Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Civil No. 81 CR 312 -- Susan Getzendanner, Judge.
Posner and Coffey, Circuit Judges, and Gibson, Senior Circuit Judge.*fn*
GIBSON, Senior Circuit Judge.
Richard Clark appeals the district court's judgment finding him in criminal contempt of court for refusing to testify at the trial of his wife. We affirm the judgment of the district court.
In June 1981 Clark and his wife, Christine Kunkel, were indicted for stealing money from a savings and loan in Evanston, Illinois. The government charged that Kunkel, an employee of the savings and loan, set up an account in the name of "Eric Westberg," an alias of Clark. Kunkel allegedly caused two cashier's checks to be drawn on the account in the name of two of Clark's friends, and then the friends gave the money to Clark. Clark and Kunkel were not yet married at the time of these transactions. The district court severed the trials of Clark and Kunkel.
Clark testified at his own trial that he earned the money deposited in the Eric Westberg account after his release from a Wisconsin prison. He explained that he had used an alias to avoid detection by Wisconsin parole officials. Clark also testified that Kunkel was not involved in opening the account. Clark was convicted after a bench trial of violating 18 U.S.C. § 2113 (1976). He received a two-year sentence. Kunkel received a jury trial at which Clark did not testify. After the jury failed to reach a verdict, the district court declared a mistrial. At Kunkel's retrial the government subpoenaed Clark as a hostile witness, believing that the incredibility of his testimony would bolster the government's case. Clark refused to testify at Kunkel's trial. Clark based his refusal on the right of a witness-spouse to refuse to testify adversely against his or her accused spouse in federal court. Trammel v. United States, 445 U.S. 40, 53, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980). The district court found the privilege did not apply to Clark and held him in criminal contempt. Clark was sentenced to five months, twenty-nine days imprisonment to run consecutively with his two-year sentence. Clark now appeals. Kunkel was convicted under 18 U.S.C. § 657 (1976).
The district court found three reasons why the privilege not to testify against a spouse did not apply to Clark. The first was that the privilege does not apply when the husband and wife were joint participants in the underlying offense. Second, the privilege does not apply to testimony about conduct which took place before the marriage. Third, the privilege does not apply when the testimony would be facially exculpatory, even if its effect is adverse to the spouse. We must affirm the contempt judgment if any one of the three reasons relied on by the district court is applicable.
The exception which most clearly defeats Clark's assertion of the privilege not to testify against his spouse is the joint participants exception. This court expressly recognized the joint participants exception in United States v. Van Drunen, 501 F.2d 1393, 1397 (7th Cir.), cert. denied, 419 U.S. 1091, 42 L. Ed. 2d 684, 95 S. Ct. 684 (1974). The court stated: "Today's holding . . . limits the privilege to those cases where it makes most sense, namely, where a spouse who is neither a victim nor a participant observes evidence of the other spouse's crime." Id. (emphasis added).
The Van Drunen court gave two reasons for creating the joint participants exception. The first was that the goal intended to be served by the privilege, i.e., preventing either spouse from committing the "unforgivable act" of testifying against the other in a criminal case, did not justify assuring a criminal that he or she could enlist the aid of a spouse in a criminal enterprise without fear that by recruiting an accomplice the criminal was creating another potential witness. Id. at 1396. The second reason was that the rehabilitative effect of a marriage, which in part justifies the privilege, is diminished when both spouses are participants in the crime. Id. at 1397.
Clark argues that Van Drunen does not apply to him because the real purpose of the joint participants exception is to prevent sham marriages and there was no evidence his marriage is a sham. However, there is nothing in the Van Drunen opinion suggesting that the possibility of a sham marriage had anything to do with the creation of the joint participants exception. See id. at 1396-97. The only reasons for the exception were the two mentioned above. That the absence of a sham marriage rationale in the opinion is not an oversight is shown by the fact that the Van Drunen court did discuss a concern with sham marriages in another part of its opinion, the part discussing the acts-prior-to-marriage exception. Simply stated, the joint participants exception is not qualified by any concern about whether the marriage is a sham.
Furthermore, a joint participants exception is consistent with the general policy of narrowly construing the privilege. The privilege has received much criticism from commentators because it generally retards truth seeking. 8 Wigmore, Evidence § 2228, at 221 (McNaughton rev. 1961) ("In an age which has so far rationalized, depolarized and dechivalrized the marital relation and the spirit of femininity as to be willing to enact complete legal and political equality and independence of man and woman, this marital privilege is the merest anachronism in legal theory and an indefensible obstruction to truth in practice."); McCormick, Evidence, § 66, at 145-46 (2d ed. 1972) ("The privilege is an archaic survival of a mystical religious dogma and of a way of thinking about the marital relation that is today ...