014
• Docket Number: No. 13–4933.,13–4933.
• Citation: 755 F.3d 213
• Parties: UNDER SEAL, Petitioner–Appellee, v. UNITED STATES of America, Respondent–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

755 F.3d 213

UNDER SEAL, Petitioner–Appellee,

v.UNITED STATES of America, Respondent–Appellant.

No. 13–4933.

United States Court of Appeals, Fourth Circuit.

Argued May 15, 2014.

Decided June 16, 2014.

ARGUED: Sujit Raman, Office of the United States Attorney, Greenbelt, Maryland, for Appellant. Peter Dennis Ward, Law Office of Peter D. Ward, Baltimore, Maryland, for Appellee. ON BRIEF:Rod J. Rosenstein, United States Attorney, Office Of The United States Attorney, Baltimore, Maryland, for Appellant.

Before WILKINSON and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge THACKER wrote the opinion, in which Judge WILKINSON and Senior Judge HAMILTON joined.

THACKER, Circuit Judge:

During the course of a grand jury investigation, the Government subpoenaed a 19–year–old man (“Doe Jr.” or “Appellee”) to testify with regard to potential federal charges against his father (“Mr. Doe”).¹ Doe Jr. moved to quash the subpoenapursuant to Federal Rule of Criminal Procedure 17(c)(2), claiming that his testimony was shielded by a purported parent-child privilege. The district court granted the motion.

No federal appellate court has recognized a parent-child privilege, and we decline to do so here. As explained more fully below, Doe Jr. has not made a strong showing of need for the parent-child privilege, and “reason and experience” do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed.R.Evid. 501. Therefore, we reverse and remand for further proceedings.

I.

A.

On November 30, 2012, Harford County, Maryland sheriff's deputies responded to a 911 domestic assault complaint from Doe Jr.'s mother (“Mrs. Doe”). At this time, 18–year–old Doe Jr. lived in the house with his parents and two minor siblings. The deputies arrived and conducted a search. They seized approximately 40 firearms, including two assault-style rifles, a WWII-style pistol, a loaded semi-automatic handgun, and an AK–47 assault rifle; equipment used to alter and convert firearms (i.e., torches, welding equipment, and saws); and in the basement, marijuana plants growing in five-gallon buckets and drug paraphernalia.

Domestic abuse charges were filed against Mr. Doe, but Mrs. Doe later dropped them. Mr. and Mrs. Doe thereafter separated, and Doe Jr. moved in with his father because he claims he was “was kicked out of the house by [his] mother.” J.A. 34.² Doe Jr. now lives exclusively with Mr. Doe, who helps to pay for his college education and supports him financially. Doe Jr. also testified that he has an aunt who helps with his college bills, and if she did not, he “would not have been able to go to college this year.” Id. at 37.

B.

The Government began investigating the events of November 30, 2012, and referred the case to a grand jury for possible prosecution pursuant to 26 U.S.C. § 5861(d).³ On October 10, 2013, the Government subpoenaed Doe Jr. “to determine the ownership of the illegal guns” found at the Doe home. Appellant's Br. 4.

Doe Jr. filed a motion to quash with the district court on October 15, 2013, explaining that he believed he was called upon to testify “as part of an ongoing investigation of federal criminal charges pending against his father.” J.A. 6. He contends that enforcing the Government's subpoena would violate the parent-child privilege:

In a case like this, where the Government seeks to solidify a criminal case against the father by compelling the child's testimony, the necessary conclusion on the child's part will be that he, [Doe Jr.], is responsible for his father's prosecution. The damage to the father-son relationship is, under these circumstances, as certain as it is incalculable.

Id. at 10.

On October 16, 2013, the district court held a hearing on the motion to quash, at which Doe Jr.—at that time 19 years old—testified. The following exchange occurred:

[THE GOVERNMENT]: [I]f you testify truthfully ... are you saying that your dad ... would not cut you off?

[DOE JR.]: Yeah.

Q: He would cut you off?

A: No.

Q: He would not cut you off. Would he hold it against you?

A: Would he hold it against me? No.

J.A. 38. Nonetheless, Doe Jr. said that he had significant anxiety about testifying against his father, and provided doctors' notes to that effect.

At the district court hearing, the Government argued that there would be “no negative ramifications” resulting from Doe Jr. testifying. J.A. 50. Because Mrs. Doe had invoked her spousal privilege and the Government did not intend to call the two minor Doe children as witnesses, the Government asserted it needed Doe Jr.'s testimony to “fully explore all the evidence in this case to do a complete and thorough investigation.” Id. The Government noted, “there is a chance that there were other people in the house besides [Mr. Doe] that might be responsible for the[ ] automatic weapons.” Id. at 48.⁴

The district court granted the motion to quash from the bench, explaining, in part,

The fact of the matter is, based upon the testimony as I have heard it, there is a continuing relationship between [Doe Jr.] and his dad. [Doe. Jr.]'s age is certainly not as old as some of the people in the other cases. I'm not sure quite how age cuts. If I had a very young person, I would be concerned about abuse. And there is a potential for abuse in this situation. With [Doe] Jr., if he were to testify, despite what he knew about his father's perception, certainly there would be a[n] incentive for the father to cut him off now. And if the father is convicted, then a source of income is cut off, so [Doe] Jr., might not be able to continue in college as he is now doing, nor have his necessities provided for.

But ... in the final analysis it has to do with one's perception of the proper role of government.

...

[O]ne must be concerned about the intersection of government and individual privacy rights. And ... the government has every reason to be concerned here. And I'm not suggesting in any way that they're being motivated improperly by seeking this testimony. But I think the privilege does exist. It must be ... considered on a case-by-case basis.

Hearing the evidence before me, I think that the relationship between [Doe Jr.] and his father does create the privilege. And [Doe Jr.] does not have to testify in the grand jury. I'm not—despite what I've said, I'm not being critical of the government. I'm very suspicious about the relationship, of the possession of the automatic weapons and the growing of marijuana in pots in the basement. But I don't think that my suspicions about that provide an adequate reason for me to say that the government's and society'sinterests trump those constitutional—the privacy rights of [Doe] Jr.

So I find the privilege exists and grant the motion to quash.

J.A. 54–56.

The Government filed a timely notice of appeal. We possess jurisdiction pursuant to 18 U.S.C. § 3731. See In re Grand Jury, John Doe No. G.J. 2005–2, 478 F.3d 581, 584 (4th Cir.2007) (“This court has jurisdiction to review a district court order quashing a subpoena pursuant to 18 U.S.C. § 3731.”).

II.

This court reviews the district court's quash of a grand jury subpoena for abuse of discretion. See In re Grand Jury, John Doe No. G.J. 2005–2, 478 F.3d 581, 584 (4th Cir.2007). However, “[w]hether to recognize a privilege under Federal Rule of Evidence 501 is a mixed question of law and fact, which we review de novo.” Virmani v. Novant Health Inc., 259 F.3d 284, 286–87 (4th Cir.2001).

III.

A.

1.

Federal Rule of Evidence 501 provides, “[t]he common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: [ ] the United States Constitution, [ ] a federal statute; or [ ] rules prescribed by the Supreme Court.” Fed.R.Evid. 501 (hereinafter, “Rule 501”) (emphasis supplied). Rule 501 allows for “recognition of a privilege based on a confidential relationship ... on a case-by-case basis.” Jaffee v. Redmond, 518 U.S. 1, 8, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (recognizing psychotherapist-patient privilege under the “reason and experience” clause of Rule 501) (internal quotations marks omitted); see also Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (“Congress manifested an affirmative intention not to freeze the law on privilege. Its purpose was to provide the courts with the flexibility to develop rules of privilege on a case-by-case basis, and to leave the door open to change.”) (internal citation and quotation marks omitted). Rule 501, therefore, “leaves the door open for courts to adopt new commonlaw privileges, and modify existing ones, in appropriate cases.” United States v. Sterling, 724 F.3d 482, 501 (4th Cir.2013).

In Trammel, however, the Supreme Court cautioned,

[t]estimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man's evidence. As such, they 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.

445 U.S. at 50–51, 100 S.Ct. 906 (internal quotation marks, citation, and alteration omitted); see also Sterling, 724 F.3d at 502 (“As the Supreme Court made clear in Jaffee, the federal courts' latitude for adopting evidentiary privileges under Rule 501 remains quite narrow indeed.”). ⁵

2.

Only a very small handful of federal district courts in this country have recognized the parent-child privilege. The District of Nevada created the privilege where a minor child was issued a subpoena to offer grand jury testimony against his father. See In re Agosto, 553 F.Supp. 1298, 1299 (D.Nev.1983). The court concluded that the “parent-child privilege ... is based not only on the confidential nature of specific communications...