NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 28 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: GRAND JURY SUBPOENA, Dated No. 18-50321 March 21, 2018, ______________________________ D.C. No. 2:18-cm-00771-UA-1

UNITED STATES OF AMERICA,

MEMORANDUM*

Plaintiff-Appellee,

v.

DOE,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted December 4, 2018 Pasadena, California

Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District Judge.

Doe appeals the district court’s order holding her in civil contempt for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. 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 (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,

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.”).

2 custody, or control.

AFFIRMED.

3