Petition — Posner v. United States

‘y . @ipreme Court, U. &. 7\

79-9034 FILED

| q

4d OF :

Wo, | SEC 32 1979 |

LLRTCHAR ROBAK, JR CLERK |

Iu the

Supreme Court of the United States

OctoserR Term, 1979

MICHAEL POSNER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JULIUS LUCIUS ECHELES

MICHAEL G. CHERONIS

CAROLINE JAFFE

35 East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIs 60618 (312) 525-6581

INDEX

Judgment and Order Below ........ atid daiihtaelihidasceeinisunedddocis

Jurisdiction of this Court 2.0... eee. one Re ae

Reasons for Granting the Writ ...........................

1. Where the government seeks handwriting samples

from a probationer, and, as the sole factual basis for

its motion for a court order directing him to furnish

same, either intentionally or with reckless disregard

for the truth, misrepresents to the court that it has

no known samples of his writing, when in fact it

possesses numerous known samples—including the

probationer’s handwritten probation reports—the

exemplars thus compelled may not properly be used

against the probationer as the basis for a finding

that he committed criminal contempt of court ........

A. Where a person’s handwriting exemplars are

sought by the government, not in the grand jury

setting, but in an effort to determine whether he

may have violated his federal probation by al-

legedly participating in gambling offenses in

violation of state law, the principles of United

States v. Mara, 410 U.S. 19, incorporating those

of United States v. Dionisio, 410 U.S. 1, should

be held inapplicable; and, absent the grand jury

considerations therein held determinative, this

ii

PAGE

Court should require that the government make

some preliminary showing as to the necessity

and/or reasonableness for a court order com-

pelling handwriting exemplars .................0...--...

B. Where, in fact, the government in its motion for

an order directing a probationer to give hand-

writing exemplars, purports to show necessity

for such order, and states, as its only factual

basis therefor, that it has no known samples of

his handwriting, and this is demonstrably false,

as outlined above, tiie exemplars thus compelled

should be suppressed on the probationer’s timely

Ne Rcd a ome 8 aes Oa» ara argon

C. Even if neither the Fourth Amendment’s prohi-

bition of unreasonable search and seizure nor the

Fifth Amendment’s privilege against self-in-

crimination precludes judicial compulsion of

handwriting exemplars to be used strictly for

identification purposes, due process of law must

condemn the imposition of sanctions against a

person on the basis of a court order entered in

reliance on intentionally or recklessly false ma-

terial contained in the government’s motion ........

D. The philosophy underlying Franks v. Delaware,

438 U.S. 154, should extend to the above situa-

tior. requiring the suppression of evidence ob-

tained pursuant to a court order procured by

presentation of false information to the court in

CRGTE CRT CURIONI ogi pcb eciniciccinttcsecgeonimatacgweee

. Where petitioner was held in criminal contempt for

allegedly having attempted to disguise his hand-

writing in samples compelled under court order;

such order was obtained by the government’s inten-

iil

PAGE

tional or reckless misstatement that it possessed no

known samples of his handwriting; and without

such factual misrepresentation, the court order

would have been without foundation: the govern-

ment’s conduct renders the situation functionally

equivalent to entrapment, such that this Court

should deem it unconscionable to punish petitioner

for his allegedly contumacious conduct which oc-

curred only in response to the government’s pre-

tense that it lacked exemplars, which in fact it had ..

CI i La. icdiadled eu mieahebethan eaten aaa

Appendices—

Appendix A—Order of the United States Court

of Appeals for the Seventh Circuit

14

CIE ficicaseniseceeesrmnetninos Langinonictoabinetcaish App. 1

Appendix B—Order of the United States Court

of Appeals for the Seventh Circuit

(denying rehearing) © .......-........-..:c-ecceeees App. 3

Appendix C—Government’s motion for a court

order directing petitioner to furnish hand-

writing exemplars to the Federal Bureau of

SINE in hikes tcssehcin obtersrinbohenciactensieeianis App. 4

Appendix D—Order of the United States Dis-

trict Court, Northern District of Illinois,

Eastern Division, directing petitioner to

furnish handwriting exemplars to the Fed-

eral Bureau of Investigation ..................... App. 5

iv

AUTHORITIES CITED

Cases

PAGE

Almeida-Sanchez v. United States, 413 U.S. 266 (1973) 17

Barbee v. Warden, 331 F.2d 842 (4 Cir. 1964) .......... 12, 13

Curran v. Delaware, 259 F.2d 707 (3 Cir. 1958) ....... 13

Franks v. Delaware, 438 U.S. 154 EE 3, 9, 12

Giglio v. United States, 405 U.S. 150 CROTS os ake 13

Hampton v. United States, 425 U.S. 484 (1976) ...... 16

Mempa v. Rhay, 389 U.S. 128 (1967) 11

Morrissey v. Brewer, 408 U.S. 471 fs. RE 11

Olmstead v. United States, 277 U.S. 488, 485 (1928)

(Justice Brandeis’ dissent) 0. a ae

Pyle v. Kansas, 317 U.S. 213 (1942) 00. 13

Sherman v. United States, 356 U.S. 369 (1958) ........ 16

Sorrells v. United States, 287 U.S. 435 URGED picseaiens.. 16

United States v. Archer, 486 F.2d 670 (2 Cir. ivis) ... 17

United States v. Dionisio, 410 U.S. 1 bs oe | Ieee 3, 7,11

United States v. Mara, 410 U.S. 19 COTS) * ...... .3, 7,10

United States v. Russell, 411 U.S. 423 Caer 16

In the

Supreme Court of the United States

Ocroser Term, 1979

No.

MICHAEL POSNER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Michael Posner, respectfully prays that a

Writ of Certiorari be issued to the United States Court of

Appeals for the Seventh Circuit, to review its decision af-

firming the judgment of the United States District Court

for the Northern District of Illinois, Eastern Division, that

he committed criminal contempt by intentionally disguis-

ing his handwriting in giving exemplars to the Federal

Bureau of Investigation pursuant to court order.

2

Judgment and Order Below

On September 12, 1979, the Court of Appeals for the

Seventh Circuit affirmed the judgment below, No. 78-2543.

A copy of that Court’s written Order, unpublished per

Circuit Rule 35, is attached as Appendix A. Petitioner’s

timely petition for rehearing was denied on N ovember 15,

1979. (App. B).

Jurisdiction of this Court

The judgment sought to be reviewed (the Court of Ap-

peals’ denial of the petition for rehearing) was entered on

November 15, 1979. This petition for Writ of Certiorari is

filed within 30 days from said denial. Jurisdiction of this

Court is invoked under Title 28, U.S. Code, sec. 1254(1)

and Rule 22.2 of the Rules of this Court.

QUESTIONS PRESENTED FOR REVIEW

1, Where the government seeks handwriting samples

from a probationer, and, as the sole factual basis for its

motion for a court order directing him to furnish same,

either intentionally or with reckless disregard for the

truth, misrepresents to the court that it has no known

samples of his writing, when in fact it possesses numerous

known samples—including the probationer’s handwritten

probation reports—may the exemplars thus compelled

properly be used against the probationer as the basis for

a finding that he committed criminal contempt of court?

A. Where a person’s handwriting exemplars are

sought by the government, not in the grand jury

setting, but in an effort to determine whether he

may have violated~his federal probation by al-

legedly participating in gambling offenses in vio-

lation of state law,

‘Ata

3

—

\

(i) do the principles of United States v. Mara,

410 U.S. 19, incorporating those of United

States v. Dioniso, 410 U.S. 1, apply; or,

(ii) absent the grand jury considerations there-

in held determinative, should this Court re-

quire that the government make some pre-

liminary showing as to the necessity and/or

reasonableness for a court order compel-

ling handwriting exemplars?

B. Where, in fact, the government in its motion for

an order directing a probationer to give handwrit-

ing exemplars, purports to show necessity for

such order, and states, as its only factual basis

therefor, that it has no known samples of his hand-

writing, and this is demonstrably either inten-

tionally or recklessly false, as outlined above,

what, if any, redress is available to the probation-

er?

Even if neither the Fourth Amendment’s prohibi-

tion of unreasonable search and seizure nor the

Fifth Amendment’s privilege against self-incrimi-

nation precludes judicial compulsion of handwrit-

ing exemplars to be used strictly for identification

purposes, does due process of law condone the

imposition of sanctions against a person on the

basis of a court order entered in reliance on in-

tentionally or recklessly false material contained

in the government’s motion?

Should the philosophy underlying Franks v. Dela-

ware, 438 U.S. 154, extend to the above situation,

requiring the suppression of evidence obtained

pursuant to a court order procured by presenta-

tion of false information to the court in such cir-

cumstances ?

4

2. Where petitioner was held in criminal contempt for

allegedly having attempted to disguise his handwriting in

Samples compelled under court order; such order was ob-

tained by the government’s intentional or reckless misstate-

ment that it possessed no known samples of his handwrit-

ing; and without such factual misrepresentation, the court

order would have been without foundation: does the gov-

ernment’s conduct render the situation functionally equiva-

lent to entrapment, such that this Court should deem it

unconscionable to punish petitioner for his allegedly con-

tumacious conduct which occurred only in response to the

government’s pretense that it lacked exemplars which in

fact it had?

Statement of the Case

Petitioner, Michael Posner, was charged with violation

of probation due to alleged involvement in illegal State

gambling activities. Pursuant to court order entered upon

the government’s request, he furnished handwriting exem-

plars. Petitioner’s motion to suppress the exemplars? was

denied ; and, after hearing, the court, concluding that peti-

tioner had committed criminal contempt by intentionally

attempting to disguise his handwriting, sentenced him to

3 years extended probation with the condition that the first

6 months be served in a work-release custodial program.°

The Court of Appeals affirmed from the bench after oral

argument in an unpublished order. (App. A)

*R. 1; Apps. C & D. Hereafter: “R.” refers to the Record on

Appeal ; “Tr.” (by date) to the Transcript of Proceedings consisting

of 6 volumes covering 5 dates; transcripts of the 10/6/78 proceed-

ings are referred to as #1 or #2, there being two separate tran-

scripts of that date.

2R. 3.

®Tr. 30, 11/27/78.

5

Statement of Facts

4

On May 30, 1978, petitioner was charged with violation

of his federal probation due to his alleged involvement in

illegal State gambling activities.‘ Pursuant to the govern-

ment’s petition on July 10, 1978—wherein the government

asserted it possessed ‘‘no known samples of defendant’s

handwriting’”*—the court ordered, and petitioner promptly

furnished, handwriting samples on or about J uly 13, 1978.

The government’s handwriting expert, Jack Calvert, tes-

tified that on June 28, 1978, he received questioned docu-

ments® and various collected known writings of petitioner,

the latter consisting of copies of probation reports, an as-

sumed business name certificate, and copies of 6 checks,

all of which, variously, bore the handwriting, printing,

numerals and signature of petitioner. Calvert further tes-

tified that these latter items, which he received on June 28,

1978, were, in his opinion, ‘‘some known exemplars’’ of

petitioner’s writing.®

After he received the court-ordered exemplars, Calvert

compared them to the various ‘‘collected writings of’ peti-

tioner, among which were those writings he received on

fF

5 App. C, par. 3.

®° Calvert explained that questioned documents are those the author

of which is unknown.

™Tr. 3-4, 9/26/78; Tr. 2-3, 10/6/78, #1.

8 Tr. 15, 9/26/78. (Emphasis added.) It is of more than mere

passing interest to note that among the government exhibits Calvert

testified he received on June 28, 1978, was Govt. Ex. 37—exemplars

which were not furnished by petitioner, and thus not yet in existence,

until July 13, 1978. (!) Tr. 3, 9/26/78. At the very least, this, too,

reflects the gross negligence characterizing the government’s handling

of the case throughout.

6

June 28, 1978, enumerated Supra, and some which he re-

ceived subsequently. From this comparison, Calvert opined

that petitioner had ‘‘attempt[ed] to disguise’’ his hand-

writing in the court-ordered exemplars.”

Petitioner moved to Suppress the court-ordered exem-

plars on the basis that the predicate stated by the govern-

ment in its motion for the order—i.c., that as of July 10,

1978 (the date of the motion), the government possessed

no known samples of petitioner’s handwriting"'—was, bla-

tantly and demonstrably, false.2 In response, the govern-

ment contended that the known samples of petitioner’s

handwriting which the government possessed were ‘‘insuffi-

cient’’ so that there had been no misrepresentation to the

court.* The court denied the motion to suppress.1*

After a hearing, the court revoked petitioner’s probation

based upon the court’s opinion that petitioner failed to

comply with the order to furnish handwriting exemplars in

that he ‘‘attempted to... and did disguise his handwrit-

ing.’’’® Petitioner was sentenced to 3 years extended pro-

bation, conditioned on the first 6 months being served in a

work release program.'®

°Tr. 11, 9/26/78; Tr. 2, 6, 10/6/78, 41.

10Tr. 11, 9/26/78.

11 App. C, par. 3.

RS

a %

“Tr. 4, 11/27/78.

Tr. 4, 11/27/78. Petitioner denied any intent to mislead, Tr.

19, 9/26/78, attributing the allegation of attempted disguise to ner-

vousness and being forced to sit some distance away from the writing

surface. See footnote 25, infra, and accompanying text.

16 Tr, 30, 11/27/78.

7

Constitutional Provision Involved A

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

‘‘No person shall .. . be deprived of .. . liberty ...

without due process of law; .. .’’

8

REASONS FOR GRANTING THE WRIT

1.

Where the government seeks handwriting samples from a

probationer, and, as the sole factual basis for its motion

for a court order directing him to furnish same, either

intentionally or with reckless disregard for the truth,

misrepresents to the court that it has no known samples

of his writing, when in fact it possesses numerous known

samples—including the probationer’s handwritten pro-

bation reports—the exemplars thus compelled may not

properly be used against the probationer as the basis for

a finding that he committed criminal contempt of court.

A. Where a person’s handwriting exemplars are sought

by the government, not in the grand jury setting,

but in an effort to determine whether he may have

violated his federal probation by allegedly partici-

pating in gambling offenses in violation of state law,

the principles of United States v. Mara, 410 U.S. 19,

incorporating those of United States v. Dionisio, 410

U.S. 1, should be held inapplicable; and, absent the

grand jury considerations therein held determina-

tive, this Court should require that the government

make some preliminary showing as to the necessity

and/or reasonableness for a court order compelling

handwriting exemplars.

B. Where, in fact, the government in its motion for an

order directing a probationer to give handwriting

exemplars, purports to show necessity for such order,

and states, as its only factual basis therefor, that it

has no known samples of his handwriting, and this

is demonstrably false, as outlined above, the exem-

plars thus compelled should be suppressed on the

probationer’s timely motion.

9

C. Even if neither the Fourth Amendment’s prohibition

of unreasonable search and seizure nor the Fifth

Amendment’s privilege against self-incrimination

precludes judicial compulsion of handwriting exem-

plars to be used strictly for identification purposes,

due process of law must condemn the imposition of

sanctions against a person on the basis of a court

order entered in reliance on intentionally or reck-

lessly false material contained in the government’s

motion.

D. The philosophy underlying Franks v. Delaware, 438

U.S. 154, should extend to the above situation, re-

quiring the suppression of evidence obtained pur-

suant to a court order procured by presentation of

false information to the court in such circumstances.

The Court of Appeals concluded that the district judge’s

finding—that there had been no intentional misrepresenta-

tion by the government in its motion to require handwriting

exemplars from petitioner—was not ‘‘clearly erroneous. ’?!”

Further, in language implicitly admitting some degree of

culpability on the part of the government, the court de-

cided that ‘‘any negligence by the government in stating

the facts to the court was [not] conduct requiring supres-

sion [sic.] of the exemplars.’

From testimony of the government’s own expert witness,

it is painfully clear that as of June 28, 1978, the govern-

ment possessed known writings of petitioner; for it was

against these very writings that the comparison was made

to the compelled exemplars which formed the basis of the

17 App. A.

18 App. A.

10

court’s conclusion that petitioner had attempted to disguise

his handwriting in the exemplars.’

Yet, 12 days after the expert received these samples, the

government asserted in its motion that it had no such

samples.

Moreover, the government itself was the source of these

known writings, which consisted of 31 monthly probation

reports filled out and signed by petitioner, a four-page pro-

bation form worksheet filled out and signed by him, and 6

checks signed by him.”°

* * *

On July 10, 1978, the government represented, in its

motion to compel petitioner to furnish handwriting exem-

plars, that it possessed no known samples of his handwrit-

ing. This misrepresentation was material, for it was the

sole and only factual basis of the requested order.”

The misrepresentation, in these circumstances, if not in-

tentional, was, at the very least, made with reckless disre-

gard for the truth.

taal * oJ

In Umited States v. Mara, 410 U.S. 19 (1973), incorporat-

ing the rationale of United States v. Dionisio, 410 U.S. 1

(1973), this Court held that neither the Fourth Amend-

ment’s prohibition against unreasonable search and seizure

1 Tr. 12-13, 9/26/78. In the expert’s opinion, these writings con-

stituted “some known exemplars” of petitioner’s writing. Tr. 15,

9/26/78, which, being in his possession on June 28, 1978, prior to

the date of the government’s motion, render the statement therein

(that the government possesses no known samples of petitioner’s

handwriting) false.

20 Also, an assumed business name certificate. All bore, variously,

petitioner’s handwriting, printing, numerals and signature. Tr. 3-4,

9/26/78 ; Tr. 2-3, 10/6/78, #1.

21 App. C, par. 3.

Te

a ——e

11

nor the Fifth Amendment’s privilege against. self-incrimi-

nation precluded a putative defendant from being ordered

to give handwriting exemplars upon request of a grand

jury. In reaching this conclusion with respect to voice

exemplars, a majority of this Court further found no re-

quirement of a preliminary showing of reasonableness:

‘‘Neither the Constitution nor our prior cases justify

any such interference with grand jury proceedings...

Any holding that would saddle a grand jury with mini-

trials and preliminary showings would assuredly im-

pede its investigation and frustrate the public’s inter-

est in the fair and expeditious administration of the

criminal laws.’’ United States v. Dionisio, supra, at

16-17.

This aspect of Dionisio, discounting any need for a show-

ing of necessity or reasonableness of the request for court-

compelled exemplars, was held equally applicable to com-

pelled handwriting samples in Mara, supra.

The stated rationale, as quoted above, limits those hold-

ings to the grand jury setting insofar as the question of a

preliminary showing is concerned.

Although neither the prohibition against unreasonable

searches and seizures nor the privilege against self-incri-

mination precludes the compulsion of handwriting samples,

it must be remembered that due process of law, as guaran-

teed in federal criminal proceedings, governs the proba-

tion revocation hearing at bar*’—and it is due process of

law, we submit, that imposes a requirement that some pre-

liminary showing of reasonableness or necessity should be

made before a person may be ordered to furnish handwrit-

ing samples.

*2 Mempa v. Rhay, 389 U.S. 128 (1967) ; cf. Morrissey v. Brewer,

408 U.S. 471 (1972) (parole revocation proceedings).

12

Indeed, the government believed some showing was re-

quired, or why would it have made the statements it did

in the motion, that it did not have known samples of the

petitioner’s handwriting? The district court, too, obviously

believed that the government’s need for court-compelled

samples was pertinent, or the court would not have ques-

tioned the government concerning its need for the re-

quested relief.” Once having purported to make a showing

of necessity and reasonableness, which was obviously relied

upon by the district court, the government may not, on

being caught in its patent falsehood, beg off merely by

asserting that no such showing was required.

While conceding, arguendo, that the Fourth Amendment

may not apply, still, we submit, the rationale underlying

such holdings as Franks v. Delaware, 488 U.S. 154 (1978),

should govern, whereby the government may not benefit

from a court order procured by the court’s reliance upon

material facts either intentionally or recklessly misrepre-

sented. There, this Court held:

‘(Where the defendant makes a substantial prelimi-

nary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth,

was included by the affiant in the warrant affidavit, and

if the allegedly false statement is necessary to the

finding of probable cause, the Fourth Amendment re-

quires that a hearing ve held at the defendant’s re-

quest. In the event that... the allegation of perjury

or reckless disregard is established ... by a prepon-

derance of the evidence, and, with the affidavit’s false

material set to one side, the affidavit’s remaining con-

*8 Tr. 3-7, 7/10/78. To the extent the argument might be ad-

vanced that the government’s failure to disclose its possession of

certain known writings was not an overt misrepresentation, we

remind: “ “The cruelest lies are often told in silence.’” Barbee v.

Warden, 331 F.2d 842, 846 (4 Cir. 1964).

13

tent is insufficient to establish probable cause, the

search warrant must be voided and the fruits of the

search excluded to the same extent as its probable

cause was lacking on the face of affidavit.’’ Id. at 155-

06. (Emphasis added.)

At bar, it is manifest that the false statement—that the

government had no known samples of petitioner’s hand-

writing in its possession as of the date it made the motion

—was the sole basis for the court’s order compelling the

exemplars; thus, the misstatement was ‘‘material’’ within

the meaning of the Franks test as framed above. And from

the foregoing argument and record references, surely peti-

tioner has established that the false statement was inten-

tionally or recklessly made, considering that most of the

known writings of petitioner which the government’s ex-

pert testified he had well before the government’s motion,

came from the government itself.?4

Fifth Amendment due process of law, we submit, is com-

promised past tolerable limits where a probationer may be

imprisoned on the basis of court-ordered exemplars, where

the order itself was procured by the government’s submis-

sion to the court of demonstrably false, material state-

ments which were either intentionally or recklessly false

when made.

24 See footnote 20, supra, and accompanying text. Government

counsel must have known petitioner had prepared probation reports

as required; and, to the extent one might charitably argue counsel

may not personally have had such knowledge, the government is

chargeable with knowledge of the probation department. See Giglio

v. United States, 405 U.S. 150, 154 (1972); Pyle v. Kansas, 317

U.S. 213 (1942) ; Curran v. Delaware, 259 F.2d 707, 712-13 (3 Cir.

1958) ; Barbee v. Warden, supra note 23 at 846.

14

Certiorari should be allowed so this Court may address

itself to the criteria prerequisite to the ordering of hand-

writing exemplars in non-grand jury situations, and to the

standards expected of goverment counsel in the presenta-

tion of unsworn statements designed to induce courts to

act. And to the extent that no existing rule of law may

directly apply, we urge the Court to fashion a rule, either

in conformity with the requirements of due process of law,

or pursuant to this Court’s supervisory power over the

lower federal courts, forbidding the imposition of sanc-

tions upon a defendant under these circumstances.

2.

Where petitioner was held in criminal contempt for alleg-

edly having attempted to disguise his handwriting in

samples compelled under court order; such order was

obtained by the government’s intentional or reckless

misstatement that it possessed no known samples of his

handwriting; and without such factual misrepresenta-

tion, the court order would have been without founda-

tion; the government’s conduct renders the situation

functionally equivalent to entrapment, such that this

Court should deem it unconscionable to punish petitioner

for his allegedly contumacious conduct which occurred

only in response to the government’s pretense that it

lacked exemplars which in fact it had.

There is absolutely no indication that petitioner was

‘*predisposed’’ to commit a contempt of court, particularly

by way of allegedly attempting to disguise his handwrit-

ing samples given pursuant to the compulsion of the court’s

order. Evidence adduced at the probation revocation hear-

ing on the issue of whether petitioner intentionally at-

tempted to disguise his writing is set forth below as a

predicate for the argument, here advanced, that petitioner

Se ee

15

should be treated as one who was entrapped by the gov-

ernment, and thus, not subject to sanctions for his al-

legedly contumacious conduct.”®

*° Calvert, the government’s handwriting expert, testified that a

given person’s handwriting varies from time to time, the degree of

difference, in turn, varying from person to person (Tr. 21, 9/26/78).

He testified that between samples of a person’s natural, spontaneous

writing and court-ordered exemplars, he would much rather have

spontaneous writings (for purposes of making comparisons). He

said a person’s handwriting changes to some degree over the years

and varies under the circumstances under which he writes; for in-

stance, sitting at a table, or standing at a telephone booth.

In connection with his opinion testimony, Calvert testified he

could not tell (and did not know) whether the conditions under

which the questioned documents were written were the same as those

under which the court-ordered handwriting was given.

Finally, Calvert testified that speed of writing, nervousness, and

proximity of the person’s body to the writing surface all affect the

way a person writes. (Tr. 25, 9/26/78).

Consider, in connection with the foregoing expert testimony,

petitioner’s statement to the court:

“Your Honor, I cooperated in the way that I thought I was

treated. And that is not the right answer. I went up there.

I sat there. They sat me at a desk a foot away from where

I was writing. I was constantly goaded. And at the time of

being nervous and all that, when I left there I told Mr. Werks-

man [defense counse] that I did the best I possibly could do.

I don’t feel to this day that I actually tried to disguise my

handwriting. They have more handwriting on me than they

have even shown here. They have subpoenaed my records

for a year already going back before all this even happened.

They have more than that. It would be so foolish to disguise.

And then to come into court and to stipulate that it is my hand-

writing—there was no attempt to disguise it. If I was sloppy I

apologize for it. But I did not knowingly have intent to cause

myself any more problems.” Tr. 19, 9/26/78. (Emphasis

added. )

16

Remember, although probation revocation proceedings

were brought charging petitioner with alleged participa-

tion in illegal State gambling activities in violation of his

federal probation, the court did not find any such partici-

pation; rather, the sole basis for the finding of probation

violation and contempt of court was petitioner’s asserted

attempt to disguise his handwriting given pursuant to the

court order.

As has been demonstrated in Point 1, supra, the court

order compelling petitioner to supply the exemplars was

founded on a false statement in the government’s motion

seeking the order. Thus, only because of the government’s

statement that it possessed no known writings of petitioner

(when, in fact, it did possess such writings) did petitioner

give exemplars which formed the basis for his present

sentence.

Absent a showing of reasonableness or necessity as dis-

cussed in Point 1, supra, petitioner may as well have been

entrapped in the classic sense. The government ‘‘set him

up.’?

This is nothing less than a case of ‘‘. . . the Government

. . . Seeking to punish for an alleged offense which is the

product of the creative activity of ... [the government].’’

Sorrells v. United States, 287 U.S. 435, 451 (1932).

In Sorrells, supra, and again in Sherman v. United

States, 356 U.S. 369 (1958), this Court recognized the de-

fense of entrapment, precluding the imposition of criminal

sanctions upon one who commits an offense due to the im-

portuning of government agents. While this doctrine re-

cently has been clarified and limited, in United States v.

Russell, 411 U.S. 423 (1973), and Hampton v. United States,

425 U.S. 484 (1976), to cases involving defendants not

otherwise ‘‘predisposed’’ to commit the crime in question,

17

we submit that petitioner, not shown to be thus ‘*predis-

posed,’’ may avail himself of the doctrinal basis of the

entrapment defense to defeat the sentence to which the

government’s machinations and false statements to the

court has subjected him. Cf. United States v. Archer, 486

F.2d 670 (2 Cir. 1973) ; Olmstead v. United States, 277 U.S.

438, 485 (1928) (Justice Brandeis’ dissent).

Indeed, the situation here may be characterized as the

functional equivalent of entrapment.?*

Certiorari should be allowed to permit the Court to de-

termine whether petitioner may, consistent with due pro-

cess of law and the principles underlying the entrapment

defense as heretofore recognized by this Court, be punished

for his allegedly contumacious conduct which occurred only

in response to the government’s pretense that it lacked

exemplars which in fact it had.

While two wrongs” do not, of course, make a right, the

wrong perpetrated here by the government was a wrong

not only against defendant, but, first and foremost, against

the court. We submit it is unconscionable to let this judg-

ment stand in these circumstances. Should this Court not

feel compelled by any existing constitutional standard to

disturb the judgment, we commend the alternative of tak-

6 This Court has, in other circumstances, fashioned and applied a

“functional equivalent” standard, in dealing with certain types of

searches, which, although not physically at the border, qualify as

“border searches” because functionally equivalent thereto. Almeida-

Sanchez v. United States, 413 U.S. 266, 272-73 (1973). There

should be no difficulty applying such a concept in the entrapment

context.

7 In so stating the old saw, we do not concede petitioner’s conduct

in fact was contumacious, and again refer to the material in foot-

note 25, supra.

18

ing appropriate remedial action in this Court’s supervisory

role over the administration of justice in the federal court

system.

CONCLUSION

For any or all of the reasons stated above, certiorari

should be allowed to review the decision of the Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

Juuius Luctus EcHELEs

MicHaEL G. CHERONIS

CaROLINE JAFFE

Attorneys for Petitioner

$e n Seon CRN

DROOL LEESON

RPE cn OE

a

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued September 12, 1979)

September 12, 1979.

Before

Hon. Thomas E. Fairchild, Chief Judge

Hon. Luther M. Swygert, Circuit J udge

Hon. Robert A. Sprecher, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 78-2543 vs.

MICHAEL POSNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 71-Cr-290

Thomas R. McMillen, Judge.

ORDER

The Court, having read the briefs, addressed itself to the

record, heard oral argument on behalf of the appellant

and appellee, and conferred at the bench, announced in

open court that the judgment appealed from is AF-

FIRMED.

App. 2

The district judge found that there had been no inten-

tional misrepresentation by the government in its motion

to require handwriting exemplars from the defendant. That

finding was not clearly erroneous. We are not persuaded

App. 3

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 15, 1979.

that any negligence by the government in stating the facts

to the court was conduct requiring suppression of the exem-

plars. The language of the order, which required ‘‘natural : hi

and undisguised’’ exemplars, was not legally deficient and agit ;

there was sufficient evidence to support the court’s finding Hon. Thomas E. Fairchild, Chief Judge

that the exemplars given pursuant to that order were dis- Hon. Luther M. Swygert, Cireuit Judge

guised. The judgment of the district court imposing ex- Hon. Robert A. Sprecher, Circuit Judge

tended probation shall be AFFIRMED.

Accordingly, the Clerk of this Court is directed to enter :

judgment AFFIRMING the judgment appealed from. No. 78-2543 ve.

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

MICHAEL POSNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 71-Cr-290

Thomas R. McMillen, Judge.

ORDER

Treating the ‘‘Petition for Rehearing En Banc’’ as a

petition for rehearing under Rule 40, F.R.A.P., the mem-

bers of the original panel having voted to DENY,

Treating the petition as a suggestion for rehearing en

bamc under Rule 35, F.R.A.P., no judge in regular active

service having requested a vote thereon,

Accordingly, IT IS ORDERED that the petition for re-

hearing en banc is hereby, DENIED.

App. 4

APPENDIX C

GOVERNMENT’S MOTION FOR A COURT ORDER

DIRECTING DEFENDANT TO FURNISH HAND-

WRITING EXEMPLARS TO THE FEDERAL

BUREAU OF INVESTIGATION

The United States of America by Thomas P. Sullivan,

United States Attorney for the Northern District of IIli-

nois, moves for an Order directing defendant to furnish

handwriting exemplars to the Federal Bureau of Investi-

gation, and in support thereof states as follows:

1. Defendant is awaiting a hearing in this Court in the

above-captioned matter, being charged with violation of

the terms of his probation.

2. The Federal Bureau of Investigation has in its poses-

sion several documents of identification of which is pres-

ently in question. The Government may seek to offer all

or some of said documents against defendant at the time

of the hearing. The Government, however, possesses no

known samples of defendant’s handwriting.

3. The handwriting exemplars which are being sought

will be used solely for the purpose of identification.

Wherefore Petitioner Prays that this Court direct the

defendant to furnish handwriting exemplars to the Federal

Bureau of Investigation on July 11, 1978, at 10 A.M. United

States v. Dionisio, 410 U.S. 1 (1973) ; United States v. Mara,

410 U.S. 19 (1973).

Respectfully submitted

Thomas P. Sullivan

United States Attorney

By: S. Gay Hugo

SGHugo :mke Special Attorney

353-5267 U.S. Department of Justice

App. 5

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

v. NO. 71 CR 290

MICHAEL POSNER

ORDER

This matter coming on to be heard on the motion of the

United States of America by Thomas P. Sullivan, United

States Attorney for the Northern District of Illinois, for

an Order directing defendant to furnish handwriting exem-

plars to the Federal Bureau of Investigation, and the Court

having considered the Government’s motion finds:

1. Defendant is charged with violation of the terms of

his probation.

2. The handwriting exemplars are to be used only for

identification purposes.

3. The claim of privilege under the Fourth and Fifth

Amendments is inapplicable.

It Is Therefore Ordered that defendant appear on July

11, 1978, at 10 A.M., in the office of the Federal Bureau of

Investigation, Room 905, 219 South Dearborn Street, Chi-

cago, Lllinois, and furnish in a natural and undisguised

manner those handwriting exemplars deemed necessary.

Enter :

Judge Thomas R. McMillen

United States District Court