567 F.2d 281
United States Court of
Appeals, Fifth Circuit.
In re GRAND JURY
PROCEEDINGS.
UNITED STATES of
America, Appellee, v. Armando GUERRERO, etc., Appellant.
No. 77-3193
Summary Calendar.[FN*]
FN* Rule
18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York
et al., 5 Cir., 1970, 431 F.2d 409.
Jan. 18, 1978.
[*281] COUNSEL: Donald F. Spain,
Miami, Fla., for appellant.
Robert W. Rust, U. S. Atty., R. Jerome Sanford, Asst. U. S. Atty.,
Miami, Fla., for appellee.
Appeal from the United States District Court for the Southern
District of Florida.
JUDGES: Before GOLDBERG, CLARK and FAY, Circuit Judges.
FAY, Circuit Judge:
Appellant, Armando Guerrero, was subpoenaed to appear before the
United States Grand Jury, in and for the Southern District of Florida on
September 21, 1977, to provide voice exemplars and fingerprint standards.
On September 21, after his appearance before the grand jury where
he refused to give either the voice exemplars or the fingerprint standards,
Guerrero was brought before the Honorable James Lawrence King, before whom a
petition was filed by the government for an order directing Guerrero to comply.
That petition stated:
(1) Federal Grand Jury No. 77-4 (MIA) for the Southern District of
Florida is now conducting an investigation of alleged illegal activities in
said district; said investigation involves possible violations of Title 18,
United States [*282] Code, Section 960.[FN1] Armando Guerrero has been subpoenaed
by said Grand Jury and fully advised that he is a potential defendant in this
investigation.
FN1. Expedition
against friendly nation
Whoever, within the
United States, knowingly begins or sets on foot or provides or prepares a means
for or furnishes the money for, or takes part in, any military or naval
expedition or enterprise to be carried on from thence against the territory or
dominion of any foreign prince or state, or of any colony, district, or people
with whom the United States is at peace, shall be fined not more than $3,000 or
imprisoned not more than three years, or both.
(2) It is essential and necessary to the aforesaid Grand Jury
investigation that Armando Guerrero furnish before and to the said Grand Jury
standards of his fingerprints and voice exemplars. Such standards will be used
solely as a standard of comparison.
(3) Respondent, Armando Guerrero, appeared pursuant to subpoena
before Federal Grand Jury No. 77-4 (MIA) on September 21, 1977. At that time,
the respondent, was directed by the Foreman of the Grand Jury to furnish
fingerprint standards out of the presence of the Grand Jury, under the
supervision of the Grand Jury's duly designated agents. The respondent refused,
asserting constitutional privilege.
The lower court granted the petition and ordered Guerrero to
comply. Guerrero provided the fingerprint standards but refused to supply the
requested voice exemplar. He did agree, however, to any other phrases the
government might request.
The requested voice exemplars Guerrero refused to supply were:
If it is a Cuban official, which is my enemy at the time, yes, I
would do it. At any time I am ordered to do it.
I would not quote them on being innocent in any way. They were
Cuban officials. They were communist officials and any communist kind official
whether Cuban or other nationality playing the same game that Castro is playing
should be dealt with the same way.
On September 23, 1977, the district court entered a supplemental
order directing Guerrero to supply the requested voice exemplars. Guerrero
again refused, asserting his privilege under the Fifth Amendment of the
Constitution. Guerrero also filed a memorandum of law moving to quash the
subpoena because the government wished to obtain these exemplars to determine
whether Guerrero was "the man in the hood" who had appeared in the
CBS Television News Special, "The Secret Army of the CIA".
Another hearing was held before Judge King on September 30, 1977,
on the government's Petition to Show Cause. Guerrero again argued against the
relevance of the requested voice exemplars and requested the court to view the
tape of the television program to so determine.
On October 4, 1977, Judge King ordered the government to file an
affidavit specifying that the voice exemplar sought is relevant to the grand
jury's investigation, that the investigation undertaken by the grand jury is
properly within the grand jury's jurisdiction, and that the voice exemplar is
sought primarily for the purpose therein described. The affidavit was filed on
October 5, 1977, and is set out in the margin.[FN2]
FN2. 1. I am an
Assistant United States Attorney for the Southern District of Florida.
2. Federal Grand Jury
(77-4 (MIA)) is investigating violations of Title 18, United States Code,
Section 960 (Expedition Against A Friendly Nation). Title 22, United States
Code, Section 2778(b)(2) (Exporting Munitions of War), and Title 26, United
States Code, Section 5861(d) (Unlawful Possession of Machine Guns and
Destructive Devices)
3. On June 10, 1977,
CBS television broadcast a documentary entitled "The CIA's Secret
Army," involving anti-Castro Cuban exile terrorism originating from Miami,
Florida. A portion of this program involved interviews of two masked men
wearing military-type clothing, in a warehouse allegedly "near Miami",
containing weapons and ammunition. The two masked men made statements
concerning their opposition to Communist Cuba, attacks on Cuban officials, and
acts of terrorism.
4. The weapons and
clothing of the men depicted on the television program have been viewed by law
enforcement personnel who are of the opinion that these items are the same or
similar to items seized on August 15, 1977 in Miami, Florida.
6. The voice exemplars
requested by the Grand Jury are not to be used for their testimonial or
communicative content, but solely to measure the physical properties of ARMANDO
GUERRERO's voice.
7. ARMANDO GUERRERO is
a potential defendant in this investigation.
The affidavit was
apparently misnumbered by the United States Attorney.
[*283] Judge King found the affidavit sufficient and ordered
Guerrero to comply with the grand jury subpoena by October 13, 1977. He refused
and was adjudged in civil contempt pursuant to 28 U.S.C. s 1826.
Guerrero appealed.
The Supreme Court in United States v. Dionisio, 410 U.S. 1, 93
S.Ct. 764, 35 L.Ed.2d 67 (1973), held the compelled production of voice
exemplars by subpoena before the grand jury does not contravene the Fourth
Amendment privilege against unreasonable searches and seizures and, therefore,
no showing of reasonableness was required before the witness could be compelled
to comply. Dionisio also held that compelled production of voice exemplars does
not violate the Fifth Amendment where "(t)he voice recordings were to be
used solely to measure the physical properties of the witnesses' voices, not
for the testimonial or communicative content of what was to be said." 410
U.S. at 7, 93 S.Ct. at 76.8. We affirm the case at bar because it falls within
the holding of Dionisio.
Both parties to this appeal meet the question of requiring an
affidavit by the government to justify the compulsion of requested testimony by
the grand jury. See In re Grand Jury Proceedings, 486 F.2d 85 (3rd Cir. 1973)
and In re Grand Jury Proceedings, 507 F.2d 963 (3rd Cir. 1975). This court has
decided it will not impose such a requirement without some showing of
harassment or prosecutorial misuse of the system. In re Grand Jury
Investigation (United States v. McLean), 565 F.2d 318 (5th Cir. 1977).
Accordingly, the district court's order of December 6, 1977,
adjudging Armando Guerrero in contempt and ordering him into the custody of the
United States Marshal until compliance with the order to provide voice
exemplars or until the term of the grand jury expires on December 2, 1978, is
affirmed.