Appeal from judgment of conviction after jury trial before Edward Weinfeld, J., in the United States District Court for the Southern District of New York, finding appellant guilty of four counts of evasion of personal income taxes, in violation of 26 U.S.C. § 7201.
Friendly and Feinberg, Circuit Judges, and Lasker, District Judge.*fn*
Gilbert Fisher appeals his conviction on a four count indictment charging evasion of personal income taxes for the years 1967 through 1970, in violation of 26 U.S.C. § 7201. Fisher's first trial in September, 1974, before Judge Edward Weinfeld in the Southern District of New York, ended in a hung jury. At the second trial which began November 4, 1974, the jury returned a guilty verdict on all counts. Fisher was sentenced to concurrent fifteen month terms of imprisonment on each count and fined $10,000.
The Government used the specific cash expenditure method of proof to establish that during the tax years in question Fisher had accumulated large amounts of unreported income from an illegal gambling business. The Government presented witnesses who testified that Fisher attempted to prevent discovery of his actual income by using nominees to purchase items for him. Although Fisher raises a host of issues on appeal, the only one which merits extended consideration concerns the competency of one of the witnesses who testified against him.
The major witness for the Government was Rosalie Fisher. At the first trial, the Government offered in evidence the Nevada divorce decree which appellant had obtained against Mrs. Fisher on July 21, 1972, and called her as a witness, both without objection by defense counsel. Immediately prior to the commencement of the second trial, however, Fisher moved to suppress the testimony of Mrs. Fisher. He asserted that an appeal taken by her from the Nevada decree dissolved the finality of their divorce and that, because the Fishers were therefore still married, Mrs. Fisher's testimony was barred by the spousal privilege. Judge Weinfeld denied the motion on the grounds that no privilege existed*fn1 and that in any event Fisher had waived it by his failure to object at the first trial.
The privilege of a party against the use of a spouse's adverse testimony in federal criminal trials is governed by Rule 26, Federal Rules of Criminal Procedure, which reads:
"In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, 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."
At common law and as applied by federal courts, the spousal privilege continues only for the duration of the marriage; divorce removes the bar against testifying.*fn2 Pereira v. United States, 347 U.S. 1, 7, 98 L. Ed. 435, 74 S. Ct. 358 (1954); Wigmore, Evidence § 2237 (McNaughton rev. 1961). Appellant asserts that the fact that an appeal from a final divorce decree has been pending since May, 1974 restores the marital relationship, but cites no authority for the proposition under Nevada Law or otherwise. Indeed, a reading of the relevant Nevada statutes suggests the contrary, for a decree of divorce granted in Nevada by a court of competent authority "fully and completely dissolve[s] the marriage contract as to both parties." Title 11, Nev.Rev. Statutes § 125.130. Moreover, although no state statute specifically covers the effect of a pending appeal on the finality of a divorce decree, an appeal in Nevada does not in general abate the force of a judgment absent a stay pending appeal. Rule 8(a), Nev. R. App. Proc. Authority under the law of other states is at odds with Fisher's contention. E.g., Sullivan v. Commissioner of Internal Revenue, 256 F.2d 664, 667-668 (4th Cir. 1958) (Maryland); Hudson v. State, 295 So. 2d 766, 769-770 (Miss. 1974).*fn3 However, we do not view the technical finality of the divorce decree as controlling the issue before us, for regardless of the answer to the question whether the appeal from a final decree of divorce reinstates the spousal privilege, we decline to stretch the assertion of the privilege to the circumstances in the present case.
The rule that the spouse of a party to an action is totally disqualified as a witness was firmly established at common law by the second half of the seventeenth century. Wigmore, Evidence § 2227. The mystical and religious foundations of the privilege*fn4 have long since eroded, and the once absolute disqualification of a spouse has been narrowed to the present rule which only forbids testimony by one spouse which is adverse to the other spouse. Funk v. United States, 290 U.S. 371, 78 L. Ed. 369, 54 S. Ct. 212 (1933). The sole surviving rationale for the privilege is the belief that the trust and confidence between spouses should not be betrayed, and that the policy of fostering family stability benefits both the family unit and the public. Hawkins v. United States, 358 U.S. 74, 77, 3 L. Ed. 2d 125, 79 S. Ct. 136 (1958); Stein v. Bowman, 38 U.S. (13 Pet.) 209, 10 L. Ed. 129 (1839), citing Aveson v. Kinnard, 9 East. 192; see United States v. Termini, 267 F.2d 18, 19 (2d Cir. 1959); United States v. Walker, 176 F.2d 564, 568 (2d Cir.), cert. denied, 338 U.S. 891, 94 L. Ed. 547, 70 S. Ct. 239 (1949).
In Hawkins, supra, the Supreme Court was faced with the question whether the spousal privilege should be abolished. The Court exercised its authority under Rule 26, Federal Rules of Criminal Procedure, to "interpret" the privilege and declined to discard it. Although the Hawkins Court acknowledged that adverse testimony by one spouse against another is in itself often strong indication that the marriage is unsalvageable, it pointed to successful attempts by courts in achieving conciliation among family members to demonstrate that some apparently broken relationships can be saved and, in view of those efforts, was reluctant to abandon a rule honored through several centuries. 358 U.S. at 78. Nevertheless, the Court clearly did not intend to preclude reevaluation of its holding in future cases, for it stated:
". . . this decision does not foreclose whatever changes in the rule may eventually be dictated by 'reason and experience.'" 358 U.S. at 79.
We are aware, as was the Court in Hawkins, of vociferous criticism which has characterized the rule as an archaic residue of discarded dogma and an attempt to foster familial harmony which is often more apparent than real. See, e.g., Hawkins v. United States, supra, 358 U.S. at 81 (Stewart, J. concurring); United States v. Termini, supra, 267 F.2d at 20; Yoder v. United States, 80 F.2d 665 (10th Cir. 1935); McCormick, Evidence 145-146 (2d Ed. 1972); Comment, 17 U. Chi. L. Rev. 525, 530 (1950). But the government has not argued for total rejection of the privilege, and we thus need not consider whether conditions have so changed since 1958 as to warrant an inferior court reconsidering the issue decided in Hawkins. Rather, viewing the matter before us in the light of "reason and experience," as Rule 26 instructs us to ...