
    In re GRAND JURY SUBPOENA TO JOHN DOE.
    No. 3:06-mc-1-J32MMH.
    United States District Court, M.D. Florida, Jacksonville Division.
    Feb. 8, 2006.
   ORDER

CORRIGAN, District Judge.

This case is before the Court on the United States’ In Camera Motion for an Order to Show Cause Why Witness Should Not be Held in Contempt of Court (Doc. S-5), and petitioner John Doe’s Motion to Quash Grand Jury Subpoena (Doe. S — 13). Petitioner responded in opposition to the United States’ Motion, (Doc. S-7), and the United States responded in opposition to petitioner’s Motion (Doc. S — 16). On February 2, 2006, the Court heard in camera argument on both motions.

I. BACKGROUND

On December 1, 2005, petitioner’s attorney accepted service of a grand jury subpoena directing petitioner to appear at the United States Courthouse in Jacksonville, Florida to provide a handwriting exemplar. The parties agreed to an extension of time to January 17, 2006 for petitioner to comply with the subpoena. After the parties were unable to agree to a further extension, the government filed in camera for an order to show cause why the petitioner should not be held in contempt for failure to complete the exemplar. Petitioner filed an in camera motion for an order continuing his appearance to afford him the opportunity to research and file a motion to quash the subpoena. (Doc. S-3). On January 20, 2006, the Court held an in camera telephone hearing to discuss the status of this matter. At the hearing, the Court granted petitioner’s motion for extension of time to file a motion to quash the subpoena, and set the February 2, 2006 in camera hearing on the motion to quash and the government’s motion for an order to show cause. Petitioner submitted the motion to quash (Doc. S — 13) and a memorandum in support of the motion (Doc. S-15) on January 31, 2006. The government submitted its response (Doc. S — 16) at the February 2, 2006 hearing. The government’s’ motion for an order to show cause and petitioner’s motion to quash are considered in conjunction.

The grand jury seeks a handwriting exemplar from petitioner in furtherance of a criminal tax investigation. The government posits that Supreme Court precedent clearly establishes that a handwriting exemplar provided by the target of a criminal investigation does not implicate the Fifth Amendment privilege against self-incrimination. Petitioner assails the government’s position and states that the overwhelming majority of publications by handwriting and psychological experts establish that handwriting itself is an “intellectual process,” and compelling an individual to provide an exemplar impermissibly delves into the mind of the individual; thus, the giving of the exemplar is not just a physical act, but a testimonial and communicative exercise in violation of the Fifth Amendment. Petitioner further states that requiring such an exemplar violates the Fourth Amendment because he has a reasonable expectation of privacy in his handwriting. Petitioner finally argues that the government has failed to show that the subpoena is relevant to the grand jury investigation. The government responds that procuring a handwriting exemplar does not implicate the Fourth Amendment because petitioner does not have a reasonable expectation of privacy in his signature or writing, and that the handwriting exemplar is relevant to the tax fraud investigation.

II. DISCUSSION

A. Fifth Amendment

The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend V. The seminal case on the constitutionality of handwriting exemplars under the Fifth Amendment is Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

In Gilbert, the petitioner appealed his conviction for murder and robbery on multiple grounds, one of which was his claim that the FBI requiring him to provide a handwriting exemplar violated his Fifth Amendment right against self-incrimination. 388 U.S. at 266, 87 S.Ct. 1951. The Supreme Court held that a handwriting exemplar merely displays a physical characteristic and thus is outside Fifth Amendment protections. Id. at 267, 87 S.Ct. 1951. The Court noted that the Fifth Amendment only protects “communications, whatever form they might take,” and distinguished a handwriting exemplar as falling outside of the protection because it is not “testimonial” or “communicative” in nature. Id. at 266-67, 87 S.Ct. 1951. The Court, however, somewhat qualified its holding and stated that “[n]o claim is made that the content of the exemplars was testimonial or communicative matter.” Id. at 267, 87 S.Ct. 1951.

After Gilbert, the jurisprudence on handwriting exemplars remained undisturbed for the ensuing thirty-three years, including the most recent Eleventh Circuit case on the issue, United States v. Stone, 9 F.3d 934, 942 (11th Cir.1993), where the Court’s holding is consistent with Gilbert. However, in United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000), Justice Thomas issued a concurring opinion, in which Justice Scalia joined, stating that in future cases he “would be willing to reconsider the scope and meaning of the Self-incrimination Clause.” 530 U.S. 27, 49, 120 S.Ct. 2037, 147 L.Ed.2d 24 (concurring, J., Thomas).

In Hubbell, the Court considered the issues of (1) whether the Fifth Amendment privilege against self-incrimination protects a witness from being compelled to disclose the existence of incriminating documents that the government cannot describe with reasonable particularity, and (2) if the witness produces such documents pursuant to a grant of immunity, whether federal law prevents the government from using those documents to bring criminal charges against him. 530 U.S. at 29-30, 120 S.Ct. 2037. The Court held that because the witness’s act of production was testimonial in nature, he could not be compelled to respond to the subpoena without a grant of immunity under 18 U.S.C. § 6003. Id. at 45-46, 120 S.Ct. 2037.

In the concurrence, Justices Thomas and Scalia state that they would be willing to re-examine the entire scope of the Self-incrimination Clause. Id. at 49, 120 S.Ct. 2037 (concurring, J., Thomas). In articulating their position, these Justices note that Supreme Court jurisprudence has limited the definition of the Fifth Amendment term “witness” to a “person that provides testimony,” restricting the protection to those communications that are “testimonial” in nature. Id. at 49-50, 120 S.Ct. 2037 (concurring, J., Thomas). Justices Thomas and Scalia advocate a broader reading of the term “witness,” contending the framers of the Constitution chose the word “witness” because it not only meant “to provide testimony,” but also “to give evidence” or “to furnish evidence.” Id. at 50, 52-54, 120 S.Ct. 2037 (concurring, J., Thomas). If the Supreme Court were ultimately to agree with Justice Thomas’ definition, one possible result is that a grand jury may not be able to compel a subject or target to perform any incriminating act, even those considered merely “physical,” such as providing a handwriting exemplar.

Further, federal courts have addressed “testimonial” aspects of handwriting exemplars and held that exemplars procured from dictation, rather than from simply copying written words or phrases, are testimonial and communicative, and thus subject to Fifth Amendment protection. See United States v. Campbell, 732 F.2d 1017, 1021 (1st Cir.1984) (a handwriting exemplar pursuant to oral dictation violates an individual’s Fifth Amendment rights because when the writer pens a word that is dictated, as opposed to merely being asked to write a word that is provided, it is akin to the individual providing the testimonial message of “[t]his is how I spell it”); see also United States v. Matos, 990 F.Supp. 141, 144 (E.D.N.Y.1998) (requiring a person to provide an exemplar from dictation that does not provide the spelling of the dictated words removes the handwriting exemplar from the purview of a mere physical act and into the realm of a testimonial or communicative act); United States v. Wade, 1995 WL 464908, *2 (S.D.N.Y.1995) (because a dictated handwriting exemplar requires the individual to demonstrate his cognitive abilities and reveal his thought processes, such an exemplar is prohibited by the Fifth Amendment); Cf. United States v. Carrasquillo, 2004 WL 102774, *4 (S.D.N.Y.2004) (only exemplars performed by dictation that contain spelling errors should be excluded under the Fifth Amendment).

Here, the United States does not seek to obtain petitioner’s exemplar through dictation, thus the Campbell line of cases is inapplicable. However, based on the view Justices Thomas and Scalia espouse in Hubbell, it is no longer free from all doubt that the Supreme Court would deem the requested exemplar in this case as outside Fifth Amendment protections. Nevertheless, Gilbert is still controlling precedent and unless and until the Supreme Court revisits that decision, handwriting exemplars deemed non-testimonial and non-communicative are beyond Fifth Amendment reach. See United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir.2006) (“we are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court”) (quoting Fla. League of Prof. Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir.1996)).

B. Fourth Amendment

Petitioner also contends that the Fourth Amendment’s protection from unreasonable searches and seizures protects him from having to provide a handwriting exemplar because he has a reasonable expectation of privacy in his handwriting. Specifically, petitioner states that handwriting “discloses the intimate thought processes of a person” and that he has attempted to make his signature private and free from “public incursion.” (Doc. S-15, pp. 34-35). The government believes precedent establishes that the Fourth Amendment affords no protection to petitioner.

A subpoena to appear before a grand jury is not a “seizure” within the meaning of the Fourth Amendment, United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and the Fourth Amendment is not violated when a grand jury directs the subject of an investigation to provide a handwriting exemplar. United States v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Here, the Court is not persuaded that, because petitioner has some notoriety and attempts to ensure his signature is not in the public domain, this distinguishes his handwriting and gives it Fourth Amendment protection.

C. Reasonableness of the Grand Jury Subpoena

Petitioner, relying on In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 92 (3d Cir.1973), further contests the grand jury subpoena claiming that the government has failed to make the necessary showing via affidavit that the exemplar is relevant to this grand jury’s investigation. The law, however, presumes, absent a showing to the contrary, that a grand jury acts within its legitimate scope of authority. United States v. R. Enterprises, Inc., 498 U.S. 292, 300-01, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991), The burden of showing unreasonableness of a grand jury subpoena is on the recipient who seeks to avoid compliance. Id. at 301, 111 S.Ct. 722.

Here, the Court finds that petitioner has failed to show that the grand jury subpoena is unreasonable or irrelevant to the underlying investigation. During the February 2, 2006 hearing, it became readily apparent that petitioner is well informed as to the nature of the grand jury investigation. Due to the potential criminal tax charges at issue, petitioner has been afforded a conference with the Internal’ Revenue Service (“IRS”) to discuss the potential charges. While the Department of Justice is not bound by the charging recommendation of the IRS, petitioner understands that, regardless of the statute ultimately charged, if any, the investigation concerns allegations of tax related fraud. The government states in its memorandum opposing petitioner’s motion to quash that it is commonplace in criminal tax fraud investigations for a grand jury to seek handwriting exemplars as evidence of whether an individual signed certain documents. Thus, even assuming arguendo that the government is required to make a preliminary showing of relevance, which the Supreme Court does not seem to require, it has done so.

D. The Exemplar

Having concluded that petitioner must give a handwriting exemplar, the Court turns to the scope of that exemplar. Of course, the government may not, in the guise of a handwriting exemplar, compel petitioner to provide information which would otherwise be protected by the Fifth Amendment. During the February 2, 2006 hearing, the government provided the Court with a copy of the proposed handwriting exemplar. The exemplar is an official Department of the Treasury Internal Revenue Service Form 6540; the exemplar also includes a Form 1040X and ten copies of the first page of that form. While the government refers to the exemplar as “routine,” that reference is unavailing as “routine” government practices do not necessarily equate to constitutionality.

The exemplar requires petitioner to write his name, address, social security number, birthplace, birth date, age, whether he is right or left handed, his occupation, his highest educational level completed, and whether he has any conditions which affect his present writing ability. The exemplar also requires petitioner to write all upper and lower case alphabet letters, names and job titles of fictitious people, various words and phrases, dates, days of the week, dollar amounts, numbers and fictitious addresses; the exemplar includes a sample Form 1040 tax return, a W-4 and 1040X forms for petitioner to sign.

The government states that the entire content of the exemplar is necessary to provide its handwriting expert sufficient information to make a proper handwriting comparison. However, at the conclusion of the February 2, 2006 hearing, the government offered to remove the identifying information from the first page of the exemplar and stated it would not require petitioner to sign any sample tax forms (W-4, 1040 and 1040X). The government made this offer to alleviate the Court’s concern that requiring petitioner to provide this information may potentially transform what is considered a physical act under Gilbert and its progeny into a testimonial and communicative exercise barred by the Fifth Amendment.

It appears there are no cases addressing whether the full scope of the Form 6540 (including the sample tax forms — 1040, W-4 and 1040X) is permissible under the Fifth Amendment. Because the government voluntarily offered to remove the potentially offending portions, the Court need not decide this issue. While the Court stops short of making such a ruling because of the government’s agreement, this may be a case of first impression, at least with respect to this form of exemplar, so the Court offers some analysis, recognizing it is likely dicta.

The salient constitutional issue is at what point providing the exemplar ceases to be a mere physical act and becomes testimonial and communicative, thus invoking Fifth Amendment protections. The parties cited no cases addressing this issue. The only case the Court was able to uncover that addressed the overbreadth of handwriting exemplars is United States v. McVeigh, 896 F.Supp. 1549 (W.D.Okla.1995). However, McVeigh only provides that after reviewing the three exemplars sought, the Court found no basis for concluding they were unreasonable or over-broad. 896 F.Supp. at 1558. Other than that the three exemplars sought cursive handwriting, there was no discussion as to the content of the exemplars. Id, Thus, this Court is left to analyze any testimonial aspects of the subject exemplar in light of Supreme Court precedent setting forth general “testimonial” standards.

To be testimonial the communication must, “explicitly or implicitly, relate a factual assertion or disclose information.” Hubbell, 530 U.S. at 37, n. 19, 120 S.Ct. 2037: Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990); Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). “Only then is a person compelled to be a ‘witness’ against himself.” Doe, 487 U.S. at 210, 108 S.Ct. 2341.

The government analogizes the first half of page one of the exemplar to routine booking questions. See Muniz, 496 U.S. at 601-02, 110 S.Ct. 2638 (questions of an individual’s name, address, height, weight, eye color, date of birth and age fall within the routine booking question exception to Miranda and fall outside Fifth Amendment protection because they merely address biographical data necessary to complete booking and pre-trial services). However, the information sought on the first half of page one is not limited to this type of information. The exemplar also seeks, inter alia, petitioner’s social security number, birthplace, occupation, the name, address and relationship of his nearest relative, and his highest level of education completed. Applying Hubbell, Muniz and Doe, a court might potentially find that these questions on page one, or at least some of them, ask petitioner to “disclose information” about himself, perhaps removing the exemplar from the realm of a mere physical act into a testimonial exercise in a given case.

As to the replica tax forms, the government represents that petitioner would only be required to sign his name on them, rather than writing all of the typical W-4, 1040 and 1040X information. The proffered reason for having petitioner sign the sample tax forms is that it would provide a necessary basis for a handwriting comparison because petitioner would have to sign his name in a box of similar dimensions as that appearing on the tax forms under investigation. However, as the government concedes, it certainly does not need to use replica tax forms to achieve this goal. It may well be that requiring such goes beyond a mere “physical” exemplar and asks petitioner to provide potentially incriminating “testimonial” evidence. Because of the government’s concession, the Court need not decide this issue.

III. CONCLUSION

Currently, controlling Supreme Court precedent provides that neither the Fourth nor Fifth Amendment protects petitioner from being compelled to provide a non-testimonial handwriting exemplar pursuant to a grand jury subpoena. Petitioner also fails to meet his burden to show that there is no reasonable possibility that the exemplar will produce information relevant to the ongoing grand jury investigation. Petitioner will be required to give the handwriting exemplar in its entirety, except for portions of the first half of page one seeking personal information and page eight (containing tax forms). In addition, instead of requiring petitioner to sign his name on blank tax forms, the government may obtain petitioner’s signature and the date in blank signature boxes of the same dimensions as those appearing on the W-4, 1040 and 1040X forms without any other identifying information. The allowable exemplar is attached as Exhibit “B.”

Accordingly, it is hereby ORDERED:

1. Petitioner’s Motion to Quash Grand Jury Subpoena (Doc. S — 13) is GRANTED IN PART AND DENIED IN PART. Petitioner is ordered to appear at the Office of the United States Attorney for the Middle District of Florida, Jacksonville Division, located on the eighth floor of the United States Courthouse, 300 North Hogan Street, Jacksonville, Florida 32202, on March 1, 2006, at 10:00 a.m., to perform the handwriting exemplar consistent with this Order. Because the performance of the handwriting exemplar will not occur before the grand jury, but rather inside the United States Attorneys’ Office, petitioner may be accompanied by one of his counsel, but counsel may not interfere with the giving of the exemplar consistent with this Order. The United States and petitioner are at liberty to mutually agree to another time and place for petitioner to perform the exemplar as long as it occurs on or before the March 1, 2006 deadline set forth above.

2. The United States’ In Camera Motion for an Order to Show Cause Why Witness Should not be Held in Contempt of Court (Doc. S—5) is DEFERRED. If petitioner fails to appear and give the exemplar as ordered herein, the Court orders him to appear at the United States Courthouse referenced above in Courtroom 10B on March 6, 2006, at 3:45 p.m., to show cause why he should not be held in civil contempt. The government should file an in camera notice on March 2, 2006, with service to petitioner’s counsel, stating whether petitioner has complied or whether the show cause hearing must go forward. 
      
      . To preserve grand jury secrecy, the undersigned has replaced all references to petitioner's name with the name "John Doe” and has deleted specific references to the grand jury. The Court has also made minor editorial revisions.
     
      
      . A copy of the proposed exemplar is attached to this Order as Exhibit "A.” The government represented at the February 2, 2006 hearing that it only intended petitioner to sign the various blank tax forms, rather than fill them out in their entirety.
     
      
      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
     
      
      . Exhibit "B” does not include replicas of the signature boxes contained in the 1040, W-4 and 1040X forms. While the government is permitted to have petitioner sign his name and date in signature boxes that meet the dimensions of those in the W-4, 1040 and 1040X forms, the boxes must appear on otherwise blank sheets of paper (though provisions can be made for a witness to petitioner’s signature to sign as well). The government must create these replica signature boxes if it desires petitioner to sign them.
     
      
      . Because the return of the subpoena is in the United States Attorneys' Office and not before the grand jury, the Court does not believe that Rule 6(d)(1), Federal Rules of Criminal Procedure, which limits the individuals allowed inside the grand jury session, applies.
     
      
      . Petitioner’s Motion for Leave to File an Over Length Brief (Doc. S—14) is GRANTED. Petitioner's Points and Authorities in Support of Motion to Quash Grand Jury Subpoena (Doc. S-15) is deemed filed and has been considered by the Court.
     