Opinion
Criminal Action No: 99-210 SECTION: "R"(3)
July 13, 2000.
ORDER AND REASONS
Before the Court is the Government's motion to compel handwriting specimens from defendant, Nhu Nguyen, and Phong Van Le, President of corporate defendant American Rose Discount and Wholesale, Inc. The Court rules as follows.
I. BACKGROUND
This case arises out of a 47-count superseding indictment filed by a grand jury sitting in the Eastern District of Louisiana against defendants, Nhu Nguyen and American Rose Discount and Wholesale, Inc. The superseding indictment charges Nguyen, the former President of American Rose Discount, with conspiracy to possess pseudoephedrine with reason to believe that the listed chemical would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841 (d)(2) and 846, and knowing and intentional failure to report distribution of pseudoephedrine to the Drug Enforcement Agency as required under 21 U.S.C. § 830, in violation of 21 U.S.C. § 824 (a) (10). (See Sup. Indict., Jan. 21, 2000, Counts 1, 43-47.) The superseding indictment further charges both Nguyen and American Rose Discount with numerous counts of the possession and distribution of pseudoephedrine with reason to believe that the listed chemical would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841 (d)(2). ( See Id. Counts 2-42.) To prove its case against defendants, the Government will rely primarily on invoices, shipping receipts, bills of lading, and copies of checks which allegedly detail the purchase and sales of pseudoephedrine by Nguyen and American Rose Discount. The Government asserts that this documentary evidence contains the handwriting of certain individuals. The Government now seeks to compel the production of handwriting exemplars from Nhu Nguyen and Phong Van Le in order to identify the authors of these documents. Phong Van Le has filed an opposition to the motion.
II. DISCUSSION
It is well established that the compulsion of handwriting exemplars does not violate either the Fourth or Fifth Amendments to the United States Constitution. See United States v. Euge, 444 U.S. 707, 100 S.Ct. 874 (1980). In United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 776 (1973), the Court rejected petitioner's claim that his Fourth Amendment rights were violated when a grand jury subpoenaed him to furnish samples of his handwriting. The Court held that "[h]andwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristic of a person's script than there is in the tone of his voice." Id.
Phong Van Le argues that the compulsion of a handwriting exemplar requires a showing of probable cause, just like any other seizure. The Fifth Circuit has rejected that argument. In United States v. Nix, 465 F.2d 90, 93 (5th Cir. 1972), the court noted that the circuits were divided on the issue of whether the Fourth Amendment prohibits issuance of an order to compel handwriting samples absent a showing of probable cause. The court sided with the Second Circuit's determination that "`handwriting and voice exemplars fall on the side of the line where no reasonable expectation of privacy exists,' and consequently outside of the protection of the Fourth Amendment." Id. ( quoting United States v. Doe, 457 F.2d 895, 898 (2d Cir. 1972)). Further, Phong Van Le's reliance on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394 (1969), is misplaced. In Davis, the Court excluded from evidence fingerprints obtained as the product of an illegal detention. See Id. at 723-24, 89 S.Ct. at 1396. There, it was the initial detention of the defendant, not the taking of the fingerprints, that violated the Fourth Amendment. The Supreme Court has subsequently distinguished Davis and held that it "is plainly inapposite to a case where the initial restraint does not itself infringe the Fourth Amendment." United States v. Dionislo, 410 U.S. 1, 11, 93 S.Ct. 764, 770 (1973). See United States v. Messercola, 701 F. Supp. 482, 484 (D.N.J. 1988) (rejecting argument based on Davis that pretrial subpoena of photograph of defendant's close friend constituted seizure in violation of Fourth Amendment).
The Supreme Court has also held that the taking of a handwriting sample does not violate an individual's Fifth Amendment privilege against self-incrimination. See Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953 (1967). See also United States v. Blount, 315 F. Supp. 1321 (E.D. La. 1970) (Government's compulsion of handwriting specimens did not abridge defendant's privilege against self-incrimination). The privilege reaches only compulsion of a defendant's communication. See Id. "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." Id. at 266-67 (quoting United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926 (1967)). Because the Government seeks the handwriting samples of Nhu Nguyen and Phong Van Le for the purpose of comparing them to documents potentially signed by them, and not for their testimonial content, the Fifth Amendment is not implicated.
Finally, Phong Van Le argues that because he is not a defendant in this matter, the Government can only compel his handwriting exemplar by means of a grand jury subpoena. Courts have rejected efforts to limit the compulsion of handwriting and voice exemplars to the grand jury process. See United States v. Woods, 544 F.2d 242, 263 (6th Cir. 1976). See also United States v. Vanegas, 112 F.R.D. 235, 237 (D.N.J. 1986) ("Courts have consistently compelled production of physical evidence such as handwriting exemplars post-indictment and pretrial upon the government's request without reference to any precise procedural mechanism for their production."). The Court finds a sufficient showing exists for the Government to issue a Rule 17(c) subpoena ordering Phong Van Le to provide the handwriting exemplars requested by the Government. Rule 17(c) of the Federal Rules of Criminal Procedure provides that "a subpoena may . . . command the person to whom it is directed to produce the books, papers, documents or other objects designated therein." The Court notes that other courts have upheld the use of Rule 17(c) subpoenas ordering the production of handwriting exemplars and similar nontestimonial physical evidence by non-party defendants. See Messercola, 701 F. Supp. at 485 (pretrial Rule 17(c) subpoena requiring that defendant's close friend submit to photographing); United States v. McKeon, 558 F. Supp. 1243, 1244 (E.D.N.Y. 1983) (Rule 17(c) subpoena requiring defendant's wife to provide handwriting exemplars for possible use at trial).
The Court recognizes that a Rule 17(c) pretrial subpoena must comply with the requirements of relevancy, admissibility and specificity. See United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 3103 (1974). To obtain pretrial production and inspection of unprivileged materials from a third party witness, a party must show:
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."Id. at 699-700, 94 S.Ct. at 3103.
Here, the Government asserts that from May 1998 to April 1999, the time period of the possession charges against American Rose Discount in the superseding indictment, Phong Le was an employee of the company and signed several documents acknowledging receipt of pseudoephedrine on its behalf. The Government claims that if the handwriting exemplars proved a positive identification, they will establish receipt of the pseudoephedrine by American Rose Discount and the first element of 21 U.S.C. § 841 (d)(2) — possession. Because the handwriting exemplars must first be examined by a properly qualified expert, it is clear that the failure to obtain the exemplars pretrial may tend to unreasonably delay the trial. Based on the foregoing, the Court finds that the Government's request is made in good faith and is not intended as a general "fishing expedition" that attempts to use Rule 17(c) as a discovery device.
III. CONCLUSION
For the foregoing reasons, the Government's motion is granted. The Court orders Nhu Nguyen to provide handwriting exemplars as sought by the Government and orders Phong Van Le to produce exemplars in response to a Rule 17(c) subpoena ordering him to produce the same.
In its reply brief, the Government sought to amend its motion to compel handwriting exemplars from another employee of American Rose Discount, Ramesh Tran. The Court declines to order Ramesh Tran to produce handwriting exemplars until defendant has had an opportunity to respond to the motion. Any reply shall be filed with the Court no later than Friday, July 21, 2000.