Expedited appeal from an order entered January 28, 1985 in the Southern District of New York, Robert W. Sweet, District Judge holding appellant in civil contempt pursuant to 28 U.S.C. § 1826(a) (1982) for his refusal to appear and testify before a federal grand jury. Affirmed.
Feinberg, Chief Judge, Timbers and Cardamone, Circuit Judges.
The essential question presented on this appeal-one of first impression in this Circuit-is whether the district court correctly held in civil contempt a grand jury witness who, relying on a claim of privilege against adverse spousal testimony, refused to testify where his wife was a target of the grand jury investigation, despite assurances by the government, which the district court found were sufficient, that the witness' testimony would not be used, directly or indirectly, against his wife. We hold that the district court correctly held the witness in contempt.
Appellant Ford appeals from an order entered January 28, 1985 in Southern District of New York, Robert W. Sweet, District Judge, holding appellant in civil contempt for his refusal to appear and testify before a grand jury. Appellant had refused to testify because of his claim of privilege against adverse spousal testimony, since his wife, Colette Pean, is a target of the grand jury investigation. The district court held tha the government's promise not to use any of appellant's testimony, either directly or indirectly, against his wife, coupled with a screening procedure designed to insulate anyone involved in the investigation or prosecution of Colette Pean from his testimony, or the fruits thereof, was legally sufficient to meet the claim of privilege. We affirm.*fn1
On November 13, 1984 appellant was subpoenaed to testify before a Special Grand Jury sitting in the Southern District of New York. On October 29, 1984 the grand jury had returned an indictment against eight individuals, including appellant's wife, Collete Pean, charging them with conspiracy to commit armed robberies of armored trucks and banks, in violation of 18 U.S.C. § 1951 (1982). United States v. Chimurenga, 84 Cr. 818 (RLC). The government sought appellant's testimony as part of its continuing investigation into these alleged conspiracies, intending to obtain a superseding indictment. On December 230, 1984 appellant filed a motion in the district court to quash the subpoena, claiming the privilege against adverse spousal testimony. The motion came on before Charles S. Haight, Jr., District Judge. In response to the motion, and in an effort to meet the claim of privilege,*fn2 the government filed an affidavit of Assistant United States Attorney ("AUSA") Kenneth Roth, the principal prosecutor in charge of the grand jury investigation, setting forth a procedure to insulate Colette Pean from any inculpatory effect of her husband's testimony.
Essentially, the Roth affidavit stated the government's promise not to use any of appellant's testimony, either directly or indirectly, in the investigation or prosecution of Colette Pean. In order to guarantee its promise, the government proposed the erection of a so-called "Chinese Wall". Pursuant to this procedure, appellant would be questioned by an AUSA other than Roth and before a grand jury other than the one conducting the principal investigation. That AUSA then would confer with others not connected with the principal investigation to determine if appellant's testimony was of sufficient value, in the view of the government, with regard to Pean's alleged co-conspirators to warrant using it. If the government determined that it was such value, then Pean's trial under the October 29 indictment would be severed from that of her alleged co-conspirators and would be conducted by an AUSA who had had no contact with appellant's testimony or its friuts (fruits). Any superseding indictment which might be returned against Pean would be the product of an independent grand jury assisted by an AUSA who had had no contact with the prior grand jury proceedings. If appellant's testimony were found to be of insufficient value to warrant a separate prosecution of Pean, then no further use would be made of it and no person connected with the principal investigation would have contact with appellant's testimony or its fruits.
In a memorandum opinion filed January 9, 1985, Judge Haight held that the proposed procedure set forth in the Roth affidavit was sufficient to insure that no grand jury testimony elicited from appellant would be used, either directly or indirectly, against appellant's wife. Accordingly, the court ordered appellant to comply with the subpoena. The court also denied Colette Pean's motion to intervene in appellant's motion to quash the subpoena, based on the Supreme Court's decision in Trammel v. United States, 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980), that only the witness-spouse has standing to raise the privilege.
On January 18, 1985 appellant and Pean moved in the district court for a stay of the order pending appeal. That motion was denied on January 21 on the ground that an order denying a motion to quash a subpoena does not become final, and hence appealable, unless and until a contempt citation is issued.
Pursuant to the procedure set forth in the Roth affidavit, and approved by the district court on January 9, appellant appeared on January 24, 1985 before a grand jury other than the one conducting the principal investigation. He persisted in his refusal to testify. He based his refusal on his claimed privilege against adverse spousal testimony and his assertion that the immunity order issued pursuant to 18 U.S.C. §§ 6002-03 (1982), conferring use immunity on " John Ford" (he being Jean Ford), was insufficient to grant him immunity order, AUSA Savarese, who was assigned to question appellant, left the grand jury room twice to speak on the phone with AUSA Roth. Both later stated under oath that they did not discuss appellant's testimony.
On January 24, appellant appeared before Judge Sweet who was sitting in Part I. The government moved for an order directing appellant to testify. Judge Sweet reserved decision until January 28. By that time appellant had renewed his motion to quash on the ground that the conversations between AUSA Roth and AUSA Savarese were incompatible with the Chinese Wall procedure set forth in the Roth affidavit. On January 28, appellant was served with a revised immunity order directed to " Jean Ford." On the same day, Judge Sweet held that the conversations between Roth and Savarese did not breach the Chinese Wall agreement since they did not involve appellant's testimony, appellant not having testified at all. Judge Sweet denied the motion to reconsider the motion to quash and ordered appellant to testify. Appellant stated that he would continue in his refusal to testify, despite the order directing him to testify. Judge Sweet thereupon held appellant in civil contempt pursuant to 28 U.S.C. § 1826(a) (1982). He ordered appellant incarcerated until the complied with the court's order, or for the life of the grand jury or 18 months, whichever period was shorter. This expedited appeal followed. On January 30, 1985, a panel of this Court granted a stay of the contempt order pending appeal.
Rule 501 of the Federal Rules of Evidence in relevant ...