claim of privilege

In November 1959, Harold Malloy was arrested during a gambling raid in Hartford, Connecticut, on charges related to pool selling. He pleaded guilty to the misdemeanor, receiving a sentence of one year in jail and a five-hundred-dollar fine, with the jail term suspended after ninety days followed by two years of probation. Approximately sixteen months later, Malloy was subpoenaed to appear before a referee appointed by the Superior Court of Hartford County to investigate alleged gambling and other criminal activities in the county. During the inquiry, he was questioned about the circumstances of his 1959 arrest and conviction, including the identity of his employer, who paid his fine and bondsman, the tenant of the apartment where he was arrested, and whether he knew a man named John Bergoti. Malloy refused to answer any of these questions, asserting that his responses might tend to incriminate him. The Superior Court adjudged Malloy in contempt and ordered him committed to prison until he answered the questions. The Connecticut Supreme Court of Errors affirmed the contempt adjudication, holding that the Fifth Amendment privilege was unavailable in state proceedings and that Malloy had not properly invoked the state constitutional privilege. Malloy then sought federal habeas corpus relief in the United States District Court for the District of Connecticut, which was denied, and the Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court granted certiorari to consider the constitutional questions presented.

On March 1, 1974, a grand jury returned an indictment charging seven named individuals with offenses including conspiracy to defraud the United States and to obstruct justice. Although not designated in the indictment, the grand jury named President Richard M. Nixon as an unindicted co-conspirator. On April 18, 1974, upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President requiring production of tapes, memoranda, papers, transcripts, or other writings relating to precisely identified meetings between the President and others. The President publicly released edited transcripts of 43 conversations on April 30, 1974, including 20 subject to the subpoena. On May 1, 1974, the President's counsel filed a motion to quash the subpoena under Rule 17(c) along with a claim of privilege. At a subsequent hearing, further motions to expunge the grand jury's action naming the President as an unindicted co-conspirator and for protective orders were filed by counsel for the President. On May 20, 1974, the District Court denied the motion to quash and ordered production of the materials by May 31, 1974. The court rejected claims that the dispute was a nonjusticiable intra-executive conflict and that the Judiciary lacked authority to review executive privilege. On May 24, 1974, the President appealed to the Court of Appeals, and the Special Prosecutor petitioned for certiorari before judgment, which was granted. The case was set for argument on July 8, 1974. The proceeding is a pending federal criminal prosecution in United States v. Mitchell et al. set for trial on September 9, 1974.

On March 10, 1976, Otis Trammel was indicted with Edwin Lee Roberts and Joseph Freeman for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a), 962(a), and 963. The indictment also named six unindicted co-conspirators, including petitioner’s wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin, and Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married. She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment. She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. The District Court ruled that Mrs. Trammel could testify in support of the Government’s case to any act she observed during the marriage and to any communication made in the presence of a third person. However, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied. At trial, Elizabeth Trammel testified within the limits of the court’s pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). In the Court of Appeals petitioner’s only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court’s teaching in Hawkins v. United States and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony.