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IN THE UNITED STATES DISTRICT
COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
In Re: MISC. No. 1/8306/03-05
WARD DEAN IN CAMERA
MOTION FOR ORDER TO SHOW
The United States of America, acting by and through the undersigned Assistant United States Attorney moves for an order from this court directing that WARD DEAN show cause why he should not be held in civil contempt for failure to comply with lawful orders of this court. In Support of said motion, below is the government's memorandum.
MEMORANDUM IN SUPPORT OF THE
MOTION
FOR ORDER TO SHOW CAUSE
The grand jury is conducting an investigation into whether WARD DEAN has willfully failed to pay income taxes in the years 1997, 1998, 1999, 2000, and 2001. By letter dated April 30, 2003, the undersigned put WARD DEAN on notice that he was a target of a grand jury investigation. Attached hereto and made a part hereof as exhibit " A " is a copy of the April 30, 2003 letter. In the April letter, the undersigned also put WARD DEAN on notice that handwriting exemplars may be expected. Specifically, the letter stated:
I am also informing you that in the near future you may be subpoenaed to produce physical evidence, such as handwriting exemplars. The state of the law is that you can be required to provide those exemplars as such is no.t considered testimonial in nature. You can not refuse. If you do, you can be subject to contempt of court for your willful disobedience to such a lawful court order. The Court can act to force you to comply with such a lawful subpoena by fine or imprisonment unless you comply. You should discuss this with the attorney of your choice as well. (Emphasis in the original) By letter dated May 20, 2003, the undersigned notified WARD DEAN that a grand jury subpoena was being issued to require him to provide a handwriting exemplar .Attached hereto and made a part hereof as exhibit "B " is a copy of that letter. In that letter, the undersigned noted:
You either have been or will be served
with a grand jury subpoena to provide a
handwriting exemplar. The purpose of this letter is to explain that
the purpose of the subpoena is to obtain copies of your handwriting.
You will not appear before the grand jury itself and you will not be
asked any questions. Indeed, as I indicated in my last letter, as you
are a target of the investigation, the government cannot compel any
testimony. However, the law does require you to provide physical evidence
such as handwriting. Therefore, you must appear on the date indicated
and provide exemplars. Failure to do so can result in sanctions. Therefore,
I urge you to appear as required. If there is another date which is
more accommodating to you, I would be happy to consider arranging for
a different date before the date which appears on the subpoena.
Special Agent Burgess hand delivered that letter to WARD DEAN at the same time that she served a subpoena dated May 20, 2003 directing that Dean appear on June 15, 2003 and supply handwriting exemplars. WARD DEAN was served that subpoena on June 4, 2003 by Special Agent Tanya Burgess. Attached hereto and made a part hereof as exhibit "C" is a copy of that subpoena.
On or about May 30, 2003, WARD DEAN appeared at the United States Attorney's Office, stated that he was unable to attend the June grand jury and requested the law which required him to appear and give a handwriting exemplar. By letter dated June 2, 2003, the undersigned acknowledged that DEAN could not appear at the June grand jury and, at DEAN's request, set the date for the handwriting exemplar for July 15, 2003. The undersigned also provided DEAN with the applicable law, while again stressing that he [DEAN] should obtain the services of an attorney. Attached hereto and made a part hereof as Exhibit "D" is a copy of that letter. In the body of the letter, the undersigned noted:
I understand that you question the authority
that requires you to produce a
handwriting exemplar .I am willing to provide you with certain case
citations
establishing your responsibility. However, please understand, I am not
your
attorney and can not provide you legal advice. I have repeatedly encouraged
you to discuss your case with an attorney. I strongly encourage you
to meet with an attorney to discuss this matter. You must make your
own decision. However, that decision should be made only after you receive
advice from your own attorney. As a courtesy, I have provided simply
a small representation of the existing case law regarding the issue
of compelled handwriting samples. The law is uniform. Please understand
that the law requires you to provide physical evidence such as handwriting
samples. Therefore, you must appear on the date indicated and provide
exemplars.
On June 4, 2003, Special Agent Tanya Burgess personally served WARD DEAN with a grand jury subpoena requiring him to appear at 9:00 O'clock in the morning of Tuesday, July 15, 2003 for the purpose of supplying handwriting exemplars. Attached hereto and made a part hereof as exhibit "E" is a true copy of that subpoena.
During approximately the same period of time, WARD DEAN attempted to identify the names and addresses of the grand jury members by asking the Clerk of Court for that information. DEAN then directed a letter to the grand jury foreperson.
WARD DEAN maintains a internet site identified as www.warddeanmd.com. On that site, he has a folder entitled IRS Update. At that location, he has placed photographs of agents who have served him with subpoena and copies of letters he has received regarding this investigation. Attached hereto and made a part hereof as exhibit "F " is a downloaded copy of what is contained on that segment of his web page.
By letter dated July 7, 2003, WARD DEAN contacted the United States Attorney's Office to demand certain information on or before the taking of any exemplar. Attached hereto and made a part hereof as exhibit "G " is a copy of that letter. At the close of the letter, WARD DEAN noted:
It is only after receiving these documents that I can ascertain, under the guidelines of FCIC v. Merrill, whether I want to take the risk that you or your agents have the requisite authority to require me to do anything.
On the morning of July 8, 2003, WARD DEAN again appeared at the United States Attorney's Office and demanded information regarding the grand jury process. WARD DEAN appeared before the receipt of his July 7, 2003 letter. The undersigned specifically reminded DEAN that he was expected to appear on Tuesday as directed and also again strongly encouraged him [DEAN] to obtain the services of an attorney. The fact that WARD DEAN was still required to appear was confirmed by a letter dated July 9, 2003, mailed to DEAN. Attached hereto and made a part hereof as exhibit "H" is a copy of the July 9, 2003 letter.
The law pertaining to the conduct of a grand jury is covered by Rule 6 of the federal Rules of Criminal Procedure. The law pertaining to the Court's power to enforce a subpoena is well recognized and codified in Rule 17, Fed. R. Crim. Proc. Rule 17(g) specifically provides:
The Court ...may hold in contempt a witness
who, without adequate excuse,
disobeys a subpoena issued by a federal court in that district.
The Eleventh Circuit has specifically refused to adopt any requirement that the United States Attorney's Office justify, before an individual's compliance with the subpoena, the need for the subpoena, the United States Attorney's authority, or any of the matters as outlined in WARD DEAN's letter of July 7, 2003. In fact, in the Eleventh Circuit, the law is clear that such pre-requisites is both unnecessary and unduly burdensome. See In re Grand Jury Proceedings, 691 F.2d 1384, 1387-1388 (11 th Cir. 1982) (any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws.); In re Grand Jury Proceedings ( United States v. McLean ), 565 F .2d 318 ( 5th Cir .1977); In re Grand Jury Proceedings (United States v. Guerrero), 567 F.2d 281 (5th Cir.1978).
The government would submit that WARD DEAN's refusal to comply with the grand jury subpoena is not criminal but civil in nature. See Shillitani v. US. 384 U.S. 364, 368, 86 S.Ct. 1531, 1534 (1966) and In re Grand Jury Proceedings, 588 F.2d 429, 429 (11 th Cir. 1979).
lThere is a mechanism for challenging a subpoena. See generally Rule 17(c)(2). DEAN has not availed himself of that provisions and has not demonstrated any valid grounds to quash the subpoena.
As the distinction was phrased in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449, 31 S.Ct. 492, 501,55 L.Ed. 797 (1911):
...the act of disobedience consisted
solely 'in refusing to do what had been ordered,' i.e., to answer the
questions, not 'in doing what had been prohibited.'
And the judgments imposed conditional imprisonment for the obvious purpose
of compelling the witnesses to obey the orders to testify.
The Court continued by noting that a person who refuses to comply with a lawful order holds the keys to the prison in his or her own hands. The person need only comply with the Court's order.
Here the government is only seeking that the defendant be required to comply with the lawful orders of this court and provide a handwriting exemplar. The law is clear that a handwriting exemplar is not protected by the law and giving a hand writing exemplar can be required. The Eleventh Circuit in U.S. v. Chaney, 662 F.2d 1148,1155 (llth Cir. 1981) noted:
It is well settled that the taking of
handwriting exemplars does not violate a
defendant's fifth amendment right against self-incrimination. United
States v.Euge, 444 U.S. 707,100 S.Ct. 874, 63 L.Ed.2d 141 (1980); Gilbert
v. State of California, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d
1178 (1967); United States v. McGann, 431 F.2d 1104,1108 (5th Cir.),
cert. denied, 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1970); Higgins
v. Wainwright, 424 F.2d 177 (5th Cir.), cert. denied, 400 U.S. 905,
91 S.Ct. 145, 27 L.Ed.2d 142 (1970). This is so whether the handwriting
exemplar is taken before or after indictment. Appellant's claim is therefore
meritless.
As noted by the Supreme Court in Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 953, a case cited by the Eleventh Circuit:
We pass the question of waiver since we conclude that the taking of the exemplars violated none of petitioner's constitutional rights.
First. 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, 1833, 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, supra, 388 U.S., at 222--223, 87 S.Ct., at 1929--1930. No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
Second. 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 from his right to a fair trial. Cf. United States v. Wade, supra. 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, supra, 388 U.S., at 227--228, 87 S.Ct., at 1932--1933.
As demonstrated by the attached exhibits, WARD DEAN has clearly represented his intention not to comply with the law, no matter how the government seeks to accommodate him. Case law, as cited above, makes equally clear that DEAN is not entitled to an attorney as the giving of a handwriting exemplar is not a critical stage and thus his knowing refusal to employ an attorney should not be the basis for further delay. Moreover, DEAN will have the opportunity to employ an attorney at a later date to contest any result of the analysis of his hand writing if such becomes an issue.
Of equal importance is the fact that DEAN has demonstrated by his conduct that his true purpose is simply not to co-operate under any conditions. Rather he [DEAN] seeks to control the conduct of events for his own purposes. As noted by the Eleventh Circuit, further delay is not in the best interests of justice. See In re Grand Jury Proceedings, 691 F .2d 1384, 1387-1388 (11 th Cir .1982) ( any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws.).
On Tuesday, July 15, 2003, WARD DEAN failed and refused to provide handwriting exemplars.
WHEREFORE, the government prays that this
Court enter an order directing either that the defendant provide the
requisite handwriting sample or that he be incarcerated until such time
as he agrees to comply with the lawful orders of this court.
Respectfully submitted,
GREGORY R. MILLER
United States Attorney
/s/ Benjamin W. Beard
BENJAMIN W.BEARD
Assistant United States Attorney
Florida Bar No.0145746
Suite 300
21 East Garden Street
Pensacola, Florida 32502
(904) 434-325
