1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-25-1997

In Re: Grand Jury (Pt. II)

Precedential or Non-Precedential:

Docket 97-7018

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Recommended Citation

"In Re: Grand Jury (Pt. II)" (1997). 1997 Decisions. Paper 91.

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1

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 97-7018 

 

 

 IN RE: GRAND JURY 

 

On Appeal from the United States District Court 

for the District of Delaware 

(D.C. No. 96-mc-00093) 

 

Argued March 26, 1997 

Before: SLOVITER, Chief Judge, 

STAPLETON and ALDISERT, Circuit Judges

(Opinion filed April 25, 1997) 

 

James A. Backstrom, Jr. (Argued) 

Vaira, Backstrom & Riley 

Philadelphia, PA 19103 

 Attorney for Appellant 

 

Colm F. Connolly (Argued) 

Office of the United States Attorney 

Wilmington, DE 19899-2046 

 Attorney for Appellee 

 OPINION OF THE COURT

SLOVITER, Chief Judge. 

 On this appeal we must consider whether the 

government’s grant of use and derivative use immunity (use-fruits 
2

immunity) to the spouse of a witness is sufficient to defeat the 

witness’s privilege against adverse spousal testimony. This is a 

question of first impression for this court in the context in 

which it is presented. 

I. 

 A witness before a grand jury who asserted her 

privilege not to testify as a witness against her husband in a 

criminal proceeding appeals from the contempt order entered by 

the district court. The witness is the wife of John Doe 2, who 

is not the target but is a subject of a grand jury investigation. 

 In order to secure the testimony of the spouse-witness, 

whom it had subpoenaed, the district court, at the request of the 

government, granted the witness personal immunity under 18 U.S.C. 

§ 6002 and 6003. The witness appeared before the grand jury and 

answered only preliminary questions, refusing to answer the bulk 

of the questions, and invoked the adverse spousal testimonial 

privilege. That day the grand jury issued a subpoena duces tecum

requiring the witness to provide tapes of conversations between 

the witness’s husband and others which she illegally recorded.1 

Nonetheless, the witness again asserted her spousal testimonial 

privilege before the grand jury and refused to answer various 

questions on the ground that to do so would force her to be a 

witness against her husband in a criminal proceeding. 

 

 

1 All parties agree that these recordings are “testimony” 

and are subject to the adverse spousal testimonial privilege. 

The non-witness spouse and the grand jury target have also moved 

to quash the subpoena duces tecum on different grounds. Their 

motions are the subject of a separate appeal in a related case in 

this court, In re Grand Jury, No. 97-7016/17, which has been 

decided in an opinion issued contemporaneously with this one. 
3

 The matter came to issue when the witness filed a 

motion to quash the subpoena on the basis of the privilege. On 

the same day, the government filed a motion to compel the 

witness’s testimony and supplied an affidavit by the Assistant 

United States Attorney in charge of the grand jury investigation 

in which he promised the witness that the government would give 

use-fruits immunity to her husband in exchange for her testimony. 

 Specifically, the government promised that it would “not use the 

testimony of [the witness spouse] or the fruits thereof in any 

way, either directly or indirectly, in any criminal proceeding 

against her husband . . . [and] the United States will not 

present to this grand jury an indictment in which [her husband] 

is named as a defendant.” App. at 50. The government also 

represented in papers filed with the court that “in the event 

that a separate grand jury indicted [the husband], the government 

would bear the burden of establishing that the evidence it used 

to indict [the husband] and the evidence it would use at [the 

husband’s] trial were derived from legitimate sources wholly 

independent of [the witness’s] testimony and production of the 

tapes.” App. 59. 

 In support of its motion, the government argued that 

immunizing the witness’s husband from any adverse effects of her 

testimony necessarily made inapplicable the asserted privilege. 

The district court denied the motion to quash and granted the 

government’s motion to compel the witness’s testimony, with the 

exception of answers or material that would reveal confidential 

attorney-client or marital communications. As to the spousal 
4

privilege, the court agreed that the government’s promise not to 

use the testimony against the husband sufficiently insulated the 

witness’s spouse so as to overcome the spousal privilege. 

 The witness appeared before the grand jury the next day 

but still refused to testify or produce the subpoenaed material, 

asserting her privilege against adverse spousal testimony and her 

marital communications privilege. The parties stipulated to the 

record, and the district court found the witness to be in 

contempt, but stayed imposition of sanctions pending this appeal. 

II.

 Rule 501 of the Federal Rules of Evidence provides, in 

relevant part, that: 

Except as otherwise required by the Constitution of the 

United States or provided by Act of Congress 

or in the rules proscribed by the Supreme 

Court pursuant to statutory authority, the 

privilege of a witness 

 . . . shall be governed 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. 

 Federal courts have recognized two kinds of marital privilege: the 

privilege that protects confidential marital communications and 

the privilege that protects a witness from testifying against 

his/her spouse. It is only the latter privilege that is now 

before this court. 

 It is, we note at the outset, a privilege that has been 

sharply criticized by the Supreme Court of the United States. In 

Trammel v. United States, 445 U.S. 40 (1980), the Court quoted 

Professor Wigmore’s statement that the privilege against adverse 
5

spousal testimony is “‘the merest anachronism in legal theory and 

an indefensible obstruction to truth in practice.’” Id. at 44-

45. Noting that “[n]o other testimonial privilege sweeps so 

broadly,” id. at 51, the Court cited its authority to use 

“‘reason and experience,’” id. at 46 (quoting Fed. Rule Evid. 

501), to “‘develop rules of privilege on a case-by-case basis,’” 

id. at 46 (quoting 120 Cong. Rec. 40891 (1974) (statement of Rep. 

Hungate)). The Court explained that unlike the marital 

communications privilege which protects private communications, 

the spousal privilege seeks “to exclude evidence of criminal acts 

and of communications made in the presence of third persons” in 

order to preserve marital harmony. Id. at 51. 

 The specific question in Trammel was whether a criminal 

defendant may invoke the privilege against adverse spousal 

testimony so as to exclude the voluntary testimony of his wife. 

In the course of its “all-but-unanimous opinion,” id. at 53 

(Stewart, J., concurring), the Court stated that “[t]he ancient 

foundations for so sweeping a privilege have long since 

disappeared,” id. at 52. It analyzed “whether the privilege 

against adverse spousal testimony promotes sufficiently important 

interests to outweigh the need for probative evidence in the 

administration of criminal justice.” Id. Rather than follow the 

action of many states and abolish the privilege in its entirety 

in favor of a privilege for confidential marital communications, 

which had been recommended by the National Conference of 

Commissioners on Uniform State Laws, the Court limited its 

holding to the issue before it - the right of one spouse to use 
6

the privilege to prevent testimony by a willing spouse. 

 The Trammel Court held that only the witness spouse, 

not the non-witness spouse, could invoke the privilege against 

adverse spousal testimony. See id. at 53. Although the issue 

presented here is different, since at this time the witness 

spouse is not willing to provide the testimony, the Supreme 

Court’s discussion in Trammel informs our analysis. 

 The district court here relied on the government’s 

promise of use-fruits immunity in holding that the non-witness 

spouse would be adequately insulated from the effects of the 

witness spouse’s testimony. The witness argues on appeal that 

because the mere utterance of her testimony, regardless of the 

criminal consequences, would adversely affect marital harmony, 

the government’s promise not to use her testimony against her 

husband is insufficient to overcome the spousal testimonial 

privilege. She asserts that the privilege involves “a basic 

right to refuse to provide testimony that implicates [a spouse].” 

 Appellant’s Reply brief at 2. Citing Trammel, 445 U.S. at 53, 

the witness argues that “with the adverse spousal testimony 

privilege, it is not disclosure of communications that is 

protected but rather the impact of the testimony on the 

marriage.” Id. at 3. 

 This court has never suggested that the privilege is so 

broad as to protect any testimony at all by a spouse. For 

example, in United States v. Fields, 458 F.2d 1194, 1199 (3d Cir. 

1972), cert. denied, 412 U.S. 927 (1973), the witness-spouse was 

called to testify by a co-defendant of her husband. Both 
7

defendants were convicted. On appeal, we rejected the nonwitness spouse’s contention that the trial court committed 

reversible error by permitting his spouse’s testimony. We 

explained that the spousal testimonial privilege did not prevent 

a spouse from testifying at a trial in which her spouse was one 

of two defendants. Although the trial court should have severed 

the defendant husband, it was harmless error as her testimony was 

not adverse to her spouse. See also United States v. George, 444 

F.2d 310, 313-14 (6th Cir. 1971) (witness could not claim adverse 

spousal testimonial privilege to avoid testifying before a grand 

jury investigating conspiracy involving gambling information 

merely because his wife, who was not involved in the conspiracy, 

had filed joint income tax returns with him). 

 Nor are we persuaded by the witness’s argument in this 

case that she can assert the privilege despite the promise of 

use-fruits immunity. The grant by the government of use-fruits 

immunity is a well-established prosecutorial tool to compel 

testimony that is otherwise privileged. Although the 

constitutional guarantee against self-incrimination is the most 

important of privileges and “reflects a complex of our 

fundamental values and aspirations, and marks an important 

advance in the development of our liberty,” Kastigar v. United 

States, 406 U.S. 441, 444 (1972), the Supreme Court in Kastigar

allowed grants of use-fruits immunity to obviate the Fifth 

Amendment privilege. Id. at 448. The Court explained that 

grants of immunity “seek a rational accommodation between the 

imperatives of the privilege and the legitimate demands of 
8

government to compel citizens to testify.” Id. at 446. 

 Kastigar built upon the earlier holding of the Court in 

Ullmann v. United States, 350 U.S. 422, 430-31 (1956), where the 

petitioner argued that grants of immunity would not protect his 

privilege against self-incrimination because they could not 

shield him from such adverse consequences as job-loss and 

“general public opprobrium.” Id. Rejecting this argument, the 

Ullmann Court explained that the Fifth Amendment only applies 

where a witness is asked “to give testimony which may possibly 

expose him to a criminal charge. But if the criminality has 

already been taken away, the amendment ceases to apply.” Id. at 

431 (internal quotations omitted). 

 The witness’s argument that her spousal testimonial 

privilege protects the very act of testifying, regardless of 

whether the government could use the information to prosecute her 

husband, overlooks the significance of adversity in determining 

the scope of the privilege. Courts have consistently recognized 

that the privilege only applies to testimony that is “adverse” to 

the other spouse. See, e.g., United States v. Van Cauwenberghe, 

827 F.2d 424, 431 (9th Cir. 1987)(refusing to recognize the 

spousal privilege where the witness failed to demonstrate that 

the testimony was adverse to her spouse’s penal interests), cert. 

denied, 484 U.S. 1042 (1988); In re Martenson, 779 F.2d 461, 464 

(8th Cir. 1985)(same); In re Grand Jury Proceedings, 664 F.2d 

423, 430 (5th Cir. 1981) (same), cert. denied, 455 U.S. 1000 

(1982). These cases make clear that the privilege is “not 

available unless the anticipated testimony would in fact be 
9

adverse to the non-witness spouse.” Martenson, 779 at 463 

(internal quotations omitted). 

 We thus hold that once the government grants immunity 

that eliminates the possibility that the testimony will be used 

to prosecute the witness’s spouse, the witness may no longer 

invoke the testimonial privilege.2 This is the position adopted 

by all courts of appeal which have addressed this issue. In 

United States v. Doe, 478 F.2d 194, 195 (1st Cir. 1973), a 

husband and wife were both summoned to appear before the grand 

jury in connection with joint criminal activity. They both 

claimed their Fifth Amendment privilege and were subsequently 

granted immunity. Each then claimed the spousal testimonial 

privilege, stating that their testimonies would be adverse to the 

other. The court found no privilege “when both are immunized 

from prosecution and are asked questions about the same 

transaction.” Id. at 195. 

 In In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974), a 

husband and wife were subpoenaed to appear before the grand jury. 

 The wife refused to testify, asserting her Fifth Amendment 

privilege. The husband was granted use-fruits immunity to compel 

 

 

2 Judge Aldisert does not join in this one sentence of the 

opinion, and adds this concurring statement: “I object to the 

sweep of this statement because it goes beyond the facts in this 

case. Being an unreconstructed follower of the Roscoe Pound 

tradition that a holding in a case announces a specific legal 

consequence attached to a definite state of facts, I prefer that 

this sentence read: ‘We thus hold that under the facts of this 

case, in which the government’s specific grant of immunity 

eliminates the possibility that the testimony will be used to 

prosecute the witness’s spouse, the witness may no longer invoke 

the testimonial privilege’.” 
10

his testimony over Fifth Amendment objections but he still 

refused to answer questions, claiming that to compel him to do so 

would violate his spousal testimonial privilege. The government 

filed an affidavit in which it promised that neither his 

testimony nor its fruits would be used in any way in a proceeding 

against his wife. Id. at 111-12. The court held that this 

promise “nullifies any claim of privilege as grounds for [the 

husband’s] refusal to testify.” Id. at 112. This decision was 

followed by the Second Circuit in Grand Jury Subpoena of Ford v. 

United States, 756 F.2d 249, 255 (2d Cir. 1985), where the court 

held that use-fruits immunity that “is fully co-extensive with 

the scope of the privilege against adverse spousal testimony” 

sufficiently meets the claim of the privilege by the testifying 

spouse. 

 In recognizing that the grant of immunity will defeat 

the adverse spousal testimonial privilege, we merely make 

explicit that which was implicit in our earlier decisions. In In 

re Grand Jury (Malfitano), 633 F.2d 276, 278 (3d Cir. 1980), we 

upheld the wife’s entitlement to assert her spousal testimonial 

privilege even though both she and her husband were allegedly 

involved in the criminal acts being investigated. We also 

rejected the government’s argument that because it had promised 

not to use the wife’s testimony in any future proceedings against 

her husband, the wife could no longer claim the privilege. Id. 

at 279. We found this limited immunity to be insufficient to 

overcome the spousal privilege since “there is nothing to prevent 

this grand jury from considering the [spouse’s] testimony in 
11

deciding whether to indict. There is no indication that the 

government intends to . . . ensure that the grand jury does not 

use [the wife’s] testimony against her husband.” Id. We 

distinguished the decision in In re Snoonian on the ground that 

in that case “the witness’ spouse was not a target, and the 

government expressly promised that ‘this Grand Jury has no intent 

to prosecute your wife on the basis of your testimony here.’ 

Contrary to the present case, it was clear that the grand jury 

before which the husband would testify would not use his 

testimony to indict his spouse.” Id. at 280 (quoting Snoonian, 

502 F.2d at 111). We nonetheless noted that “the [spousal 

testimonial] privilege is not absolute: it does not shield all 

testimony nor does it bar procedures that may protect the spouse 

from the effect of the testimony.” Id. at 280 n.6. 

 Two years later in In re Grand Jury Matter, 673 F.2d 

688, 689 (3d Cir.), cert. denied, United States v. Doe, 459 U.S. 

1015 (1982), we affirmed the order of the district court denying 

the government’s motion to compel a witness to testify before a 

grand jury after she had asserted her privilege against adverse 

spousal testimony. The witness had already pled guilty to her 

involvement in the drug operation and her husband was a target of 

the grand jury investigation. In order to compel her testimony, 

the government initially appeared to promise the witness that it 

would confer on her husband immunity that was coextensive with 

the statutory use and derivative use immunity. Id. at 690. 

Ultimately, the government promised the witness only that it 

would not present an indictment to that particular grand jury 
12

naming her husband as a defendant. If the wife’s testimony 

implicated a third party who was then willing to testify against 

her husband, the government would impanel a separate grand jury 

to seek her husband’s indictment. See id.

 In our analysis of whether this government promise was 

sufficient protection of the spousal testimonial privilege, we 

explained that in Malfitano “[b]y implication we suggested that 

if the Government ‘sever(ed) the husband’s indictment from that 

of the other defendants to ensure that the grand jury does not 

use the appellant’s testimony against her husband,’ the privilege 

might thereby be respected.” Id. at 692 (quoting Malfitano, 633 

F.2d at 279). 

 However, we found that the government’s promise not to 

present an indictment to this particular grand jury was 

inadequate to preserve the integrity of the privilege against 

adverse spousal testimony because the only change from the 

Malfitano undertaking was that “the impact of the spouse’s 

testimony is delayed,” as the wife’s “testimony is sought with 

the expectation that it may lead to his indictment by a 

subsequent grand jury.” Id. at 693. 

 In the case before us now, the government makes the 

promise that the witness’s testimony cannot be used directly or 

indirectly in order to indict her husband either before the 

present grand jury or a future grand jury. This is essentially 

the offer of broad use-fruits immunity that was made and then 

withdrawn in In re Grand Jury Matter. See id. at 690. This 

promise is broad enough to overcome the concerns raised in 
13

Malfitano that the government not use the spouse’s testimony to 

indict before the existing grand jury, as well as the concerns 

raised in In re Grand Jury Matter that the testimony not be used 

to indict in any future proceeding. 

 The witness asserts that the principal rationale for 

the privilege would be undermined by the very act of testifying, 

regardless of its incriminating impact. Taking the witness’s 

argument to its logical conclusion, even transactional immunity 

would be insufficient, because the harm to be avoided occurs at 

the moment of the witness’s testimony, regardless of the lack of 

any potential adverse legal consequences to the spouse flowing 

from that testimony. 

 But no court has suggested the privilege sweeps that 

broadly. Indeed, as we explained in Malfitano, the rationale for 

the privilege is “that it protects the marriage from the discord 

that occurs when one spouse testifies against the other.” 

633 F.2d at 277 (emphasis added); see also Trammel, 445 U.S. at 

44. With use-fruits immunity, as the government has granted 

here, the witness’s testimony will not have adverse legal 

consequences to her spouse, so the purpose of the privilege is in 

no way undermined. 

 The Supreme Court rejected an argument similar to the 

witness’s in the Fifth Amendment context in Kastigar. There the 

Court explained that the grant of immunity must be coextensive 

with the privilege, but need not be broader. See Kastigar, 406 

U.S. at 453. “Transactional immunity, which accords full 

immunity from prosecution for the offense to which the compelled 
14

testimony relates, affords the witness considerably broader 

protection than does the Fifth Amendment privilege. The 

privilege has never been construed to mean that one who invokes 

it cannot subsequently be prosecuted.” Id. 

 In summary, in the case before us the government 

promised the witness that it would not use her testimony, or the 

fruits thereof, in any criminal proceeding against her husband or 

seek an indictment before the same grand jury before which she 

was testifying. The government has undertaken the burden of 

showing the independent source of any evidence it uses should it 

subsequently indict the witness’s husband. This use-fruits 

immunity is sufficient in the Fifth Amendment context to defeat 

the privilege against self-incrimination, see Kastigar, 406 U.S. 

at 453, and we hold that it is equally sufficient to defeat the 

privilege against adverse spousal testimony and to compel the 

witness to testify. 

III.

 For the reasons set forth we will affirm the district 

court’s order holding the witness in contempt for refusing to 

answer questions before the grand jury and continuing to assert 

her spousal privilege even though the government had promised 

that it would not use her testimony or the fruits thereof in any 

criminal proceeding against her husband.