September 29, 2015
Government's Opposition To Motion To Quash Subpoena
And with that pithy (and somewhat pissy) paragraph, government prosecutors began skewering Deborah Ingersoll's motion to quash the subpoena summoning her to testify during the sentencing of her hubby Steven Ingersoll and his other partner in crime, Roy C. Bradley, Sr.
In an expedited motion filed yesterday (September 29) in response to an order by Judge Thomas L. Ludington, the prosecution allowed that “Deborah Ingersoll may have a privilege to assert as to some aspect of the matter before the court, she may be required to testify regarding matters that are not privileged, making it inappropriate to quash the subpoena requiring her testimony.”
“The focus of the questioning anticipated by the government will be on joint criminal activity engaged in by Deborah Ingersoll with Steven Ingersoll. Therefore, Deborah Ingersoll may not invoke the confidential marriage communications privilege as to communications that involve joint criminal activity with Steven Ingersoll, even if she was an unindicted co-conspirator or an aider or abettor with regards to Steven Ingersoll.”
Citing the Supreme Court decision in the Trammel case, government prosecutors asserted that privileges, “must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominate principle of utilizing all rational meant for ascertaining truth.’”
In plain language, Deborah Ingersoll bears the burden of proving that she has a valid marital privilege to assert during Steven Ingersoll and Roy Bradley’s sentencing hearing.
Stating that “person asserting the marital privilege has the
burden of proving that a communication is a marital communication”, the government's response says that “Deborah Ingersoll has generically asserted a marital privilege regarding Steven Ingersoll. However, there are two distinct marital privileges, with different requirements that have not been addressed by Deborah Ingersoll in her motion.”
In Deborah Ingersoll's motion to quash, her attorney asserted the following:
“Ms. Ingersoll’s fear of prosecution, however, is not limited to a state court charge based on the bank fraud allegations. Steven Ingersoll was convicted of various tax related charges. Ms. Ingersoll, according to evidence introduced at trial, signed various documents, including tax returns, and conducted banking transactions. She is potentially at risk of the same type charges as those brought against her husband, state court action under state fraud and tax statutes, and currency reporting violations in this district and in the Western District of Michigan.
Given the government’s willingness to charge Ms. Ingersoll in the instant case she certainly is justified in assuming that anything she says will be used in some fashion to prosecute her again.”
ADVERSE SPOUSAL TESTIMONIAL PRIVILEGE
“The adverse spousal testimonial privilege protects one spouse from being compelled to testify against the other. This privilege may not be asserted after a marriage has been terminated. Further, this privilege may be exercised only by the testifying spouse.” Porter, 986 F.2d at 1018.
“‘The testimonial privilege looks forward with reference to the particular marriage at hand; the privilege is meant to protect against the impact of the testimony on the marriage.’” Id., quoting United States v. Byrd, 750 F.2d 585, 590 (7th Cir. 1984). Moreover, the marriage between Deborah Ingersoll and Steven Ingersoll need not have been formally terminated by divorce for the court to find that the marital relationship has been effectively terminated.
VITALITY OF THE MARITAL RELATIONSHIP
In its response the government states that several “facts give reason to question the vitality of the marital relationship between Steven Ingersoll and Deborah Ingersoll going forward. For example, Steven Ingersoll filed his 2011 federal income tax return using the filing status of married, filing separately; Steven Ingersoll is facing a very lengthy custodial sentence; Steven Ingersoll has a history of marital infidelity and a prior divorce; and Deborah Ingersoll and Steven Ingersoll were both involved in the underlying prosecution in this case, but are confronted with different results.”
And here's the kicker: “The focus of the questioning anticipated by the government will be on joint criminal activity engaged in by Deborah Ingersoll with Steven Ingersoll. Therefore, Deborah Ingersoll may not invoke the confidential marriage communications privilege as to communications that involve joint criminal activity with Steven Ingersoll, even if she was an unindicted co-conspirator or an aider or abettor with regards to Steven Ingersoll.”
Stating that “a generic fear of prosecution is insufficient”, the prosecution asserts that Deborah Ingersoll must “identify the nature of the criminal charge or supply sufficient facts so that a particular criminal charge can reasonably be identified by the court.”
In its conclusion, the government states “Deborah Ingersoll cannot simply assert a marital privilege and Fifth Amendment privilege and be absolved of her obligations under the subpoena that she seeks to quash. She has been subpoenaed to testify at a sentencing hearing that involves Roy Bradley, Sr., as well as Steven Ingersoll. She can assert the adverse spousal testimonial privilege only if she satisfies the requirement of establishing the current viability of the marriage.”
And what about “taking the Fifth”?
Wrapping up, the government states that “to the extent that the court finds that a line of inquiry is not precluded by virtue of either type of marital privilege, Deborah Ingersoll will need to do more than rely on her generic invocation of the Fifth Amendment privilege in her motion. She will need to present appropriate proofs regarding her Fifth Amendment claims as the evidentiary hearing progresses.”
So what's your bet on Deb's wardrobe? Neiman Marcus...or Kohl's?