United States v. Mara 8212 850

• Decision Date: 22 January 1973
• Docket Number: No. 71,71
• Citation: 35 L.Ed.2d 99,93 S.Ct. 774,410 U.S. 19
• Parties: UNITED STATES, Petitioner, v. Richard J. MARA aka Richard J. Marasovich. —850
• Court: U.S. Supreme Court

410 U.S. 19

93 S.Ct. 774

35 L.Ed.2d 99

UNITED STATES, Petitioner,

v Richard J. MARA aka Richard J. Marasovich.

No. 71—850.

Argued Nov. 6, 1972.

Decided Jan. 22, 1973.

Syllabus

Respondent, subpoenaed to furnish handwriting exemplars to enable a grand jury to determine whether he was the author of certain writings, was held in contempt after refusing compliance, the District Court having rejected respondent's contention that such compelled production would constitute an unreasonable search and seizure. The Court of Appeals reversed, holding that the Fourth Amendment applied and that the Government had to make a preliminary showing of reasonableness. Held: The specific and narrowly drawn directive to furnish a handwriting specimen, which, like the compelled speech disclosure upheld in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 involved production of physical characteristics, violated no legitimate Fourth Amendment interest. Pp. 775—776.

454 F.2d 580, reversed and remanded.

Philip A. Lacovara, New York City, for petitioner.

Angelo Ruggiero, Chicago, Ill., for respondent.

Phylis Skloot Bamberger, New York City, for Federal Community Defender Organization of the Legal Aid Society of N.Y., as amicus curiae, by special leave of Court.

Mr. Justice STEWART delivered the opinion of the Court.

The respondent, Richard J. Mara, was subpoenaed to appear before the September 1971 Grand Jury in the Northern District of Illinois that was investigating thefts of interstate shipments. On two separate occasions he was directed to produce handwriting and printing exemplars to the grand jury's designated agent. Each time he was advised that he was a potential defendant in the matter under investigation. On both occasions he refused to produce the exemplars.

The Government then petitioned the United States District Court to compel Mara to furnish the handwriting and printing exemplars to the grand jury. The petition indicated that the exemplars were 'essential and necessary' to the grand jury investigation and would be used solely as a standard of comparison to determine whether Mara was the author of certain writings. The petition was accompanied by an affidavit of an FBI agent, submitted in camera, which set forth the basis for seeking the exemplars. The District Judge rejected the respondent's contention that the compelled production of such exemplars would constitute an unreasonable search and seizure, and he ordered the respondent to provide them. When the witness continued to refuse to do so, he was adjudged to be in civil contempt and was committed to custody until he obeyed the court order or until the expiration of the grand jury term.

The Court of Appeals for the Seventh Circuit reversed. 454 F.2d 580. Relying on its earlier decision in In re Dionisio, 442 F.2d 276, rev'd, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, the court found that the directive to furnish the exemplars would constitute an unreasonable search and seizure. '(I)t is plain that compelling (Mara) to furnish exemplars of his handwriting and printing is forbidden by the Fourth Amendment unless the Government has complied with its reasonableness requirement. . . .' 454 F.2d, at 582.

The court then turned to two issues necessarily generated by its decision in Dionisio—the procedure the Government must follow and the substantive showing it must make to establish the reasonableness of the grand jury's directive. It rejected the in camera procedure of the District Court, and held that the Government would have to present its affidavit in open court in order that Mara might contest its sufficiency. The court ruled that to establish 'reasonableness' the Government would have to make a substantive showing: 'that the grand jury investigation was properly authorized, for a purpose Congress can order, that the information sought is relevant to the inquiry, and that . . . the grand jury process is not being abused. . . . (T)he Government's affidavit must also show why satisfactory handwriting and printing exemplars cannot be obtained from other sources without grand jury compulsion.' 454 F.2d, at 584—585.

We granted certiorari, 406 U.S. 956, 92 S.Ct. 2056, 32 L.Ed.2d 343, to consider this case with United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67.

We have held today in Dionisio, that a grand jury subpoena is not a 'seizure' within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of 'physical characteristics' that are 'constantly exposed to the public.' Supra, at 9—10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person's script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898—899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471—472; cf. Gilbert v California, 388 U.S. 263, 266—267, 87 S.Ct. 1951, 1953—1954, 18 L.Ed.2d 1178. Consequently the Government was under no obligation here, any more than in Dionisio, to make a preliminary showing of 'reasonableness.'

Indeed, this case lacks even the aspects of an expansive investigation that the Court of Appeals found significant in Dionisio. In that case, 20 witnesses were summoned to give exemplars; here there was only one. The specific and narrowly drawn directive requiring the witness to furnish a specimen of his handwriting^* violated no legitimate Fourth Amendment interest. The District Court was correct, therefore, in ordering the respondent to comply with the grand jury's request.

Accordingly, the judgment of the Court of Appeals is reversed, and this case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Judgment of Court of Appeals reversed and case remanded.

Mr. Justice BRENNAN, concurring in part and dissenting in part in No. 71—229, and dissenting in No. 71—850.

I agree, for the reasons stated by the Court, that respondent Dionisio's Fifth Amendment claims are without merit. I dissent, however, from the Court's rejection of the Fourth Amendment claims of Dionisio and Mara as also without merit. I agree that no unreasonable seizure in violation of the Fourth Amendment is effected by a grand jury subpoena limited to requiring the appearance of a suspect to testify. But insofar as the subpoena requires a suspect's appearance in order to obtain voice or handwriting exemplars from him, I conclude, substantially in agreement with Part II of my Brother MARSHALL'S dissent, that the reasonableness under the Fourth Amendment of such a seizure cannot simply be presumed. I would therefore affirm the judgments of the Court of Appeals reversing the contempt convictions and remand with directions to the District Court to afford the Government the opportunity to prove reasonableness under the standard fashioned by the Court of Appeals.

Mr. Justice DOUGLAS, dissenting.

Judge William Campbell, who has been on the District Court in Chicago for over 32 years, recently made the following indictment against the grand jury:¹

'This great institution of the past has long ceased to be the guardian of the people for which purpose it was created at Runnymede. Today it is but a convenient tool for the prosecutor—too often used solely for publicity. Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury.'

It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive. The concession by the Court that the grand jury is no longer in a realistic sense 'a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor' is reason enough to affirm these judgments.

It is not uncommon for witnesses summoned to appear before the grand jury at a designated room to discover that the room is the room of the prosecutor. The cases before us today are prime examples of this perversion.

Respondent Dionisio and approximately 19 others were subpoenaed by the Special February 1971 Grand Jury for the Northern District of Illinois in an investigation of illegal gambling operations. During the investigation, the grand jury had received as exhibits voice recordings obtained under court orders, on warrants issued under 18 U.S.C. § 2518 authorizing wiretaps. The witnesses were instructed to go to the United States Attorney's office, with their own counsel if they desired, in the company of an FBI agent who had been appointed as an agent of the grand jury by its foreman, and to read the transcript of the wire interception. The readings were recorded. The grand jury then compared the voices taken from the wiretap and the witnesses' record. Dionisio refused to make the voice exemplars on the ground they would violate his rights under the Fourth and Fifth Amendments. The Government filed petitions in the United States District Court for the Northern District of Illinois to compel the witness to furnish the exemplars to the grand jury. The court rejected the constitutional arguments of the respondent and demanded compliance. Dionisio again refused and was adjudged in civil contempt and placed in prison until he obeyed the court order or until the term of the special grand jury expired. The Court of Appeals reversed, concluding that to compel compliance would violate his Fourth Amendment rights. It held that voice exemplars are protected by the Constitution from un- reasonable seizures and that the Government failed to show the reasonableness of its actions.

The Special September 1971 Grand Jury, also in the Northern District of Illinois, was convened to investigate thefts of interstate shipments of goods that occurred in the State. Respondent Mara was subpoenaed and was requested to submit a sample of his bandwriting...