Since the court has previously found that there has been no violation of Rule 7(c), no further discussion is necessary as to this allegation. Assuming otherwise, and construing Rule 6(e) independently, defendants would not be entitled to a dismissal of the indictment by reason of the incorporation of the letters. The rule of secrecy applies in pertinent part to individual members of the grand jury disclosing to others information as to the proceedings without permission of the court. It clearly does not, nor could it be construed to apply to the collective findings in the form of an indictment of the grand jurors acting as a judicial body, and the court finds no merit to this contention.
The defendants also assign as error that "[the] government's action in publishing the purported correspondence is in flagrant derogation of the jurisdiction of the court." Defendants argue that by reason of their having filed a motion for severance and a motion for discovery in Criminal No. 14886, the government's subsequent conduct in bringing about a return of a second indictment has highly prejudiced the defendants and is an affront to the jurisdiction of this court. The thrust of this argument alludes more specifically to the pre-trial publicity which accompanied the return of the second indictment, Criminal No. 14950, and is closely related to defendants' claim that the Fifth and Sixth Amendments require dismissal of the indictment. These matters, as they properly should, will be discussed in connection with defendants' separate motion to dismiss the indictment by reason of prejudicial pre-trial publicity, and their respective motions for severance.
Finally, defendants argue in support of their motion to dismiss that "[on] its Face the Appended Correspondence does not Constitute an Offense under 18 U.S.C. 876." Defendants aver that 18 U.S.C. § 876 is inapplicable "because the letters were not communicated to, and were never meant to be communicated to any victim." In addition, the defendants argue that in order for the letters to constitute a "threat" within the purview of the statute the victim must have been intimidated by them. The court finds no merit in this argument.
The relevant portion of 18 U.S.C. § 876 provides: "Whoever knowingly so deposits or causes to be delivered * * * any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person * * * shall be fined * * *." (Emphasis supplied) The statutory language is clear that the threat to kidnap which is violative of the section is not so limited that the threat need be communicated to any victim or an addressee who is directly connected with the victim, but that it may be "addressed to any other person and containing any threat to kidnap any person." It is the general rule that a court will not resort to the legislative history of an act when the statute is clear on its face. United States v. Oregon, 366 U.S. 643, 648, 81 S. Ct. 1278, 6 L. Ed. 2d 575 (1961). Although the statute in question is expressly clear, defendants suggest that the legislative history, to the contrary, limits the literal reading of the statute. Even if the court were to consider the legislative history to paragraph 3 of Title 18 U.S.C. § 876, it is apparent that the legislative history supports the express language of the section. H.R. 3230, 76th Congress, 1st Session (February 16, 1939). Additionally, it might be said, hypothetically, that the mere "deposit" of a threatening communication in the mails with requisite intent, addressed to the person of another, is a violation of 18 U.S.C. § 876 even if it is not ultimately "delivered" to anyone. The thrust of the statute is the prohibition of the use of the mails to transmit threatening communications whether or not the communication was directed to a threatened addressee or "addressed to any other person and containing any threat * * * [to] any person * *."
A literal reading of the statute is also substantiated by reference to analogous statutes. In the case of United States v. Pignatelli, 125 F.2d 643 (2d Cir. 1942), the Second Circuit affirmed the conviction of Ludovic Pignatelli pursuant to 18 U.S.C. § 338a(c), a predecessor of 18 U.S.C. § 876, with having mailed a written communication addressed to Princess Rospligliosi containing a threat to injure the reputation of Guido Pignatelli and Henrietta Pignatelli. Princess Rospigliosi, the addressee, was an "old acquaintance" of the defendant and had agreed to assist him. Also, in United States v. Holder, 302 F. Supp. 296 (D.C. Mont. 1969), aff'd, 427 F.2d 715 (1970), the defendant was convicted of transmitting in interstate commerce from Billings, Montana, to the F.B.I. headquarters in Washington, D.C., a telephonic threat to cut off the head of a Billings, Montana, resident, such communication being in violation of 18 U.S.C. § 875(c).
The District Court, in Holder, refused offered instructions on behalf of the defendant to the extent that defendant sought instructions that (1) the threats need be communicated to the victim; (2) that the threats must be made in such a manner as to have reasonably induced fear; and (3) that the jury must find that the defendant intended to carry out the threats in question. In support of its refusal, and as was affirmed by the Circuit Court, the District Court cited, and quoted with approval, the following language from United States v. Feudale, 271 F. Supp. 115 (D. Conn. 1967):
"'It is an essential element of the crime charged in this count [ 18 U.S.C. § 875(c)] that there be a communication by defendant containing a threat to injure the person of another.' (page 118) Seeber v. United States [9th Cir., 329 F.2d 572], supra, also upheld a conviction under 18 U.S.C. § 875(c) although the alleged threats made over the phone were delivered to persons other than the party the defendant intended to threaten.