UNITED STAES OF AMERICA, PETITIONER v. JANE DOE

   No. 82-183

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Third Circuit in this case.  /1/

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra) is reported at
673 F.2d 688.  The memorandum opinion of the district court (App. D,
infra) is not reported.

                             JURISDICTION

   The judgment of the court of appeals (App. B, infra) was entered on
March 9, 1982.  A petition for rehearing was denied on May 4, 1982
(App. C, infra).  On June 24, 1982, Justice Brennan extended the time
within which to file a petiton for a writ of certiorari to and
including August 2, 1982.  The jurisdiciton of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a witness should be permitted to invoke the privilege
against adverse spousal testimony before a grand jury where the sole
ground for invoking the privilege is that his or her testimony may
incriminate a third party, who in turn may incriminate the witness's
spouse in some future proceeding.

   2. Whether the privilege against adverse spousal testimony should
extend to testimony about joint criminal activity of the spouses.

                               STATEMENT

   1. A grand jury in the United States District Court for the Eastern
District of Pennsylvania is investigating a large drug ring engaged in
the distribution of methamphetamine, a non-narcotic controlled
substance.  Respondent, one of the participants in the ring, pleaded
guilty to one count of conspiracy to possess with intent to distribute
and to distribute methamphetamine, in violation of 21 U.S.C. 846, and
one count of aiding and abetting the distribution of methamphetamine,
in violation of 21 U.S.C. 841.  The government then subpoenaed
respondent to testify before the grand jury concerning events alleged
to be part of the conspiracy.  The questions did not relate to
respondent's husband, but rather to activities of other alleged
members of the conspiracy (see C.A. App. 23a-26a).  Respondent was
granted immunity against self-incrimination under 18 U.S.C. 6002, but
she refused to testify, invoking the privilege against adverse spousal
testimony.  Respondent contended that, even though the government's
questions concerned members of the operation other than her husband,
her answers might be used against her husband.  /2/

   The government moved to compel respondent to answer the questions
(C.A. App. 8a-12a).  In support of the motion, the government filed an
affidavit (id. at 27a) certifying that "nothing said by (respondent)
will be used, either directly or indirectly, against her husband * * *
in any legal proceedings." In a subsequent affidavit (id. at 32a-33a)
the government clarified its commitment, stating:

         (T)he government will not present to the Grand Jury empaneled
      January 28, 1981 an indictment in which (respondent's) spouse *
      * * is named as a defendant or as an unindicted co-conspirator.
      By this procedure, the government intends to effectively prevent
      the possibility that the Grand Jury empaneled on January 28,
      1981 will consider (respondent's) testimony in deciding whether
      to indict her spouse * * *.

   At a hearing before the district court the government acknowledged
that the respondent's husband was a target of the investigation (id.
at 154a).  However, the government reiterated that the husband would
not be indicted or named as an unindicted co-conspirator by the grand
jury before which respondent was to testify and that respondent's
testimony would not be used against her husband in any proceeding (id.
at 153a, 155a).  Rather, if respondent's testimony implicated a third
party, and if the third party were thereafter willing to testify
against the husband, a separate grand jury would be empaneled from
which the government would seek the husband's indictment (id. at 157a,
159a).

   The district court upheld respondent's invocation of the spousal
privilege, rejecting the government's argumetns that the privilege
would not be infringed because the questions addressed to respondent
did not relate to her husband and because her husband was not a target
of the January 28, 1981, grand jury.  The court reasoned (App. D,
infra, 31a) that respondent's testimony could nonetheless be
"indirectly" adverse to her husband in that, under the government's
scenario, it would implicate a third party whose cooperation the
government might then obtain in seeking an indictment against the
husband before a different grand jury.

   2. A divided panel of the court of appeals affirmed the district
court's order upholding the claim of privilege (App. A, infra).  The
majority noted that even after this Court, in Trammel v. United
States, 445 U.S. 40 (1980), limited the privilege against adverse
spousal testimony to protect only the right of the witness spouse to
refuse to testify against the nonwitness spouse, the rationale for the
privilege remained the same:  the preservation of marital harmony
(App. A, infra, 6a).  It then went on to hold that "when, as in the
present case, the Government openly seeks one spouse's testimony
concerning the activity of a third party, who is alleged to have
engaged in a common criminal scheme with a husband and his wife, and
the Government thereby hopes also to reach the non-witness spouse, the
testimony sought is sufficiently adverse to the interests of the
absent spouse to permit invocation of the privilege against adverse
spousal testimony" (id. at 7a).  The court reasoned that to compel the
testimony of the witness spouse in these circumstances would be to
permit the government to do indirectly what it could not do directly
(id. at 7a-8a).  The court further stated that "(t)he potential
disruption to marital harmony is in no sense diminished because the
impact of the spouse's testimony is delayed" (id. at 8a-9a).

   The court acknowledged that continued recognition of the privilege
against adverse spousal testimony may result in the withholding of
probative evidence from the grand jury or at trial and may even allow
a guilty party to escape punishment (id. at 10a-11a).  However, the
court did not analyze the relevance of this concern to the case before
it, but simply observed that this feature of the privilege had been
carefully considered by this Court in Trammel and by the Third Circuit
in an earlier opinion.  /3/

   In his dissent, Judge Adams concluded (App. A, infra, 16a) that the
majority's holding "unduly extends the marital privilege" and is
inconsistent with the dictates of this Court's decision in Trammel.
Judge Adams observed that the privilege "was never meant to bar
absolutely all testimony that, in some way, affected the relationship
between the marital partners" (id. at 19a), and that traditionally the
privilege had been limited to testimony used in the very proceeding at
which the nonwitness spouse was indicted or tried (id. at 20a).  Judge
Adams concluded (id. at 23a) that the theoretical link between the
respondent's testimony and the possible future indictment of her
husband was "attenuated at best" and was insufficient to justify
extension of the privilege beyond its traditional boundaries.

   The government's suggestion of rehearing en banc was rejected, with
three judges dissenting.

                   REASONS FOR GRANTING THE PETITION

   This case presents important and recurring questins concerning the
scope of the privilege against adverse spousal testimony.  /4/ The
court of appeals held that respondent could invoke the privilege
before a grand jury on the sole ground that her testimony might
incriminate a third party who in turn might incriminate respondent's
spouse in some future proceeding.  This holding expands the
traditional scope of the privilege in a manner that Judge Adams
rightly termed "improvident and unnecessary" (App. A, infra, 23a),
creating significant obstacles to the government's law enforcement
efforts.  Procedurally, the holding disrupts the important
investigative function of the grand jury by recognizing premature
claims of the privilege that operate to cut off unnecessarily the
grand jury's access to relevant evidence.  On the merits, this
expansion of the privilege contravenes the admonition of this Court in
Trammel v. United States, 445 U.S. 40 (1980), that testimonial
privileges must be strictly construed, as well as the Congressional
mandate, embodied in Fed. R. Evid. 501, that the federal courts should
use "reason and experience" in determining the scope of a privilege.
In addition, the court of appeals' failure to recognize an exception
to the privilege where spouses are partners in crime places the Third
Circuit in square conflict with the Seventh and Tenth Circuits.  This
latter issue was before this Court in Trammel, but the Court did not
reach it in that case.

   1. The court of appeals' holding expands the privilege against
adverse spousal testimony in a manner that frustrates the
investigative function of the grand jury.  We do not here question the
general availability of the privilege in a grand jury proceeding --
for example, if the witness's spouse is a target of the grand jury and
the witness's testimony would implicate the spouse directly.  But the
court of appeals in this case has held that the privilege may be
invoked where (a) the questions do not relate to respondent's spouse
and there is no reason to anticipate that her answers would implicate
him;  (b) the government has affirmed that it will not seek an
indictment of respondent's spouse from the grand jury before which the
respondent would testify and has promised that respondent's testimony
will not itself be used against her spouse in any future proceeding;
and (c) respondent's testimony is vital to the investigation of
criminal activities of third parties.

   The court of appeals' holding is a novel one with potentially
drastic consequences for law enforcement efforts.  We are aware of no
other case in which a court has upheld invocation of the privilege
where the spouse was not a target of the grand jury and the testimony
was considered adverse only because of the possibility that the
government might make indirect, or derivative, use thereof at some
future point.  The primary beneficiaries of the witness's invocation
of the privilege in such circumstances are not the witness's spouse,
but the third parties who are under investigation by the grand jury
and who are thought to be important members of the criminal
enterprise.  This application of the privilege places the government
in a serious quandary.  Although it carefully avoids questions
relating to activities of the witness's spouse, the government
nevertheless is forced to choose between foregoing important testimony
concerning third-party members of a criminal enterprise and abandoning
all efforts to indict the witness's spouse, who may also be a major
figure in the enterprise.

   a. This Court has recognized the importance of the investigative
function of the grand jury.  It has stressed the grand jury's right to
every man's evidence and has warned against obstacles that delay and
impede the grand jury's investigation.  See, e.g., Branzburg v. Hayes,
408 U.S. 665, 688 (1972);  United States v. Calandra, 414 U.S. 338,
350 (1974), quoting United States v. Dionisio, 410 U.S. 1, 17 (1973).
The holding of the court of appeals works against these principles.
The result of application of the privilege in this case is that the
grand jury is deprived of relevant evidence about third parties who
cannot claim any interest in the witness's marital privilege.  The
present case cannot be regarded as an isolated instance, since it is
not uncommon that witnesses called to testify before grand juries are
married to persons who conceivably have involvement in the matters
under investigation.  Under the court of appeals' holding any such
witness may refuse to testify not only about his or her spouse, but
also about the activities of any third party who may have had some
connection with the nonwitness spouse.

   This sort of interference with the grand jury's function is
particularly unjustifiable where the government has promised that the
witness's spouse will not be indicted by the grand jury before which
the witness testifies.  In such circumstances, enforcement of the
privilege before the grand jury seems clearly premature.  At the time
the testimony is given before the grand jury, any adverse effect on
the witness's spouse is wholly speculative.  For example, in the
present case there cannot be even an allegation of adverse effect
unless (a) respondent's testimony leads to indictment of a third
party;  (b) the third party decides to cooperate with the government;
(c) a subsequent grand jury is authorized to investigate the same
criminal enterprise;  and (d) the third party's testimony before the
subsequent grand jury results in indictment of the spouse.  Even if
all these events were to occur, it still would be necessary to
determine whether the connection between the testimony of the witness
spouse and the indictment of the nonwitness spouse was significant
enough to justify application of the privilege.

   Given the speculative nature of any adverse effect on the
nonwitness spouse, a witness such as respondent should be required to
testify before a grand jury, so long as the witness's spouse will not
be indicted by that grand jury.  A ruling on the claim of privilege
can be deferred until such time, if ever, as any arguable adverse
impact develops.  Such a procedure strikes a fair and reasonable
balance between the government's right to investigate suspected
criminal activities of third parties and the witness's interest in
marital harmony.

   This type of procedure is well established in cases in which a
witness asserts the constitutional privilege against compelled
self-incrimination.  See Kastigar v. United States, 406 U.S. 441
(1972).  In such cases, once the witness receives a grant of immunity
that meets minimum constitutional requirements, he may not tie up a
grand jury proceeding with arguments about potential future uses of
his testimony, but must proceed to testify.  If the government later
attempts to use the witness's testimony or fruits thereof against him,
a hearing is held to determine whether the government's action
violates the witness's constitutional privilege against
self-incrimination.  Id. at 460-461.

   Such a procedure is a fortiori appropriate in the case of the
privilege against adverse spousal testimony.  Unlike the privilege
against self-incrimination, the privilege against spousal testimony is
not rooted in the Constitution, but is based on policy considerations.
 See Hawkins v. United States, 358 U.S. 74, 77-78 (1958).  Fed. R.
Evid. 501 requires federal courts to evaluate particular applications
of the privilege in the light of "reason and experience," rather than
to consider the privilege in the abstract.  Such an analysis must take
into account factors such as the nature of the testimony, the manner
in which it is used, and the nature of any impact on the nonwitness
spouse -- factors that as a practical matter can be adequately
evaluated only at such time as an actual adverse impact on the
nonwitness spouse appears likely to materialize.  /5/

   The marital privilege is fully satisfied, without extravagant costs
to other societal interests, by the practical measure of postponing
consideration of a witness's assertion of the privilege before a grand
jury, so long as there is no question of the witness's spouse being
indicted by that grand jury.  If the government should thereafter
proceed against the spouse, and it is alleged that the witness's
testimony has been or is being used in that proceeding in violation of
the privilege, a court can then consider whether the privilege should
apply under the circumstances and take steps to prevent any improper
use of the testimony.  Cf. Manness v. Meyers, 419 U.S. 449, 474-475
(1975) (White, J., concurring).  Unlike the result produced by the
court of appeals holding, this approach minimizes the costs to law
enforcement, since the grand jury is enabled to obtain evidence about
third parties who can claim no interest in a witness's marital
privilege.

   b. Even if it were sometimes appropriate to honor a witness's
invocation of the privilege before a grand jury investigatinng only
third parties, recognition of the privilege was improper in the
circumstances of this case.  The court of appeals expanded the
privilege in a manner that conflicts with this Court's statements in
Trammel and with the Congressional mandate that common law privileges
should be interpreted in the light of "reason and experience" (Fed. R.
Evid. 501).  This Court in Trammel admonished that testimonial
privileges "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.'" Trammel v. United States, supra, 445 U.S. at 50, quoting
Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J.,
dissenting).

   Rather than strictly construing the privilege against adverse
spousal testimony, the court of appeals has broadened it considerably
beyond its traditional scope.  As Judge Adams pointed out in his
dissent, the privilege was never meant to bar all testimony that
affects the relationship between marital partners (App. A, infra,
19a).  Under the common law, the privilege was limited to testimony
that "disfavors the other spouse's legal interests in the very case in
which the testimony is offered." 8 Wigmore on Evidence Section 2234,
at 231 (McNaughton rev. 1961). (emphasis in original).  Federal and
state courts have characterized the privilege in this matter.  See,
e.g., In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974);  United
States v. Burks, 470 F.2d 432, 435-436 & n.6 (D.C. Cir. 1972);
Halback v. Hill, 261 F. 1007, 1009-1010 (D.C. Cir. 1919);  People v.
Langtree, 64 Cal. 256, 30 P. 813 (1883);  State v. Parrott, 79 N.C.
615, 617-618 (1878);  State v. Briggs, 9 R.I. 361, 365-366 (1869).
The court of appeals went far beyond the traditional scope of the
privilege by upholding its invocation on the basis of speculation
about the nexus it might have to other evidence adduced in a
hypothetical future proceeding.

   Fed. R. Evid. 501 requires the federal courts to apply "reason and
experience" in determining the scope of common law privileges, not
simply to extend them relentlessly to the outer limits of their
conceivable application.  This Court in Trammel recognized that the
courts must weigh the purpose served by the privilege -- the public
interest in marital harmony -- against the burden on legitimate law
enforcement needs in a particular factual setting.  445 U.S. at 52-53.
 The lower courts generally have applied such a case-by-case analysis,
in which the public interest in disclosure of evidence is balanced
against the extent to which the policy underlying the privilege would
be advanced by permitting invocation of the privilege in the
particular case.  See, e.g., In re Grand Jury Proceedings (Appeal of
Vannier), 664 F.2d 423, 429 (11th Cir. 1981), cert. denied, Nos.
80-1071 and 81-1108 (Mar. 8, 1982);  Ryan v. Commissioner, 568 F.2d
531, 543 (7th Cir. 1977);  United States v. Cameron, 556 F.2d 752, 756
(5th Cir. 1977);  United States v. Allery, 526 F.2d 1362, 1366-1367
(8th Cir. 1975).

   Here, the court of appeals appears not to have engaged in the sort
of balancing analysis prescribed in Trammel, but instead produced what
Judge Rosenn acknowledged was a "categorical enforcement" of the
privilege (App. A, infra, 11a n.12).  In fact, however, a balancing of
the two interests in the light of "reason and experience" indicates
that the extension of the privilege in this case is unwarranted.
Because respondent's testimony will not implicate her husband directly
and because the grand jury before which she testifies will not indict
her husband, there is no direct adverse impact of the type that is
normally thought to strain the marital relationship.  /6/ Any
indictment of the husband at a later time would result directly from
testimony of a third party.  As Judge Adams suggests, the relationship
between the respondent's testimony and any possible adverse impact on
her spouse is "attenuated at best" (App. A, infra, 23a).  Common sense
suggests that any strain on the marital relationship arising from
these circumstances must be far less than that resulting from direct
implication of a spouse in a proceeding in which the spouse is a
target.  As Judge Adams observes, there is a "qualitative difference"
in the impact of the testimony in these two circumstances (App. A,
infra, 19a).

   On the other hand, as described above, the burden on legitimate law
enforcement that results from honoring a witness's assertion of the
privilege in a case such as the present one is significant.  Here, the
result has been frustration of the government's efforts to obtain
relevant testimony against an individual who is though to be an
important member of the drug ring under investigation.  Allowing the
privilege to be invoked benefited not the spouse, but a third party
who had no interest in the witness's privilege.  Balancing of the
interests in these circumstances clearly indicates that the privilege
should not be recognized.

   The court of appeals holding is at odds with the approach taken by
other circuits, which have not recognized indirect effects of spousal
testimony as grounds for permitting a witness not to testify before a
grand jury.  For example, in United States v. Weinberg, 439 F.2d 743
(9th Cir. 1971), the court upheld a claim of privilege asserted before
a grand jury where the questions concerned the identity and conduct of
persons present during meetings of alleged conspirators, who
apparently included the witness's husband.  The court observed,
however, that the questions could be reframed so as "not to require
(the wife) to disclose whether or not her husband was present or
participated." Id. at 750 n.10.  The court did not suggest that there
would be any difficulty if the husband's co-conspirators were to
testify against him in the future;  in fact, the court apparently did
not even require the government to promise that the husband would not
be indicted by the grand jury before which his wife testified.

   In United States v. Armstrong, 476 F.2d 313 (5th Cir. 1973), the
court held that a wife could not refuse to testify before a grand jury
against her husband's co-defendants where the testimony did not
implicate her husband and where her husband's case had been severed
from that of his co-defendants.  Id. at 315, citing 3 Wharton's
Criminal Evidence Section 777, at 113-114 (12th ed. 1955).  The court
noted that the wife could be called as a witness at the trials of the
husband's co-defendants and that the same rule would apply to
testimony before the grand jury.  Ibid.  See also In re Snoonian,
supra, 502 F.2d at 112, in which the First Circuit stated that the
marital privilege would not excuse the witness from testifying at a
trial in which his wife was not a defendant even if she had been
indicted and was being tried separately.  In Armstrong and Snoonian,
as in Weinberg, the courts indicated no concern about the possibility,
as much present in those cases as in this, that the husband's
co-defendants might later testify against the husband.

   The court of appeals' holding in the present case also is
inconsistent with the explicit holding of the Fifth Circuit in Appeal
of Vannier, supra, that the scope of protection of the privilege
against adverse spousal testimony is narrower than that of the
privilege against self-incrimination.  In Vannier the majority refused
to allow invocation of the privilege where questions addressed to the
wife were objective and contained no reference to her husband, even
though the husband was a target of the grand jury.  The majority
quoted from the First Circuit's opinion in In re Snoonian:

      The privilege has not ordinarily been construed to allow one
      spouse to decline to testify merely because the testimony may
      incrimate (sic) the other.  Wigmore, supra at 231, n.2.

   Appeal of Vannier, supra, 664 F.2d at 429, quoting In re Snoonian,
supra, 502 F.2d at 112.  The court in Vannier supported its conclusion
by pointing to the difference in the purposes and social values that
are fostered by the two different privileges.  664 f.2d at 429.

   In sum, the holding in the present case represents an unprecedented
departure from the generally prevailing understanding of the marital
testimonial privilege, limiting the availability of the privilege to
circumstances in which the content of the testimony is adverse to the
spouse and is sought to be elicited in a proceeding directed against
the spouse.  And even if it were deemed appropriate at this time to
introduce into the marital testimonial privilege a "fruits" component,
the court of appeals has adopted an extravagant and unacceptable
formulation of the concept, which threatens serious injury to the
investigations of this and future grand juries and confers wholly
unjustified windfall benefits on third parties who are suspected of
criminal activities and who are plainly outside the intended shelter
of the privilege.  Such a drastic departure from the existing
understanding of the proper scope of the marital testimonial privilege
requires review by this Court.

   2. An independent and equally significant error of the court of
appeals in this case is its recognition of the privilege against
adverse spousal testimony where the evidence suggests that the spouses
were joint participants in criminal activity.  /7/ Respondent has
pleaded guilty to participation in a drug conspiracy that is thought
to have included her husband, and the testimony sought from her
involves the activities of other individuals in that same conspiracy.
The Third Circuit's refusal to recognize an exception to the privilege
in such circumstances conflicts squarely with decisions of the Seventh
Circuit and the Tenth Circuit.  Those courts, in United States v. Van
Drunen, 501 F.2d 1393 (7th Cir.), cert. denied, 419 U.S. 1091 (1974),
and United States v. Trammel, 583 F.2d 1166 (10th Cir. 1978), aff'd on
other grounds, 445 U.S. 40 (1980), have held that the privilege is
unavailable where the spouses are joint participants in a criminal
enterprise.

   The Seventh and Tenth Circuits have reasoned correctly that
society's interest in preserving marital harmony is outweighed by the
injury inflicted on the public by use of the marital relationship for
illicit purposes.  As the Seventh Circuit observed:

      (The) goal (of preserving the family) does not justify assuring
      a criminal that he can enlist the aid of his spouse in a
      criminal enterprise without fear that by recruiting an
      accomplice or coconspirator he is creating another potential
      witness.

   Van Drunen, supra, 501 F.2d at 1396.  See also Trammel, supra, 583
F.2d at 1169-1170;  Ryan v. Commissioner, supra, 568 F.2d at 543-544.
The Seventh Circuit in Van Drunen noted that the privilege made the
most sense in cases "where a spouse who is neither a victim nor a
participant observes evidence of the other spouse's crime." 501 F.2d
at 1397.

   This view is consistent with reason and experience.  Where spouses
are co-conspirators, the injury inflicted on the public by use of the
marital relationship for illicit purposes outweighs any societal
interest in preserving marital harmony.  Collective criminal agreement
is recognized as in itself a serious danger to the public.  Callanan
v. United States, 364 U.S. 587, 593-594 (1961).  Permitting invocation
of the privilege in the case of conspiracy may frustrate the
government's ability to obtain relevant evidence relating to key
members of a conspiracy who happen to be married.  At the same time,
the purpose served by the privilege is weak in such circumstances.
Society's interest in fostering harmony in marriages, which ordinarily
may be thought to contribute to the rehabilitation of a
defendant-spouse, is not well served by providing an incentive for
recruiting one's spouse into criminal activity, /8/ thereby
encouraging abuse of the relationship that the privilege is designed
to protect.  The decisions of the Seventh and Tenth Circuits embody
the better view, and the Third Circuit decision in the present case
should be reversed on this ground.

   The analysis of the Seventh and Tenth Circuits accords with
exceptions to other privileges in cases where the privileged
relationship is similarly abused.  Thus, it is well established that a
client who uses his attorney to obtain guidance in the commission of a
crime is not protected by the attorney-client privilege against his
attorney's taking the stand to testify about their conversations.
Clark v. United States, 289 U.S. 1, 15 (1933);  In re Doe, 551 F.2d
899 (2d Cir. 1977);  Hyde Construction Co. v. Koehring Co., 455 F.2d
337, 342 (5th Cir. 1972);  United States v. Friedman, 445 F.2d 1076,
1086 (9th Cir.), cert. denied, 404 U.S. 958 (1971).  It has also been
held that the privilege protecting confidential communications between
husband and wife does not apply to communications in furtherance of
criminal activity.  See United States v. Mendoza, 574 F.2d 1373,
1379-1381 (5th Cir. 1978);  United States v. Kahn, 471 F.2d 191, 194
(7th Cir. 1972), cert. denied, 411 U.S. 986 (1973);  State v. Smith,
384 A.2d 687, 693-694 (Me. 1978);  People v. Watkins, 89 Misc. 2d 870,
393 N.Y.S.2D 283 (Sup. Ct. 1977);  Gill v. Commonwealth, 374 S.W.2D
848, 851 (Ky. 1964);  but see Smith v. State, 344 So.2d 915, 919 (Fla.
Dist. Ct. App. 1977).  The Third Circuit view, unlike that of the
Seventh and Tenth Circuits, fails to recognize that the privilege
against adverse testimony by a spouse, like other privileges, should
"take() flight if the relation is abused" (Clark v. United States,
supra, 289 U.S. at 15), and that the marital relationship is clearly
abused where the spouses jointly participate in crime.  /9/

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   CAROLYN F. CORWIN

      Assistant to the Solicitor General

   JOEL M. GERSHOWITZ

      Attorney

   AUGUST 1982

   /1/ The record in this case has been ordered sealed.  See App. A,
infra, 1a n.1.  Following the approach of the court of appeals, we do
not disclose the names of the interested parties.  Respondent is
referred to in the caption as "Jane Doe." The district court
memorandum and order, which are reprinted in Appendix D, have been
altered so as to substitute fictitious names for the names of
interested parties.

   /2/ Respondent also claimed that some of the questions that the
government proposed to ask her were the product of an illegal
interception of an oral communication, and therefore could not be
asked before the grand jury.  The district court sustained the claim,
and the government did not raise the issue on appeal.

   /3/ The opinion referred to was In re Grand Jury (Malfitano), 633
F.2d 276 (1980), in which the Third Circuit had held the privilege
applicable to spousal testimony before a grand jury where both spouses
were alleged to have participated in the crime under investigation and
where the grant of immunity did not appear to extend to immunity from
indictment by that grand jury.

   Judge Rosenn, author of the majority opinion in the present case,
did add a footnote expressing his concern about the fact that the
effect of the court's holding was to protect a third party "who has no
entitlement whatsoever to the benefits of the privilege" (App. A,
infra, 11a n.12).  In that footnote, in which Judge Sloviter
explicitly declined to concur, Judge Rosenn suggested that the
district court could avoid this result by offering to give a
nonwitness spouse use-fruits immunity respecting the witness spouse's
testimony unless the government decided to forgo that testimony.
Judge Sloviter in her concurring opinion (id. at 12a-16a) and Judge
Adams in his dissent (id. at 24a n.7) questioned whether the judicial
branch has authority in a nonconstitutional setting to order that such
immunity be conferred.

   /4/ The present case does not involve the privilege against
disclosure of confidential marital communications.  See App. A, infra,
1a n.2.

   /5/ There is precedent for deferring consideration of a claim of
marital privilege where the privilege is invoked by a grand jury
witness whose spouse is not a target of the grand jury.  See, e.g.,
United States v. George, 444 F.2d 310 (6th Cir. 1971), in which the
court denied the claim of privilege where the witness's wife was not
being investigated by the grand jury.  The court stated that if the
witness in fact did gave inculpatory evidence against his wife and she
were then prosecuted, she could object to the introduction of any
statement made by her husband at the "proper stage" of her improbable
prosecution.  Id. at 314.

   /6/ In addition, grand jury proceedings are secret and therefore
involve no element of public accusation or incrimination of one spouse
by another.

   /7/ The government raised this issue in its petition for rehearing
en banc.  The government's argument previously had been rejected by a
Third Circuit panel in In re Grand Jury (Malfitano), 633 F.2d 276,
278-279 (1980).  The government noted in its rehearing petition that
it had not raised the argument prior to the rehearing stage because
one panel cannot overrule another panel of the same circuit.

   /8/ As this Court observed in Trammel, quoting Jeremy Bentham, the
privilege "goes far beyond making 'every man's house his castle,' and
permits a person to convert this house into a 'den of thieves'" (445
U.S. at 51-52).

   /9/ There is no question of mootness in the present case.  The term
of the grand jury, which was convened on January 28, 1981, has
expired.  However, the government would seek to question respondent
before a new grand jury if it were ultimately to prevail in this case.
 Accordingly, a clear controversy exists, the formal elements of which
are virtually certain to recur between the same parties.  See Gannett
Co. v. DePasquale, 443 U.S. 368, 377-378 (1979), and cases there
cited.

   Appendix Omitted