Wednesday, January 2, 2019
Panel Says Spousal Testimonial Privilege Not Applicable
By a MetNews Staff Writer
The spousal testimonial privilege does not shield a wife from contempt for refusing to produce records of her foreign bank activity, sought in connection with a grand jury investigation of her husband for possible tax crimes committed by her husband, the Ninth U.S. Circuit Court of Appeals has held.
A three-judge panel—comprised of Circuit Judges Dorothy W. Nelson and Kim Wardlaw, joined by District Court Judge Robert W. Pratt of the Southern District of Iowa, sitting by designation—on Friday affirmed an order by District Court Judge John A. Kronstadt of the Central District of California finding the woman in civil contempt.
The woman, identified as “Doe,” failed to comply with a subpoena duces tecum seeking records relating to her foreign accounts for the years 2011 through 2016.
Records in the case are under seal and recordings of oral argument in Pasadena on Dec. 4 are not publicly available.
For the privilege to apply, the memorandum opinion says, testimony must be sought that is adverse to the spouse. It declares:
“Here, ‘the testimonial aspect of [Doe’s] response to a subpoena duces tecum does nothing more than establish the existence, authenticity, and custody’ of any responsive foreign bank account records….Because this bare testimonial aspect of Doe’s act of production does not itself adversely affect her husband’s case. Doe is not relieved of her obligation to produce foreign bank account records over which she has care, custody, or control.”
The case is In re: Grand Jury Subpoena, Dated March 21, 2018, 18-50321
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