U.S. v. Marashi

• Decision Date: 05 September 1990
• Docket Number: No. 89-30145,89-30145
• Citation: 913 F.2d 724
• Parties: 90-2 USTC P 50,482, 31 Fed. R. Evid. Serv. 262 UNITED STATES of America, Plaintiff-Appellee, v. S. Mohammad MARASHI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 724

913 F.2d 724

90-2 USTC P 50,482, 31 Fed. R. Evid. Serv. 262

UNITED STATES of America, Plaintiff-Appellee, v. S. Mohammad MARASHI, Defendant-Appellant.

No. 89-30145.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1990.

Decided Sept. 5, 1990.

Michael J. Hemovich and Carl J. Oreskovich, Hemovich, Nappi, Oreskovich & Butler, Spokane, Wash., for defendant-appellant.

Carroll D. Gray, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before HALL, THOMPSON and LEAVY, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

A jury convicted appellant S. Mohammad Marashi on four counts of a five count indictment. It convicted him of three counts of attempted tax evasion in violation of 26 U.S.C. Sec. 7201 (1988) and one count of willful subscription to a false tax return in violation of 26 U.S.C. Sec. 7206(1). Marashi claims on appeal that (1) the district court abused its discretion by admitting evidence of marital communications; (2) the government committed reversible Brady error; (3) the district court abused its discretion by admitting evidence of prior bad acts; and (4) the evidence was insufficient to convict him.

We have jurisdiction under 28 U.S.C. Sec. 1291 (1988) and we affirm.

I

A

In the late summer of 1984, Sharon Smith Marashi ("Smith") learned that her husband, Dr. S. Mohammad Marashi was having an extramarital affair with his secretary, Mrs. Sherrie Danzig. Smith also learned from the secretary's husband, Steve Danzig, that the two had flown off to Europe. In August, Smith and Danzig's brother-in-law, Earl Doering, entered Marashi's office in an attempt to obtain Marashi's travel itinerary. Because Smith did not have a key to Marashi's desk, she had a locksmith open the top drawer.

Marashi returned from Europe to discover that his wife was filing for divorce. Several months later, on December 22, 1984, he moved out of their house and into a condominium.

Filing for divorce was not enough for Smith and Danzig. They met several times to discuss how to get even with their unfaithful spouses. At one point, Smith mentioned that Marashi had underreported his federal income tax for some years. Seeing an opportunity to exact revenge upon his rival, Danzig contacted the IRS. Later, he pressured Smith to come forward with information implicating Marashi.

In December, 1984, Smith came forward. She phoned the IRS and set up an interview with Special Agent Robert Lake. Smith, accompanied by her divorce lawyer, Carl Maxey, spoke briefly with Agent Lake on January 10, 1985. Agent Lake took notes. Smith began to relate how her husband had used her to underreport their income for several years. Upon realizing that Smith was implicating herself as a tax evader, Agent Lake terminated the interview in order to permit Smith to consult with her lawyer.

On January 16, Smith, unaccompanied by counsel, met with Agent Lake again. Agent Lake tape recorded the interview. He declined to give Smith a Miranda warning and suggested instead that if she were honest and cooperative, she would not be prosecuted.

Smith then described how Marashi had enlisted her aid to evade federal income taxes. She explained that daily her husband would bring home slips of paper indicating how much patients had paid him. Marashi would then store the slips in a desk drawer located in his study. Periodically, he would ask Smith to record the information from the slips into either a black ledger for that year or a stenographer's notebook. Marashi would highlight certain items of income and instruct Smith to enter them into the notebook for his own records; this income went unreported to the IRS. Next, he would instruct her to enter the remaining items of income into that year's black ledger, which he kept as an official record for audit purposes. Marashi would then discard the slips of paper.

Smith added that Marashi had employed this double-ledger scheme at least from 1981-84. She estimated that the unreported income contained in the stenographer's notebook ran into the thousands.

Agent Lake then asked Smith to obtain both the black ledgers and the notebook. However, Smith never made the attempt because as far as she knew, they remained in the desk which Marashi had recently moved into his condominium.

Shortly after the interview, the Marashi investigation was reassigned to Special Agent Stephen Houghton. On May 18, the IRS opened a case file on Marashi. Roughly a month later, Agent Houghton contacted Marashi and summoned him to produce corporate records. He also began an investigation of Marashi's bank transactions in an effort to reconstruct his income. ¹ That investigation revealed that Marashi had cashed, rather than deposited, numerous checks for substantial sums.

Meanwhile, the IRS cultivated its relationship with Sharon Smith. Agent Thomas Abrahamson spoke with her over the telephone on June 19 and 21, 1985. He took notes on both occasions. On the latter date, Smith produced several of Marashi's appointment books. On July 18, Smith returned to the IRS and recounted her story to Agents Abrahamson and Houghton. Agent Abrahamson did not take notes during the interview, but later jotted them down from memory. Agent Houghton tape recorded Smith's sworn statement.

Two days later, Agent Houghton telephoned Steve Danzig and his brother-in-law Earl Doering, who had accompanied Smith to Marashi's office in 1984. He took rough notes of these two interviews, which added nothing to Smith's claim of tax evasion.

Because the IRS could not get its hands on the black ledgers or the stenographer's notebook, the investigation slowed to a snail's pace. Marashi claimed that the black ledgers for 1981-83 had been stolen from his condominium and that the alleged notebook listing unreported income had never existed. Consequently, the IRS returned to the slow process of reconstructing Marashi's income by the bank deposits method.

B

The IRS finally obtained a criminal indictment against Marashi on March 15, 1988. The grand jury charged Marashi with four counts of attempted income tax evasion for the years 1981-84, in violation of 26 U.S.C. Sec. 7201. ² It also charged him with one count of subscribing to a false corporate tax return, in violation of 26 U.S.C. Sec. 7206(1). ³

On July 5, 1988, Marashi had his lawyers depose his ex-wife ⁴ to find out exactly what she had told the IRS. Several days later, the IRS provided Marashi with (1) an audio tape and a transcript of Smith's January 16, 1985 interview with Special Agent Lake and (2) an audio tape of Smith's July 18, 1985 interview with Special Agent Houghton. ⁵

On July 12, Marashi moved to suppress Smith's testimony and the fruits thereof on the basis of the marital communications privilege. Ten days later, Smith testified at a pretrial conference. On July 28, the district court denied Marashi's motion.

On October 24, Marashi filed a motion in limine to exclude evidence pertaining to erasures made in several of his appointment books. The district court denied this motion on November 2, the second day of Marashi's jury trial.

At the outset of the trial, Marashi freely admitted that he had had an extramarital affair with Sherrie Danzig. His defense was that his ex-wife and Steve Danzig sought revenge by fabricating the double ledger story and stealing Marashi's black ledgers for the years 1981-83 from his condominium. Any underreporting, Marashi maintained, was the product of oversight. On November 9, 1988, a jury returned a special verdict convicting Marashi of Counts I-III and V. He moved for a new trial on November 16. The district court denied the motion.

II

Marashi first appeals the denial of his motion to suppress Smith's testimony regarding his instructions to have her (1) underreport income and (2) erase entries in his appointment books several weeks before an IRS audit. He claims that his statements are covered by the marital communications privilege. He also seeks to suppress all evidence derived therefrom as "fruits of the poisonous tree."

We review the admission of evidence for an abuse of discretion. See United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987). We will reverse only if the abuse of discretion affected Marashi's substantial rights. See United States v. Shirley, 884 F.2d 1130, 1132 (9th Cir.1989).

A

To determine the scope and application of evidentiary privileges in federal criminal cases, we must turn to federal common law. See Fed.R.Evid. 501. ⁶ The common law recognizes two separate privileges arising out of the marital relationship. The first, which we have called the "anti-marital facts" privilege, prohibits one spouse from testifying against another during the length of the marriage. United States v. Bolzer, 556 F.2d 948, 951 (9th Cir.1977). Because Smith testified after she divorced Marashi, this privilege does not apply.

The second, so-called "marital communications" privilege, bars testimony concerning statements privately communicated between spouses. In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (9th Cir.1985); United States v. Lustig, 555 F.2d 737, 747 (9th Cir.1977), cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978). The non-testifying spouse may invoke the privilege, Hugle, 754 F.2d at 864, even after dissolution of the marriage, Lustig, 555 F.2d at 747. Thus, Marashi may attempt to invoke it.

The confines of the marital communications privilege are easy to describe. First, the privilege extends only to words or acts intended as communication to the other spouse. Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361-62, 98 L.Ed. 435 (1954); United States v. Lefkowitz, 618 F.2d 1313, 1318 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); Bolzer, 556 F.2d at 951; Lustig, 555 F.2d at 748. Second, it covers only those...