United States v. Koecher

PETITIONER: United States
LOCATION: Circuit Court of Jefferson County

DOCKET NO.: 84-1922
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 475 US 133 (1986)
ARGUED: Jan 15, 1986
DECIDED: Feb 25, 1986

Christopher J. Wright - on behalf of the petitioner
Gerard E. Lynch - on behalf of the respondent

Facts of the case


Media for United States v. Koecher

Audio Transcription for Oral Argument - January 15, 1986 in United States v. Koecher

Warren E. Burger:

We will hear arguments first this afternoon in United States against Koecher.

Mr. Wright, you may proceed whenever you are ready.

Christopher J. Wright:

Mr. Chief Justice, and may it please the Court, in November of 1984, respondent was called before a grand jury investigating espionage, and asked three questions: whether she had ever met with agents of the Czechoslovak Intelligence Service; whether she had ever delivered classified documents relating to the national security of the United States to those agents; and whether she had ever been paid for the delivery of those documents.

She refused to answer, claiming that her answers would be adverse to the interests of her husband, and citing both the marital testimonial privilege and the marital confidential communications privilege.

She has since agreed that no confidential communications would be involved in answering the questions.

A hearing was held on whether respondent wanted to be ordered to answer the questions.

At that hearing, the government argued, relying on cases from the Seventh and Tenth Circuits, that the marital testimonial privilege does not apply in cases involving joint participation in criminal activities.

In support of our claim of joint participation, we offered an affidavit of an FBI agent who had interviewed respondent's husband.

That affidavit stated that Mr. Koecher said that he and respondent had met with Czech agents on a number of occasions between 1962 and 1983.

In the early 1960's, they were directed to penetrate U.S. intelligence agencies.

They subsequently moved to the United States.

Mr. Koecher got a job with the CIA, and he passed virtually any secret material he obtained while employed there.

Mrs. Koecher served as his courier delivering documents and receiving payments for the delivery.

At the hearing, respondent did not contest our evidence regarding joint participation.

Instead, relying on Third Circuit cases, she argued the marital testimonial privilege applies even when there is joint participation in criminal activity.

The District Court agreed with the government, ordered respondent to answer the questions, and subsequently ordered her held in civil contempt when she refused to answer.

She spent about four months in jail but refused to answer the questions.

In December of 1964, a one-count indictment was returned charging Mr. Koecher with espionage.

That indictment alleged that he removed a certain four-page document from the CIA in 1975 and had it delivered to Czech agents.

At the Second Circuit's direction, the District Court considered whether the dominant or sole purpose of the grand jury in continuing to seek to question respondent was to obtain evidence for use at Mr. Koecher's trial.

The District Court concluded that that was not the grand jury's purpose.

Rather, it concluded that the indictment would appear to barely scratch the surface, and that it would be reasonable and logical for the grand jury to continue to seek answers to many other questions such as who worked with Mr. Koecher at the CIA, who were the Czech agents to whom Mrs. Koecher delivered documents, and what other documents and information other than the four-page document mentioned in the indictment have been delivered to the agents.

The Second Circuit subsequently declined to accept our argument that the marital testimony of privilege does not apply in cases involving joint participation, and reversed the District Court's decision ordering respondent to answer.

The issue before this Court, therefore, is whether when spouses jointly participate in criminal activity, a privilege against giving adverse testimony should be recognized.

The Trammel decision sets out the two factors to be considered in determining whether the privilege should be recognized in this situation.

On the one hand, there is the need for probative evidence.

On the other hand, there is the interest in marital harmony.

The Trammel decision shows that those interests must be weighed against each other to determine whether the privilege ought to be recognized in certain classes of cases.

In cases that do not involve joint participation, we contend that the Trammel decision shows that those interests are nearly at equilibrium.

Nineteen states have abolished the privilege altogether, concluding that the need for evidence outweighs the interest in marital harmony in all circumstances.