United States v. S. Mohammad Marashi
913 F.2d 724, 31 Fed. R. Serv. 262, 1990 U.S. App. LEXIS 15630 (1990)
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Rule of Law:
The marital communications privilege does not apply to confidential statements made between spouses that are in furtherance of ongoing or future joint criminal activity, even if the testifying spouse is not prosecuted for their participation.
Facts:
- In the late summer of 1984, Sharon Smith Marashi learned that her husband, Dr. S. Mohammad Marashi, was having an extramarital affair with his secretary, Mrs. Sherrie Danzig.
- In August 1984, Sharon Smith and Sherrie Danzig's brother-in-law, Earl Doering, entered Marashi's office, and Smith had a locksmith open Marashi's desk drawer in an attempt to obtain his travel itinerary.
- After Marashi returned from Europe and Smith began divorce proceedings, Smith and Steve Danzig (Sherrie Danzig's husband) met several times to discuss how to 'get even' with their unfaithful spouses, during which Smith mentioned Marashi had underreported his federal income tax for some years.
- In December 1984, Smith contacted the IRS and, in a subsequent tape-recorded interview on January 16, 1985, described how Marashi had enlisted her aid from at least 1981-1984 to evade federal income taxes through a 'double-ledger scheme' where she recorded unreported income in a separate notebook and reported income in an official ledger.
- Weeks before an IRS audit in the fall of 1981, Marashi directed Smith and his then-secretary, Marya LaSalandra, to erase entries in his appointment books, which included patient payments.
Procedural Posture:
- A grand jury indicted Dr. S. Mohammad Marashi on March 15, 1988, for four counts of attempted income tax evasion (26 U.S.C. § 7201) for the years 1981-84, and one count of subscribing to a false corporate tax return (26 U.S.C. § 7206(1)).
- Marashi filed a motion to suppress his ex-wife Sharon Smith's testimony and the fruits thereof on the basis of the marital communications privilege; the district court denied this motion on July 28, 1988.
- Marashi filed a motion in limine to exclude evidence pertaining to erasures made in his appointment books; the district court denied this motion on November 2, 1988, the second day of his jury trial.
- On November 9, 1988, a jury returned a special verdict convicting Marashi of Counts I, II, III (attempted tax evasion), and V (false corporate tax return).
- Marashi moved for a new trial on November 16, 1988, which the district court subsequently denied.
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Issue:
Does the marital communications privilege prevent a former spouse from testifying about confidential communications made during the marriage that furthered a joint criminal activity, particularly when the testifying spouse was not prosecuted for their involvement?
Opinions:
Majority - Cynthia Holcomb Hall
No, the marital communications privilege does not prevent a former spouse from testifying about confidential communications made during the marriage that furthered a joint criminal activity. The Ninth Circuit joined its sister circuits in adopting a 'partnership in crime' exception to the marital communications privilege. This privilege, which protects confidential statements made during a valid marriage and can be invoked even after dissolution of the marriage, is subject to narrow construction because it obstructs the truth-seeking process, particularly in criminal proceedings where society has a strong interest in the administration of justice. The court found that Marashi's instructions to Smith to underreport income on their joint tax returns were made in furtherance of a joint criminal venture, thus falling within this exception. The government's decision not to prosecute Smith does not preclude the application of this exception, as its policy concerns actual participation in a crime, not joint prosecution. Therefore, Smith's testimony regarding Marashi's tax evasion instructions was admissible. Furthermore, Smith's testimony regarding Marashi's orders to erase entries in his appointment books was not privileged because a third person, Marya LaSalandra, was present during those communications, thereby destroying their confidentiality. The court also affirmed the district court's denial of Marashi's Brady claims, concluding that the undisclosed IRS interview notes were either cumulative impeachment evidence or lacked impeachment/exculpatory value, and that the government had no constitutional obligation to create Brady material by recording all interviews. Finally, the court found no abuse of discretion in admitting evidence of the prior erasures under Federal Rule of Evidence 404(b), as it was admissible to prove Marashi's intent and modus operandi (method of operation) for tax evasion, given the conduct's similarity, jury support, and temporal proximity. The court also rejected Marashi's claims of insufficient evidence, stating that federal tax evasion statutes (26 U.S.C. § 7201) do not require a 'substantial' tax deficiency and that for subscribing to a false tax return (26 U.S.C. § 7206(1)), the existence of a tax deficiency is irrelevant if the taxpayer knowingly filed a return untrue as to a material matter.
Analysis:
This case establishes a significant exception to the marital communications privilege in the Ninth Circuit, aligning it with other federal courts. By adopting the 'partnership in crime' exception, the court prioritizes the public interest in effective criminal prosecution over the protective function of the privilege when spouses are jointly involved in criminal acts. This ruling enhances the ability of prosecutors to use spousal testimony in such cases, even after divorce and without prosecuting the testifying spouse. It underscores the narrow interpretation of evidentiary privileges in federal criminal proceedings and provides clarity on the admissibility of 'bad acts' evidence and the scope of the government's disclosure obligations under Brady.
