United States v. Green

• Decision Date: 12 April 1968
• Docket Number: No. IP 67-CR-167.,IP 67-CR-167.
• Parties: UNITED STATES of America v. Joseph C. GREEN.
• Court: U.S. District Court — Southern District of Indiana

282 F. Supp. 373

UNITED STATES of America v. Joseph C. GREEN.

No. IP 67-CR-167.

United States District Court S. D. Indiana, Indianapolis Division.

April 12, 1968.

Daniel P. Byron, Asst. U. S. Atty., for the United States.

John C. Ruckelshaus, of Ruckelshaus, Bobbitt & O'Connor, Indianapolis, Ind., for Joseph C. Green.

ORDER OF APRIL 12, 1968 OVERRULING MOTION TO REQUIRE DEFENDANT TO SUBMIT HANDWRITING EXEMPLARS

STECKLER, Chief Judge.

The defendant is charged by way of indictment with having filed false and fraudulent claims with the United States in violation of Title 18, United States Code, Section 287, and with conspiring with another to do so in violation of Title 18, United States Code, Section 371.

The case is before the Court on the Government's motion to require the defendant to submit handwriting exemplars. The motion requests that the handwriting exemplars be submitted as requested by the Government's chief investigative agent including, inter alia, the names which defendant allegedly wrote on the credit invoices used in the alleged conspiracy.

It is the position of the Government that the giving of handwriting exemplars is outside the scope of the Fifth Amendment privilege against self-incrimination. In support of its contention, the Government relies on Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

The Supreme Court has concluded that the privilege against self-incrimination reaches only compulsion of "communications" or "testimony" and that these are to be distinguished from "identifying physical characteristics" or compulsion which makes the accused the source of "real or physical evidence." Schmerber, supra, 384 U.S. at 764, 86 S.Ct. 1826; Gilbert, supra, 388 U.S. at 266, 87 S.Ct. 1951.

The Government urges that handwriting exemplars in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside the Fifth Amendment's protection and is not protected by the privilege against self-incrimination.

In opposition to the motion the defendant distinguishes the Gilbert decision from the case at bar by pointing out that the defendant in Gilbert voluntarily gave handwriting exemplars before he was indicted and later asserted his objection when the exemplar was offered into evidence at the trial. The Fifth and Eighth Circuits have interpreted Gilbert, however, in both cases the giving of handwriting exemplars was voluntary on the part of the defendants, Granza v. United States, 5 Cir., 377 F.2d 746, reh. 381 F.2d 190 (5th Cir. 1967); Weaver v. United States, 379 F.2d 799 (8th Cir. 1967).

In addition to the absence of an effective waiver, defendant contends that the giving of handwriting exemplars where the corpus of the crime alleged requires proof of the unlawful signatures goes considerably beyond use as a mere "identifying physical characteristic." Further, that in view of the scientific certainty which accompanies handwriting analysis, it is "communicative" as to an element of the crime and is incriminating.

The distinctions between compulsions of a communicative nature which are protected and those which produce only "identifying physical characteristics," or become the source of "real or physical evidence," which are not protected by the Fifth Amendment, are nebulous. In view of the nature of the request in the case at bar, the Court concludes that the exemplars fall within the exceptions noted by the...