Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-CR-349 -- Milton I. Shadur, Judge.
Before Pell and Wood, Circuit Judges, and Campbell, Senior District Judge.*fn*
The district court, in a case involving the alleged forgery of United States Treasury checks, suppressed the handwriting exemplars, fingerprints, and photographs of three defendants secured by postal inspectors through the use of grand jury subpoenas duces tecum restricted to those identification items. At the time those items were being obtained, each defendant made statements which were also suppressed. The government appeals pursuant to 18 U.S.C. § 3731.
The essential facts are largely undisputed. Some of the details in evidence which do not control, although mentioned here, are disputed. The trial judge in brief findings appears generally to have adopted the government's version of the principal events. Between 1976 and the filing of the indictment in 1980, two postal inspectors were engaged in an investigation of the theft and forgery of hundreds of United States Treasury and other checks stolen from the mails. When the three defendants, Loster Avery, Joseph Cook, and Anthony Santucci became suspects, the postal inspectors conferred with the Assistant United States Attorney who completed blank grand jury subpoenas duces tecum and gave them to the inspectors to serve.*fn1 The government concedes that neither were the subpoenas sought or obtained from any grand jury, nor had the case been opened before a grand jury.
The service of the subpoenas on each of the defendants followed a similar pattern.
Four subpoenas duces tecum were issued for Avery. The first was left by the postal inspectors with Avery's niece at what was believed to be his home, directing him to appear before the 1976 Grand Jury. He did not. Two additional subpoenas were issued, but not served. In 1977, Avery was served personally and required to appear before the February 1977 Grand Jury. The trial judge found that Avery also was given the oral option by the postal inspectors to meet with them at the post office to supply the identification items if he preferred that to a grand jury appearance. Later Avery called one of the inspectors, saying he did not want to go to the Federal Building, but would prefer to meet with the inspectors in their office. The inspector advised Avery, it is claimed, that he did not have to come to the office, but Avery responded that he wanted to get it straightened out and selected a date for the meeting. The Assistant United States Attorney testified that Avery also called him and discussed the subpoena.
At the meeting with the postal inspectors, Avery was first fully advised of his constitutional rights, a procedure which would have been required had he been in custody, although he was not. He executed the customary warning and waiver form. The inspectors testified further that Avery was again informed that the option was still open to him to appear before the grand jury if he preferred. Avery was advised that the purpose was to secure the identification items. Although advised he could remain silent and was not required to give any statement, Avery nevertheless proceeded to give an oral statement which, when it was reduced to writing, he signed. As Avery had an injured hand, he returned a second time to complete the handwriting exemplars. The trial court found Avery was courteously treated, but discerned that during the suppression hearing it was evident that Avery was easily led by counsel during questioning.
A similar subpoena duces tecum was issued for Cook and left for Cook with Avery's niece upon her representation that she would give it to Cook. In any event, Cook did not respond. Later the inspectors served Cook personally, at which time the inspectors explained the subpoena and extended the same option of providing the identification items at their office instead of before the grand jury. Cook failed to appear at either place. The inspectors then left a new subpoena with Cook's wife, but again he did not respond. Next, according to the inspectors, they left word with Cook's father to have Cook call them or the Assistant United States Attorney. Cook called one of the inspectors and told him he wanted to come to the office and get the problem resolved. Cook suggested the date and appeared at the inspectors' office accordingly. Cook was similarly advised of his constitutional rights and also signed a warning and waiver form. Cook said he thought the problem had been resolved and began to talk about the checks. Again, he was advised that he did not have to talk to the inspectors, but the inspectors say he replied that he wanted to. Cook then proceeded to give an oral statement. When that was concluded, he said he had to leave, but agreed to return to furnish his fingerprints. He failed to appear for that appointment, but after being recontacted, he again went to the office of the inspectors. After again being advised of his rights, according to the testimony, he completed the fingerprinting process, but also added that he wanted to give a statement about what had happened in order to try to get the matter settled. Cook then gave additional incriminating oral and written statements. Cook did not testify at the suppression hearing.
Because of poor health, Santucci did not testify at the suppression hearing, but was deposed in Arizona concerning the facts surrounding the service on him of several grand jury subpoenas duces tecum calling for the identification items. He tells a somewhat different version, claiming that he was not given an option, but was told to appear at the post office or be arrested. He did go to the post office twice to meet with the inspectors, but explained that he believed he was compelled to go there and to answer all questions. Santucci further denied knowing that he was the subject of a criminal investigation, or what the warning and waiver form was which he signed. During those two trips to the inspectors' office, he provided the identification items, and in addition, as had the others, also gave a statement. The Assistant United States Attorney and the two inspectors did not testify as to Santucci, but it was stipulated that their testimony would be that the Santucci subpoenas also were not authorized by a grand jury and that Santucci was given the same option as had been given to Avery and Cook. It was further stipulated that the inspectors would testify that Santucci was advised of his rights, stated that he understood them, and was further advised that he was not under arrest, and could leave. Finally, it was stipulated that the inspectors would testify that Santucci gave a statement without coercion.
The trial judge credited the government's version of the events as paralleling what had transpired in connection with Avery and Cook.
The trial judge made clear what the issues were not. There was no dispute that the grand jury could by subpoenas duces tecum require handwriting exemplars, photographs, and fingerprints. United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1963). There was no dispute that the grand jury could provide in its subpoena that the witness be given an option to provide the identification evidence outside the actual presence of the grand jury. United States v. Duncan, 598 F.2d 839, 867 (4th Cir. 1979), cert. denied, 444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1980). As the trial judge commented, this is often a desirable practice. Nor did the trial judge see any problem with permitting the United States Attorney to fill in blank grand jury subpoenas requiring the identification material without actual prior grand jury authorization. Situations were distinguished in which the grand jury was used to gather evidence for a civil suit or for the purposes of obtaining additional evidence after indictment. In re Grand Jury Proceedings, 632 F.2d 1033, 1041 (3d Cir. 1980). We are in full accord with those observations on the law.
The issue was narrowed to whether or not the grand jury could be by-passed by the United States Attorney's combined use of two of the above procedures found to be permissible when occurring alone. That is, can the United States Attorney be permitted to use evidence gathered by the use of a grand jury subpoena not actually authorized by a grand jury that also gives the witness an option to satisfy that subpoena outside the presence of the grand jury? The trial court viewed the combination of permissible procedures to be constitutionally impermissible because of the absence ...