U.S. v. Holland

• Citation: 552 F.2d 667
• Decision Date: 23 May 1977
• Docket Number: No. 76-3763,76-3763
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William W. HOLLAND, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 667

552 F.2d 667

UNITED STATES of America, Plaintiff-Appellee, v. William W. HOLLAND, Defendant-Appellant.

No. 76-3763.

United States Court of Appeals Fifth Circuit.

May 23, 1977.

Sterling G. Culpepper, Jr. (Court-appointed), Charles S. Coody, Montgomery, Ala., for defendant-appellant.

Ira DeMent, U. S. Atty., Milton L. Moss, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before GOLDBERG and TJOFLAT, Circuit Judges, and WYATT ^*, District Judge.

WYATT, District Judge:

William W. Holland appeals from a judgment of conviction of criminal contempt, such judgment having been entered by the United States District Court for the Middle District of Alabama (Honorable Frank M. Johnson, Jr., District Judge) on September 27, 1976. The contempt for which Holland was convicted was disobedience of an order of the District Court made and filed, under circumstances to be related, on July 1, 1976.

We find that there was no authority to make the July 1, 1976 order. The judgment of conviction of criminal contempt for disobedience of that unauthorized order must therefore be reversed.

1.

At all relevant times Holland was an inmate of Holman Prison, an institution of the State of Alabama located at Atmore, Alabama.

In early 1976, postal inspectors had reason to believe that a scheme was in operation in the Alabama prison system for altering postal money orders, raising them in amount and then cashing them for the raised amounts. The scheme was thought to involve a number of inmates and also others, both inside and outside the prison system.

Based on an affidavit of a postal inspector, the United States Attorney for the Middle District of Alabama in April and May, 1976, obtained orders of the District Court authorizing representatives of the Postal Service to open and inspect mail of several named inmates. Appellant Holland was not one of those named nor was he referred to in the postal inspector's affidavit. The caption on the papers, apparently placed there by the United States Attorney's office, was "United States of America v. Jerry Neal Baker, et al" and the file number was given as "Cr.Misc.No.77". Jerry Neal Baker was the first of the inmates listed in the motion for the orders. Appellant Holland was not one of the "et al" because, as noted above, he was not referred to in the papers.

On June 30, 1976, the United States Attorney filed a "motion to compel handwriting exemplars". This was based on an affidavit of Mr. Martin, a postal inspector, sworn to June 1, 1976. The affidavit recited that Holland and six other Holman Prison inmates "are suspected of writing false information on altered Postal money orders". There followed as to each named inmate a statement of the information which caused suspicion to attach to him. As to appellant Holland, this was the statement:

"U.S. Postal money order # 2,022,816,750-6 was issued at Atmore, AL on 3-15-76 in the amount of $1.00. This money order was altered and raised to $200.00. Holman Prison Guard William C. Freeman has admitted he gave this money order to his wife and that she cashed it on 3-17-76 at Piggley Wiggley Store, Atmore, AL. Mr. Freeman stated the money order was given to him by William W. Holland on 3-16-76.

"On 4-27-76 William W. Holland refused to furnish handwriting."

The affidavit of the postal inspector was made for the purpose of obtaining from the District Court a writ of habeas corpus ad testificandum so that the named inmates could be produced as witnesses before a grand jury. His affidavit declared: "Writs are needed to require these individuals to appear before a Federal Grand Jury to furnish handwriting exemplars". The habeas corpus statute contemplates the production of prisoners, state or federal, "to testify". 28 U.S.C. § 2241(c)(5); see Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514 (1845).

For some reason not explained, however, the United States Attorney did not present the matter to a grand jury nor did he ask for a writ of habeas corpus ad testificandum to bring Holland and the others as witnesses before a grand jury. Instead, the United States Attorney submitted to the District Court the "motion to compel handwriting exemplars". This motion was given the same file number ("Cr.Misc.No.77") and the same caption as the earlier mail inspection motions and orders: "United States of America v. Jerry Neal Baker, et al". Jerry Neal Baker was not one of those sought to be compelled to give handwriting exemplars. Holland and four others sought to be compelled by the motion to give handwriting exemplars had not been named in the earlier papers.

On July 1, 1976, the day following the submission of the motion, the District Court made and filed an order that Holland and the other six inmates "provide to agents of the United States Postal Inspection Service samples and exemplars of their handwriting". The Marshal's return shows that a copy of the order was served personally on Holland on July 7, 1976.

On July 13, 1976, a postal inspector and state prison officials interviewed Holland, who refused to obey the court order and, according to a memo of the postal inspector, asked for "a court appointed attorney to advise him on the legality of the court order".

On August 19, 1976, the United States Attorney filed a "motion for order to show cause". On the same day, the District Court made and filed an order requiring Holland and four others to show cause "in writing" why they should not be held in contempt of court. On the same day, the District Court appointed Sterling G. Culpepper, Jr., Esq., a member of the Alabama Bar, as counsel to Holland.

On September 1, 1976, counsel for Holland filed a "response" stating that he had refused and would refuse to give handwriting exemplars "for the reason that he has not been charged with any offense connected with forgery or falsification of written documents".

Later on the same day the District Court issued and filed a "citation for criminal contempt of court". This directed Holland to appear before the Court on September 27, 1976, "for a hearing on the merits of this criminal contempt citation". The citation confirmed the appointment of Mr. Culpepper to represent Holland.

The hearing on the citation of Holland for criminal contempt was duly held on September 27, 1976. Holland was present in Court and was represented by counsel. The evidence for the government established that Holland had refused to obey the July 1, 1976 order that he give handwriting exemplars. Holland offered no evidence. There was no argument. The Court announced its finding that Holland was guilty of criminal contempt of the Court.

Holland then told the Court that he (Holland) was being used "as a lever to get the other people"; that he (Holland) had not been charged with any crime; that there was no evidence to show that he was implicated in the scheme; and that he felt that he should not be "used in this way".

The Court next imposed a sentence of imprisonment for six months, the sentence to be consecutive to any sentence earlier imposed on Holland.

This appeal followed.

2.

The taking of handwriting exemplars does not violate any Fifth Amendment constitutional privilege against self-incrimination nor any Sixth Amendment right to the assistance of counsel. Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). These last two decisions also establish that it does not violate the Fourth Amendment protection from unreasonable searches and seizures.

So much is undisputed. There is no defect in the order below because it compels the furnishing of handwriting samples.

3.

The argument for appellant is that the District Court had no jurisdiction to make the July 1, 1976 order; that the order was made without authority; and that thus, not being a "lawful . . . order", the District Court had no power to punish for contempt (18 U.S.C. § 401(3)). We find this argument persuasive.

4.

It is elementary that, whereas most state trial courts have a general jurisdiction, all federal courts (other than the Supreme Court), trial or otherwise, have a limited jurisdiction. Congress was given authority in the Constitution (Article III, Section 1) to "ordain and establish" inferior courts. Congress thus has power to fix precisely the jurisdiction of those courts. The presumption is that a federal court lacks subject matter jurisdiction until it is shown to exist. Edwards v. Selective Service etc., 432 F.2d 287, 290 (5th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1637, 29 L.Ed.2d 122 (1971).

5.

There are a number of instances in which orders have been made by District Courts that handwriting examples be furnished or similar non-testimonial identification be made (appearance in line-ups, voice exemplars). In all those instances to which our attention has been called by counsel, or which our researches have discovered, the jurisdiction of the District Court over the proceeding, or over the person affected, was clearly made to appear. There was either an arrest of the person, or an indictment, or a grand jury investigation for which testimonial compulsion by the Court was required. There was something before the court, a proceeding or a person or both, over which the Court had jurisdiction.

Examples of orders for non-testimonial identification in aid of a grand jury investigation are United States v. Dionisio, above cited, (voice exemplars), and United States v. Mara, above cited, (handwriting exemplars). Another example is in the Second Circuit, United States v. Doe, 405 F.2d 436 (Friendly, C. J.; 2 Cir. 1968) where a contempt conviction was affirmed after a grand jury witness had disobeyed orders of the foreman and of the District Judge to give...