APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT of PENNSYLVANIA - PITTSBURGH D.C. Criminal No. 82-38
Before: HUNTER, GARTH, Circuit Judges, and STERN,*fn* District Judge
1. In a prosecution for mailing threatening letters in violation of 18 U.S.C. §§ 2, 876 (1976), the United States District Court for the Western District of Pennsylvania ruled that the government could not introduce correspondence in the defendant's handwriting in order to show stylistic similarities between that correspondence and the threatening letters at issue. United States v. Clifford, 543 F. Supp. 424 (W.D. Pa. 1982). The government appeals from the pretrial order excluding that evidence. We have jurisdiction to hear the appeal pursuant to 18 U.S.C. § 3731 (1976). We will reverse.
2. On March 9, 1982, a federal grand jury returned a two-count indictment against appellee Russell Clifford. The indictment charged Clifford with mailing threatening letters to Charles Sharon, Clifford's successor as police chief of Saltsburg, Pennsylvania. Those letters were printed in block style.
3.Through its investigation the government acquired various pieces of cursive correspondence apparently written and signed by Clifford, the government wanted to point out to the jury certain similarities in spelling, abbreviation, syntax, and paragraph structure between the block-style threatening letters and the cursive correspondence. Those similarities included misspellings of "figure" as "figuar" and "explosives" as "explodsives," the inconsistent use of either circles or dots for the letter "i," the lack of indentation or space between paragraphs, the use of certain abbreviations such as "Chas." for "Charles," and the use of long sentences in both sets of letters.
4. The government, however, recognized that there was no direct proof that Clifford had written the cursive letters. The government had circumstantial evidence that Clifford had written the letters because they bore the signature "Russell Clifford" and because they were addressed to city officials with whom Clifford regularly had business contacts as chief of police. Clifford, however, refused to stipulate that he had written the letters and refused voluntarily to provide the cursive handwriting exemplars necessary to establish his authorship.
5. On March 26, 1982, the government filed a motion to compel Clifford to provide handwriting exemplars written in cursive style. The government intended to use those cursive exemplars to prove that Clifford actually had written the cursive correspondence bearing his signature before it began pointing out the similarities between that cursive correspondence and the block-style threatening letters.*fn1
6. On April 14, 1982, the district judge conducted a hearing on the government's motion. In an attempt to explain its need for the exemplars, the government showed to the judge an FBI report which summarized the FBI's forensic linguistic analysis of the threatening letters and of the cursive correspondence bearing Clifford's signature.*fn2 The FBI report stated that, based on a comparison between the threatening letters and the cursive correspondence, there was a "strong likelihood" that Clifford had written the threatening letters. App. at 200A. The FBI report also stated that "[y]ou are reminded that since application of the linguistic method is not considered a positive means of identification, results of such examinations are provided for investigative assistance only, and are not intended for testimony." Id.
7. The district judge focused on the statement that the results of forensic linguistic analysis "are not intended for testimony," id. In light of that statement, he questioned the admissibility at trial of the cursive correspondence for the purpose of comparing it with the threatening letters. He further stated that if that evidence were admissible, there would be no need to compel Clifford to provide cursive exemplars. The judge requested additional briefing and took the government's motion under advisement.
8. On April 26, 1982, the government filed a Motion in Limine for a ruling that the cursive correspondence would be admissible at trial subject to proper authentication by the government. On May 17, 1982, the district judge ordered a hearing to examine the state of the art of forensic linguistic analysis before ruling on either of the pending motions. He ordered the government to produce the author of the FBI report and another forensic linguistics expert to testify at the hearings. The government filed a response to that order emphasizing that it did not intend to call any expert witnesses at trial. The government indicated that pursuant to the judge's order, however, it would present the following three witnesses at the hearing: Dr. Murray S. Miron, professor of psycholinguistics at Syracuse University and consultant in linguistics to the FBI; Special Agent Ronald M. Furgerson, chief of the FBI laboratory unit responsible for forensic linguistics; and Penelope O. Pickett, aural analyst for the FBI laboratory and author of the FBI report at issue.
9. The judge conducted the hearing on June 8, 1982. Dr. Miron testified that forensic linguistic analysis is the process of matching stylistic similarities in different documents and then of assigning weight to those similarities according to their distinctiveness and frequency of occurrence. He further stated that such an analysis could not provide a positive means of identifying the author of an anonymous document. He indicated the the results of forensic linguistic analysis could be probative in ...