In re: Grand Jury Proceeding Relating to John Doe, (2nd Cir. 2009)
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08-0476-cv
In re: Grand Jury Proceeding Relating to John Doe
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT'S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)." UNLESS THE SUM M ARY ORDER
IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT
PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT http://www.ca2.uscourts.gov/), THE PARTY
CITING THE SUM M ARY ORDER M UST FILE AND SERVE A COPY OF THAT SUM M ARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUM M ARY ORDER IS CITED. IF NO COPY IS SERVED
BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST
INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of March, two thousand nine.
PRESENT:
HON. PETER W. HALL,
HON. DEBRA ANN LIVINGSTON,
Circuit Judges,
HON. JOSEPH F. BIANCO, District Judge.* In re Grand Jury Proceeding Related to John Doe No. 08-0476-cv FOR APPELLANT: Gary G. Becker, Gary G. Becker, L.L.C., New York, New York. FOR APPELLEE: Martin E. Coffey, Assistant United States Attorney (Stephen E. Frank, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, New York, New York. Appeal from the United States District Court for the Eastern District of New York (John Gleeson, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court dated December 14, 2007 and filed on December 21, 2007, is AFFIRMED.
Defendant-appellant John Doe appeals from an order holding Doe in civil contempt for failing to abide by the district court's order compelling Doe to provide fingerprints, handwriting exemplars and a photograph to the grand jury. We assume the parties' familiarity with the factual background, procedural history and issues raised in this appeal. For the reasons that follow, we affirm the district court's order holding Doe in civil contempt of the court.
We conduct an exacting review, for abuse of discretion, of an order holding a party in civil contempt. See E.E.O.C. v. Local 638, 81 F.3d 1162, 1171 (2d Cir. 1996). Civil contempt may be imposed for failure to comply with an order of the court if that order is clear and unambiguous, the proof of noncompliance is clear and convincing, and the respondent has not been reasonably diligent in attempting to comply with the order. Id.
Regarding the challenge to the request for handwriting exemplars, "[t]he taking of . . . exemplars [does] not violate petitioner's Fifth Amendment privilege against self-incrimination," because the privilege protects only against the compelling of communications, regardless of their form. Gilbert v. California, 388 U.S. 263, 266 (1967); see United States v. Hubbell, 530 U.S. 27, 34-35 (2000). "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 [Fifth Amendment] protection." Gilbert, 388 U.S. at 266-67. "The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms `to be regarded as reasonable.'" United States v. Dionisio, 410 U.S. 1, 11-12 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76 (1906)).
The district court properly relied on Gilbert when it determined that the handwriting exemplar sought by the subpoena at issue was not protected by the Fifth Amendment. Doe calls into question the scope of the Fifth Amendment protection announced in Gilbert. Only the Supreme Court, however, has authority to reconsider its ruling in Gilbert. See Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."). The government acknowledges that Doe would be entitled to assert the Fifth Amendment right against self-incrimination if the government were seeking written answers to incriminating questions or a signature on an incriminating statement or if the government were seeking "to plumb Doe's thought processes by testing [Doe's] spelling abilities through dictation." The grand jury subpoena, however, does not implicate any of these possibilities, and Fifth Amendment protection is unavailable with respect to the identifying information that is sought.
Contrary to Doe's argument with respect to all the items sought by the subpoena, we also find that the subpoena describes with reasonable particularity the evidence to be provided to the grand jury. While Doe is not yet privy to the text the government intends to ask Doe to copy as Doe's handwriting exemplar, by the very arguments made to this Court, it is clear Doe understands that it is Doe's own fingerprints, handwriting exemplar and a photograph that are sought. If it were otherwise, Doe would not be invoking her Fifth Amendment rights.
The district court's order compelling Doe's compliance with the subpoena is clear and unambiguous, the proof of noncompliance is clear and convincing, and Doe has opposed efforts to accomplish what was ordered. Accordingly, the district court did not abuse its discretion when it held Doe in civil contempt of the court based on Doe's refusal to comply with the grand jury subpoena, as she had been ordered to do.
The order of the district court is AFFIRMED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
* The Honorable Joseph F. Bianco, United States District Judge, sitting by designation.
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