465 F.2d 90 (5th Cir. 1972), 72-1323, United States v. Nix

Docket Nº:72-1323 [*]
Citation:465 F.2d 90
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kirksey McCord NIX, Jr., Defendant-Appellant.
Case Date:August 01, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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465 F.2d 90 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kirksey McCord NIX, Jr., Defendant-Appellant.

No. 72-1323 [*]

United States Court of Appeals, Fifth Circuit.

Aug. 1, 1972

Certiorari Denied Nov. 13, 1972.

See 93 S.Ct. 455.

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Wayne Douglas Mancuso, Gretna, La. (Court-appointed), for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Harry R. Hull, Jr., Mary Williams Cazalas, Julian R. Murray, Jr., Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

Kirksey McCord Nix, Jr. was charged in a two-count indictment alleging that (1) he acquired a firearm from a licensed dealer in firearms by knowingly and unlawfully furnishing and exhibiting a false, fictitious, and misrepresented identification which was likely to deceive the dealer with respect to the lawfulness of the sale of the firearm, in violation of 18 U.S.C. § 922(a) (6) and 18 U.S.C. § 924(a); and (2) with making a false statement which was likely to deceive a licensed dealer with respect to a material fact to the lawfulness of the sale and disposition of such firearms, in violation of 18 U.S.C. § 922(a) (6). Nix's first trial ended in a mistrial when the jury could not agree on a verdict. This case involves his subsequent retrial on which he was found guilty on both counts. He was sentenced to serve five years' imprisonment on Count I. Imposition of sentence on Count II was suspended and Nix was placed on supervised probation for a period of five years on Count II, the sentence to run consecutively with that imposed on Count I. We affirm.

On April 9, 1971, Nix purchased from Phillip C. Spedale, owner and a licensed firearms dealer of Crescent Gun and Repair Company, New Orleans, an M-1 carbine for $105.95 in cash. Spedale filled out Firearms Transaction Record Form 4473 provided by the United States Treasury Department and his own standard invoice form. He used information given to him by Nix and contained on a Louisiana chauffeur's license presented by Nix who represented himself as "Charles Tom Ward" and presented the chauffeur's license in that name as proof of identification. Nix signed the Form 4473 as "Charles Tom Ward." Spedale testified that Nix told him he had never been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. Accordingly, Spedale recorded this information on Form 4473. Spedale positively identified Nix as the individual who represented himself as Charles Tom Ward and who purchased the M-1 carbine in question. At the time the purchase was made, however, Nix had been convicted on a plea of guilty to the crime of attempted bribery in Georgia state courts, which conviction was punishable by imprisonment for a term in excess of one year. Taking the view of the evidence most favorable to the Government, there was substantial evidence on which the jury could have found Nix guilty on each count, see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Nix first claims that the District Court erred in ordering him to give

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a handwriting exemplar, in permitting the United States Attorney to comment on his failure to comply with the Court's order in his closing arguments to the jury, 1 and in charging the jury that if it found beyond a reasonable doubt that Nix had in fact failed to comply with the Court's order, it might infer that the comparison of such samples of Nix's handwriting with the signature on Form 4473 would be unfavorable to the defendant and favorable to the Government. 2 Nix contends that the Fourth Amendment requirement of probable cause prohibits issuance of an order to compel handwriting samples absent a showing of probable cause. The Circuits are divided on the point. 3 We agree with Chief Judge Friendly of the Second Circuit that "Handwriting and voice exemplars fall on the side of the line where no reasonable expectation of privacy exists," United States v. Doe, 2 Cir., 1972, 457 F.2d 895, 898, and consequently outside of the protection of the Fourth Amendment. Id. at 899. See also United States v. Doe, 2 Cir., 1968, 405 F.2d 436; United States v. Vignera, S.D.N.Y., 1969, 307 F.Supp. 136. Cf. United States v. McNeal, 5 Cir., 1972, 463 F.2d 1180. The rationale for this result is plain: "For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words of Lord Hardwicke) has a right to every man's evidence." 8 J. Wigmore, Evidence § 2192 at 70 (McNaughton rev. 1961). 4

Even if the more restrictive standards intimated by the Seventh and Eighth Circuits cited in footnote 3 were applicable here, they were satisfied. The District Court held a hearing on the Government's motion to compel the handwriting exemplars. An Assistant United States Attorney explained to the Court that Nix had been identified as the individual who made a false statement on a Treasury Form No. 4473, used at the time of acquisition of a firearm; that he had not previously been convicted of a felony; that he so stated by signing the name Charles Tom Ward on the Form 4473. Nix had previously been indicted in this case by the Grand Jury, which charged that in connection with the...

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