IN RE: GRAND JURY SUBPOENA (2018)

MEMORANDUM **

Doe appeals the district court's order holding her in civil contempt for 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, 120 S.Ct. 2037, 147 L.Ed.2d 24 (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, custody, or control.

AFFIRMED.

FOOTNOTES

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.”).