APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Grand Jury No. 80-0121-4)
Before Adams, Rosenn and Sloviter, Circuit Judges.
The United States appeals from an order of the United States District Court for the Eastern District of Pennsylvania denying the Government's motion to compel the testimony of a witness*fn1 before a grand jury. The witness has asserted the privilege against adverse spousal testimony,*fn2 claiming that any testimony by her directed to the activity of a third party would indirectly implicate her husband, who the United States has conceded is a target of the same investigation. We agree with the district court that the witness is entitled to assert the privilege and we therefore affirm its order.*fn3
Following her plea of guilty to one count of conspiracy to possess with intent to distribute and to distribute methamphetamine, a non-narcotic controlled substance, and one count of aiding and abetting the distribution of methamphetamine, the witness was subpoenaed to testify before a grand jury investigating the drug operation in which she had participated. She was immunized under 18 U.S.C. § 6002 (1976),*fn4 but exercised her privilege against adverse spousal testimony before the grand jury. The Government then moved to compel her testimony and in support of the motion filed an affidavit with the district court certifying that nothing said by the witness before the grand jury would be used, "either directly or indirectly, against her husband in any legal proceedings." (Emphasis added.) In effect, the Government appeared to promise the witness that it would confer upon her husband immunity coextensive with the statutory use and derivative use immunity conferred on the witness, as a way of respecting the witness' privilege against adverse spousal testimony while pursuing other members of the drug operation.*fn5
In a subsequent affidavit, however, the Government retreated from its initial offer of a broad grant of immunity protecting the husband. The affidavit provides:
(T)he government will not present to the Grand Jury empaneled January 28, 1981 an indictment in which (witness') 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 (witness') testimony in deciding whether to indict her spouse....
To respect the wife's privilege against adverse spousal testimony, the Government ultimately promised only to refrain from naming the witness' husband in an indictment presented to this particular grand jury. The Government confirmed at a hearing before the district court that her husband was indeed a target of its investigation. Moreover, the Government conceded that if the wife's testimony implicated a third party, and that person was willing to testify against the husband, then a separate grand jury would be empaneled from which the United States would seek the husband's indictment.
Under her claim of privilege the witness refused to answer a series of questions concerning the involvement of the third party and others in the drug operation. Based on the Government's representations at the hearing, the district court upheld the claim of marital privilege and denied the Government's motion to compel her testimony. In holding that the indirect use contemplated by the Government of the witness' testimony would violate the privilege, the district court relied on this court's analysis in In re Grand Jury (Malfitano), 633 F.2d 276 (3d Cir. 1980); it distinguished In re Snoonian, 502 F.2d 110 (1st Cir. 1974), relied on by the Government. In Snoonian, the court permitted government attorneys to file affidavits promising not to prosecute the nontestifying spouse as a way of accommodating a claim of the privilege against adverse spousal testimony. The court held that "the speculative nature of the threat to (the nontestifying spouse), coupled with the Government's unequivocal and convincing promises not to use any of the testimony against her," id. at 113, nullified any claim of privilege as grounds for the witness' refusal to testify. Id.*fn6 In Malfitano, in contrast, this court refused to find that the Government's promise not to use one spouse's testimony against the other vitiated the privilege, since the nontestifying spouse was a target of the grand jury before which the spouse was called to testify. 633 F.2d at 279-80.*fn7
In the case at bar, the district court concluded that Malfitano controlled.
The only difference that exists in the present case from the Malfitano decision is that the testimony of the wife here will not directly implicate her husband before the same grand jury before which she is testifying. Rather, it will indirectly implicate her husband in a future legal proceeding. As such, the effect is the same; the danger to the marital relationship is as manifest.
In re Grand Jury, No. 80-121-4, slip op. at 6-7 (E.D.Pa. Feb. 13, 1981). The court also concluded that the Government was attempting to renege on its initial sworn promise not to use the witness' testimony, "either directly or indirectly, against her husband ... in any legal proceedings."
If, as Wigmore points out, "the fear of causing marital dissension or disturbing the domestic peace" were the genuine fundament of the privilege, then the privilege should apply to any perjorative testimony toward the other spouse. 8 J. Wigmore, Evidence § 2234, at 230-31 (McNaughten rev. 1961). But this broad application of the privilege was rejected at common law and its scope confined to only such testimony as is adverse to the other spouse's legal interests in the very case under consideration. In re Snoonian, supra, 502 F.2d at 112; J. Wigmore, Evidence, supra, § 2234, at 231. Despite this restriction, the privilege against adverse spousal testimony has in modern times been subject to considerable criticism,*fn8 and the empirical basis of the privilege has been seriously called into question.*fn9 Nonetheless, the privilege remains an important obstacle to the admission of certain testimony in federal court. Rule 501 of the Federal Rules of Evidence provides in relevant part: "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." In Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980), the Supreme Court recently redefined the scope of the privilege against adverse spousal testimony in federal court. The Court modified the rule of Hawkins v. United States, 358 U.S. 74, 79 S. Ct. 136, 3 L. Ed. 2d 125 (1958), which had permitted a nonwitness spouse to invoke the privilege to prevent the witness spouse from testifying against him, and held that the privilege ran only to the witness spouse. 445 U.S. at 53, 100 S. Ct. at 914. Thus one spouse may now voluntarily testify ...