In re: GRAND JURY SUBPOENA, Dated March 21, 2018, UNITED STATES OF AMERICA v. Doe

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: GRAND JURY SUBPOENA, Dated
March 21, 2018,
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOE,
Defendant-Appellant.
No. 18-50321
D.C. No. 2:18-cm-00771-UA-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted December 4, 2018
Pasadena, California
Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District
Judge.
Doe appeals the district court’s order holding her in civil contempt for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
FILED
DEC 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
refusing to produce records of her foreign bank activity for the years 2011 through
2016 as sought by a federal grand jury subpoena duces tecum. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
Doe asserts that the spousal testimonial privilege protects her from
producing documents responsive to the subpoena because the grand jury is
currently investigating possible federal tax crimes committed by her husband.1 For
the spousal testimonial privilege to apply, “the anticipated testimony ‘[must] in
fact be adverse’ to the nonwitness spouse.” United States v. Van Cauwenberghe,
827 F.2d 424, 431 (9th Cir. 1987) (citation omitted); see also United States v.
Fomichev, 899 F.3d 766, 771 (9th Cir. 2018) (“[T]he witness-spouse alone has a
privilege to refuse to testify adversely.”) (emphasis added) (citation omitted).
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. United States v. Hubbell, 530 U.S. 27,
40–41 (2000). 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,
1 Although Doe also raised claims of privilege under the Fifth Amendment, and the
marital communications privilege, before the district court, these arguments were
not raised on appeal and are therefore waived. Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening
brief are deemed waived.”).

-- 2 of 3 --

3
custody, or control.
AFFIRMED.

-- 3 of 3 --