UNITED STATES v. ROSINSKY No. 76-1237.
547 F.2d 249 (1977)
UNITED STATES of America and Ronald R. Taylor, Special Agent, Internal Revenue Service, Appellees, v. Sidney W. ROSINSKY, Appellant.
United States Court of Appeals, Fourth Circuit.
Decided January 19, 1977.
Norman B. Smith, Greensboro, N. C. (Smith, Patterson, Follin, Curtis & James, Greensboro, N. C., Richard J. Tuggle, William L. Tankersley, III, Tuggle, Duggins, Meschan, Thornton & Elrod, Greensboro, N. C., on brief), for appellant.
Daniel F. Ross, Atty., Tax Div., Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Charles E. Brookhart, Attys., Tax Div., Dept. of Justice, Washington, D. C., N. Carlton Tilley, Jr., U. S. Atty., Greensboro, N. C., on brief), for appellees.
Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and MERHIGE, District Judge.
The appellant appeals from an order of the District Court enforcing an Internal Revenue Service summons issued under § 7602, 26 U.S.C., requiring him to appear and provide handwriting exemplars.
The order arose out of a review of appellant's tax returns for the years 1970 through 1974. An issue in such review concerns certain invoices purportedly issued by one Jerry Griffin covering transportation charges for hauling poultry and produce and certain checks issued in payment for such transportation and purportedly cashed by the same Jerry Griffin. Griffin has denied preparing the invoices, endorsing the checks, or receiving the proceeds of such checks. There is evidence that the taxpayer cashed some of these checks, though he has reported no income from transportation of poultry or produce on either his personal tax returns or those of the paperbox company of which he is president and sole stockholder. The Service sought to secure handwriting exemplars to enable its experts to compare the handwriting of the appellant with the writing on the invoices and the signatures on the checks under review. When the appellant refused, the Service issued the summons under challenge in these proceedings. Upon failure of the appellant to comply, proceedings were begun in the District Court. That Court, after a hearing at which exhaustive testimony was taken, issued its order from which this appeal is taken.
"* * * § 7601 [26 U.S.C.] gives the Internal Revenue Service a broad mandate to investigate and audit `persons who may be liable' for taxes," and § 7602 [26 U.S.C.] provides the power to conduct such investigation by authorizing the Secretary of the Treasury or his delegate "* * * (2) To summon the person liable for tax * * * to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry." See United States v. Bisceglia (1975) 420 U.S. 141, 145, 95 S.Ct. 915, 918, 43 L.Ed.2d 88. The authority thus given to require the witness to "appear" impliedly carries with it the power to require certain nontestimonial acts on the part of the witness such as providing handwriting or voice exemplars. This follows from the analogy of the administrative summons under § 7602 to a grand jury subpoena. United States v. Bisceglia, supra, 420 U.S. at 147-8, 95 S.Ct. 915; United States v. Powell (1964) 379 U.S. 48, 57, 85 S.Ct. 248, 13 L.Ed.2d 112; United States v. Matras (8th Cir. 1973) 487 F.2d 1271, 1274.
§ 7605(b) prohibits "unnecessary examination or investigations" under § 7602. In construing § 7605(b) and its companion sections, the Supreme Court has declared that, for the Service to secure judicial enforcement of its administrative summons as it seeks in this case, it must show "`that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed * * *.'" Donaldson v. United States, supra, 400 U.S. at 526-7, 91 S.Ct. at 540.
Even if one, however, may be compelled under a § 7602 summons to furnish handwriting exemplars, a requirement to do so in this case, the appellant contends that under the construction given § 7605(b) in Donaldson, was improper because (1) it was unnecessary in that "the information sought is * * * already within the possession of the Internal Revenue Service," and (2) it was not for "a legitimate purpose." In support of his first objection, he asserts the Service is already in possession of examples of his handwriting and that such examples are sufficient to enable the Service's handwriting experts to give an opinion on whether he had written the "Jerry Griffin" invoices or endorsed the "Jerry Griffin" checks. The questioned writing on the invoices, however, was in "block" letters and the specimens of appellant's handwriting available to the Service were cursive. Moreover, the Service had no specimens of appellant's writing of the words "Jerry Griffin." While a handwriting expert may be able to give an opinion on whether a particular signature was that of an individual based simply on a comparison of such signature with other admitted specimens of the individual's handwriting, it is manifest that the trustworthiness of such opinion is increased if the expert has had an opportunity to compare the disputed signature with another admitted specimen of the individual's writing of such signature. That is what the Service sought by its demand for handwriting exemplars. The District Court found that the demand was relevant and material to the inquiry by the Service and was not unnecessary or harassing. We agree.
Appellant's second ground of objection to the summons is that the demand for handwriting exemplars is solely for the purpose of obtaining evidence for use in a criminal prosecution. He argues that under Donaldson,
Finally, at argument it was stated that, since the decision in the District Court, a recommendation of criminal prosecution had been made in this case. It is argued that this mooted the enforceability of the summons. Such contention is without merit. The validity of the summons "became fixed when the summons was served" and the subsequent recommendation for prosecution cannot "alter" it. Couch v. United States (1973) 409 U.S. 322, 329, n. 9, 93 S.Ct. 611, 616, 34 L.Ed.2d 548; United States v. Cromer (9th Cir. 1973) 483 F.2d 99, 101. In Cromer, the Court said:
The order of the District Court is accordingly affirmed.
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