In Re Gary Snoonian, 502 F.2d 110, 1st Cir. (1974)
In Re Gary Snoonian, 502 F.2d 110, 1st Cir. (1974)
In Re Gary Snoonian, 502 F.2d 110, 1st Cir. (1974)
2d 110
Both Gary Snoonian and his wife were subpoenaed to testify before a United
States Special Grand Jury investigating extortionate extensions of credit. Mrs.
Snoonian appeared, and refused to testify, citing the Fifth Amendment. She has
not been recalled by the grand jury and was not granted immunity. Gary
Snoonian also appeared. After refusing to testify, he was granted use immunity
and after further proceedings returned to the grand jury at which time he
responded to several questions but refused to answer others, claiming that it
would violate the husband-wife privilege. He maintained this position despite
the prosecutor's assurance before the grand jurors that:
'Your wife is not a target of this investigation and . . . this Grand Jury has no
intent to prosecute your wife on the basis of your testimony here. I wish to
assure you that this Grand Jury in no way has your wife as a target of this Grand
Jury investigation.'
This court denied Snoonian's petition for bail pending appeal, 28 U.S.C.
1826(b), on the condition that the government file with the district court an
affidavit clarifying and confirming its representations at the grand jury
proceedings.1 An affidavit was thereafter filed by the Assistant Attorney in
Charge of the New England Strike Force Against Crime, the attorney in charge
of this investigation, stating:
'On behalf of the United States Government, I hereby represent and agree that
no testimony of Gary Snoonian before the Grand Jury, or its fruits, will be used
in any way in any proceeding against his wife.'
The relevant marital privilege is that which permits one spouse not to testify
against the other. Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3
L.Ed.2d 125 (1958). The rule developed in the context of trial-type proceedings
and, as Wigmore points out, has been limited to testimony which 'disfavors the
other spouse's legal interests in the very case in which the testimony is offered.'
8 J. Wigmore, Evidence 2234, at 231 (McNaughton rev. 1961). See United
States v. Burks, 152 U.S.App.D.C. 284, 470 F.2d 432 (1972); Astwood v.
United States, 1 F.2d 639 (8th Cir. 1924). The privilege has not ordinarily been
construed to allow one spouse to decline to testify merely because the
testimony may incrimate the other. Wigmore, supra at 231, n. 2. See, e.g., State
v. Briggs, 9 R.I. 361 (1869).
privilege. The Government has not only stated that the wife is not a 'target' but,
more tangibly, it has executed and filed in court an affidavit that nothing said
by the husband, and no fruits thereof, will be used against her. We think this
effectively removes the wife from any category which can remotely be likened
to a 'party' to the grand jury proceedings. Under F.R.Crim.P. 7(c) no indictment
could be returned by the grand jury without the Government's signature. Were
the Government to renege on its sworn promise, it is hard to conceive of a court
failing to find an estoppel. Cf. Santobello v. New York, 404 U.S. 257, 92 S.Ct.
495, 30 L.Ed.2d 427 (1971); Commonwealth v. Benton, 356 Mass. 447, 252
N.E.2d 891 (1969). The marital privilege would not excuse Snoonian from
testifying at a trial in which his wife was not a defendant even if she were
indicted and being tried separately. United States v. Fields, 458 F.2d 1194,
1199 (3d Cir. 1972), cert. denied,412 U.S. 927, 93 S.Ct. 2755, 37 L.Ed.2d 154
(1973). The privilege is of even less force once he has been assured the grand
jury will not indict his wife at all, or, as here, that his testimony will not be used
to facilitate 'the efforts of the prosecution to convict (her) of a crime.' Id.
9
The scope of the marital privilege has never been construed, even at common
law, as absolute. Wigmore, supra. And as it is in derogation of the public's 'right
to every man's evidence', United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct.
724, 94 L.Ed. 884 (1950), it is not to be 'expansively construed'. United States
v. Nixon, U.S. , 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Cf. Wolfle v. United
States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934); United States v. Doe,
478 F.2d 194 (1st Cir. 1973). In the present case the speculative nature of the
threat to the wife, coupled with the Government's unequivocal and convincing
promises not to use any of the testimony against her, nullifies any claim of
privilege as grounds for Snoonian's refusal to testify.
10
Affirmed.
It is, of course, clear that Snoonian may be released if at any time he determines
to respond to the Grand Jury's questions. 28 U.S.C. 1826(a)