United States v. Marashi

913 F.2d 724 (9th Cir. 1990)

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Nature of the Case

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Facts

Sharon learned that her husband, D, was having an extramarital affair with his secretary, Sherrie Danzig. Sharon also learned from the secretary's husband, Steve, that the two had flown off to Europe. In August, Sharon and Danzig's brother-in-law, Earl Doering, entered D's office in an attempt to obtain D's travel itinerary. Sharon did not have a key to D's desk, and she had a locksmith open the top drawer. Sharon filed for divorce. On December 22, 1984, D moved out of their house and into a condominium. Filing for divorce was not enough for Sharon and Steve. They met several times to discuss how to get even with their unfaithful spouses. Sharon mentioned that D had under-reported his federal income tax for some years. Steve contacted the IRS. Later, he pressured Sharon to come forward with information implicating D. She phoned the IRS and set up an interview with Special Agent Robert Lake. Accompanied by her divorce lawyer, Carl Maxey, she spoke briefly with Agent Lake on January 10, 1985. Agent Lake took notes. She told them everything. Sharon even implicated herself. Sharon, unaccompanied by counsel, met with Agent Lake again. Agent Lake tape-recorded the interview. He declined to give Sharon a Miranda warning and suggested instead that if she were honest and cooperative, she would not be prosecuted. Sharon kept two sets of books for D's business. On May 18, the IRS opened a case file on D. Agent Houghton contacted D and summoned him to produce corporate records. A bank reconciliation showed that D had cashed, rather than deposited, numerous checks for substantial sums. Agent Thomas Abrahamson spoke with Sharon and she produced several of Ds appointment books. She spoke with both Abrahamson and Houghton in a taped statement. A criminal indictment against D was obtained on March 15, 1988. Sharon was deposed to find out exactly what she had told the IRS. The IRS provided D with (1) an audiotape and a transcript of Sharon's January 16, 1985 interview with Special Agent Lake and (2) an audiotape of Sharon's July 18, 1985 interview with Special Agent Houghton. D moved to suppress Sharon's testimony and the fruits thereof on the basis of the marital communications privilege. The court denied the motion. D's defense was that his ex-wife and Steve sought revenge by fabricating the double ledger story and stealing D's black ledgers for the years 1981-83 from his condominium. D claimed under-reporting was the product of oversight. D was convicted and appealed.