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UNITED STATES v. MATOS

January 7, 1998

UNITED STATES OF AMERICA, against SAMUEL MATOS, Defendant.


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Samuel Matos, Jr., is charged in a four-count indictment with two counts of bank robbery (arising out of robberies committed on August 28, 1992, and September 18, 1992), and with carrying a firearm during each robbery. The defendant has moved to suppress certain handwriting exemplars taken from him on the ground that the circumstances in which they were given amounted to a violation of his Fifth Amendment right against self-incrimination. For the reasons set forth below, the motion is denied.

 FACTS

 A. The Charged Robberies

 On August 28, 1992, a man with a gun robbed the National Westminster Bank at 6901 Fifth Avenue in Brooklyn. The robber handed the teller a note and a gray plastic bag. The note was returned to the robber in the bag along with some money.

 On September 18, 1992, a gun-toting robber handed a note and a bag to a teller at the Hamilton Federal Savings Bank at 240 Court Street in Brooklyn. The note from that robbery will be an exhibit at trial. It directed the teller to, inter alia, "Put all your (from both draws (sic)) $ 500.00, $ 100.00, $ 50.00, $ 20.00 Etc. in the bag" (emphasis in original).

 B. The Uncharged Attempted Robbery

 The government intends to offer, pursuant to Fed. R. Evid. 404(b), an attempted robbery of a Chemical Bank branch at 280 Graham Avenue (presumably in Brooklyn) on September 4, 1992. The would-be robber used a note, which the government intends to offer at trial. The note from this robbery is strikingly similar, in content and appearance, to the above-quoted note used two weeks later by the robber of the Hamilton Federal Savings Bank. However, the word "drawers" does not appear in any form on the note used at Chemical Bank.

 C. The Investigation

 On November 12, 1996, a grand jury subpoena was issued commanding Matos to provide, among other things, handwriting exemplars to the grand jury on November 29, 1997. However, the subpoena stated that compliance could be accomplished by providing the exemplars to Pamela Lane, an agent of the Federal Bureau of Investigations ("FBI"), at her office. Agent Lane's office address and telephone number were set forth on the subpoena. After receiving the subpoena, Matos telephoned Agent Lane and arranged to provide an exemplar at her office on December 3, 1996. Matos arrived at the FBI office on that date by himself.

 Matos was advised by Agent Lane and Agent Lynn Willet that they were investigating three bank robberies. They instructed him not to talk about the bank robberies, and told him that if he wanted to do so, he should have an attorney present. The defendant never requested counsel or stated that he wanted to leave. No guns or handcuffs were displayed or used.

 According to an affidavit provided by Agent Lane, the agents gave specific directions to Matos as to how certain dictated terms should be written. They instructed him (1) how to write the numbers, e.g, he was not instructed to write "one hundred dollars;" rather, he was instructed to write "dollar sign, one, zero, zero, decimal point, zero, zero;" (2) to write the word "til"(rather than "until"); and (3) to underline certain terms that were ...


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