ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Misc. No. 79-0157)
Before Seitz, Chief Judge, and Gibbons and Rosenn, Circuit Judges.
Ruth Malfitano appeals from an order of the district court holding her in contempt for refusing to answer questions before a federal grand jury based on a claim of the privilege against adverse spousal testimony.
A grand jury was empanelled in October of 1979 to investigate an alleged attempt by appellant's husband, Samuel Malfitano, and others to secure a loan from the Teamsters Union Pension Fund. The government believes that there was a conspiracy involving appellant's husband, other individuals, and several corporate entities to secure this loan by paying a 10% kickback in violation of 18 U.S.C. §§ 1341, 1343, 1954, 371, and 1962. The appellant is the secretary of five of these corporations, and her husband is the president of the same five.
Pursuant to the investigation, subpoenas were served on appellant and her husband. In addition to being served in her individual capacity, the appellant was served in her capacity as secretary to the corporations in question. After receiving the subpoena, the appellant had her attorney inform the United States Attorney by letter that she intended to invoke a marital testimonial privilege as to any questions asked before the grand jury. The appellant's husband also was notified by letter that he was a target of the grand jury.
On May 1, 1980, the appellant appeared before the grand jury and was asked questions dealing with two topics. The first series of questions, directed to her as corporate secretary, concerned telephone records for the corporations during the period of the alleged conspiracy. The second set of questions, which were addressed to her in an individual capacity, concerned a meeting in June 1975 presumably attended by the appellant and a number of other persons. The questions were designed to discover whether the alleged kickback scheme had been discussed at this meeting. After consulting with her attorney, the appellant refused to answer either set of questions on the ground of marital privilege.
After proceedings before it, the district court ruled that appellant's claim of privilege was invalid and ordered her to answer the questions before the grand jury. When she again refused, the court then found her in contempt and ordered her confined for the term of the grand jury or until she agreed to testify.*fn1 This appeal followed.
Under the federal rules of evidence, the question of whether a privilege is available is to be determined 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." Fed.R.Evid. 501. In this case we are concerned with the privilege against adverse spousal testimony.*fn2 The crux of this privilege is that a person may not be forced to be a witness against his or her spouse in a criminal proceeding.
While many of the original justifications for the privilege are no longer valid, recently the Supreme Court in Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980), decided that the privilege against adverse spousal testimony remains a viable principle of federal law and only modified the privilege by vesting it solely in the testifying spouse. See id., 100 S. Ct. at 914. Moreover, the privilege continues to apply to grand jury proceedings. See, e. g., United States v. Calandra, 414 U.S. 338, 346, 94 S. Ct. 613, 619, 38 L. Ed. 2d 561 (1974); In re Snoonian, 502 F.2d 110 (1st Cir. 1974); Fed.R.Evid. 1101(d)(2).
Here, appellant has invoked the privilege, which is the proper course under Trammel. Moreover, all of the questions would seem to implicate her husband. He is the president of all of the corporations involved, and the questions about the June 15 meeting would implicate him either if he attended it or because it was held at one of the corporate offices. Indeed, the government has not argued that the testimony would not implicate appellant's husband. Thus unless there is something that indicates that the rationale for the privilege does not apply here, reversal of the contempt citation is required.
The main rationale for the privilege today is that it protects the marriage from the discord that occurs when one spouse testifies against the other. See Trammel, supra. The major justification offered by the government for not according appellant the privilege is the fact that she was allegedly involved in the criminal acts of her husband.*fn3 This position is supported, either by dictum or holding, in a number of cases. E. g., United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978), aff'd on other grounds, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980). The question therefore in considering the proposed exception is whether such circumstances mean that the rationale of the privilege is not served ...