Weaver v. United States

• Decision Date: 26 July 1967
• Docket Number: No. 18585.,18585.
• Citation: 379 F.2d 799
• Parties: Charles WEAVER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

379 F.2d 799 (1967)

Charles WEAVER, Appellant, v. UNITED STATES of America, Appellee.

No. 18585.

United States Court of Appeals Eighth Circuit.

July 10, 1967.

Rehearing Denied July 26, 1967.

Austin F. Shute, of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellant and filed brief with Robert G. Duncan, Kansas City, Mo.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., for appellee and filed brief with F. Russell Millin, U. S. Atty., Kansas City, Mo.

Before VAN OOSTERHOUT, MATTHES and LAY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by defendant Charles Weaver from his conviction by a jury and resulting sentences on each of two counts of an indictment charging the defendant with causing interstate transportation of forged securities, knowing the same to be forged, in violation of 18 U.S.C.A. § 2314. Concurrent sentences of three years were imposed.

Defendant asserts he is entitled to a reversal of his conviction upon the following grounds:

(1) Exemplars of his handwriting were obtained by officials after his arrest and while he was incarcerated in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel.

(2) Prejudicial comment by the prosecuting attorney.

We hold that no prejudicial error was committed and affirm the conviction.

Defendant made motions for judgment of acquittal which were renewed after verdict. All such motions were overruled. The sufficiency of the evidence to support the verdict is challenged upon appeal only upon the basis that the handwriting exemplars of the defendant were received in evidence in violation of his constitutional rights and that without such evidence, the verdict lacks evidentiary support. In any event, we have carefully examined the record and have no doubt that the evidence is sufficient to support the conviction if the handwriting exemplars were properly received in evidence. Thus the crucial issue is the admissibility of the handwriting exemplars and no useful purpose will be served by a detailed recital of the evidence in the case.

Defendant, after his arrest and while in custody, during the course of an interview with an F.B.I. agent, at the request of such agent, furnished the agent with exemplars of his handwriting without protest. Such exemplars included only samples of his handwriting and contain nothing else of any evidentiary significance. Such exemplars were used as the basis for testimony of a handwriting expert that the writing on the stolen, unissued travelers' checks was that of the defendant.

The constitutional issues presented on the question of the admissibility of the handwriting exemplars are close and difficult questions upon which courts have not been in agreement. Such issues have been conclusively resolved against the defendant by the majority opinion of the Supreme Court written by Mr. Justice Brennan in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, (June 12, 1967). The conflicting views upon such issues are fully discussed in the majority and dissenting opinions. We are bound by the majority opinion.

On the Fifth Amendment issue, Gilbert holds:

"The taking of the exemplars did not violate petitioner\'s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of `an accused\'s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one\'s papers,\' and not `compulsion which makes a suspect or accused the source of "real or physical evidence" * * *.\' Schmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 16 L.Ed.2d 908. One\'s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, ante, 87 S.Ct. at 1926. No claim is made that the content of the exemplar was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616 6 S.Ct. 524, 29 L.Ed. 746."

In our present case as in Gilbert, the exemplars contained no testimonial or communicative matter.

The Gilbert holding on the Sixth Amendment reads:

"The taking of the exemplars was not a `critical\' stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate his right to a fair trial. Cf. United States v. Wade, ante. If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts. Thus, `the accused has the opportunity for a meaningful confrontation of the State\'s case at trial through the ordinary processes of cross-examination of the State\'s expert handwriting witnesses and the presentation of the evidence of his own handwriting experts.\' United States v. Wade, ante, 87 S.Ct. at 1926."

In the case before us, defendant was advised before he gave the exemplars that he had a right to remain silent, that anything said would be used against him, that he had a right to consult an attorney or anyone of his choosing...