LOCATION: American Trust & Security Company
DOCKET NO.: 71-229
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 410 US 1 (1973)
ARGUED: Nov 06, 1972
DECIDED: Jan 22, 1973
John Powers Crowley - for respondent
Philip A. Lacovara - for petitioner
Facts of the case
Media for United States v. Dionisio
Audio Transcription for Oral Argument - November 06, 1972 in United States v. Dionisio
Warren E. Burger:
We will hear argument first in Number 71-229, United States against Dionisio.
Mr. Lacovara you may proceed.
Philip A. Lacovara:
Thank you Mr. Chief Justice and may it please the Court.
This case, United States against Dionisio and the next case on the Court's calendar this morning, United States against Mara, both raised important questions about the ability of federal grand juries to obtain exemplar evidence from recalcitrant witnesses.
Both cases are here on writs of certiorari applied for by the United States to the United States Court of Appeals for the Seventh Circuit.
In this case, the proceedings began when a special federal grand jury sitting in the Northern District of Illinois, the special February 1971 grand jury, subpoenaed Mr. Dionisio and approximately 20 others in a gambling investigation that the special grand jury was conducting.
Mr. Dionisio and others were ordered by the grand jury foreman to give voice exemplars and this was explained to them to be the reading of a transcript over a telephone connected to a recording device.
Mr. Dionisio refused to give the exemplars as directed by the grand jury foreman and as did other grand jury witnesses and the government, thereafter filed petitions to obtain court orders to compel the furnishing of the voice exemplars.
The government’s petition against Mr. Dionisio alleged that the special grand jury was investigating violations of federal criminal statutes that the grand jury thought it necessary and essential to obtain a voice exemplar of Mr. Dionisio’s voice on the telephone for the sole purpose of comparing his voice as recorded with voices intercepted pursuant to court orders issued by the Federal District Court.
The government also alleged that the transcript that Mr. Dionisio had been asked to read was special grand jury Exhibit 13, which the petition stated consisted of names, numbers and races, names of horses, numbers of horses and races and certain other information.
A hearing on petition in this matter, as well as the petitions with respect to the other 20 or so recalcitrant witnesses was held before Chief Judge Robson of the District Court.
And at that hearing, it was brought out that what the government was seeking was compliance with what was termed a reasonable order of the grand jury.
And this was explained to mean that if an exemplar that was clear was given only one exemplar would be necessary that on the basis of similar requests, several days earlier, exemplars had been given by other witnesses and the time consumed had been no more than 10 or 20 minutes.
That the government would preserve any and all original exemplars for subsequent comparison and expert analysis including by the defense and that counsel could be present during the taking of the exemplars, because the expected procedure would be that the exemplar would be given before a specially designated agent of the grand jury outside the grand jury room.
Chief Judge Robson entered orders directing each of the witnesses including Mr. Dionisio to provide the exemplars.
19 of the 21 witnesses did provide the exemplars under court order.
Mr. Dionisio and one other witness whose petition was ultimately dismissed by the government refused to give the exemplars asserting Fourth and Fifth Amendment defenses.
The Court entered an opinion, which is reprinted in the Appendix to our certiorari petition in which both the Fourth Amendment and Fifth Amendment claims were rejected.
On the Fourth Amendment issue, Chief Judge Robson held that since the grand jury subpoenas were lawful, the witnesses were properly subject to these directions, were not in unlawful detention within the meaning of this Court’s decision in Davis against Mississippi and relying on this Court's decisions in Gilbert, Wade and other cases held that no Fifth Amendment values are impinged upon by requiring a person to give exemplars.
When Mr. Dionisio refused an open court to give the exemplars, he was committed for contempt until he complied with the order or until the expiration of 18 months which is the maximum statutory imprisonment for civil contempt.
On appeal, after Mr. Dionisio had been released on bond by the Seventh Circuit, the Court Of Appeals rejected Fifth Amendment claims, as well as any possible Sixth Amendment claim, but found that the Fourth Amendment defense was a valid one.
The Court ruled that before a grand jury may compel a witness before it to give exemplars of his voice, the government must make an affirmative factual showing that this request is reasonable.
The Court apparently believed that the petition and the hearing that were -- was held on the government’s petition did not satisfy that reasonable -- reasonableness of request and the Court reversed the contempt judgment.
The ground for decision by the Seventh Circuit was essentially that exemplars maybe covered by the Fourth Amendment relying here on the same case that the District Court had found not applicable, Davis against Mississippi.
And also that the Fourth Amendment applies to grand jury proceedings and the Court relied on one or two decisions of this Court in which the Court stated that grand jury subpoenas for the production of documents might be so broad and ill-defined as to constitute an unreasonable search.
The government petition for rehearing en banc that was denied by a 5:3 vote and in August of 1971 we filed the petition for certiorari.
In May of 1972, after we filed a supplemental memorandum calling to the Court’s attention in intervening decision by Chief Judge Friendly of the Second Circuit, which had explicitly rejected the rationale of the Dionisio case, Court granted certiorari.
The issue then in this first case is whether, when a grand jury witness has been properly called before an investigating grand jury, the Fourth Amendment requires that before a witness can be compelled to give exemplars of his voice, or as in Mara exemplars of his handwriting, the government must make an affirmative factual showing that this request is reasonable.
It’s the government’s petition -- position that no such requirement of affirmative factual showing of reasonableness is necessary under the Fourth Amendment and that the decision below constitutes a departure from settled principles of grand jury practice and settled principles of the application of the Fourth Amendment.
We think the appropriate place to start in this case, as Chief Judge Friendly in the Schwartz case has done, is with the nature of the grand jury itself.