United States v. Pipkins, 528 F.2d 559 (5th Cir. 1976)

GEWIN, Circuit Judge:

After trial by jury appellant Jesse Ray Pipkins was convicted on both counts of an indictment charging him with possession of stolen mail in violation of 18 U.S.C. § 1708 and forgery of a United States Treasury check in violation of 18 U.S.C. §§ 2 and 495. Pipkins contends that his conviction should be reversed because of two alleged errors: (1) the trial court’s refusal to apply the attorney-client privilege to the testimony of a handwriting expert previously employed by defense counsel, but called as a prosecution witness; and (2) the trial court’s refusal to charge the jury on the issue of circumstantial evidence in accordance with his requested instruction. We affirm.

Both counts in the indictment arose from a single incident. A Veterans Educational Assistance check, made payable to Milton J. Chambers, was issued on June 2, 1973. The check was sent to Chambers at his home address in Houston, Texas. Chambers never received the check; without his permission someone endorsed and cashed it at the Frances Food Market. The proprietor of that store was unable to recall the identity of the person who cashed the check.

Postal Inspector James C. Crowley was assigned to investigate the matter. In the course of his investigation, he interviewed appellant Pipkins. After apprising Pipkins of the purpose of the investigation and of his Miranda rights, the inspector requested Pipkins to submit a handwriting exemplar. Pipkins assented and signed a form waiving his Miranda rights. On a government form Pipkins provided a handwriting specimen; he also acknowledged that he had freely and voluntarily given the samples after having been advised of his rights. In addition, in accordance with Crowley’s instructions, Pipkins wrote Chambers’ name and address on ten cards. On each card Pipkins acknowledged that the handwriting specimen was given freely and voluntarily.

Subsequently the grand jury returned an indictment against Pipkins, and the Federal Public Defender for the Southern District of Texas was appointed to represent him. In preparing Pipkins’ defense, the Public Defender’s office retained a handwriting expert, Albert Somerford. At the direction of defense counsel, Somerford met with Pipkins at the Public Defender’s office. A representative of the United States Attorney’s office hand delivered the forged check and the handwriting samples that Pipkins had given to the government. The expert made a preliminary comparison of the handwriting on the check with that on the government samples. He then requested Pipkins to furnish him further handwriting samples; after-wards he submitted a written report.

Somerford’s analysis incriminated Pip-kins, and the defense decided not to call the expert at trial. The government filed a motion for discovery, pursuant to F.R.Crim.P. 16(c), seeking inspection of any scientific tests, and the reports thereof, concerning appellant’s handwriting. Appellant responded that although he had a written handwriting analysis report, he did not intend to introduce the report at trial, and that it was not discoverable under F.R.Crim.P. 16(c). The government’s motion for discovery and inspection was denied.

At trial the government called Somerford as an expert witness. Outside the presence of the jury defense counsel objected to the government’s calling of Somerford. Defense counsel argued that Somerford was an agent of defense counsel and that the attorney-client privilege applied to his testimony. Before ruling on the objection, the court directed the government to offer Somerford’s testimony.

On direct examination Somerford stated that it was his opinion that the signature on the back of the endorsed check

matched the handwriting specimens Pip-kins had given Inspector Crowley. On cross-examination by defense counsel, the following testimony was elicited:

After this testimony, the court overruled the appellant’s objection with the reservation that the government not comment upon the fact of Somerford’s previous employment by defense counsel. The jury was summoned, and Somerford repeated his incriminating testimony.1

I

Pipkins contends that the trial court’s refusal to apply the attorney-client privilege to the testimony of Somerford was reversible error. He argues that the handwriting specimens which Pipkins gave Somerford, as well as Somerford’s report of his findings, were privileged communications.

The attorney-client privilege prohibits the disclosure of the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice. United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir. 1974); Clanton v. United States, 488 F.2d 1069, 1071 (5th Cir. 1974), cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116 (1974); United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964); J. P. Foley & Co. v. Vanderbilt, 65 F.R.D. 523, 526 (S.D.N.Y.1974). In appropriate circumstances the privilege may bar disclosures made by a client to non-lawyers who, like Somerford, had been employed as agents of an attorney. United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961); Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 40 (D.Md.1974); United States v. Schmidt, 360 F.Supp. 339, 346 (M.D.Pa.1973); 8 Wigmore, Evidence (McNaughton rev. 1961) § 2301.

The attorney-client privilege, however, is not a broad rule of law which interposes a blanket ban on the

testimony of an attorney. To the contrary,

In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). See also United States v. Goldfarb, 328 F.2d 280, 282 (6th Cir. 1964), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); Hogan v. Zletz, 43 F.R.D. 308 (N.D.Okl. 1967) , aff’d sub nom., Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968). The privilege does not embrace everything that arises out of the existence of an attorney-client relationship. United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1968) , cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1969); United States v. Goldfarb, supra; Burlington Industries v. Exxon Corp., supra. By the same token,

United States v. Kovel, supra, 296 F.2d at 921.

It is vital to a claim of privilege that the communication have been made and maintained in confidence. United States v. Hodgson, supra; Wirtz v. Fowler, 372 F.2d 315, 332 (5th Cir. 1966); United States v. Kovel, supra; 8 Wig-more, supra, § 2311. Thus courts have refused to apply the privilege to information that the client intends his attorney to impart to others, United States v. Cote, 456 F.2d 142, 144 (8th Cir. 1972); Fratto v. New Amsterdam Fire Ins. Co., 359 F.2d 842, 844 (3d Cir. 1966); Colton v. United States, 306 F.2d 633, 638 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963), or to communications made in the presence of third parties, United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir. 1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972); Burlington Industries v. Exxon Corp., supra, 65 F.R.D. at 37; Cafritz v. Koslow, 83 U.S.App.D.C. 212, 167 F.2d 749, 751 (1948).

Pipkins failed to establish that the handwriting samples that he gave Somerford were confidential. One’s style of handwriting is not an intrinsically confidential attribute;2 and there is nothing in the record that indicates that Pipkins subjectively intended his style of handwriting to be confidential. Defense counsel attempted to establish the requisite element of confidentiality by showing that Somerford had been directed to make no comment concerning the result of his handwriting analysis to anyone other than defense counsel. This argument overlooks the fact that appellant himself had already voluntarily disclosed his handwriting style to the government before he was ever interviewed by Somerford. Any hope of confidentiality was thus an impossibility from the outset. We hold, therefore, that Pipkins failed to establish that his handwriting samples were confidential communications within the ambit of the attorney-client privilege.

Moreover, even assuming, arguendo, that the samples of handwriting that

Pipkins gave Somerford were privileged communications, there was no error in admitting the expert’s testimony. Somerford was asked to compare the handwriting on two government exhibits; he was not questioned about either the subsequent samples or the results of the test conducted at the behest of defense counsel. Consequently, the questions propounded Somerford did not call for the revelation of the substance of a confidential communication; his testimony was confined to nonconfidential matters. Somerford stated that he would be able to form his opinion without any reference to the subsequent samples. Therefore, Somerford’s opinion about the handwriting on the government exhibits was not “inextricably intertwined with communications which passed between him and his client,” and we do not confront testimony that necessarily “comprehended conclusions drawn in the course of an association that is uniquely regarded in the law.” United States v. Kendrick, supra, 331 F.2d at 115 (concurring opinion). Accordingly appellant’s first contention is without merit.

II

At the close of the evidence, defense counsel requested the following charge on circumstantial evidence:

Although the trial judge declined to give the requested instruction, he did instruct the jury on the standards for reasonable doubt; and the appellant did not object thereto.- In Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the Supreme Court held that where the jury is properly instructed on the standards for reasonable doubt, an additional instruction on circumstantial evidence is confusing and incorrect. This court has consistently followed Holland and held that the instruction requested by Pipkins is not required where there were adequate instructions on reasonable doubt. United States v. Rodriguez, 523 F.2d 738 (5th Cir. 1975); United States v. Squella-Avendano, 478 F.2d 433 (5th Cir. 1973); United States v. Hansbrough, 450 F.2d 328 (5th Cir. 1971).

Affirmed.