No.

______________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

______________________________

XXX XXX, Petitioner,

UNITED STATES OF AMERICA, Respondent.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

BARRY J. PORTMAN

Federal Public Defender

GEOFFREY A. HANSEN

Chief Assistant Federal Public Defender

STEVEN G. KALAR*

Assistant Federal Public Defender

OFFICE OF THE FEDERAL PUBLIC DEFENDER

Northern District of California

Room 19-6884

450 Golden Gate Ave.

San Francisco, CA 94102-3400

Telephone: (415) 436-7700

Fax: (415) 436-7706

*Counsel of record for Petitioner.

No.

______________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

______________________________

XXX XXX, Petitioner,

UNITED STATES OF AMERICA, Respondent.

______________________________

MOTION TO PROCEED IN FORMA PAUPERIS

______________________________

Pursuant to Title 18, United States Code ' 3006A(d)(7) and Rule 39 of this Court, Petitioner XXX XXX asks leave to file the attached Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of fees and costs and to proceed in forma pauperis.

Petitioner was represented by counsel pursuant to Title 18, United States Code, ' 3006A(b), (d)(7) in the district court and on appeal to the Ninth Circuit Court of Appeals. No other court has granted Petitioner leave to proceed in forma pauperis.

Dated: _______________ BARRY J. PORTMAN

Federal Public Defender

GEOFFREY A. HANSEN

Chief Assistant Federal Public Defender

STEVEN G. KALAR*

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

*Counsel of Record for Petitioner

No.

______________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

______________________________

XXX XXX, Petitioner,

UNITED STATES OF AMERICA, Respondent.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

BARRY J. PORTMAN

Federal Public Defender

GEOFF A. HANSEN

Chief Assistant Federal Public Defender

STEVEN G. KALAR*

Assistant Federal Public Defender

OFFICE OF THE FEDERAL PUBLIC DEFENDER

Northern District of California

Room 19-6884

450 Golden Gate Ave.

San Francisco, CA 94102-3400

Telephone: (415) 436-7700

Fax: (415) 436-7706

*Counsel of record for Petitioner.

TABLE OF CONTENTS

Question Presented.......................................................................................................................... i

Table of Authorities....................................................................................................................... v

Prayer for Relief............................................................................................................................. 1

Opinion Below............................................................................................................................... 2

Jurisdiction..................................................................................................................................... 2

Statutory and Constitutional Provisions Involved........................................................................ 2

Statement of the Case..................................................................................................................... 3

A. Jurisdiction of Court of First Instance.................................................................. 3

B. Facts Material to the Question Presented............................................................. 3

1. The Underlying Arrest................................................................................ 3

2. The Federal Prosecution and Demand for Spelling Exemplars............... 5

3. Proceedings in the Ninth Circuit............................................................... 6

Reasons Supporting Allowance of the Writ.................................................................................. 6

A. Pheaster: The Origin of the Ninth Circuit=s Error.............................................. 7

B. The First Circuit Avoided the Ninth Circuit=s Error in Campbell..................... 9

C. This Court=s Authority After Pheaster Vindicates the First Circuit=s Approach........... 12

D. The Ninth Circuit Has Fostered a Circuit Split.................................................. 15

E. The Circuit Split on the Testimonial Nature of Spelling Involves a Federal Question of National Importance 16

Conclusion .................................................................................................................................. 19

Certificate of Service................................................................................................................... 20

No.

______________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

______________________________

XXX XXX, Petitioner,

UNITED STATES OF AMERICA, Respondent.

______________________________

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________________

Prayer for Relief

The Petitioner, XXX XXX, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit, No. 99-15331, entered on September 13, 1999.

Opinion Below

A three-judge panel of the Ninth Circuit entered judgment in a memorandum disposition. See United States v. XXX XXX, No. 99-15331 (9th Cir. Sept. 13, 1999) (mem.), Appendix A. The memorandum disposition affirmed the district court=s judgment of contempt against Petitioner XXX XXX. Id. The memorandum disposition was final and unreported. Id.

Jurisdiction

On September 14, 1999, the Court of Appeals for the Ninth Circuit delivered a memorandum disposition affirming the judgment of the district court. Jurisdiction before this Court is conferred by 28 U.S.C. ' 1254(1).

Statutory and Constitutional Provisions Involved

This petition involves no provision of state or federal statute.

Petitioner was held in contempt in violation of the Fifth Amendment to the Constitution of the United States. That amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, expect in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

U.S. Const. amend. V (emphasis added).

Statement of the Case

A. Jurisdiction of Court of First Instance

The jurisdiction of the district court was invoked pursuant to 21 U.S.C. ' 3231. Jurisdiction in the Court of Appeals over an appeal brought by a recalcitrant witness, incarcerated for failure to follow an order of the district court, was conferred pursuant to 28 U.S.C. '' 1291 and 1826(b).

B. Facts Material to the Question Presented

1. The Underlying Arrest

On March 2, 1999, Petitioner XXX XXX was convicted after a jury trial for causing a firearm and ammunition to be delivered by mail, and for shipping a firearm after a previous conviction for a felony, in violation of 18 U.S.C. '' 1715, 1716(I)(2), and 922(g)(1) and (2).

Eight months earlier, Mr. XXX XXX was a fugitive wanted on a federal warrant for a supervised release violation out of the Southern District of Mississippi. Mr. XXX XXX was wanted for failing to report to his probation officer and remained undetected for several years without any apparent contact with law enforcement.

The United States marshals in the Northern District of California received information in August, 1998, that suggested that Mr. XXX XXX received mail at the Rincon Postal Annex in San Francisco, California. The marshals learned that a post office box had been rented in the name AXXX XXX@ at that postal facility, and that mail arrived at that box addressed to Mr. XXX XXX. The person who had completed the post office box application had handwritten his or her answers.

The marshals surveilled the post office box and eventually learned that a package addressed to Mr. XXX XXX had arrived. The address on this package was handwritten and bore the distinctive return address, AXXX XXX, XXX XXX 3st Street, Alva, OK 73717" (emphasis added). At the direction of the marshals, the postal authorities replaced this package with a notification slip.[1]

Mr. XXX XXX was arrested when he arrived and picked-up mail and the notification slip. He made no attempt to claim the package. Later inspection by postal authorities revealed that the package contained a revolver and ammunition.

2. The Federal Prosecution and Demand for Spelling Exemplars

Petitioner was charged by way of indictment on September 2, 1998, in a three count indictment that alleged mailing a firearm in violation of 18 U.S.C. ' 1715, mailing ammunition, in violation of 18 U.S.C. ' 1716, and unlawful shipment of a firearm by a felon and fugitive, in violation of 18 U.S.C. ' 922(g)(1), (2).

That same month the government filed a written request that Mr. XXX XXX be ordered to provide it with handwriting exemplars. As noted above, both the post office box application and the address on the face of the package recovered were handwritten. In addition, the government produced in discovery scores, if not hundreds, of handwritten documents secured from a search of a house in Alva, Oklahoma where Petitioner had allegedly lived.

Mr. XXX XXX filed an opposition to the government=s request to the extent that the handwriting exam was to be administered orally. After hearing argument on the matter, the district court ordered that Mr. XXX XXX provide handwriting exemplars in response to the dictated directions of a government agent.

There followed further hearings and briefing on the district court=s remedies should Petitioner refuse to comply with this order. In January of 1999 Mr. XXX XXX was placed in a cell with defense counsel, a defense legal assistant, assorted United States Marshals, and Postal Inspector Jeffrey Fitch. Mr. XXX XXX complied with a request to copy printed materials, but invoked his Fifth Amendment right to remain silent and declined to provide handwriting and spelling exemplars in response to Inspector Fitch=s dictation.

After still further hearings and briefing, the district court responded to the government=s request for an order to show cause and held Petitioner in contempt by way of a verbal order. The court ordered that Mr. XXX XXX would not receive credit while in custody for time that he served under the contempt order.

Trial began the following day, and ended on March 2, 1999, when Mr. XXX XXX was convicted of all three counts contained in the indictment.

3. Proceedings in the Ninth Circuit

Petitioner timely appealed the order of contempt. Following oral argument, the Ninth Circuit Court of Appeals issued a memorandum disposition affirming the order of contempt because its decision in United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) was Anot undermined by Pennsylvania v. Muniz, 496 U.S. 582 (1990) or Estelle v. Smith, 451 U.S. 454 (1981).@ See United States v. XXX XXX, No. 99-15331 (9th Cir. Sept. 13, 1999) (mem.), Appendix A.

Petitioner did not seek rehearing en banc.

Reasons Supporting Allowance of the Writ

The Ninth Circuit is in direct conflict with another federal circuit court and is out of step with this Court=s authority on an important federal issue: the forced production of spelling exemplars in violation of the Fifth Amendment privilege against self-incrimination.

The federal government=s insistence on dictated handwriting exemplars forces a criminal defendant to reveal, under threat of contempt, his or her thought processes in the form of spelling. While handwriting is not testimonial, Mr. XXX XXX=s assertion of his Fifth Amendment rights presented the Ninth Circuit with the issue of where on the continuum of the human cognitive process does spelling fall? The Court of Appeals erred when it determined that the mental process of spelling does not fall within the protection of the Fifth Amendment. The federal government continues to exploit that error with a published national policy encouraging dictated spelling exemplars.

A. Pheaster: The Origin of the Ninth Circuit=s Error

Two circuit courts have attempted to anticipate how this Court would view compulsion of spelling in the context of the Fifth Amendment: the Ninth and the First. The First Circuit reasoned correctly. See United States v. Campbell, 732 F.2d 1017 (1st Cir. 1984). The Ninth Circuit erred, see United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), then repeated its error despite intervening guidance from this Court, see United States v. XXX XXX, No. 99-15331 (9th Cir. Sept. 13, 1999) (mem.), Appendix A.

The Ninth Circuit=s 1976 decision in Pheaster was one of the earliest published cases on the issue of spelling in the context of the Fifth Amendment. In Pheaster, kidnappers had made some unusual spelling mistakes in their demand notes. 544 F.2d at 371. An agent dictated material to the defendant that contained these misspelled words, and the defendant made the same errors in his handwriting exemplars. Id. Those misspellings were introduced at trial as substantive evidence that the defendant was the author of the note. Id. On appeal, the defendant in Pheaster claimed that the dictated exemplar used to obtain his handwriting violated his right against self-incrimination. Id. at 372. The defendant argued that a dictated handwriting exemplar, in contrast to the more orthodox printed exemplars, Arequires the defendant to give evidence which >is the product of his mind and intellectual processes.=@ Id.

The Ninth Circuit in Pheaster dismissed this argument in a remarkably cursory analysis:

In our view, Pheaster has succeeded in identifying a distinction without a difference. Like spelling, penmanship is acquired by learning. The manner of spelling a word is no less an Aidentifying characteristic@ than the manner of crossing a At@ or looping an Ao.@ All may tend to identify a defendant as the author of a writing without involving the content or message of what is written. No protected communication is involved.

Id.

The Ninth Circuit in Pheaster quoted at length from this Court=s decision in Gilbert v. California, 388 U.S. 263 (1967). The court of appeals noted that, in Gilbert, this Court concluded that the taking and use of handwriting exemplars for identification purposes do not violate the Fifth Amendment=s protections against self-incrimination. Id. The Ninth Circuit made no attempt, however, to gauge whether spelling more deeply engages the gears of human thought than the rote act of handwriting. Eight years later the First Circuit would undertake a more thoughtful analysis.

B. The First Circuit Avoided the Ninth Circuit=s Error in Campbell

In United States v. Campbell, 732 F.2d 1017 (1st Cir. 1984), the First Circuit considered a challenge similar to that raised before the Ninth Circuit in Pheaster. The defendant in Campbell asserted his Fifth Amendment right against self-incrimination and refused to provide handwriting exemplars responsive to dictated materials. Id. at 1020-21. The defendant offered to provide exemplars from printed materials, or to copy words written out by his counsel. Id. at 1021. Both offers were rejected and the jury was eventually informed of the defendant=s refusal to comply with a court order to provide written exemplars. Id.

The court in Campbell first noted an obvious fact equally true in the present case; AThe only difference we see between dictation and being shown the words to write would be to discover defendant=s choice of spelling.@ Id. When asked why this was not the compulsion of testimonial content, the government could do no more than to refer to the Ninth Circuit=s decision in Pheaster.

The First Circuit was unimpressed with the Ninth Circuit=s analysis in Pheaster:

The Pheaster court got off on the wrong foot. Basic penmanship, of course, is learned, but to say that the ultimate handwriting is an intellectual process of learning, as distinguished from physical form, is simply not so. The distinction is what caused the Court, ante, to exempt compelled handwriting from the Fifth Amendment. We agree that spelling may be an identifying characteristic no less than handwriting idiosyncracies. The trouble is, from the standpoint of the Fifth Amendment, that it may be something more. When he writes a dictated word, the writer is saying, AThis is how I spell it,@--a testimonial message in addition to a physical display. If a defendant misspelled a common word, and the document sought to be attributed to him misspelled it the same way, could it be thought that the government would not, quite properly . . . argue that there was a message? Indeed, the Pheaster court said exactly that, AThe manner of spelling a word is . . . an >identifying characteristic,'" and then drew the wrong conclusion. Not surprisingly, the court cited no authority for its proposition.

Campbell, 732 F.3d at 1021 (internal quotations omitted).

The Court in Campbell noted that the government=s position might be tested another way: Acould the defendant be put on the stand and given a spelling test? Obviously, compelled answers would be testimonial, or communicative.@ Id. The court vacated the conviction on the count relating to the exemplars.

Thus, in Campbell the First Circuit was the first court to identify a dictated handwriting exemplar for what it truly is: a spelling test. The court in Campbell also distanced itself from the suspect reasoning of the Ninth Circuit in Pheaster. The First Circuit would ultimately prove a better prognosticator than the Ninth of this Court=s view of the scope of the testimonial privilege.

C. This Court=s Authority After Pheaster Vindicates the First Circuit=s Approach

In a series of decisions that followed the Ninth Circuit=s decision in Pheaster, this Court=s approach to the Fifth Amendment right against self-incrimination has vindicated the First Circuit=s view of spelling as a testimonial act protected from compulsion. These opinions include Estelle v. Smith, 451 U.S. 454 (1981), and Pennsylvania v. Muniz, 496 U.S. 585 (1990).

In Estelle, a state defendant was forced to undergo a psychiatric exam without counsel being present. 451 U.S. at 457. The results of this exam were admitted during the penalty phase of his capital trial over the defendant=s objection. Id. This Court viewed the exam as improper, because the substance of the defendant=s statements was used as evidence. Id. at 463. This was true even though the Asubstance@ of these communications merely related to the defendant=s mental condition. Id.

This Court further honed its view of testimonial information falling within Fifth Amendment protections in Pennsylvania v. Muniz, 406 U.S. 596 (1990). In Muniz, the Court addressed the issue of whether statements obtained from a drunk driver could be used against him. Of particular concern was a question posed to the defendant by the arresting officer: Awhen you turned six years old, do you remember what the date was?@ Id. at 586. The defendant replied, Ano, I don=t.@ Id. This response was admitted at the defendant=s trial to show that he was inebriated when arrested. Id. at 587.

After an extended analysis of the Fifth Amendment, this Court concluded that this particular question violated constitutional protections against self-incrimination. Id. at 592. While the state admittedly attempted to learn the physical state of the defendant=s brain, it did so in part from the contents of the defendant=s response. Id. The Court turned to its previous decision in Doe v. United States, 487 U.S. 201 (1988), and reasoned that a statement is testimonial if an accused=s communications Aexplicitly or implicitly, relate a factual assertion or disclose information.@ Id. at 594. Because the question regarding the date on defendant=s sixth birthday called for such a disclosure, it was therefore improper. Id. at 599.

This Court in Muniz discussed its prior analysis in Gilbert and distinguished that decision in a manner critical to the present petition:

We carefully noted in Gilbert v. California, 388 U.S. 263 (1967), for example, that a >mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege=s] protection.= Id. at 26667, 87 S. Ct. at 1953 (emphasis added). Had the suspect been asked to provide a writing sample of his own composition, the content of the writing would have reflected his assertion of facts or beliefs and hence would have been testimonial; but in Gilbert A[n]o claim [was] made that the content of the exemplars was testimonial or communicate matter.@ Id. at 267, 87 S. Ct. at 1953.

Muniz, 498 U.S. at 598.

This Court=s focus on the content of the statement in Estelle, and its distinction of nontestimonial physical evidence from the Acontent of what is written@ in Muniz supports the First Circuit=s interpretation of the Fifth Amendment in Campbell and is at odds with the Ninth Circuit=s position in Pheaster. Given the benefit of the First and Ninth Circuit=s decisions and this Court=s intervening authority, a New York federal district court has recently endorsed the First Circuit=s approach. See United States v. Matos, 990 F. Supp. 141 (E.D.N.Y. 1998).

In Matos, a defendant misspelled a dictated word in the same manner that the word had been misspelled in a bank robbery note. Id. at 143. The district court thoroughly reviewed the respective decisions of the First and Ninth Circuits, and sided with the First. The court in Matos characterized the Ninth Circuit=s decision in Pheaster as a Asummary dismissal of the defendant=s Fifth Amendment claim@ that Afailed to focus on the obvious testimonial component of such handwriting exemplars.@ Id. at 144. The court likened the dictation process to compelling the defendant to take the stand for a spelling exam, and observed A[b]ut for the roundabout way in which the defendant was asked to make [the verbal statement of spelling] I don=t think the issue would have arisen.@ Id.

In the present case, the Ninth Circuit was provided an opportunity to bring its jurisprudence into harmony with that of another federal circuit and with the authority of this Court. It declined.

D. The Ninth Circuit Has Fostered a Circuit Split

In the memorandum disposition that is the basis of this petition, the Ninth Circuit simply reaffirmed its previous decision in Pheaster, perpetuated a split in the federal circuits and ignored this Court=s intervening authority.

When presented with Mr. XXX XXX=s appeal, the Ninth Circuit had the benefit of the First Circuit=s analysis in Campbell, this Court=s intervening authority in Estelle and Muniz, and the informative opinion of the district court in Matos. The Circuit=s adherence to its twenty-year old precedent requires that this Court resolve a circuit split.

The Pheaster decision has been undermined by more than twenty years of contrary federal legal analysis. Its cursory dismissal of the testimonial nature of spelling is also contrary to today=s more sophisticated understanding of spelling as the product of a cognitive act:

Far from being a Amechanical@ skill, as it is often characterized in writing tests, spelling is a multifaced form of linguistic representation that integrates and depends on phonological, semantic, and orthographic knowledge. We know that in general, good spellers are more sensitive to language structure, more able to think about language and manipulate language, and more able to learn linguistic complexities than individuals who spell poorly. Conversely, those who spell poorly, even if they read well, usually demonstrate at least subtle difficulties with the manipulation of language, use of language, or the ability to notice language structure while remembering words.

Loisa Cook Moats, Ed.D., Spelling: Development, Disability, and Instruction 49-50 (1995) (citations omitted).

The Ninth Circuit=s reliance on its aging precedent thus places it at odds with this Court=s authority, a fellow circuit court, and with new scientific understanding on the nature of spelling as a testimonial, communicative act.

E. The Circuit Split on the Testimonial Nature of Spelling Involves a Federal Question of National Importance

While the Ninth Circuit has dismissed the testimonial nature of spelling tests, the federal government is well aware of the substantive, probative value of spelling mistakes in the prosecution of criminal cases.

The Ninth Circuit=s decision in Pheaster has encouraged federal agents to administer spelling tests in the guise of Ahandwriting exemplars.@ In its national Handbook of Forensic Services, the Federal Bureau of Investigation cautions its agents, ADo not give instructions in spelling, punctuation, or arrangement of writing.@ United States Department of Justice, F.B.I., Handbook of Forensic Services, (Dec. 13, 1999) <http://www.fbi.gov/programs/lab/handbook/ examques.html> (emphasis added). Agents are to A[o]btain exemplars from dictation until normal writing has been produced.@ Id.

In Matos, F.B.I. agents in New York dictated spelling tests in the guise of handwriting exemplars, consistent with the Bureau=s instructions on securing this testimonial evidence. See Matos, 990 F. Supp. at 142. In Campbell, a case arising out of Massachusetts, it was noted, on rehearing, that dictation was favored by F.B.I. regulation. Campbell, 732 F.2d at 1022. The agent in Campbell refused to provide printed exemplars and instead insisted on dictated samples. Id. In the present case out of the Northern District of California, the government represented to the district court that federal postal inspection policies require that handwriting exemplars be acquired by dictating the sample words and phrases to the defendant.

The federal government=s insistence on obtaining spelling tests under the guise of handwriting exemplars is a national policy enforced by many federal law enforcement agencies. The Ninth Circuit is accordingly Ain conflict with the decision of another United States court of appeals on the same important matter,@ and has Adecided an important federal question in a way that conflicts with relevant decisions of this Court.@ Sup. Ct. R. 10(a), (c).

The Ninth Circuit Agot off on the wrong foot@ when it decided Pheaster. Campbell, 732 F.3d at 1021. In its decision that is the basis for this petition, it remains out-of-step with this Court=s authority, a federal court of appeals, and an evolving scientific understanding of the testimonial nature of spelling. This Court should grant Mr. XXX XXX=s petition for writ of certiorari to enforce the protections of the Fifth Amendment.

CONCLUSION

For the foregoing reasons Mr. XXX XXX prays that this Court grant his petition for a writ of certiorari to resolve an important federal question that now divides federal courts of appeals.

_________________ Respectfully submitted,

Dated BARRY J. PORTMAN

Federal Public Defender

GEOFFREY A. HANSEN

Chief Assistant Federal Public Defender

STEVEN G. KALAR*

Assistant Federal Public Defender

*Counsel of record for Petitioner XXX XXX

No.

______________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

______________________________

XXX XXX, Petitioner,

UNITED STATES OF AMERICA, Respondent.

______________________________

CERTIFICATE OF SERVICE BY MAIL

I, Steven G. Kalar, counsel appointed pursuant to the Criminal Justice Act of 1964, 18 U.S.C. ' 3006A(b), hereby certify that on this 13th day of December, 1999, one copy of the Petition for Writ of Certiorari in the above-entitled case was mailed, first class postage prepaid, to the Clerk of the Supreme Court of the United States and within the time allowed for filing said Petition was served on following counsel:

Solicitor General of the United States Robert S. Mueller, III

Room 5614 United States Attorney

United States Department of Justice ATTN: AUSA Miranda Kane

950 Pennsylvania Ave., N.W. 450 Golden Gate Ave., 11th Floor

Washington, D.C. 20530-0001 San Francisco, CA 94102

(415) 436-7200

Date:

STEVEN G. KALAR

Assistant Federal Public Defender

P.O. Box 36106

San Francisco, CA 94102

Tel: (415) 436-7700

Appendix A

TABLE OF AUTHORITIES

FEDERAL CASES

Doe v. United States, 487 U.S. 201 (1988) .................................................................. 13

Estelle v. Smith, 451 U.S. 454 (1981) .......................................................................... 12

Gilbert v. California, 388 U.S. 263 (1967) ............................................................. 9, 14

Pennsylvania v. Muniz, 496 U.S. 585 (1990) ...................................................... 12, 14

United States v. Campbell, 732 F.2d 1017 (1st Cir. 1984) ............................... passim

United States v. Matos, 990 F. Supp. 141 (E.D.N.Y. 1998) ............................... 14, 17

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) ..................................... 6, 7,8

DOCKETED CASES

United States v. XXX XXX, No. 99-15331 (9th Cir. Sept. 13, 1999) ................ 2, 6, 7

UNITED STATES CONSTITUTION

U.S. Const. amend. V ...................................................................................................... 3

FEDERAL STATUTES

18 U.S.C. ' 922(g) ........................................................................................................ 3, 5

18 U.S.C. ' 1715 ........................................................................................................... 3, 5

18 U.S.C. ' 1716 ........................................................................................................... 3, 5

18 U.S.C. ' 3006A(b) ..................................................................................................... 20

21 U.S.C. ' 3231 ............................................................................................................... 3

28 U.S.C. ' 1254(1) .......................................................................................................... 2

28 U.S.C. ' 1291 ............................................................................................................... 3

28 U.S.C. ' 1826 ............................................................................................................... 3

FEDERAL RULES

Sup. Ct. R. 10(a), (c) ..................................................................................................... 18

MISCELLANEOUS

Loisa Cook Moats, Ed.D., Spelling: Development, Disability, and Instruction 49-50 (1995) (citations omitted) 16

United States Department of Justice, F.B.I., Handbook of Forensic Services, (Dec. 13, 1999) 17

[1] The validity of the warrantless seizure of the address (or Amail cover@) on the package face by the United States marshals is the subject of a pending appeal before the Ninth Circuit.