The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Before the Court is Defendant Philip Etkin's Pretrial Motion dated December 10, 2007, which seeks to preclude introduction at trial of a printed email communication between Defendant and his wife. The email was seized from the vehicle Defendant was driving at the time of his arrest. The Government has indicated that it may seek to introduce a portion of this email at trial as evidence of Defendant's intent. Defendant argues that this email is a privileged marital communication and, therefore, this Court should preclude its use at trial and require the Government to return it to Defendant. Beyond this, Defendant seeks an evidentiary hearing at which the Government would be required to demonstrate that taint did not result from its exposure to the allegedly privileged communication. According to Defendant, such a hearing would enable the Court to determine if the prosecution team should be disqualified.*fn1 The Court held oral argument on February 8, 2008. For the reasons stated herein, Defendant's Motion is DENIED.
Following a Grand Jury Indictment for extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, Defendant Philip Etkin, former Deputy Sheriff in the Sullivan County Sheriff's Department and investigator in the New York State Police ("NYSP") Task Force, was arrested on September 28, 2007 by Federal Bureau of Investigation ("FBI") agents. At the time of his arrest, Defendant was in a vehicle assigned to him by the NYSP. Among the items seized from the vehicle was a printed email exchange between Defendant and his wife dated March 13, 2007. The email was found in an open portfolio bag that also contained file folders filled with investigative notes and other work materials. The Government provided this email to Defendant's counsel in discovery on October 12, 2007. On October 31, 2007, Defendant's counsel notified the Government by letter of Defendant's objection to the Government's possession and use of the email on the ground that the email was protected by the marital privilege.*fn2 The Government's refusal to return the email and expressed intention to use the email at trial has prompted the present Motion.*fn3
In Wolfle v. United States, the Supreme Court held:
The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails. . . . Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential it is not a privileged communication. And, when made in the presence of a third party, such communications are usually regarded as not privileged because not made in confidence. 291 U.S. 7, 14 (1934) (citations omitted). Because the marital privilege deprives fact-finders of potentially useful information, the party seeking to invoke the privilege bears the burden of establishing that there existed a valid marriage at the time of the communication. See In re Witness Before the Grand Jury, 791 F.2d 234, 237 (2d Cir. 1986).
In opposition to Defendant's Motion, the Government argues that the email between Defendant and his wife is not protected by the marital communications privilege because of each of the following independent reasons: "(1) the Etkins were separated at the time of the email; (2) the email was not a confidential communication; and (3) assuming that the email was a privileged communication at the time of its creation, the privilege has since been waived." (Government's Mem. of Law in Opp'n to Def.'s Mot. to Preclude the Government from Introducing into Evidence an Email Sent by the Defendant to his Wife and for a Taint Hearing 2-3 ("Gov't's Opp'n").) The Court will address each of these arguments in turn.
The Government argues that the email communication at issue took place during a time when Defendant and his wife were permanently separated. According to the Government, the Etkins' separation is evidenced by the following: (1) One of the FBI agents who investigated the charges against Defendant spoke with one of Defendant's former colleagues from the Sheriff's Department, who indicated his belief, based on a conversation with another of Defendant's then-colleagues, that Defendant and his wife had been separated since at least September 2006, (Gov't's Opp'n 6 & Ex. A; Decl. of Vincent Presutti dated January 7, 2008, ¶ 2 ("Presutti's First Decl.")); (2) Defendant submitted a memorandum to the NYSP dated March 19, 2007, notifying it of a temporary address -- not his marital residence -- where his assigned police vehicle would be parked at night, (Gov't's Opp'n 6 & Ex. D); and (3) the content of the email at issue indicates a marital separation, (Gov't's Opp'n 6 n.2). Defendant vehemently denies the Government's assertion that he and his wife are separated, rebuffing Agent Presutti's Declaration as triple hearsay.*fn4 (Def.'s Reply 1).
The Second Circuit, like many other circuits, has adopted the view that permanent separation vitiates the marital communications privilege because "'society's interest in protecting the confidentiality of the relationships of permanently separated spouses is outweighed by the need to secure evidence in the search for truth.'" Witness Before the Grand Jury, 791 F.2d at 238 (quoting United States v. Byrd, 750 F.2d 585, 594 (7th Cir. 1984)); see also United States v. Singleton, 260 F.3d 1295, 1299-1300 (11th Cir. 2001) (collecting cases and concluding, "[w]e agree with the other circuits which have determined that the [marital communications] privilege is not available when the parties are permanently separated; that is, living separately with no reasonable expectation of reconciliation"). To determine whether a couple is permanently separated, the court "may rely primarily on the duration of the couple's physical estrangement," while also considering "special circumstances that render more or less likely the objective possibility of reconciliation at the time of the communications, upon which the couple may have relied." Witness Before the Grand Jury, 791 F.2d at 238.
Thus, if Defendant and his wife were permanently separated at the time of their email exchange on March 13, 2007, the marital communications privilege will not apply. The Court, however, finds that there is insufficient proof that Defendant and his wife were permanently separated at the time of the email communication. Though the Government's evidence suggests that this may have been the case, the evidence presented is not sufficient for the Court to comfortably conclude that Defendant and his wife were physically estranged for a sufficient period of time with no intention of reconciliation, especially in the face of Defendant's sworn statements to the contrary. While the Court notes the absence of any indication from Defendant's wife that she shares Defendant's optimism about their marriage, the Court is willing to assume, ...