403 F2d 56 Schoenbrun v. United States

403 F.2d 56

Robert SCHOENBRUN, Appellant,
UNITED STATES of America, Appellee.

No. 25308.

United States Court of Appeals Fifth Circuit.

October 3, 1968.

John Cyril Malloy, Miami, Fla., for appellant.

William A. Meadows, Jr., U. S. Atty., Michael J. Osman, Donald Bierman, Asst. U. S. Attys., Miami, Fla., for appellee.

Before WISDOM, GODBOLD, and SIMPSON, Circuit Judges.


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Robert Schoenbrun, defendant-appellant, was convicted of forging the payee's signature on a Social Security check, in violation of 18 U.S.C. § 495. At the trial the United States introduced a handwriting sample government agents obtained from Schoenbrun without giving him the full Miranda warning. At the time, he was confronted with his alleged accomplice in an atmosphere charged with hostility. The Government's handwriting expert testified that the endorsement on the check was written by the same person whose handwriting (the exemplar) was submitted to him as being Schoenbrun's. The defendant's expert testified that he could not positively identify the endorsement as Schoenbrun's. There is much to be said for the appellant's contention that in the circumstances of this case he was entitled to the Miranda warnings and to the advice of counsel at what to him was a critical stage in the proceeding — the point at which it appeared necessary for him to give a sample of his handwriting. However, Gilbert v. State of California, 1967, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178, 1182, compels us to hold that a "handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying characteristic outside [the protection of the Fifth Amendment] and * * * the taking of the exemplars [is] not a `critical stage' of the criminal proceedings entitling petitioner to the assistance of counsel".


There is no merit to the appellant's contention that the evidence does not support the verdict of the trial court.


The judgment is affirmed.