ORDER SUPPRESSING HANDWRITING EXEMPLARS
This cause came on for consideration upon the defendant’s motion to suppress handwriting exemplars given on July 9th, 1976. The court, having conducted an evidentiary hearing, considered the record, and being fully advised in the premises, finds and concludes that the motion should be granted.
In response to a subpoena issued by the United States Grand Jury in Miami, Florida, the defendant appeared at the U. S. District Courthouse on July 9th, 1976, along with a number of other prospective grand jury witnesses. Testimony taken at the evidentiary hearing on September 30th, 1977 shows thаt the group of witnesses was met in the grand jury reception room by an Assistant U. S. Attorney and two Internal Revenue Service agents. The witnesses were requested by the Assistant U. S. Attorney to give certain handwriting exemplars in furtherance of the grand jury investigation. They were informed that they could do so voluntarily at that time, or that they would be brought before a federal judge and ordered to do so under pain of contempt. The witnesses were then asked whether they would like to give the exemplars voluntarily, and there was a general affirmation by the group. It was not established that the defendant O’Kane expressly volunteered to provide the handwriting exemplars, although no witness refused. The witnesses were then taken to the mezzanine office of the U. S. Attorney, and each — including the defendant — gave the requested handwriting exemplars. They appeared and testified before the grand jury later in the day, but at no time was the defendant directed by the grand jury to provide the handwriting exemplars in question.
Defendant now moves this court to suppress the exemplars on grounds that they werе illegally obtained. He argues that they were given involuntarily on threat of *213 coercion and that he was given no warnings of his constitutional rights under the Fourth, Fifth, or Sixth Amendments.
The government contends that this motion raises no legally cognizable issue: because the defendant was а subpoenaed grand jury witness, had he refused to give the exemplars, he would have been subject to a court order compelling him to do so under pain of contempt.
U. S. v. Holland,
In effect, the court must determine whether the fact that the defendant had been subpoenaed by the grand jury enabled the Assistаnt U. S. Attorney to obtain handwriting exemplars from him on his own authority. The focus of the parties’ contention can be identified within the interrelationship between the grand jury and the prosecutor. In order to resolve the issue sub judice, the function of each must be examined in light оf the requisite balance between the interest of the public in an effective grand jury investigative process and the constitutional rights of the individual to be protected from abuse of that process.
The Supreme Court has repeatedly confirmed the broad investigative powers of the grand jury.
Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, [the grand jury’s] investigative powers are necessarily broad. “It is a grand inquest, a body with powers of investigation and inquisition, the sсope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. U. S.,250 U.S. 273 , 282,39 S.Ct. 468 , 471,63 L.Ed. 979 (1919).
Branzburg v. Hayes,
The issue sub judice centers around handwriting exemplars, which are characterized as nontestimonial identification evidence. The general rule established by the Supreme Court is that a grand jury directive to provide such evidence does not violate the Fourth, Fifth, or Sixth Amendment. Thus, that court recently held that
a grand jury subpoena is not a “seizure” within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of “physical charаcteristics” that are “constantly exposed to the public.”
U. S. v. Mara,
compelled display of identifiable physical characteristics infringes nо interest protected by the privilege against compulsory self-incrimination.
Dionisio,
[a] witness “before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel . . . .” In re Groban, 352 U.S. [330], at 333, [77 S.Ct. 510 , at 513,1 L.Ed.2d 376 , at 380.] . . . . Under settled principles the witness may not insist upon the presence of his attorney in the grand jury room.
U. S. v. Mandujano,
Each of these cases, however, contemplates evidence provided in response to a grand jury directive. The pivotal factor in the case before this court is this: though the defendant was subpoenaed by the grand jury and actually testified before it, at no time did the grand jury direct him to provide handwriting exemplars. The government argues that the defendant was summoned by a valid grаnd jury subpoena and was therefore required to give the exemplars. Its position is that the grand jury witness’s right to have that body order him to provide exemplars and to be given the opportunity to refuse to do so is a hollow one, since a district court judge can therеupon order him to provide the exemplars under pain of contempt. This court cannot agree. The district courts exercise a supervisory authority over the grand jury function. Should a witness raise a nonconstitutional defense in opposition to a grand jury directive to provide nontestamentary evidence, the district court’s duty to prevent abuse of the grand jury process would be triggered by a motion to compel that evidence. Therefore, the witness would be granted an opportunity to show abuse of the process, and the court would be required to determine the propriety of the subpoena and/or the directive.
See In re Grand Jury Proceedings [Schofield I], supra;
and
In re Grand Jury Proceedings [Schofield II],
The issue remains, therefore, whether an Assistant U. S. Attorney has the authority to require a subpoenaed grand jury witness to provide handwriting exemplars without a dirеctive from the grand jury. The U. S. Attorney’s powers in connection with a grand jury investigation are substantial. He may propose witnesses to be subpoenaed, have subpoenas issued in blank by the court served without consulting the grand jury, and generally direct the investigation.
In re Melvin,
“[t]he Constitution of the United States, the statutes, the traditions of our law, the deep rоoted preferences of our people speak clearly. They recognize the primary and nearly exclusive role of the Grand Jury as the agency of compulsory disclosure.” They do not recognize the United States Attorney’s office as a proper substitute for the grand jury room and they do not recognize the use of a grand jury subpoena, a process of the District' Court, as a compulsory administrative process of the United States Attorney’s office.
Durbin v. U. S.,
The case most directly relevant to the issue sub judice is In re Melvin, supra. There, the petitioner was subpoenaed by a grand jury for fingerprinting and photographing. Four months later, the Assistant U. S. Attorney sought a court order requiring a lineup described as “necessary for the Grand Jury’s investigation”. There was no showing that the grand jury had sought the petitioner’s participation in the lineuр. The appellate court vacated the district court’s order requiring petitioner to appear in the lineup, holding that the district court exceeded its authority because the order “was not shown to have been in aid of an appropriate dirеctive of the grand jury issued to Melvin and was lacking any other basis of authority.” Id., at 5. There is a factual distinction between the case before this court and Melvin in that O’Kane was on his way to the grand jury, and the incident in Melvin took place four months later. However, given the importаnce of the rights under consideration and the ease with which the Assistant U. S. Attorney could have obtained a directive from the grand jury in this case, that distinction is not dispositive.
The First Circuit case is couched in terms of balancing the interest of the public in the grand jury investigative prоcess against the rights of the individual to be protected from abuses of that process. The court highlights the broad investigative powers of a grand jury and the substantial powers of an Assistant U. S. Attorney in connection with a grand jury investigation. However, it also uses strong language tо assert that the Assistant U. S. Attorney may not use his subpoena powers under Fed.R.Crim.P. 17 to gather evidence without the participation of the grand jury: “[t]he directive has to come from the grand jury itself and has to be conveyed by the grand jury to the witness in an appropriately fоrmal fashion.” Id., at 5. Additionally, the court stated that the failure of the Assistant U. S. Attorney to obtain a directive from the grand jury
was no mere technical error, as the Government asserts, but an error affecting the proper roles of the prosecutor and the grand jury, sincе to endorse such a procedure would be to allow the United States Attorney to assume the powers of a grand jury . .
Id., at 4. In accordance with its analysis and the First Circuit’s persuasive decision, this court concludes that it is not sufficient that an individual be subpoenaed before the grand jury for the U. S. Attorney’s office to be empowered to obtain exemplars; the grand jury itself must direct the furnishing of nontestamentary evidence such as handwriting exemplars. Without such a directive, under the facts of this case, the district court does not have jurisdiction to compel the evidence sought. See U. S. v. Holland, supra.
It is noted that
In re Melvin II,
The final issue presented by this motion to suppress handwriting exemplars is whether they were given voluntarily. If so, the witness need not be under indictment, under arrest, or under grand jury directive. See U. S. v. Holland, supra. Defendant O’Kane argues that the exemplars were provided under coercive threat of a contempt charge. The government contends that they were given voluntarily because the witnesses were given a choice as to when to provide the exemplars and because no one objected.
In
Bradford v. U. S.,
ORDERED AND ADJUDGED that the defendant’s motion to suppress handwriting exemplars be and the same is hereby granted.