but it's only litigation and action and we think that that ruling was in error and that in fact the confidential marital communication privilege is both a secrecy privilege and a litigation objection the united states  court's major case in deciding this privileged will first united states stated that the communications between spouses privately made are generally assumed to have been intended to be confidential and are hence privileged and if you look up the definition the word confidential in the dictionary it says the definition is secret and private and so it seems as though the only reasonable interpretation of the of the privilege is that it's a privacy privilege involving keeping secrets i believe was challenged by the life in the district court in omaha nebraska and the challenges were real at that point in time and these letters were seized as within the scope of the law are no no no that  that was never that was never litigated because the the wife was an attorney all of the letters were seized but not read by the the a t f officers that sees them and the special master procedure special master to only be partially covered by the attorney and the other part was not so the special master was going to deliver those letters to the prosecutors the appellant then objected that those parts of the letters were covered by the american unification privilege which was objection raised by the wife which was unsuccessful but since the appellant had a greater interest because he was facing litigation he pressed forward that that objection to special master and in the district court i've looked very hard for cases that columbia circuit case where the husband and wife meryl privilege was subjected to the release of tape recorded telephone call conversations between husband and wife which the husband's employer had custody of and during the litigation the f c c one of those conversations and it was to suggest a successful objection based on the husband wife privilege which prevented the disclosure of those tape recordings the other one is a they want the secrecy in hugely the husband was under criminal investigation and there was a likelihood that the wife would be trade him and reveal confidential communication privilege and there may be a waiver on the part of the wife and we know from united states version of the policy why you'd want to say if they were think or say privilege because if there truly is the secret privilege you can't have one price telling the other down the river you can't you can't do that in court that's what united states versus montgomery the most recent ninth circuit case says that if one if one spouse ways and ways the privileged and toffs the police can listen they can take that information they can investigate on it but when it comes time for court then it becomes just a litigation objection and in montgomery the husband if he doesn't waive the wife can't testify but it seems pretty clear from the case long from the textbooks that the husband can't control a family member from revealing secrets out of court and that's what was going on in the in the case it's a situation where there was a potential waiver by the wife and there's nothing wrong by law in fact in leftwards first united states that's what happened the wife provided information to the police that went into the surf warrant affidavit and then there was an objection they didn't have to reach the issue whether the use in court was improper because it was immaterial to the granting of the warrant but later in montgomery it's clear that judicial use of waived confidential communications cannot be used used in court where there's a waiver of one spouse and that's what was going on in the hugely case hugely the only remedy there when the wife waived the privilege and reveals the secrets is to object in court and so the language in hugely makes perfect sense under the facts of the hugely case but they make no sense in the case such as appellants where both husband and wife are jacking under that confidentiality their objection to refer to the release of the information and that's why we felt that the case the allow persons united states was so instructive and that case the husband was asked before a grand jury proceeding so where's your wife were looking for your wife in this criminal investigation and he asserted the attorney for the confidential marital communication privilege and although it was within the con of making an objection to the admissibility of evidence in reality the court was saying that these matters are secret and because of the privilege he wasn't required to reveal where his wife was because all parties agreed that he had learned through a  communication from his wife is why confidentially told him where he was so it not only acted as it litigation objection in the blount case it also resulted in the matter in the information remaining secret the government wasn't entitled to receive that information so that the key distinction between the really taste in this case is when both clients refused to waive the privilege when both clients urged the secrecy privilege it has to be upheld and it can't be you can't force the revelation of the secrets when both clients are  claiming that the secrecy privilege and that's both in court and out of court and that's why the language in the hugely hugely decision makes perfect sense when there's a waiver by one spouse but makes no sense at all to a situation in a public space where both sp recognizes two types of marital privileges number one the privilege against adverse spousal testimony that's the one that we've been focusing on as not involved here and number two that confidential marital communications discovery in the subpoena enforcement action the court simply assumed without any discussion that the privilege applied to the production of the recordings so it's true that in that case the court stated that war i know it doesn't get serious for you i meant that i think our best argument is that that case is the only case we were able to find when we were searching for cases simply on this issue that actually said that the marital communications privilege relates only to testimony in judicial or grand jury proceedings and our opinion is limited accordingly that's a relatively clear statement i understand that the defense argument is can be distinguished because in that case one of the spouses may have been attempting to waive the marital communications privilege and in this case there is no labor however the best reading of that case is the plain language of the opinion were if we were just writing on a clean slate what would be your reasoning to say that there's only one form of a privilege and that this litigation permits from other words to reject the privilege is distinguishable from marital communications privilege because as the court pointed out there's two parts to the marriage of communications privilege the first part that we're not dealing with is the testimonial privilege when a spouse is called to testify in court and the second part is the marital communications privilege that we are dealing with with a lot of the courts have already found that the first part are even even asked the existence of that relationship that the privilege continues in the marital communications context after the marriage dissolved there is no longer and testimonial  that's that's first part of the privilege one that conceivably we're not dealing with but it's the government's position that in the context of the marital communications privilege you can see from the way that the privilege from the fact that it's weighed by one spouse we're talking about testimony from the fact that after the relationship is ended there is no privilege for the testimonial privilege courts have been consistently narrowing privilege in a way that you don't see in the priest penitent privilege or in the doctor patient privilege cases and that's why i think the marital communications privilege is different the court has suggested over and over again that this is a very narrow cases that directly support the defendant position that it should be a secrecy privilege and opposed to merely a litigation privilege in light of the fact that this is an expansion of the marilyn occasions i'm in trouble immediately agreeing with the government for the government execute a search warrant to search a house sees letters that were obviously intended to be private the husband and wife and then use information out of that out of those letters in a way that's potentially very adverse to at least one and maybe both members of the marriage national wrong with that now as something wrong with them a sense of i just i just very sorry and how do i make amends i don't really want to go to jail but i'd like to give the money back if you think you should have that evidence i think i should have that evidence your honor i don't think it makes any difference whether he's making the communication to his wife or he's making it to his cellmate her it's on the first point the second point that the government has made which i think is very critical is that the defendant is arguing that the marital communications privilege should be applied as a secrecy  argument for her there's been a decision made that communications that issue are actually covered by the marital communications privilege in fact it's the government's position that those letters are not covered by the marital communications at least for the simple fact that there is no reasonable expectation of privacy in communications between an inmate and his spouse the only reason he has any expectation of privacy in these communications is because he improperly designated that attorney client privilege information and as the district the district court did not rule on that issue but this the whole master of it in a special master determined that the communications at issue are not exactly what then they're all i can tell you is that the special master specifically ruled that she had redacted the attorney client privilege information out of the letter and everything else in the letters are not  were sent by an inmate to his wife as spousal communications improperly designated as attorney client privilege information there is no question that under the regulations of the present only attorney client privilege information can be sent using attorney client confidential mail other regulations state that if you're communicating in any other capacity and the judge didn't reach the that but i recognize the court can reach that issue and our position all along is that there was no violation of state law that california law is very clear underpinned code section twenty six zero one in the california supreme court case of in re jordan that an inmate has a right to communicate with a lawyer in absolute privacy it's forbidden to censor those communications to listen in was a penal code section six thirty six b which makes it a crime to eavesdrop upon the communications between a prisoner  and a lawyer that actually doesn't answer my question now let's assume for the sake of my question that there is at least one letter that contains no attorney client related matters confidential and since that communication is in an attorney client mark will be it was not read in fact is a factual finding that these letters were presumably not read by the my the person because they were marked legal in confidential so if an additional conversation like that leave the lawyer out of it there's no lawyer in my example the person that's per se there is no lawyer the person is just an inmate communicating with their window washer spouse by letter from inside the prison in the face of a regulation that says we can read your  is there any expectation of privacy simply because the letter is going from the inmate to the spouse you know there's no there's no expectation of privacy in that situation ok and in fact there were such letters and in this case that were not covered by any know we're not saying it's absolute we're saying that when the when the spouse one spouse is a lawyer and the communications are sent through attorney client legal meaning that confidentiality covers the entire conversation so if there's some incidental non have american unification privilege because the government now wants to read it because of a different minor mail regulation violation and that's where the problem because if he's written two letters instead of one one on the legal matter on the other to talk about right to have planets i guess in terms of expectation of privacy question well if well so there's the question right to read it and for what purpose that is to say i think it may be a different proposition whether the prison reads it in order to approach and the only remedy that the government has this for a special master to review letters to decide whether a crime fraud exception applies i mean the government can get what they want if they follow the law and the law is a privilege material has to be reviewed in camera and they can and the privilege if there's a crime products section under rashly means that if the husband and wife are planning a criminal act in other words prepare you know pursuing a racketeering act through the through the letters then the crime fraud exception breaks the confidential privilege they can read them the government wants to read all thousands of pages of letters and make their own selection and our point is they can't do that they only have an interest in getting evidence for their criminal record during prosecution and the only way they can get that evidence is because of the privilege is the intervention of an in camera  view by the special master and that's that's all we're trying to say and my last point is that the government is trying to destroy the privilege by saying balancing these interests and i cited in the reply brief the japanese versus redmond and upjohn versus united states where twice the supreme court has rejected balancing approaches for destroying privileges in upjohn case it was a question of whether the corporate lawyers had interned client privilege with the higher up executives but not the low level employees in the lower court said yeah they don't have a with a lower level employees in the united states supreme court says no an attorney client privilege cannot be destroyed by a balancing approach and that's what they're what they're trying to do here in redmond they did the same thing they said well sometimes we really need this evidence in these lawsuits against the police can't we balance them lower courts that would of course you can the united states supreme court says no you can't what's the privilege exists you don't engage in balancing process is to take it away because if you do notice i think we have stand your position and you have exceeded your time