Special Federal Grand Jury Empanelled Oct. 31, 1985., Matter of

• Decision Date: 31 October 1985
• Citation: 809 F.2d 1023
• Parties: , 22 Fed. R. Evid. Serv. 591 In the Matter of the SPECIAL FEDERAL GRAND JURY EMPANELLED
• Court: U.S. Court of Appeals — Third Circuit

Page 1023

809 F.2d 1023

55 USLW 2427, 22 Fed. R. Evid. Serv. 591

In the Matter of the SPECIAL FEDERAL GRAND JURY EMPANELLED OCTOBER 31, 1985 Appeal of John DOE, Appellant.

No. 86-5883.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Jan. 8, 1987.

Decided Jan. 23, 1987.

Rehearing and Rehearing En Banc Denied Feb. 24, 1987.

Robert J. Costello, Phelan & Costello, P.C., New York City, Paul Shechtmann, Philadelphia, Pa., for appellant.

Maria E. Beardell, Sp. Atty. Newark Strike Force, Roger Bernstein, U.S. Atty's. Office, Newark, N.J., for appellee.

Before SEITZ, BECKER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal from an order of civil contempt, we hold that a grand jury witness is not forced to become "a witness against himself" within the meaning of the Fifth Amendment if compelled to provide "normal" handwriting exemplars with a "backward slant" when backhand is concededly not his normal writing style. The district court's jurisdiction was founded on 28 U.S.C. Sec. 1826(a); our jurisdiction is founded on 28 U.S.C. Sec. 1291. Our review is plenary and we affirm the order of the district court.

I.

A federal grand jury in Newark, New Jersey has been investigating possible violations of federal laws involving labor racketeering (29 U.S.C. Sec. 186), mail fraud (18 U.S.C. Sec. 1341) and extortion (18 U.S.C. Sec. 1951). The investigation revealed the existence of handwritten documents which were deemed relevant to the investigation. The identification of the author of those documents was found to be essential to the investigation.

On July 31, 1986, pursuant to the grand jury's subpoena, the witness provided handwriting exemplars to the Federal Bureau of Investigation's Document Laboratory. These samples were to be compared with the handwritten documents in order to determine the authorship of the documents. The FBI Document Examiner concluded that the witness was the author of certain of the documents and requested additional exemplars to assist in determining the authorship of other documents. A second grand jury subpoena issued on September 19, 1986, directed the witness to furnish handwriting exemplars "in the amount, style, and wording as directed."

Thereafter, on November 5, 1986, the witness appeared at FBI offices and was directed to furnish samples of his handwriting in a backhand slant. The witness refused to do so, claiming that such samples were testimonial in nature, and therefore violative of his Fifth Amendment privilege against self-incrimination. On December 1, 1986 the district court granted the government's motion for an order compelling the witness to provide the exemplars.

The witness refused to comply with the December 1st court order and the government moved for a judgment of civil contempt pursuant to 28 U.S.C. Sec. 1826(a). Thereafter, on December 10, 1986, the district court found that the witness had refused to comply with the December 1, 1986 order without just cause and adjudged him in contempt. This appeal followed.

II.

The witness argues that the compulsion of a backward-slanting handwriting sample forces him to provide evidence of a testimonial or communicative nature in violation of the privilege not to testify against oneself. He contends that a handwriting sample in his "normal" backward slant is, in effect, evidence that would communicate the angle he would normally use if he were to disguise his writing by using a backward slant. As such, it is evidence of information the witness possesses. The witness contends that the government may compel evidence about a defendant's body, but not his intellectual processes. The witness also contends that while a defendant may be forced to reveal physical identifying characteristics, this request does not serve that purpose. Rather this request is for information regarding how he slants his writing when trying to disguise his normal style and is, therefore, an impermissible request.

The government argues that the Fifth Amendment's privilege against self-incrimination does not preclude the compulsion of real or physical evidence, as that evidence does not disclose any knowledge or information a defendant might have. The privilege protects thought processes, not non-communicative acts. Handwriting examples, it is contended, are identifying physical characteristics outside the scope of the Fifth Amendment.

The government maintains that a handwriting sample in a backward slant is merely a manipulation of a physical ability. It is not a revelation of a thought process, or other protected information, and is not testimonial in nature. Therefore, it is argued, compulsion of the writing sample is permissible.

III.

In reaching our decision we must be guided by the Supreme Court's construction of the Bill of Rights' safeguard that no person "shall be compelled in any criminal case to be a witness against himself." In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court held that "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." 384 U.S. at 761, 86 S.Ct. at 1830. The words "testimonial" and "communicative" are "not models of clarity and precision." Id. at 774, 86 S.Ct. at 1837 (Black, J., dissenting). The distinction between compelling a witness to be a source of "communications" or "testimony" and compulsion to be the source of "real or physical evidence" was recognized by the Schmerber Court as a "helpful framework for analysis." Id. at 764, 86 S.Ct. at 1832. The Court recognized, however, that "[t]here will be many cases in which such a distinction is not readily drawn." Id.

In Schmerber the Court applied the distinction in upholding the enforced withdrawal of a suspect's blood and the admission into evidence, in a prosecution for the criminal offense of driving while intoxicated, of a chemical analysis of the blood indicating intoxication. With respect to the compelled extraction, the Court found that the suspect's "testimonial capacities were in no way implicated" and that "his participation except as a donor, was irrelevant to the results of the test...." Id. at 765, 86 S.Ct. at 1832. The Court found the evidence admissible, although a product of compulsion, because it was "neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner." Id.

Despite the fact that one's testimonial or communicative capacities are at least implicated by compulsion to use one's voice or handwriting, the Supreme Court has held that "[a] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic" and is therefore real or physical evidence outside the protection of the Fifth Amendment privilege. Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967).

The Schmerber Court, however, recognized in dicta that "some tests seemingly directed to obtain 'physical evidence' ... may actually be directed to eliciting responses which are essentially testimonial" thereby evoking "the spirit and history of the Fifth Amendment." 384 U.S. at 764-65, 86 S.Ct. at 1832. The example given by the Schmerber Court was a lie detector test. In essence, the witness before us argues that the compulsion to provide not "a mere handwriting exemplar" a la Gilbert, 388 U.S. at 266-67, 87 S.Ct. at 1953, but a "normal" handwriting exemplar designated to be written in a backward slant which is not normal to this witness is such a test.

The witness stipulates that he is willing to provide "normal handwriting in the amount, style, and wording as directed" in compliance with the subpoena. He does not argue that as a general matter an order to provide a handwriting sample with a backward slant violates the Fifth Amendment. His contention on appeal is that because a backhand slant is concededly not his normal writing style, the government's direction to provide such a sample, in combination with the subpoena's requirement to provide "normal" handwriting, amounts to compulsion to choose a "normal" backhand. As we understand the argument, it is that compulsion to affect a "normal" style which is concededly not his customary style is tantamount to compelling an admission that it is normal for him to disguise his writing in the demonstrated manner.

In Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the Supreme Court acknowledged that the act of producing physical evidence in response to a subpoena has communicative aspects of its own. 425 U.S. at 410, 96 S.Ct. at 1580. A tacit admission inherent in the act of producing evidence in response to a subpoena may be within the protection of the Fifth Amendment if it is both testimonial and incriminating. Id. at 391, 96 S.Ct. at 1569. Whether such an averment is both testimonial and incriminating depends on the facts and circumstances of each case. Id. at 410, 96 S.Ct. at 1580.

When an accused is required to submit a handwriting exemplar he admits his ability to write and impliedly asserts that the exemplar is his writing. Id. at 411, 96 S.Ct. at 1581. Although the exemplar may be incriminating to the witness and although he is compelled to furnish it, his Fifth Amendment privilege is not violated because furnishing a handwriting sample is not testimony. Id. at 411, 96 S.Ct. at 1581; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The appellant argues, however, that under the facts and circumstances of this case, an additional tacit admission was inherent in the act of providing the sample. That admission was that the witness would choose to slant his handwriting at a certain angle when disguising it. He further argues that such an admission is testimonial for purposes of Fifth...