The opinion of the court was delivered by: HERMAN
An "Order to Show Cause" has been filed with the court seeking (1) a dismissal of the above-captioned actions; (2) an injunction enjoining the government from discussing, releasing, or publicizing any alleged correspondence, documents, or evidence relating to the defendants in these actions; (3) a finding of contempt of court of the respondents, S. John Cottone, Esquire, United States Attorney, and William S. Lynch, Esquire, Deputy Assistant United States Attorney; (4) permission of the defendants, through their counsel, of inspecting the grand jury minutes; and (5) an order directing the respondents to inform the court and counsel whether their superiors in the United States Department of Justice had advance knowledge that evidentiary data, and particularly in handwritten form, would be included in the superseding indictment.
Prior to a discussion of the issues a brief summary of the facts on record before this court should be noted. On January 12, 1971 a grand jury, sitting at Harrisburg, Pennsylvania, returned a True Bill, Criminal No. 14886, charging Eqbal Ahmad, Philip Berrigan, Elizabeth McAlister, Neil McLaughlin, Anthony Scoblick, and Joseph Wenderoth with violations of 18 U.S.C. §§ 371 and 1201(c), together with six additional counts charging Elizabeth McAlister and Philip Berrigan with violations of 18 U.S.C. § 1791. On April 30, 1971 the grand jury returned an additional True Bill, Criminal No. 14950, in which the six above-named defendants and two others, John Theodore Glick, and Mary Cain Scoblick, were charged collectively with violations of 18 U.S.C. § 371; and individual defendants were charged with violations of 18 U.S.C. §§ 876 and 2, and 18 U.S.C. § 1791.
In the second indictment Count II charges Elizabeth McAlister and Eqbal Ahmad with a violation of 18 U.S.C. §§ 876 and 2, and Count III charges Philip Berrigan with a violation of 18 U.S.C. §§ 876 and 2.
Counts II and III set forth in haec verba purported language extracted from the respective letters alleged to be in violation of 18 U.S.C. § 871 with which the defendants are charged. In addition, the second indictment appends and incorporates as exhibits, copies of the text of the alleged handwritten correspondence. The issues raised in this matter focus upon the incorporation of the two communications in the second indictment and an allegation by the defendants that the two communications were offered previously to national news magazines, "such as Time and Life," and that, "It is a reasonable inference that it was a government source that offered these documents."
It is initially argued by the defendants that "the inclusion of the letters cannot be justified on the ground that they are proper elements of an indictment under Rule 7(c) of the Federal Rules of Criminal Procedure."
Prior to the adoption of the Federal Rules of Criminal Procedure, the common law required that in indictments charging violations of sending threatening communications, forgery or libel, the threat, the libelous comment, or the forged instrument which are the substance of the offenses must be set forth in haec verba within the indictment. Bradlaugh v. The Queen, L.R. 3 Bankr. Ct. Dec. (CRR) 607 (1878). These principles were often repeated in the federal courts in this and similar type cases. Bartell v. United States, 227 U.S. 427, 33 S. Ct. 383, 57 L. Ed. 583 (1913) (obscenity case); Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 40 L. Ed. 606 (1896) (obscenity case); Durland v. United States, 161 U.S. 306, 16 S. Ct. 508, 40 L. Ed. 709 (1895) (fraud); Wilson v. United States, 275 F. 307 (2d Cir. 1921) (use of mails to defraud); United States v. Watson, 17 F. 145 (D.C. Miss. 1883) (conspiracy to procure a false count of votes); United States v. Noelke, 1 F. 426 (S.D.N.Y. 1880) (lottery prohibition statute), but exceptions were carved into the rule where obscene printed matter was the substance of the offense. Durland v. United States, supra ; Wilson v. United States, supra ; Hume v. United States, 118 F. 689 (5th Cir. 1902); United States v. French, 57 F. 382 (C.C.S.D. Mass. 1893). Otherwise, it was generally said or adopted "'in every kind of a crime which consists in words, if the words complained of are not set out in the indictment or information, the objection is fatal in arrest of judgment,'" particularly as to the substantive crime of threats. Rosen v. United States, supra, at 36, 16 S. Ct. 434; Hume v. United States, supra ; Bradlaugh v. Queen, supra.
Both parties cite as authority for their respective positions the case of Keys v. United States, 126 F.2d 181 (8th Cir. 1942), in which a similar issue, although in the reverse, was decided. Keys, the appellant, had been convicted of a violation of 18 U.S.C. § 408d(c), the forerunner of 18 U.S.C. § 875. He was charged with transmitting in interstate commerce a communication with the intent to extort things of value from the addressee and threatening the reputation of the addressee unless money and other things of value should be paid over to him. Keys, as in the cases heretofore cited, appealed his conviction on the grounds that the indictment was insufficient for failure of the grand jury to embody within the indictment a copy of the communication including the letter and the pamphlet which was the substance of the offense charged. The Eighth Circuit recognized that appellant's contention was a "serious" one ( Keys v. United States, supra, at 183), and reiterated some of the cases discussed above. In rendering its decision the court cited the case of Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S. Ct. 628, 630, 39 L. Ed. 704 (1895), wherein it was said that the "true test" of an indictment is "not whether it might possibly have been made more certain, but  whether it contains every element of the offence intended to be charged, and  sufficiently apprises the defendant of what he must be prepared to meet, and,  in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Implementing the "test" of an indictment set forth in Cochran, the Eighth Circuit cited the case of United States v. Goldsmith, 68 F.2d 5, 7 (2d Cir. 1933), cert. denied, 291 U.S. 681, 54 S. Ct. 559, 78 L. Ed. 1068, a case involving forged instruments, and adopted with approval the holding that "'the defect in pleading was one which could be cured by verdict.'" Therefore, the court found that although the failure to embody the letters was in error, the defect was in form and not in substance of the indictment.
It is noteworthy that 42 C.J.S. Indictments and Informations § 144a and b (1944), as supplemented, provides:
"When printed or written matter enters into an offense as a part or basis thereof it should be set forth in the indictment, at least in substance, and where constituting the gist of the offense it has been held by some authorities that an instrument should be set forth in haec verba or according to its tenor, and that a mere statement of its effect is insufficient. Where a writing is merely incidental, or is relied on as proof of the fact charged and not in itself an offense, or where the voluminous or obscene character of the instrument, or its loss or absence, precludes its being put into the record, it may be described generally without being set forth. In the latter case the indictment should aver the reason for failure to set forth the instrument and should describe it ...