Id. at 289. See also In re Bergsieker, 30 Bankr. 757, 759 (W.D. Mo. Bankr. 1983) ("It is well settled that a witness, in invoking the Fifth Amendment privilege against self-incrimination, cannot be permitted to 'select any stopping place in the testimony.'").
It is conceded that the Fifth Amendment's privilege against self-incrimination differs from the confidential marital communications privilege in many ways, not the least of which is that the Fifth Amendment privilege is constitutional and designed to protect the witness, whereas the confidential marital communications privilege is not constitutional and is designed to protect the marriage and, in this case, the non-testifying spouse. However, application of the factors discussed in Harris is instructive. Here, allowing Mrs. Camiola to discuss conversations with her husband before his arrest in 1990, but not after, will lead to a distortion of the truth because the fact finder will only be left with those conversations which Mrs. Camiola chooses to discuss, thus denying the Government the opportunity to learn if she was, in fact, an innocent owner.
Second, some of the pre-1990 arrest conversations between Mrs. Camiola and her husband are not collateral to the central issue in the case; namely, the bona fides of Mrs. Camiola's ownership of the res. E.g., Camiola Dep. at 201 ("Q. Did your husband [in 1984] maintain to you that he had not been involved in the drug dealing? A. Correct. He told me that he was just involved in lending money to them."); id. at 202 (following Mr. Camiola's first arrest for drug trafficking, Mrs. Camiola testified that "he said that he only financed money for them, that they were lying about the drug dealing that he was doing."); id. at 203 ("I don't even think we ever talked about drugs. I always used to tell him, you know, that there are so many children on drugs and we had children, and we had to watch for our kids not to get involved in drugs, but never business. Is that what you want?").
In opposition, Claimant argues that her pre-arrest conversations with her husband -- which she concedes she willingly divulged during her deposition -- should not constitute a blanket waiver of the confidential marital communications privilege because (i) she did not "knowingly" waive her privilege as to post-arrest conversations and never intended to expose her husband to the possibility of additional penal sanctions; (ii) in order to bolster her innocent owner defense she had no choice but to waive the privilege for pre-arrest conversations (since the Government's case is based upon events occurring before her husband's arrest); and (iii) the pre-arrest conversations were concerned with "routine matters" and "sensitive personal matters" unrelated to the subject matter of the post-arrest conversations. Cl.'s Supp. Mem. at 6. Two observations are in order. First, there can be no doubt but that Claimant did, in fact, "knowingly" waive the privilege. She willingly and with candor spoke about private and sensitive matters between her and her husband. Second, Claimant cites no authority for the proposition that the confidential marital communications privilege is, or should be, premised upon the subject matter of the communications being divulged or the reasons for their divulgence. Rather, it is a common law doctrine designed to protect the marriage. In this case, the testifying spouse has made a tactical decision to place the marriage at risk by divulging confidential communications in order to champion a different cause (here, the innocent owner defense) . The consequence of this decision is to waive the privilege, irrespective of the contents of, or reasons for, the waiver of the pre-arrest confidential communications.
In sum, the pre-1990 arrest conversations with her husband -- voluntarily offered by Claimant without any objection by her attorney -- waived the confidential marital communications privilege, and hence Mrs. Camiola cannot be permitted "to select any stopping place in the testimony." Rogers v. United States, 340 U.S. 367, 371, 95 L. Ed. 344, 71 S. Ct. 438 (1951). Because the Magistrate Judge's order would have allowed her to do just that, it is clearly erroneous and contrary to law and hence must be reversed.
C. The Joint Crime Exception
The Second Circuit recognized the joint crime exception to the marital communications privilege in United States v. Estes, 793 F.2d 465 (2d Cir. 1986). In Estes, the defendant's wife willingly testified before the grand jury and at trial that defendant had returned home one day carrying a bag full of money. She testified that defendant told her that he had stolen the money and that she helped him count, hide, and launder the money. The district court held that none of the wife's testimony should be excluded because "confidential marital communications concerning ongoing criminal activity are not protected by the privilege." 793 F.2d at 466 (quoting United States v. Estes, 609 F. Supp. 564, 568 (D. Vt. 1985)). The Court of Appeals held that the exception did not apply to the testimony regarding the husband's initial disclosure of the theft and remanded for a new trial, stating,
At that time, the theft of the money had been completed and [the wife's] involvement could be only as an accessory after the fact. [The wife] could not become such an accessory until she knew that the theft had taken place. The communication to her of that knowledge was a necessary precursor to her involvement and therefore could not have been made as part of an ongoing joint criminal activity. Under the normal evidentiary rule applicable to confidential marital communications, this portion of [the wife's] testimony should not have been admitted.
Id. at 466 (citations omitted). The court also stated that "the greater public good will result from permitting the spouse of an accused to testify willingly concerning their joint criminal activities than would come from permitting the accused to erect a roadblock against the search for truth." Id. at 468.
"Every circuit that has considered the partners in crime exception to the marital confidential communications privilege has adopted it in one form or another." United States v. Evans, 966 F.2d 398, 401 (8th Cir.), cert. denied, 121 L. Ed. 2d 438, 113 S. Ct. 502 (1992). However, as the Sixth Circuit recognized, "only where spouses engage in conversations regarding joint ongoing or future patently illegal activity does the public's interest in discovery the truth about criminal activity outweigh the public's interest in protecting the privacy of marriage." United States v. Sims, 755 F.2d 1239, 1243 (6th Cir.), cert. denied, 473 U.S. 907, 87 L. Ed. 2d 656, 105 S. Ct. 3533 (1985) (emphasis added).
In situations where the exception has been applied, the testifying spouse has been actively participating in or planning a current or ongoing criminal activity. For example, in Estes, the testifying spouse helped the defendant hide, count, and launder proceeds from what she knew was a robbery. In Evans, the spouse testified that she was personally involved in the growing and selling of marijuana with her husband, including the purchasing of the potting soil for the operation; driving her husband on two or three occasions when he was selling the marijuana; and helping to dry the marijuana in the microwave oven on five or six occasions. In United States v. Neal, 743 F.2d 1441 (10th Cir. 1984), cert. denied, 470 U.S. 1086, 85 L. Ed. 2d 146, 105 S. Ct. 1848 (1985), relied upon by the Government, the testifying spouse helped to, among other things, count, hide, and spend the stolen money. The court noted that "conversations between husband and wife about crimes in which they conspire or participate or, after the fact, participate in, are not privileged marital communications for the purpose of protection as confidential martial communications." Id. at 1447.
The Magistrate Judge implicitly rejected the Government's assertion that the joint participation in crime exception is applicable in this case. His determination is, however, clearly erroneous and contrary to law because, in this case, the record reveals that Claimant was planning to participate with her husband in the undercover agent's plan to sell drugs in order to raise money for Mr. Camiola's defense.
When asked if she understood that the sale of marijuana was contemplated, Claimant stated that "Yes, because my husband had told me and also Carlos --." Camiola Dep. at 422 (emphasis added). Like the factual situations noted above, this answer establishes that the Claimant was planning on participating with her spouse in an ongoing criminal activity; i.e., a conspiracy to sell drugs. The Government contends that this answer establishes that "[Claimant] readily admitted to participating in these conversations, and indicated that her husband had also participated, [and therefore] there is a basis for finding that the participant in crime exception applies." Pl.'s Reply Mem. at 6. I agree. Claimant's answer establishes that she entertained and agreed to the undercover agent's proposition and, pursuant to 21 U.S.C. § 846, "any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both . . . ." Pursuant to 21 U.S.C. § 846, an agreement between two or more persons to commit the crime of drug trafficking -- even without an act in furtherance of the conspiracy -- constitutes an offense of conspiracy. United States v. Knuckles, 581 F.2d 305, 311 (2d Cir.) ("Section 846 of Title 21 does not require proof of any overt act."), cert. denied, 439 U.S. 986, 58 L. Ed. 2d 659, 99 S. Ct. 581 (1978). Therefore, Claimant's deposition answer establishes that she was participating with her husband in the crime of conspiracy to distribute illegal drugs.
Because the deposition answer establishes that Claimant was participating with her husband in an ongoing or planned criminal enterprise (i.e., a conspiracy to sell drugs), the joint crime exception applies in this case and hence the Magistrate Judge's implicit rejection of it was clearly erroneous and contrary to law.
IV. Adverse Inference
During oral argument the question was raised as to whether a trier of fact could draw an adverse inference from Mrs. Camiola's invocation of the marital privilege in this action. Given the fact that this court has now determined that Mrs. Camiola has waived the confidential marital communications privilege, and must therefore answer questions regarding post-arrest conversations with her husband, the point is now moot. However, because the parties have addressed the issue in their supplemental memoranda, the court will comment briefly on what would have been permissible had the court affirmed the Magistrate Judge's order.
The Government contends, correctly, that in the Fifth Amendment context, in civil proceedings, the jury may draw adverse inferences from the testifying spouse's invocation of the privilege. Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976) ("Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them; the Amendment 'does not preclude the inference where the privilege is claimed by a party to a civil cause.'" (quoting 8 J. Wigmore, Evidence 439 (1961) (emphasis in original). The Government therefore argues that, by analogy, the same rule should apply in the marital privilege context in civil cases because "it would defy logic to award greater protection to a person's spouse by means of the marital privilege, a common law privilege, than that afforded to a person herself under a constitutional privilege." Pl.'s Supp. Mem. at 5.
In United States v. Chapman, 866 F.2d 1326 (11th Cir. 1989), cert. denied, 493 U.S. 932, 107 L. Ed. 2d 312, 110 S. Ct. 321 (1989), the defendant's wife told the police during its investigation that her husband had robbed a bank, but after calling her to the stand she refused to testify, invoking the privilege against adverse spousal testimony. During his summation, the prosecutor commented that while the wife is free not to testify against her husband, "she is also entitled to testify for him." Id. at 1334 n.3. On appeal, the defendant argued that the prosecutor's comments created an unfair inference and thus warranted reversal. The Eleventh Circuit, however, held that the comment did not rise to the level of plain error because the prosecutor's statement was "brief and unembellished and did not on its face communicate the message that Mrs. Chapman's refusal to testify implies [her husband's] guilt." Id. This conclusion by the court necessarily implies that had the jury been led to believe that the defendant was guilty because of the testifying spouse's invocation of the privilege against adverse spousal testimony, reversal would have been appropriate. Such was the conclusion in United States v. Pariente, 558 F.2d 1186, 1189-90 (5th Cir. 1977) (where evidence of guilt was circumstantial and prosecutor commented during his summation that defendant's wife had refused to testify on his behalf, conviction is reversed). Cf. United States v. Price, 573 F.2d 356, 365 n.25 (5th Cir. 1978) (where evidence is substantial but trial court allows the prosecution to comment in final argument on the defendant's failure to call his wife to testify, prosecutor's comment does not merit reversal). These cases stand for the proposition that, in certain circumstances, it is improper for a trial court in a criminal case to instruct a jury that it may draw an adverse inference from a testifying spouse's decision to invoke a marital privilege.
Professor Wright paints with a broader brush: "Opportunity should be given to claim the benefits of the rule [against adverse spousal testimony] in the absence of the jury, and no adverse inference can be drawn or comment permitted on the refusal of the spouse to testify. " Charles A. Wright Federal Practice and Procedure: Criminal 2d § 405 at 435 (1982) (emphasis added).
The cases discussed above are criminal matters in which the guilt or innocence of a defendant depends, to a certain degree, on the silence of his or her spouse. It follows, therefore, that absent substantial evidence implicating the defendant an adverse inference may not be drawn. This, however, is a civil action. The constitutional protections afforded defendants in a criminal action are not generally implicated in a civil action; therefore, as noted above, the uses of personal privileges differ. No adverse inference, for example, can be drawn from a defendant's invocation of the Fifth Amendment in a criminal action, but such inferences are allowed in a civil action. Likewise, the privilege against adverse spousal testimony, while proper in a criminal action, is not allowed in a civil action. The privileges that are deemed proper in civil forfeiture actions, see supra, are privileges which are asserted in order to protect the defendant from punitive action. It follows, therefore, that because a claimant would not be asserting a marital privilege in order to protect him or herself in a civil forfeiture action -- and because an adverse inference may be drawn in the Fifth Amendment context (which is based on the Constitution and not the common law) -- there is no reason why an adverse inference could not be drawn from the invocation of the confidential marital communications privilege.
The Magistrate Judge did not explicitly state the basis for his determination that Claimant cannot be compelled to discuss confidential communications she had with her husband following his arrest in 1990. He appeared to agree with the Government that the privilege against adverse spousal testimony does not apply because although a civil forfeiture action is quasi-criminal in nature, only constitutional protections which would protect Claimant from punishment are available. Therefore, his decision must have, by implication, been based on the determination that the Government was attempting to force Claimant to reveal marital confidences made after Mr. Camiola's arrest in 1990. Because the Government has sustained its burden in establishing that the exceptions to the confidential marital communications privilege apply, the Magistrate Judge's ruling is clearly erroneous and contrary to law and hence it must be reversed.
Dated: Brooklyn, New York
September 9th, 1994
I. Leo Glasser, U. S. D. J.