The opinion of the court was delivered by: SWEET
ROBERT W. SWEET, U.S.D.J.
Dorie Clay ("Clay") and Wanda Wareham ("Wareham") were subpoenaed to testify before and provide physical evidence to a grand jury now impaneled in the Southern District of New York, which is in the process of investigating, among other things, conspiracies to commit armed robberies, to facilitate prison escapes and to commit other related crimes. That grand jury continues its investigation with the aim of returning an indictment to supersede the previous initial indictment against eight individuals, including Omowale Clay ("Omowale Clay") and Roger Wareham ("Roger Wareham"), the spouses of the movants. Clay and Wareham have now moved to quash the subpoenas by asserting a claimed spousal privilege, by alleging that the subpoenas were issued for improper purposes, and by pointing to alternative sources for the handwriting exemplars, photographs and major-case prints also called for by the subpoenas. The joint motion to quash the subpoenas is denied.
Clay's and Wareham's principal ground for quashing the subpoenas is their contention that being required to testify before the grand jury would violate their claimed spousal testimonial privilege. The privilege against adverse spousal testimony continues to be recognized by federal courts, although it is narrowly construed. Trammel v. United States, 445 U.S. 40, 51-53, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980). The government contends, however, that it had made a procedural offer which entirely does away with any basis for enforcing Clay's and Wareham's privilege against adverse spousal testimony. That procedure is described in the affidavit of AUSA Lorna G. Schofield, who together with AUSA Kenneth Roth is in charge of the grand jury investigation to which Clay and Wareham are summoned. The pertinent paragraphs of that affidavit read as follows:
2. If Dorie Clay and Wanda Wareham agree to testify, the Government will follow the procedure described below to ensure that the testimony of Dorie Clay will not be used directly or indirectly in the investigation or prosecution of her husband, Omowale Clay, and to ensure that the testimony of Wanda Wareham will not be used directly or indirectly in the investigation or prosecution of her husband, Roger Wareham, as such use has been defined under Title 18, United States Code, Sections 6002 and 6003.
3. This treatment of Dorie Clay's testimony will be accomplished by the following:
(a) An Assistant United States Attorney other than myself or Mr. Roth will question Dorie Clay before a Grand Jury other than the principal Grand Jury.
(b) The Assistant who appears before the second Grand Jury and others who are not conducting the principal investigation will determine whether Dorie Clay's testimony is sufficiently valuable as it relates to Omowale Clay's co-conspirators (not Omowale Clay) to warrant severing Omowale Clay from the proceedings against his co-conspirators.
(c) If so, then Dorie Clay's testimony will be introduced to the principal Grand Jury and Omowale Clay will be severed from all proceedings against his co-conspirators. In particular, any superseding indictment against Omowale Clay will be returned by a third Grand Jury and the trial against Omowale Clay will be conducted separately from the trial of his co-conspirators. Both the Grand Jury investigation and trial against Omowale Clay will proceed without the testimony of Dorie Clay. In addition, the Clay proceedings will involve only assistants and agents who have had no contact with Dorie Clay's testimony or its fruits.
(d) If, on the other hand, Dorie Clay's testimony is determined to be of insufficient importance as against Omowale Clay's co-conspirators to warrant separate treatment of Omowale Clay, then no further use will be made of her testimony and Omowale Clay will continue to be investigated and prosecuted together with his co-conspirators. Again, precautions will be taken to ensure that no one involved in the investigation or prosecution of Omowale Clay has any access to Dorie Clay's testimony or its fruits.
4. If Wanda Wareham agrees to testify, her testimony will be similarly insulated from the investigation and prosecution of her husband Roger Wareham in the manner described above . . . .
Affidavit of AUSA Lorna G. Schofield.
The purpose of this suggested "Chinese Wall" is to ensure that no grand jury testimony elicited from Clay or Wareham will be used, either directly or indirectly, against their respective spouses, thereby eliminating the conceptual possibility of marital strain.
The procedure suggested by the government was previously approved by the Honorable Charles S. Haight as applied to Dr. Jean Ford, a spouse of another defendant in this case, both in denying the motion to quash a grand jury subpoena on grounds of spousal privilege, In re Grand Jury Subpoena of Jean Ford, M-11-88(CSH), memorandum opinion and order at 8-10(S.D.N.Y. January 9, 1985), and in denying Dr. Ford's motion for a stay pending appeal, memorandum opinion and order at 7 n.1(S.D.N.Y. January 21, 1985.) I subsequently denied Dr. Ford's motion to reconsider the quashing of the subpoena, holding that the new evidence presented by Dr. Ford was not sufficient to render invalid the premises of Judge Haight's decision. In re Grand Jury Subpoena of Jean Ford, M-11-88, order at 3-4 (S.D.N.Y. January 28, 1985).
In considering Dr. Ford's motion, I also considered the basis of Judge Haight's decision and concurred in his opinion that the government's proposed procedure would ...