Appeal from an order of Judge Wyatt of the District Court for the Southern District of New York, following upon a similar order by Judge Palmieri which we had vacated, finding Hana Koecher in civil contempt despite her claim of marital privilege. Reversed.
Before: FRIENDLY, VAN GRAAFEILAND and WINTER, Circuit Judges.
The criminal proceeding out of which this appeal arises had its origin in a complaint of Kenneth M. Geide, a Special Agent of the Federal Bureau of Investigation (FBI), charging Karl (in fact Karel) F. Koecher, with conspiring with other unnamed persons to communicate national defense documents and information to a foreign government in violation of 18 U.S.C. § 794(a) and (c). On November 27, 1984, Karel Koecher was arrested pursuant to a warrant. In an affidavit sworn to on the same day, Special Agent Geide alleged that Hana Koecher, Karel's wife, had participated with her husband in secret meetings with the intelligence service of the foreign government, had delivered classified United States national defense information obtained by Karel to agents of the foreign government intelligence service, had acted as a courier for that service, and had received payments from it for information and documents she had delivered. The affidavit also alleged that Hana was about to depart from the United States for Europe. A warrant issued for the detention of Hana as a material witness, and she was subpoenaed to appear before a grand jury that was investigating the complaint. She was asked certain questions, set forth in the margin, in regard to having done the acts alleged in the affidavit in support of the material witness warrant.*fn1 In response to each question, after consulting with her lawyer, she declined to answer
on the ground that to do so could adversely affect the interest of my husband, Karl Koecher, and I might destroy the harmony of our 21 years of marriage. Also, the answer could violate the privilege against disclosure of confidential communications between my husband and me.
The Assistant United States Attorney advised her that in the Government's view the grounds stated did not justify her refusal to answer and asked whether there was any other ground for her refusal. After again consulting with her lawyer, Mrs. Koecher repeated the same formulation she has used before. The performance was repeated after Mrs. Koecher was warned that continued refusal to answer could result in the court's ordering her imprisonment under 28 U.S.C. § 1826(a). The grand jury authorized the United States Attorney to ask that she be held in civil contempt. At an adjourned hearing on December 4, 1984, Judge Palmieri overruled the claim of marital privilege, explaining his reasons in an oral opinion, and after proceedings not challenged for irregularity, ordered that Mrs. Koecher be committed to jail for a period of 18 months or for the life of the grand jury or until such time as she purged herself by answering the questions, whichever period was shortest. Mrs. Koecher appealed from that order. Judge Palmieri amplified his views in a thoughtful written opinion filed on December 11, 1984; the basis for his judgment was that the marital privilege was subject to an exception for joint participation in criminal activity, a view announced in United States v. Van Drunen, 501 F.2d 1393 (7 Cir.), cert. denied, 419 U.S. 1091, 95 S. Ct. 684, 42 L. Ed. 2d 684 (1974); and followed in United States v. Trammel, 583 F.2d 1166 (10 Cir. 1978), aff'd on other grounds, 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980); and United States v. Clark, 712 F.2d 299 (7 Cir. 1983), but rejected by Appeal of Malfitano, 633 F.2d 276 (3 Cir. 1980).
Q. Mrs. Koecher, did you ever deliver classified information relating to the national defense of the United States to the Czechoslovakian Intelligence Service? Q. Mrs. Koecher, have you ever received money from agents of the Czechoslovakian Intelligence Service as payment for information and documents that you delivered to them? Q. Mrs. Koecher, have you ever met with agents of the Czechoslovakian Intelligence Service?
While the appeal was under advisement, the Government notified us, by letter dated December 20, 1984, that the grand jury had on that day filed a one-count indictment charging Karl F. Koecher with conspiring to violate 18 U.S.C. § 794(c) but that the grand jury was continuing an investigation, for which it believed Hana's testimony was critical, to develop the full scope of Karel's activities. Two of the overt acts in the indictment were that in the spring of 1975 Karel gave a package that concealed a classified document to Hana and instructed her to deliver it to the CIS and that Hana, pursuant to such instructions, had made such a delivery. Hana's counsel responded with a letter arguing that, with Karel now indicted, the Government was seeking to utilize the grand jury to prepare its case against Karel for trial, and requesting us to vacate the judgment of contempt on that ground. On December 28, 1984, we filed an unpublished order vacating the judgment of contempt without reaching the merits; the pertinent portion of this judgment is reproduced in the margin.*fn2
It is not permissible for the prosecutor to subpoena and question potential trial witnesses to an existing criminal proceeding where it is the sole or dominant purpose of such questioning to obtain evidence for use in the upcoming trial. Simply stated, it is not a legitimate function of the grand jury to serve a substitute for pretrial discovery.
8 Moore's Federal Practice P6.04 at 6-86 (1984). Accord, 1 Wright Federal Practice and Procedure, Criminal 2d § 111.1 at 321 (1982). Decision whether this case falls within that principle depends on facts concerning the grand jury's investigation which were not pertinent at the time of Judge Palmieri's decision and are not before us. Accordingly we vacate the judgment of civil contempt, without considering whether it as properly issued on the facts then before the judge, and remand the case to the District Court for the Southern District of New York so as to enable Judge Palmieri to determine, as promptly as feasible, the issue raised by Karl F. Koecher's indictment. The Judge should also consider whether the particular questions asked by the Government which Mrs. Koecher refused to answer fall within the scope of the privilege, assuming that one exists. Meanwhile Mrs. Koecher will remain subject to the warrant of arrest as a material witness. This panel reserves jurisdiction.
Because of Judge Palmieri's unavailability to conduct the proceedings on remand, the matter was transferred to Judge Wyatt. On January 14, 1985, the Government submitted to him a letter of Assistant United States Attorney Green, a memorandum of law, and an affidavit of O.E. Kotlarchuk, a trial attorney of the Department of Justice. Copies of the two former were served upon counsel for Mrs. Koecher, but the latter was considered by the judge ex parte.*fn3
Judge Wyatt filed an opinion on January 21, 1985. This recited that:
The government has submitted ex parte an affidavit of a Trial Attorney in the Internal Security Section of the Criminal Division of the Department of Justice. This affidavit states that the affiant's Section supervises investigations and conducts prosecutions of cases concerning the national security. As disclosed by me to counsel for Hana, this affidavit states that the grand jury investigation continues after the return of an indictment against Karel for the purpose of considering whether other offenses than that in the one count indictment should be charged against him and whether charges should be made against potential defendants other than Karel.
More elaborately, on the basis of the affidavits in support of the applications for warrants to arrest Karel and Hana and in the testimony of Special Agent Geide before Magistrate Grubin during a bail hearing ...