United States v. George

• Decision Date: 14 June 1971
• Docket Number: No. 71-1067.,71-1067.
• Citation: 444 F.2d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas GEORGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.2d 310 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas GEORGE, Defendant-Appellant.

No. 71-1067.

United States Court of Appeals, Sixth Circuit.

June 14, 1971.

Arthur J. Koscinski, Detroit, Mich., for defendant-appellant.

Shirley Baccus-Lobel, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee; Will Wilson, Asst. Atty. Gen., Sidney M. Glazer, Shirley Baccus-Lobel, Attys., U. S. Dept. of Justice, Washington, D. C., on brief; James H. Brickley, U. S. Atty., Detroit, Mich., Jack O'Donnell, Atty., U. S. Dept. of Justice, Detroit, Mich., of counsel.

Before PHILLIPS, Chief Judge, WEICK and PECK, Circuit Judges.

WEICK, Circuit Judge.

George has appealed from an order of the District Court adjudging him to be in civil contempt for refusing to answer questions propounded to him before a federal grand jury after he had been granted immunity. He was committed to the custody of the Attorney General until he answered the questions before the grand jury, or until the term of the grand jury expires on March 28, 1972. Because of his incarceration, we advanced this appeal for oral argument.

On May 28, 1970, George was indicted, along with sixty-five others, on a charge of conspiring to transmit gambling information by the use of interstate facilities, in violation of 18 U.S.C. §§ 1952 and 371. On September 28, 1970, a federal grand jury commenced an investigation of alleged violations of 18 U.S.C. §§ 1952 and 371. On this same day George appeared before the grand jury, pursuant to subpoena. Invoking the Fifth Amendment to the Constitution, he refused to answer any questions. On September 29, 1970, the United States Attorney applied to the District Court for an order of immunity for George, pursuant to 18 U.S.C. § 2514,¹ which was granted.

George then filed a complaint in the District Court, seeking to enjoin the Department of Justice from interrogating him before the grand jury. A hearing was held on November 10, 1970, where he advanced four reasons as justification for his refusal to testify despite the grant of immunity: (1) that he might incriminate himself under state law; (2) that he and his wife filed joint income tax returns which were being audited by the Internal Revenue Service, and therefore his testimony could incriminate his wife; (3) that he was entitled to the presence of his attorney inside the grand jury room because of the pending indictment against him; and (4) that the grand jury was being used improperly to discover evidence against him for use in the pending indictment.

The District Court, after an in camera inspection of an affidavit by the Government regarding the purpose of the investigation of the grand jury, found the grand jury's investigation to be a "bona fide proceeding relating to new matters," and denied George's request for an injunction.

On December 2, 1970, George again appeared before the grand jury. The Government's attorney ascertained that George was aware of his rights and duties before the grand jury and that he knew that he was entitled to seek his attorney's advice (outside the grand jury room) after each and every question. He was then asked the following questions:

"1. What is your address, Mr. George?

2. Are you presently employed anywhere, Mr. George?

3. Do you live in Michigan?

4. Mr. George, are you going to refuse to answer any further questions that I may put to you?

5. Mr. George, have you ever been involved in any way in an illegal numbers gambling operation in the Detroit area?

6. Mr. George, have you every accepted any numbers bets over the telephone in the Detroit area?

7. Mr. George, can you identify any of the people who you were working with or for in an illegal numbers gambling operation?

8. Mr. George, are you going to continue to refuse to answer any further questions that I ask you?" (Tr. 8-19)

George refused to answer each and every question, basing his refusal to answer on the following reasons which he read:

"My answer may tend to incriminate me, number one.

"Number two, by testifying without her consent, I am compelled to become a witness against my wife, Mary Christine George, as to matters including but not limited to the Internal Revenue Code.

"Number three, I am presently under indictment in this Court for the alleged commission of the offense of conspiracy to use interstate facilities for the transmission of gaming information and by being compelled to testify before the Grand Jury without my attorney being present, I am deprived of the effective assistance of counsel while under indictment.

"Number four, this Grand Jury is being used for the purpose of discovery or preserving testimony for use in a criminal trial under an existing indictment, and not for the additional purpose in connection with general inquisitorial powers of the Grand Jury."

George was brought before the District Court the same day, where he reiterated his reasons for not answering the questions. The District Court, after giving George time to reconsider, found him to be in civil contempt, pursuant to 28 U.S.C. § 1826.²

On appeal George raises the same four grounds as justifying his refusal to answer, and asks this Court to reverse the judgment of contempt and to direct the District Court to quash the subpoena requiring him to appear before the grand jury, or alternatively, to require the Government to establish that the interrogation of him would not result in a violation of the marital privilege.

We are not persuaded by his reasons for refusing to answer, and therefore we affirm the District Court's order of contempt.

George's most serious contention is that his testimony before the grand jury forces him to be a witness against his wife, thereby violating the marital privilege. The basic ground for this contention is that he and his wife filed joint income tax returns, and that his testimony might possibly indicate discrepancies between their reported and actual income, thereby conceivably exposing his wife to civil and criminal penalties. He supports this contention by affidavits to the effect that the Internal Revenue Service, in August or September, 1970, commenced an audit of their joint returns.

The aspect of the marital privilege relevant here is the privilege of one spouse not to testify against the other spouse (the privilege for anti-marital facts). Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). This rule, while generally seen in the context of a criminal trial, is also applicable in grand jury proceedings. Nanfito v. United States, 20 F.2d 376, 378 (8th Cir. 1927). We do not think, however, based on the facts of his situation, that George could properly rely on the privilege.

Rule 26, Fed.R.Crim.P. reads in part:

"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."

The privilege must be interpreted in the "light of reason and experience." Lutwak v. United States, 344 U.S. 604, 613-615, 73 S.Ct. 481, 97 L.Ed. 593 (1953).

In Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 281, 78 L.Ed. 617 (1934), Mr. Justice Stone, who delivered the opinion of the Court, speaking of the marital privilege, said:

"The privilege suppresses relevant testimony, and should be allowed only when it is plain that marital confidence cannot otherwise reasonably be preserved."

The eight questions propounded to George, which he refused to answer, did not relate to his wife nor to any communication with her. They related solely to George and his gambling activities, and did not involve his wife in any way. George's wife was not being investigated by the grand jury.

If we were to accept George's argument, then any married man who had filed a joint income tax return with his wife, by...