454 F.2d 580 (7th Cir. 1971), 71-1740, In re September 1971 Grand Jury

Docket Nº:71-1740.
Citation:454 F.2d 580
Party Name:In re SEPTEMBER 1971 GRAND JURY. Richard J. MARA, a/k/a Richard J. Marasovich, Witness-Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 01, 1971
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 580

454 F.2d 580 (7th Cir. 1971)

In re SEPTEMBER 1971 GRAND JURY. Richard J. MARA, a/k/a Richard J. Marasovich, Witness-Appellant,


UNITED STATES of America, Appellee.

No. 71-1740.

United States Court of Appeals, Seventh Circuit.

December 1, 1971

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[Copyrighted Material Omitted]

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Angelo Ruggiero, Chicago, Ill., for appellant.

William J. Bauer, U. S. Atty., Matthias A. Lydon, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey N. Cole, Asst. U. S. Attys., of counsel.

Before FAIRCHILD, CUMMINGS, and KERNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Pursuant to a grand jury subpoena, petitioner appeared before the September 1971 Grand Jury in the Northern District of Illinois on September 23 and 28, 1971. The Grand Jury was investigating possible violations of the conspiracy provision of the Criminal Code (18 U.S.C. § 371) and of the provision proscribing thefts of interstate shipments (18 U.S.C. § 659). The Government advised petitioner that he was a potential defendant in that investigation. On both occasions, he was directed by the foreman of the Grand Jury to furnish handwriting and printing exemplars to its designated agent, but he refused to do so on constitutional grounds. After considering the Government's petition for a court order directing Mara to furnish such exemplars of his handwriting and printing as the Grand Jury deemed necessary, and after considering in camera an affidavit of FBI Special Agent William L. Buchanan, the district court ordered Mara to furnish the exemplars to the Grand Jury, obviously agreeing with the United States Attorney that this was "essential and necessary" to the Grand Jury's investigation in order to determine whether petitioner was "the author of certain writings." Later that day Mara refused to obey the court's order and was therefore adjudged in contempt and committed to the custody of the United States Marshal for the Northern District of Illinois "until such time as said respondent shall obey said order."

On appeal, petitioner's principal argument is that the order directing him to furnish the exemplars constituted an unreasonable search and seizure within the meaning of the Fourth Amendment. 1 Under our opinion in In re Dionisio, 442 F.2d 276 (7th Cir. 1971) ( per curiam), 2 it is plain that compelling petitioner to furnish exemplars of his handwriting and printing is forbidden by the Fourth Amendment unless the Government has complied with its reasonableness requirement, 3 and that the present proceeding is not a premature challenge. Specifically, this appeal raises two issues necessarily generated by Dionisio. The first concerns the procedure the Government must follow in attempting to demonstrate that the proposed seizure of the exemplars is reasonable. The second focuses on the content of the reasonableness showing necessary to obtain the order sought below.

To show reasonableness, the Government submitted the aforementioned affidavit of Agent Buchanan in camera to the district court. The affidavit was then impounded without being shown to petitioner or his counsel. Petitioner challenges the adequacy of this secretive, ex parte procedure as nullifying his Fourth Amendment rights and deficient under the due process clause of the Fifth Amendment.

In our view, to justify the reasonableness of a request to furnish handwriting and printing exemplars to the Grand Jury, the Government must show reasonableness by presenting its affidavit in open court in order that petitioner may contest its sufficiency. Cf. United States v. Roth, 391 F.2d 507 (7th Cir. 1967). This will accord with the traditional preference for adversary proceedings

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as the superior means for attaining justice under our system of criminal justice. Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176; Dennis v. United States, 384 U.S. 855, 873-875, 86 S.Ct. 1840, 16 L.Ed.2d 973. As the Supreme Court has stated in a related context, "[a]dversary proceedings * * * will substantially reduce [the] incidence [of error] by guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information...

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