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4th Circuit: Adult son must testify against father

Rejecting a claim of parent-child privilege, a federal appeals court has ruled a son must testify against his father before a federal grand jury in Baltimore examining potential firearms violations.

The 4th U.S. Circuit Court of Appeals noted the son’s age and the approximately 40 firearms found at the home he shared with his father in rejecting the 19-year-old’s argument that compelling his testimony would cause “certain” and “incalculable” damage to the parent-child relationship.

The opinion used aliases for the father and son to protect the confidentiality of the grand jury proceedings.

“First, Doe Jr. is not an impressionable very young child, but an adult college student,” Judge Stephanie D. Thacker wrote for the 4th Circuit. “And although Mr. Doe provides Doe Jr.’s room and board, buys his clothing, and ‘contributes a substantial amount’ to his college tuition, Doe Jr. himself acknowledged that Mr. Doe would not ‘cut him off’ or ‘hold it against [him]’ if Doe Jr. testified truthfully.”

Maryland U.S. Attorney Rod J. Rosenstein, whose office is pursuing charges against the father, hailed the 4th Circuit for finding an adult may be compelled to testify against a parent.

“There is no privilege for an adult child,” Rosenstein said Tuesday. “This is involving an adult who has relevant information about another adult who happens to be a relative.”

Rosenstein said his office would have handled the case differently if the sought-after witness were significantly younger.

“We would be really cautious about summoning a minor child,” he added.

But Doe Jr.’s attorney, Peter D. Ward, said a child should not be compelled to testify against a parent with whom he is living and upon whom he remains dependent, even if the child has reached the age of adulthood.

“One does not become emancipated at the stroke of midnight on your birthday,” said Ward, a Towson solo practitioner.

The attorney added he is undaunted by Thacker’s comment in the opinion that “no federal appellate court has recognized a parent-child privilege.”

“Like every other development in the law, it has to start somewhere,” Ward said Tuesday.

Doe Jr. has not decided whether he will appeal, Ward added.

The 4th Circuit’s decision reversed Senior U.S. District Judge J. Frederick Motz’s ruling that the son cannot be compelled to testify against the father due to a parent-child privilege. Motz said the father and son had “a continuing relationship” and that the government’s asserted interest in having the son testify did not trump his privacy rights.

Federal prosecutors sought the son’s grand jury testimony in their investigation of firearms Harford County sheriff’s deputies seized from the home on Nov. 30, 2012, after responding to a 911 call of domestic violence placed by “Mrs. Doe.”

The weapons included two assault-style rifles, an AK-47 assault rifle, a loaded semi-automatic handgun and a World War II-style pistol, according to the court’s opinion. The deputies also seized equipment used to alter and convert firearms, including torches, welding equipment and saws, the opinion stated.

The charges include violations of the federal law banning the receipt or possession of an unregistered firearm.

Last October, federal prosecutors subpoenaed Doe Jr. to testify before the grand jury. He moved to quash the subpoena in U.S. District Court, citing a parent-child privilege. Motz granted the motion, prompting the federal government to appeal.

The 4th Circuit, in ruling for the government, noted the cache of seized weapons, the mother’s allegation of abuse that was later withdrawn, the presence of Doe Jr.’s two younger siblings in the home and the deputies’ discovery of marijuana in the basement.

“Finally, we do not believe the purported purpose of the parent-child privilege would be duly served by shielding Doe Jr. from testifying about the firearms seized on Nov. 30, 2012,” Thacker wrote in sending the case back to the grand jury. “Under these circumstances, Doe Jr. has not provided a strong showing that adoption of the parent-child privilege would promote sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.”

Thacker was joined in her published opinion by Judge J. Harvie Wilkinson III and Senior Judge Clyde H. Hamilton.

WHAT THE COURT HELD

Case:

Under Seal v. United States of America, 4USCA, No. 13-4933. Published. Opinion by Thacker, J. Argued May 15, 2014. Filed June 16, 2014.

Issue:

Did the judge err in excusing a 19-year-old son from testifying against his father before a grand jury based on a parent-child privilege?

Holding:

Yes; the asserted privilege does not apply, particularly because the son was “not an impressionable very young child, but an adult college student.”

Counsel:

Sujit Raman for respondent-appellant; Peter D. Ward for petitioner-appellee.

RecordFax #14-0616-60 (22 pages).