The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge.
The above-named defendants were charged in a three-count indictment with various criminal acts involving the preparation and subsequent audit of the 1965 individual income tax return of Sue Bruno. Count I charged defendants, Angelo Bruno, Martin A. Coopersmith and Marvin J. Levin, with unlawfully conspiring to defraud the Government by obstructing the Internal Revenue Service in its audit of Mrs. Bruno's return.
Count II charges defendant Angelo Bruno with unlawfully assisting in the preparation of a false and fraudulent return,
and Count III charges Mrs. Bruno with knowingly subscribing to that return.
On the motion of defendants Levin and Coopersmith, a motion in which neither Angelo Bruno nor Sue Bruno joined, we entered an Order severing the charge of conspiracy against Levin and Coopersmith from the remaining charges against the Brunos, so that Levin and Coopersmith were granted a separate trial on the conspiracy charge. A three week jury trial ensued, and at the conclusion of the evidence, we granted the defendants' Motion for a Judgment of Acquittal for reasons which are explained below. Relying on the court's determination in the first trial, defendants, Angelo and Sue Bruno, have moved to dismiss the indictment as to all charges. For the following reasons, we have decided to grant the motion to dismiss as to Count I, and to deny the motion as to Counts II and III.
I. COUNT I OF THE INDICTMENT
A. Insufficiency of the evidence
The entire thrust of the Government's case against Levin and Coopersmith in the first trial on the conspiracy charge was that they had prepared a "false, fraudulent and counterfeit letter dated December 18, 1965" which the Government contended was actually signed some time between May of 1967 and March 24, 1969. The Government alleged that pursuant to an agreement between Penn Jersey Vending Company and John's Vending Company, which passed to Mrs. Bruno and Bruno upon the dissolution of Penn Jersey, certain commissions with an ascertainable value were taxable to Mrs. Bruno and should have been included in her income tax return for 1965. In the latter part of 1968, the Internal Revenue Service began investigating Mrs. Bruno's return. In March of 1969, at a conference with an investigator of the Regional Counsel's office, defendant Levin produced the original copy of the December 18, 1965 letter which purportedly was a cover letter from Coopersmith to Levin forwarding certain documents pertaining to Penn Jersey's 1965 income tax return and the 1099 forms from Mrs. Bruno. The Government alleged that the letter was fraudulently prepared during the Internal Revenue Service investigation to insulate the Brunos from prosecution by injecting a defense that the Brunos acted with the knowledge and advice of counsel. Virtually the whole trial was devoted to litigating the authenticity of this so-called "questioned document."
Through the testimony of its expert witness, Richard Brunelle, the Government attempted to prove that the ball point ink with which Coopersmith signed the questioned document was a type manufactured by the Scripto Company (Scripto 3852), production of which did not commence until May of 1967, and, therefore, the disputed letter could only have been signed subsequent to the date appearing on it. To support this allegation, the Government assumed the burden of excluding all of the ball point inks manufactured anywhere in the world for an indefinite period before December 1965.
After hearing the testimony of the witnesses on both sides, we decided that a jury could not have concluded beyond a reasonable doubt that the defendants were guilty of this charge because of the insufficiency of the evidence in the following respects.
1. INHERENT INADEQUACIES OF THE IDENTIFICATION TECHNIQUE.
Perhaps the most basic flaw in Brunelle's procedure is that his "ink library" was so incomplete that it was impossible for him to exclude a great number of inks which he never had examined. He conceded that he had no foreign ink library; that he had no Japanese inks,3(a) nor those of a number of other countries. (N.T. 556-7). Obviously, a procedure which relies entirely on comparison and elimination cannot be used to make a positive identification when an unknown number of inks cannot be excluded.
Furthermore, Brunelle's results are affected to an unknown extent by a great number of variables. A trier of fact would have to speculate about the importance of these variables, especially when the witness could not recall and could not document how these factors could have altered his results. First, there is no way to measure the quantity of ink that is removed from the questioned signature (N.T. 652). Therefore, each "plug" from the questioned document contained an unknown quantity of ink and Brunelle admitted that different concentrations of ink on paper were compared. (N.T. 761). Furthermore, Brunelle had no idea how many plugs he took from the document and put into solution, (N.T. 653), and he did not know the strength of the solution (N.T. 654). Although different solvent systems can give different separations of the dye components (N.T. 783), comparisons were made of dyes in different solvents (N.T. 787). In putting the plug into solution, the paper necessarily is mixed in (N.T. 654), but Brunelle ran no chromatographic test on the paper itself. (N.T. 658). He also conceded that scribble samples of a known ink were taken from a type of paper different from the questioned document (N.T. 676). Brunelle testified that the distance that a dye will travel on a chromatogram will not be uniform because of the nature of the coating on a chromatogram plate, (N.T. 659), and that a chromatogram result can be affected by the manner in which the ink is placed on the chromatogram (N.T. 805). Finally, Brunelle knew that ultraviolet light causes the dyes to fade and can even change the relative intensities of the dyes on the chromatogram, (N.T. 838) but he had no idea as to how long the questioned document had been exposed to ultraviolet light. Perhaps even more basic than these variables is the fact that none of the manufacturers who testified stated that the production of inks is so uniform that two batches of the same ink would give uniform chromatographic results. In fact, the representative of the Scripto Company testified that the actual composition of its inks will change over a period of time (N.T. 419). Brunelle conceded that the same dye in inks manufactured by different companies would not necessarily be identical (N.T. 774).
As if to demonstrate the unpredictable effects of all these variables, Brunelle showed us a slide in which three chromatograms of the same ink showed entirely different results (N.T. 805). He conceded that he could not tell on the basis of these ...