LOCATION: Allegheny County District Court
DOCKET NO.: 71-850
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 410 US 19 (1973)
ARGUED: Nov 06, 1972
DECIDED: Jan 22, 1973
Angelo Ruggiero - for respondent
Phylis Skloot Bamberger - for Federal Community Defender Organization of the Legal Aid Society of N.Y., as amicus curiae, by special leave of Court
Philip A. Lacovara - for petitioner
Facts of the case
Media for United States v. Mara
Audio Transcription for Oral Argument - November 06, 1972 in United States v. Mara
Warren E. Burger:
We’ll hear arguments next in number 71-850, United States against Mara.
Mr. Lacovara you may proceed.
Philip A. Lacovara:
Mr. Chief Justice, may it please the Court.
This case as I mentioned is the follow-up sequel to United States against Dionisio.
It's also here on writ of certiorari to the Seventh Circuit, and in this case we have a slightly different factual setting.
This was an investigation being pursued not by a special Grand Jury but by the regular September 1971 Grand Jury, and the Grand Jury was investigating a theft from interstate shipment and a conspiracy violation.
Mr. Mara was subpoenaed before the grand jury and was directed by the grand jury foreman to give exemplars of his hand writing and his printing.
And he returned -- refuse on constitutional grounds, essentially Fourth and Fifth Amendment grounds.
The Government then filed a petition with the District Court to compel Mr. Mara to give the handwriting and printing exemplars and in that petition, the Government alleged the nature of the grand jury investigation which is an investigation under Section 659, Theft from Interstate Shipment and 371, Conspiracy and it alleged that Mr. Mara had been asked for handwriting and printing exemplars which the grand jury considered essential and necessary solely for the purpose of comparing his handwriting to determine whether he was the author of certain writings that were before the grand jury.
The petition further alleged that Mr. Mara had refused to obey the foreman’s direction and refused to give the handwriting and printing exemplars.
The Government also in an attempt to comply with what it understood to be the requirement of United States v. Dionisio which we were nevertheless challenging before this Court, submitted in Camera to the District Court an affidavit by an FBI agent who had testified before the grand jury.
And in that affidavit as the petition alleged, the Court would determine that if there were reasonable grounds, that reasonableness must be determined for the grand jury’s demand for the handwriting exemplars.
The -- that affidavit was before the District Court at the hearing on the Government’s petition.
The respondent objected to the petition for the exemplar order raising essentially two grounds.
First, the contention was that the Government did not have probable cause to support the application, the argument being that since the grand jury had not indicted him, it clearly did not yet have probable cause to think that he was somehow linked with the crime.
And secondly, the objection was made that the Government was trying to support the petition by showing of reasonableness by submitting an affidavit that was not being made available.
The District Judge ruled that an in camera submission was sufficient and also ruled that probable cause was not the standard necessary even under the Dionisio to secure an exemplar order.
The respondent, Mr. Mara, was then ordered to provide such samples of his handwriting, his printing as the grand jury might deem necessary and in this case Mr. Justice Marshall the order explicitly did not make any reference I believe to the -- to any agents of the grand jury, it said to provide exemplars before and to the grand jury.
There's been no objection – there was no objection at the hearing either before the grand jury or at the original hearing on that ground.
After the District Court entered its order, requiring the giving of the exemplars and Mr. Mara refused in open court to give the exemplars and was committed for contempt, Mr. Mara, through his counsel submitted an application for a stay or for bond, and in that application as he has since then, has urged the contention that it was improper to suggest or to direct that the handwriting exemplars be given to a sworn agent of the grand jury.
The argument is made, this goes beyond the lawful province of the grand jury.
I had to anticipate, I say that the Government position on this is the same as it was in the prior case that the refusal before the grand jury was a categorical one based on constitutional grounds not based on the local of the giving of the exemplars.
And both the petition and the order call only for the giving of exemplars before the grand jury, if respondent is willing to comply with that.
After the District Court denied bail or stay, the Court of Appeals did release Mr. Mara on bond and when the case was argued, the Court of Appeals also asked that the FBI agent's affidavit be submitted to it in camera and that was subsequently done.
The affidavit is now before this Court as a sealed exhibit, it is never been seen to the best of my knowledge by respondent.
The Seventh Circuit reaffirmed its holding in Dionisio that the Fourth Amendment requires that the Government on behalf of the grand jury must make an affirmative showing of reasonableness before it can obtain an exemplar like this from a witness.
The Court rejected Fifth and Sixth Amendment privilege and counsel claims for essentially the same reasons that it had in Dionisio, but it held here that it would address itself to the procedures that the Government had to avail itself in order to show reasonableness and would also discuss the substantive content of that reasonableness showing.
On both points, the Seventh Circuit held that the Government on behalf of the grand jury had been deficient.
On the question of the proper procedure, the Seventh Circuit ruled that in order to demonstrate reasonableness, the Government must submit its affidavit or any other proof it wants to bring to the attention of the District Court in an open and adversary hearing.
So the Court of Appeals said, the respondent can have an opportunity to litigate the sufficiency of the Government showing.