U.S. v. Fisher, s. 877

• Citation: 518 F.2d 836
• Decision Date: 30 June 1975
• Docket Number: D,879,Nos. 877,s. 877
• Parties: 75-2 USTC P 9766 UNITED STATES of America, Appellee, v. Gilbert FISHER, Appellant. ockets 74-2684, 75-1001.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 836

518 F.2d 836

75-2 USTC P 9766

UNITED STATES of America, Appellee, v. Gilbert FISHER, Appellant.

Nos. 877, 879, Dockets 74-2684, 75-1001.

United States Court of Appeals, Second Circuit.

Argued April 7, 1975.

Decided June 30, 1975.

Fred L. Wallace, New York City, for appellant.

Kenneth R. Feinberg, New York City (Paul J. Curran, U. S. Atty., S. D. N. Y., Lawrence Iason, II, and Lawrence S. Feld, New York City, of counsel), for appellee.

Before FRIENDLY and FEINBERG, Circuit Judges, and LASKER, District Judge. ^*

LASKER, District Judge.

Gilbert Fisher appeals his conviction on a four count indictment charging evasion of personal income taxes for the years 1967 through 1970, in violation of 26 U.S.C. § 7201. Fisher's first trial in September, 1974, before Judge Edward Weinfeld in the Southern District of New York, ended in a hung jury. At the second trial which began November 4, 1974, the jury returned a guilty verdict on all counts. Fisher was sentenced to concurrent fifteen month terms of imprisonment on each count and fined $10,000.

The Government used the specific cash expenditure method of proof to establish that during the tax years in question Fisher had accumulated large amounts of unreported income from an illegal gambling business. The Government presented witnesses who testified that Fisher attempted to prevent discovery of his actual income by using nominees to purchase items for him. Although Fisher raises a host of issues on appeal, the only one which merits extended consideration concerns the competency of one of the witnesses who testified against him.

I.

The major witness for the Government was Rosalie Fisher. At the first trial, the Government offered in evidence the Nevada divorce decree which appellant had obtained against Mrs. Fisher on July 21, 1972, and called her as a witness, both without objection by defense counsel. Immediately prior to the commencement of the second trial, however, Fisher moved to suppress the testimony of Mrs. Fisher. He asserted that an appeal taken by her from the Nevada decree dissolved the finality of their divorce and that, because the Fishers were therefore still married, Mrs. Fisher's testimony was barred by the spousal privilege. Judge Weinfeld denied the motion on the grounds that no privilege existed ¹ and that in any event Fisher had waived it by his failure to object at the first trial.

The privilege of a party against the use of a spouse's adverse testimony in federal criminal trials is governed by Rule 26, Federal Rules of Criminal Procedure, which reads:

"In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, 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."

At common law and as applied by federal courts, the spousal privilege continues only for the duration of the marriage; divorce removes the bar against testifying. ² Pereira v. United States, 347 U.S. 1, 7, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Wigmore, Evidence § 2237 (McNaughton rev. 1961). Appellant asserts that the fact that an appeal from a final divorce decree has been pending since May, 1974 restores the marital relationship, but cites no authority for the proposition under Nevada Law or otherwise. Indeed, a reading of the relevant Nevada statutes suggests the contrary, for a decree of divorce granted in Nevada by a court of competent authority "fully and completely dissolve(s) the marriage contract as to both parties." Title 11, Nev.Rev.Statutes § 125.130. Moreover, although no state statute specifically covers the effect of a pending appeal on the finality of a divorce decree, an appeal in Nevada does not in general abate the force of a judgment absent a stay pending appeal. Rule 8(a), Nev.R.App.Proc. Authority under the law of other states is at odds with Fisher's contention. E. g. Sullivan v. Commissioner of Internal Revenue, 256 F.2d 664, 667-668 (4th Cir. 1958) (Maryland); Hudson v. State, 295 So.2d 766, 769-770 (Miss.1974). ³ However, we do not view the technical finality of the divorce decree as controlling the issue before us, for regardless of the answer to the question whether the appeal from a final decree of divorce reinstates the spousal privilege, we decline to stretch the assertion of the privilege to the circumstances in the present case.

The rule that the spouse of a party to an action is totally disqualified as a witness was firmly established at common law by the second half of the seventeenth century. Wigmore, Evidence § 2227. The mystical and religious foundations of the privilege ⁴ have long since eroded, and the once absolute disqualification of a spouse has been narrowed to the present rule which only forbids testimony by one spouse which is adverse to the other spouse. Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). The sole surviving rationale for the privilege is the belief that the trust and confidence between spouses should not be betrayed, and that the policy of fostering family stability benefits both the family unit and the public. Hawkins v. United States, 358 U.S. 74, 77, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958); Stein v. Bowman, 13 Pet. 209, 38 U.S. 209, 10 L.Ed. 129 (1839), citing Aveson v. Kinnard, 9 East. 192; see United States v. Termini, 267 F.2d 18, 19 (2d Cir. 1959); United States v. Walker, 176 F.2d 564, 568 (2d Cir.), cert. denied, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547 (1949).

In Hawkins, supra, the Supreme Court was faced with the question whether the spousal privilege should be abolished. The Court exercised its authority under Rule 26, Federal Rules of Criminal Procedure, to "interpret" the privilege and declined to discard it. Although the Hawkins Court acknowledged that adverse testimony by one spouse against another is in itself often strong indication that the marriage is unsalvageable, it pointed to successful attempts by courts in achieving conciliation among family members to demonstrate that some apparently broken relationships can be saved and, in view of those efforts, was reluctant to abandon a rule honored through several centuries. 358 U.S. at 78, 79 S.Ct. 136. Nevertheless, the Court clearly did not intend to preclude reevaluation of its holding in future cases, for it stated:

" . . . this decision does not foreclose whatever changes in the rule may eventually be dictated by 'reason and experience.' " 358 U.S. at 79, 79 S.Ct. at 139.

We are aware, as was the Court in Hawkins, of vociferous criticism which has characterized the rule as an archaic residue of discarded dogma and an attempt to foster familial harmony which is often more apparent than real. See, e. g., Hawkins v. United States, supra, 358 U.S. at 81, 79 S.Ct. 136 (Stewart, J. concurring); United States v. Termini, supra, 267 F.2d at 20; Yoder v. United States, 80 F.2d 665 (10th Cir. 1935); McCormick, Evidence 145-146 (2d Ed. 1972); Comment, 17 U.Chi.L.Rev. 525 530 (1950). But the government has not argued for total rejection of the privilege, and we thus need not consider whether conditions have so changed since 1958 as to warrant an inferior court reconsidering the issue decided in Hawkins. Rather, viewing the matter before us in the light of "reason and experience," as Rule 26 instructs us to interpret the privilege, we believe that to permit appellant to assert the privilege in the present case could not possibly achieve the intended benefit of the rule and would serve only to thwart common sense.

Appellant married Rosalie Fisher in 1942. They have had no children and have not cohabited since 1964. Fisher does have two children by another woman, Bernice Duncan, one born in 1962 and another a year later. He and his parents built a home for them in 1967 and Fisher has been living with Miss Duncan for some time. He subsequently sued his wife for divorce and was granted a final decree in 1972. At the divorce proceedings he testified that there was "no chance of reconciliation," and at his second trial Fisher's defense counsel, attacking Rosalie Fisher's anticipated testimony, asserted "He rejected her. They have been married for some time and now he is remarried and the father of two wonderful children . . . " Trial transcript at page 36.

However optimistically the Court in Hawkins viewed conciliation efforts by courts in general, there is no reason whatever to believe that the pending appeal by Mrs. Fisher from the divorce decree will spark successful attempts to save this marriage ⁵ and there is accordingly no justification for applying the spousal privilege.

An additional reason for the refusal to permit appellant to assert the privilege is his failure to object to the Government's use of Mrs. Fisher as a witness at the first trial. The spousal privilege is waived by failure to object when the spouse is called to the stand. Peek v. United States, 321 F.2d 934, 943 (9th Cir. 1963), cert. denied, 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964); Olender v. United States, 210 F.2d 795, 800 (9th Cir. 1954); Wigmore, Evidence § 2242. Fisher contends that he first learned of the pending appeal the night before the commencement of the second trial and that his earlier failure to object was not a "knowing" waiver that precluded him from later asserting the privilege. Peek v. United States, supra, 321 F.2d at 943-944. However, the trial judge had every right to disbelieve Fisher since the notice of appeal in the Nevada action was filed on May 28, 1974 and became a matter of public record three months before Fisher's first trial began. Moreover, a copy of the appeal was served on Fisher's counsel in the divorce action on May 3, 1974. Fisher does not contend that his ignorance of the pendency...