809 F.2d 1023 (3rd Cir. 1987), 86-5883, Matter of Special Federal Grand Jury Empanelled Oct. 31, 1985.

Docket Nº:86-5883.
Citation:809 F.2d 1023
Party Name:In the Matter of the SPECIAL FEDERAL GRAND JURY EMPANELLED OCTOBER 31, 1985. Appeal of John DOE, Appellant.
Case Date:January 23, 1987
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1023

809 F.2d 1023 (3rd Cir. 1987)

In the Matter of the SPECIAL FEDERAL GRAND JURY EMPANELLED

OCTOBER 31, 1985.

Appeal of John DOE, Appellant.

No. 86-5883.

Submitted Under Third Circuit Rule 12(6)

United States Court of Appeals, Third Circuit

January 23, 1987

Jan. 8, 1987.

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

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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

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

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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...

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