The opinion of the court was delivered by: SNYDER
I. THE MOTION TO DISMISS.
This Indictment seeks to impose a criminal fine upon Gulf Oil Corporation, Gulf Oil Company-U.S., and Gulf's President, Z. D. Bonner, based upon the failure of Gulf for the first five days of February, 1975, to pay its competitors $3,878,465.00 for "Entitlements" under the Federal Energy Administration Program (FEA) established in the Federal Register on December 4, 1974 (39 Fed. Reg. 42246-50). This program, unlike the typical allocation regulation, required the transfer of money among refiners to equalize the impact of the high cost of foreign produced oil.
The Defendants point to the language of Federal Rules 12(b)(1) and (4) of Criminal Procedure,
"(1) Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion."
"(4) Hearing On Motion. A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct."
The Defendants then urge that the Court dismiss the Indictment for the following reasons:
"(1) Fundamental principles of due process of law and equal protection preclude the Government from criminally prosecuting defendants as a result of their decision to delay Gulf's compliance with the FEA's entitlements program pending a judicial determination sought by Gulf of the validity of the very FEA regulations under which the Government now seeks to impose criminal sanctions;
(2) Throughout the February 1-5, 1975 period enforcement of the FEA entitlement regulations which defendants are accused of willfully violating had been stayed by the Temporary Emergency Court of Appeals ('TECA');
(3) The Government is estopped from seeking to impose criminal sanctions for the alleged violations of the FEA entitlement regulations due to representations made to defendants prior to and during the February 1-5, 1975 period that the FEA would refrain from initiating legal proceedings based upon a failure of Gulf to purchase entitlements if Gulf promptly initiated judicial proceedings to test the validity of said regulations;
(4) As a matter of law the Government is precluded from seeking to impose criminal sanctions for the alleged violations of the FEA entitlement regulations since defendants' decision to suspend the purchase of entitlement payments was also made upon reliance on the advice of its counsel;
(5) Gulf was not required under the FEA entitlement regulations to purchase entitlements during the February 1-5 period since January 31, 1975 was merely the date for voluntary compliance;
(6) The Government has already sought to impose civil penalties upon Gulf with regard to its decision not to purchase entitlements during the February 1-5, 1975 period in the action currently pending before this Court at Civil Action No. 75-157 and thus the Government's seeking to impose criminal penalties with regard to the same acts in this action is without statutory authority under the EPAA and constitutes an attempt to increase unlawfully the maximum statutory penalty per violation from $5,000 to $7,500 also placing defendants in double jeopardy.
(7) The FEA entitlement regulations upon which the Indictments are based are illegal, unauthorized, arbitrary, capricious, confiscatory and contrary to both the EPAA and the Fifth Amendment to the Constitution of the United States; and
(8) The Indictment against Gulf Oil Company-U.S. is null and void since that defendant is a division of Gulf and, accordingly, not capable of an independent violation of the FEA entitlement regulations."
Defendant Bonner also moves to dismiss on the basis that he is not a "person" who can be charged with the offense defined in the statute. In opposition, the Government filed a Motion to Strike; in the Alternative to Defer Argument and Ruling until Trial of the General Issue.
The problem of the extent of the subject matter which may be considered by a court prior to a criminal trial is not without difficulty. In United States v. Covington, 395 U.S. 57, 89 S. Ct. 1559, 23 L. Ed. 2d 94 (1969), the Supreme Court considered whether, in an indictment charging the defendant with obtaining marihuana without having paid the transfer tax,
a court can entertain a motion to dismiss the indictment on the ground that the defendant's privilege against self-incrimination would necessarily provide a complete defense. The Court initially noted (395 U.S. at p. 60, 89 S. Ct. at p. 1561, 23 L. Ed. 2d at p. 99):
The Court noted that compliance with 26 U.S.C. § 4741(a) would unquestionably run a substantial risk of incrimination, and thus affirmed the lower court's dismissal of the indictment. Here, the defenses raised require the consideration of facts presented in affidavit form, and we must determine if the trial of the general issue would resolve the issues peculiar to the Motion.
Several cases have considered the propriety of a Rule 12(b) Motion grounded in the defense of double jeopardy. Judge Will in United States v. American Honda Motor Company, 273 F. Supp. 810 (N.D.Ill.1967), an anti-trust case, stated (at pp. 814-815):
"Rule 12(b) provides that any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion and, further, that issues of fact on such motions shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct unless jury trial is required under the Constitution or by any Act of Congress.
In United States v. H. E. Koontz Creamery, Inc., 232 F. Supp. 312 (D.Md.1964), the court, citing Rule 12(b), carefully reviewed the procedure concerning a pre-trial double jeopardy motion like the one here involved. Rejecting a government contention that the double jeopardy issue (unless determinable as a matter of law), must be submitted to the jury along with the general issue, the court ordered a pre-trial evidentiary hearing without a jury . . ..
This court is of the opinion that such procedure is proper . . .."
Special pleas in bar (and their modern counterparts, Rule 12(b) Motions) based upon the defense of the statute of limitations have been brought with varying results. In the early case of United States v. Barber, 219 U.S. 72, 31 S. Ct. 209, 55 L. Ed. 99 (1911), the Supreme Court noted with approval a statement of government counsel (219 U.S. at p. 78, 31 S. Ct. at p. 211, 55 L. Ed. at p. 101):
"'. . . the plea of the statute of limitation does not question the validity of the indictment, but is directed to the merits of the case; . . ..'"
See also, United States v. Cook, 84 U.S. (17 Wall.) 168, 21 L. Ed. 538 (1872), where it was held that the statute of limitations could not be raised by demurrer but could be by special plea. Yet, the Barber Court recognized that where the indictment charged a continuing conspiracy expressly alleged to have continued until trial, the statute could only be put in issue by a plea of the general issue, citing United States v. Kissel, 218 U.S. 601, 31 S. Ct. 124, 54 L. Ed. 1168 (1910).
However, in United States v. J. R. Watkins Company, 16 F.R.D. 229 (D.Minn.1954), a prosecution for knowingly and falsely representing that alcohol used in the manufacture of linament for internal uses had been used in the manufacture of linament for external use only, the Court determined that it could consider the defense under a Rule 12(b) Motion, stating (at pp. 232-233):
"It seems apparent that in the case at bar the defense based upon the statute of limitations is capable of determination without the trial of the general issue and therefore should, under Rule 12(b)(1), be triable upon this motion. Further, it seems to have been the intention of the committee which drafted the rules that the statute of limitations could be raised at the option of the accused either before or at the trial of the general issue. See 18 U.S.C.A. Rule 12, Notes to Subdivision (b)(1) and (2). And see Official Form No. 19, Appendix of Forms, 18 U.S.C.A. which includes as part of the motion to dismiss the indictment the allegation that it was not found within three years next after the alleged offense was committed. The same has been the understanding of commentators on the rule, although none cite cases for their conclusion. See 11 Cyclopedia of Federal Procedure § 42.170 (Smith, ed., 1952); McInerny, Proceedings Between Indictment and Trial, 5 F.R.D. 156, 159.
Although consideration of the bar of the statute in the instant case requires an examination of various reports made by the defendant to the Alcohol Tax Unit, among them the allegedly false report upon which this indictment is based, the Court concludes that such an examination is proper. Rule 47 allows facts such as authority to take a deposition or former jeopardy to be established by affidavit, see Note to Rule 47, 18 U.S.C.A, and Rule 12(b)(4) provides that issues of fact not required to be tried by a jury may be tried in any manner the court may direct. It would be injudicious to ignore the information obtainable from the face of the reports in issue when determining whether the one upon which the indictment was based was or was not barred by lapse of time. Such an examination would not seek to contradict the well-pleaded material allegations of the complaint, for defendants do not dispute that the report relied upon by the Government was returned on or about October, 15, 1950, but seek to explain why the said report cannot be the basis for this prosecution. The Government's contention that the trial of this issue requires evidence which could not, or should not, be presented at a preliminary hearing is somewhat abstruse. If the Government has any evidence contradictory of that presented in the four corners of the reports in question, it would merely have to produce affidavits from a qualified witness to that effect. This Court would be required to defer decision on the motion if any genuine issue of material fact were presented. The Government's right to cross-examine, however, does not in itself raise such an issue, and in the absence thereof, the sufficiency of the defense on the statute of limitations may be decided upon the arguments and exhibits presented." [Emphasis supplied] [Footnote omitted]
In United States v. Haramic, 125 F. Supp. 128 (W.D.Pa.1954), Judge Marsh of this Court, as did the Court in Watkins, traced the history of the defense of statute of limitations upon a Motion under Rule 12(b), concluding (at p. 129):
"As provided in Rule 12(b)(4), we think it is in the discretion of the court whether the defense of the statute of limitations should be determined before the trial or at the trial of the general issue. Protection from prosecution under a statute of limitations is a substantive right. In the circumstances presented by this case, it may very well appear preliminarily that the defendant cannot be convicted because of the bar of the statute of limitations. If that is so, he should not be compelled to stand trial. 'If no other reason existed, the uselessness of the trial would be a sufficient one for dispensing with it.' Cf. United States ex rel. Hassell v. Mathues, D.C.E.D.Pa.1928, 27 F.2d 137."
So too, in United States v. Dierker, 164 F. Supp. 304 (W.D.Pa.1958), Judge Marsh noted that as a general rule the bar of the statute of limitations is a matter to be determined at the trial of the general issue; but when the motion to dismiss pleads facts capable of determination prior to trial, a preliminary hearing may be held. In Dierker, the defendant was alleged to have aided and abetted one Stirone in an extortion scheme, in violation of the Hobbs Anti-Racketeering Act, 18 U.S.C. § 1951. The dates charged in the information were from on or about September 1, 1951 to on or about December 31, 1953. The Rule 12(b) Motion alleged inter alia, that the information was not found within five years from December 18, 1952. Judge Marsh stated (at pp. 305-306):
"The defendant does not plead facts to show that no money was paid by Rider [the victim] to Stirone since December 19, 1952. In federal courts the bar of the statute of limitations is a matter of defense usually to be determined at the trial of the general issue. Of course, when the motion to dismiss (formerly a special plea in bar) pleads facts which are capable of determination before the trial of the general issue, a preliminary hearing may be held. Rule 12(b)(1, 4), Fed.R.Crim.P. Even though it appears on the face of an information that the period of limitations has expired or, as here, may have expired, it should not be dismissed on a nonfactual motion." [Emphasis supplied] [Citations omitted]
Finally, in United States v. Andreas, 374 F. Supp. 402 (D.Minn.1974), the Court, citing Jaben v. United States, 333 F.2d 535, 538 (8th Cir. 1964), aff'd 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345, reh. denied 382 U.S. 873, 86 S. Ct. 19, 15 L. Ed. 2d 114 (1965), noted that the defense of statute of limitations was properly before the Court on a motion to dismiss the information, but that defendants' method of raising the defense, namely, by seeking through affidavit to contradict the allegations of the information, was impermissible. It stated that the question of when the transaction (illegal political contributions) occurred was closely intertwined with the questions of if and how the contributions occurred:
". . . The fact of such contributions, as well as the circumstances and time of said contributions, are all factors which present genuine issues of material facts and are necessarily left to a trial of the general issue -- they go to the very foundation of the prosecution. Accord, United States v. J. R. Watkins Co., 16 F.R.D. 229, 234-235 (D.Minn.1954)." 374 F. Supp. at p. 408.
The defense of entrapment was not permitted to be raised by way of pretrial motion in United States v. Leighton, 265 F. Supp. 27 (S.D.N.Y.1967), cert. denied 390 U.S. 1025, 88 S. Ct. 1412, 20 L. Ed. 2d 282 (1968). The Court without extensive discussion denied such attempt, stating simply (at p. 36):
"The defense of entrapment is an issue for the jury where an issue of fact is presented. [Citations omitted]; I cannot see how such a defense can be the proper subject of a pre-trial hearing especially since the defendant, even if he were to establish entrapment as a matter of law, would be adequately protected against an adverse jury verdict by the trial court's ability to enter a directed verdict of acquittal. . . ."
Cases involving refusal to report for induction have had to consider the propriety of Rule 12(b) motions asking the Court to consider matters outside the bare allegations of the indictment. In United States v. Seeley, 301 F. Supp. 811 (D.R.I.1969), the Court was asked to consider on a motion to dismiss the indictment, defense attacks on the Selective Service System's compliance with the statute and regulations. The following excerpt is most illustrative (at pp. 812-813):
"The problem which has most perplexed the Court is the threshold one of whether, in a selective service prosecution for failure to report for induction in which the defense attacks the System's compliance with the statute or regulations, a motion to dismiss the indictment and a hearing thereon is an appropriate procedure. I am frank to acknowledge that I have been unable to discover any case which has dealt with this problem. I am likewise frank to acknowledge that the procedures which appear to have been most frequently and regularly used by the federal trial courts in this type of a case are either to admit before the jury all of the facts concerning the defendant's classification processing and then to rule on a motion for judgment of acquittal as to the correctness of the processing, see, e.g. United States v. Blaisdell, 294 F. Supp. 1303 (D.Me.1968), or to try the case to a judge without jury and to stipulate the entire classification matter to the Court to rule as a matter of law, e.g., United States v. Bryan, 263 F. Supp. 895 (N.D.Ga.1967). In the instant case the latter method is impossible because this is a jury trial. I am troubled by the former method. It seems to me to be a sham if all of the classification processing matters relevant to the particular defendant's claim of classification defect are given to the jury, even though it is not matter upon which they are permitted to decide guilt or innocence and which they ought not therefore to be permitted to consider, and is then upon motion for judgment of acquittal determined by the Court. It troubles my sense of orderly procedure to submit to a jury matter not proper for its deliberations so that the judge, for whom the matter is proper, can hear it and rule on it. Moreover, such a procedure may, in those cases in which the classification defect claim is the only realistic defense, cause waste by forcing a lengthy trial proceeding when a preliminary hearing by the judge would suffice. Finally, such a procedure invites confusion for the jury in those cases in which the Court, having decided as a matter of law that the alleged classification defect is not a sufficient defense to warrant acquittal, must then attempt by instructions to purge the jury of all that they have heard concerning the alleged classification defect which, while not compelling as a matter of law, may be exceedingly compelling as an emotional matter.
The prosecution argues in its brief that because the motion to dismiss here does not attack the sufficiency of the indictment on its face, it is incorrect as a matter of procedural law. With that I must disagree. While it is true that a motion to dismiss an indictment most often goes to the facial sufficiency of the indictment, that is not its exclusive function. For example, a Rule 12(b)(2) motion may be used to attack a 'defect in the institution of the prosecution' such as illegal grand jury selection procedures, or irregular grand jury practice. See Committee Note to Fed.R.Crim.P. 12. Likewise, a Rule 12(b)(1) motion may be used to attack on any basis 'capable of determination without a trial of the general issue,' such as, former jeopardy, former conviction, immunity, or statute of limitations. See Committee Note to Fed.R.Crim.P. 12. While I am not prepared to state that a defect in Selective Service classification processes is a 'defect in the institution of the (50 U.S.C.App. Sec. 462(a)) prosecution,' I do think that the breadth of Rule 12(b)(1) permits a motion to dismiss a 50 U.S.C.App. Sec. 462(a) indictment to be made, as a procedural matter, to the Court when the defendant is attacking the classification process. Such a ruling is in my view a timesaving and fair procedure which admirably comports with the function of the courts in reviewing Selective Service System decision-making. See Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946), Cox v. United States, 332 U.S. 442, 68 S. Ct. 115, 92 L. Ed. 59 (1948). . . ."
Finally, in United States v. Martinez, 350 F. Supp. 971 (W.D.Pa.1972), Judge McCune of this Court determined that he could consider defendant's Selective Service file and Pennsylvania State Court records in evaluating a Rule 12(b)(1) motion to dismiss the indictment. Judge McCune sided with the Seeley Court, holding (at p. 973):
"In connection with this motion defendant contends that we may properly under Rule 12(b)(1) consider defendant's Selective Service file and certain Pennsylvania State court records. The government argues that on a motion to dismiss the court may not look beyond the face of the indictment, citing Las Vegas Merchant Plumbers Ass'n. v. United States, 210 F.2d 732 (9th Cir. 1954) cert. denied, 348 U.S. 817, 75 S. Ct. 29, 99 L. Ed. 645 (1954), rehearing denied, 348 U.S. 889, 75 S. Ct. 202, 99 L. Ed. 698 (1954).
Cases come down on both sides of this question, but few have confronted the issue directly. This question has been present before the Supreme Court but was not resolved, United States v. Weller, 401 U.S. 254, 91 S. Ct. 602, 28 L. Ed. 2d 26 (1971). The district court decisions in United States v. Seeley, 301 F. Supp. 811 (D.R.I.1969) and United States v. Shelly, 330 F. Supp. 1214 (E.D.Pa.1971), carefully consider the scope of Rule 12(b)(1) and reach the opposite conclusion. The Seeley decision was based on a pragmatic concern for the expenditure of judicial time. Shelly on the other hand was decided on the basis of previous decisions in that district.
The U.S. Attorney argues that allowing the defendant to present defenses by motion will permit piecemeal presentation by the defense. Then in the event of a loss, the defense could be relitigated at trial. There is also expressed a concern that such determinations before trial will constitute jeopardy. We fail to perceive the significance of the latter concern. If a matter of defense, requiring determination by the court rather than the jury, is decided in defendant's favor whether that decision is made during or before trial, we do not doubt that jeopardy attaches, United States v. Ponto, 454 F.2d 657 (7th Cir. 1971); United States v. Findley, 439 F.2d 970 at 973-974 (1st Cir. 1971). In either event the government would not have a right of appeal under 18 U.S.C.A. § 3731. If a defense exists which does not require a jury determination we believe it proper to present such a defense by way of a motion under Rule 12(b)(1). We believe this view is supported by the language of the Rule, and most authorities; United States v. Covington, 395 U.S. 57, 89 S. Ct. 1559, 23 L. Ed. 2d 94 (1969); United States v. Weller, 401 U.S. 254, 91 S. Ct. 602, 28 L. Ed. 2d 26 (1971); United States v. Ponto, 454 F.2d 657 (7th Cir. 1971); United States v. Findley, 439 F.2d 970 (1st Cir. 1971); 8 J. Moore Fed. Practice, para. 12.04 at 12-15 (2d ed. 1970). The contrary view expressed in United States v. Ramos, 413 F.2d 743-744, n. 1 (1st Cir. 1969), is by way of dicta. In Seeley alone do we find an unequivocal rejection of defendant's position. In the face of the above cited authorities we decline to follow the Seeley decision."
". . . When a defendant is charged with violating a criminal obscenity law the threshold constitutional question resembles the ultimate factual question: is this material obscene? The judge has a duty to protect the constitutional rights of defendants who assert the protection of the First Amendment that requires him, when the issue is properly presented, to pass on the constitutional adequacy of the evidence before it can be submitted to the jury on the question whether the statute was violated. His decision is a constitutional one.
Once the judge has determined that the First Amendment does not protect the material involved, the 'general issue' that the jury must decide is whether the publications were 'unmailable' under the statute. It can decide only the statutory question. The term 'general issue,' as used in Rule 12, necessarily refers to those questions of fact that a jury is constitutionally permitted to decide, those inferences and conclusions that the constitution permits them to draw from evidence that the constitution permits them to consider."
However, in the case of United States v. Ginzburg, 338 F.2d 12 (3d Cir. 1964), aff'd 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31, reh. denied 384 U.S. 934, 86 S. Ct. 1440, 16 L. Ed. 2d 536 (1966), our Circuit Court of Appeals specifically upheld the District Court's actions in striking affidavits and exhibits in support of a motion to dismiss an indictment, stating (at p. 17):
"Finally, appellants urge that the court erred in striking the affidavit and exhibits in support of the defense motion to dismiss the indictment. The defense on that motion was correctly limited by the court to the face of the indictment and whether it accurately charged the named offenses and gave adequate notification thereof to the defendants. The defense attempted by the affidavit and letters to put before the court in ex parte form, opinions from various sources favorable to the Handbook. These were trial matters and so held by the judge."
The foregoing examination shows that on a motion to dismiss an indictment, the allegations of the Rule 12(b) motion must require the Court to direct acquittal and must not attempt to contradict the material allegations of the indictment. This, the Court believes, is the holding of United States v. Covington, supra, and United States v. Andreas, supra; in Watkins, the Court specifically noted that examination of reports made to the Alcohol Tax Unit would not seek to contradict the well pleaded material allegations of the complaint, and in Andreas, the Court stated (374 F. Supp. at p. 406):
". . . By their affidavit in the instant case, however, defendants would seek to contradict the allegations of the Information by attempting to prove that the contributions, if any, took place prior to October 19, 1968. . . ."
We then move on to the allegations of this Motion.
II. THE DUE PROCESS ARGUMENT.
The Defendants urge that penalties pursuant to a regulatory statute or administrative regulation cannot, as a matter of law, be imposed upon them consistent with Due Process as a result of a good faith decision to delay compliance pending judicial review of the validity of the legislation or regulation as sought by them in other Courts and in this Court.
Court records reveal that on January 3, 1975, Gulf filed Petitions for Review against the FEA in both the United States Court of Appeals for the District of Columbia Circuit and the United States Court of Appeals for the Fifth Circuit, which suits were pending throughout the February 1-5, 1975 period covered by this Indictment.
On January 13, 1975,
the FEA published the "First Entitlements List" for the purchase and sale of entitlements for the month of November 1974, which notice provided that Gulf was required to purchase 775,693 entitlements at a cost of $3,878,465.00.
On February 4, 1975, Gulf initiated a civil suit in this Court (C.A. 75-157) to contest the validity of the Entitlements Program, and the FEA counterclaimed for the amount of the civil penalties.
In support of the Due Process argument, the Defendants cite Wadley Southern Railway Company v. Georgia, 235 U.S. 651, 35 S. Ct. 214, 59 L. Ed. 405 (1915), and United States v. Pacific Coast European Conference, 451 F.2d 712 (9th Cir. 1971). In Wadley the validity of an order of the Georgia Railroad Commission issued pursuant to the Georgia regulatory statute was questioned when a penalty suit was brought by the State. The Court affirmed the Georgia Supreme Court's enforcement of the penalty for lack of reasonable promptness in contesting constitutionality, stating (235 U.S. at p. 661, 35 S. Ct. at p. 218, 59 L. Ed. at p. 411):
". . . [The] right to a judicial review must be substantial, adequate, and safely available; but that right is merely nominal and illusory if the party to be affected can appeal to the courts only at the risk of having to pay penalties so great that it is better to yield to orders of uncertain legality than to ask for the protection of the law."
In Pacific Coast, the Court of Appeals applied this principle, referred to as the "constitutional tolling principle" (451 F.2d at 717) and affirmed the trial court's refusal as a matter of law to impose penalties upon certain regulated companies which had promptly initiated suits to contest the validity of the statute and regulations. The United States brought actions against three shipping conferences for the imposition of statutory penalties of $1,000 per day for the use of certain dual-rate shipping contracts allegedly proscribed by the provisions of the 1961 Amendment to the Shipping Act (46 U.S.C. § 813a) and Orders issued by the Federal Maritime Commission pursuant to that Act. The 1961 Act required that by the end of a specified grace period, all dual-rate shipping contracts meet provisions of the Act along with such other provisions as were required by the Federal Maritime Commission. After issuance of the Commission's Orders on March 27, 1964, effective April 4, 1964, the three defendant shipping conferences continued to utilize their pre-existing contracts in violation of both the Act and the Order, and did not apply to the Commission for a stay pending judicial review, but commenced instead judicial proceedings to contest both the validity of the Act and the Commission's Orders by filing petitions for review with the Ninth Circuit Court of Appeals pursuant to the Review Act of 1950, as amended in 1958, 5 U.S.C. §§ 1031-1042 (1958). On February 3, 1965, the Ninth Circuit found the Orders valid and rejected the shipping conferences arguments.
The three conferences came into compliance on September 14, 1964, December 27, 1965, and January 1, 1967. Thereafter, on April 4, 1967, the United States commenced the statutory penalty cases against the shipping conferences for use of the dual-rate contracts both before and during defendants' litigation contesting the regulatory statute and administrative orders involved. The defendant conferences moved for summary judgment arguing that "'. . . statutory penalties cannot lawfully attach during the period of a bona fide judicial review of a legislative act, whether statute or administrative agency ruling'". 451 F.2d at 715-716. The District Court granted summary judgment on the "constitutional tolling principle" and was affirmed by the Ninth Circuit, which held (at p. 717-718):
"In the light of the setting we have described we conclude that the constitutional tolling principle urged by defendants was correctly applied by the district court in granting summary judgment for defendants. Defendants ought not to have to pay a statutory penalty for non-compliance with the 1961 Act during the time they were judicially testing the validity of that Act, and enjoying the benefits of any additional agency procedures secured to them in that litigation."
To all of this, the Government replies that a motion to dismiss an indictment is not a device for the summary trial of the evidence, but such motion must be directed solely to the question of the validity of the indictment on its face. United States v. Sampson, 371 U.S. 75, 83 S. Ct. 173, 9 L. Ed. 2d 136 (1962); United States v. Winer, 323 F. Supp. 604 (E.D.Pa.1971). The Government urges that an indictment is sufficient if it (1) alleges all the elements of the offense, (2) fairly informs the defendant of that which he must be prepared to meet in preparation of the defense, (3) gives protection against double jeopardy, and (4) enables the court to determine whether the facts alleged are sufficient in law to withstand the motion to dismiss or to support a conviction. Citing United States v. Fargas, supra; United States v. Luros, 243 F. Supp. 160 (N.D.Iowa), cert. denied 382 U.S. 956, 15 L. Ed. 2d 361, 86 S. Ct. 433, 15 L. Ed. 2d 361 (1965).
We believe, however, that the position of the Government construes too narrowly the purpose of a Rule 12(b) motion. While Rule 12(b) does not provide for speaking motions which could be turned into the trial of the general issue [1 Wright, Federal Practice and Procedure: Criminal § 194 at pp. 412-413 (1969)] it would not prevent this Court from determining the applicability of the constitutional tolling principle within the framework of the record in this case. There is in our Indictment, and certainly part of the general issue, the charge that the Defendants willfully acted, and this has been held to be an evidentiary matter incapable of resolution by a motion to dismiss. In United States v. Knox, 396 U.S. 77, 90 S. Ct. 363, 24 L. Ed. 2d 275 (1969), the defendant was prosecuted for violation of a law regarding wagering activities and asserted that criminal sanctions for failure to file a special Internal Revenue form, coupled with the danger of incrimination if he filed truthfully, produced a constitutionally infirm coercion. The Court, however, responded (396 U.S. at 83, 90 S. Ct. at 367, 24 L. Ed. 2d at 281):
". . . [The] question whether predicament contains the Knox's seeds of a 'duress' defense, or perhaps whether his false statement was not made 'willfully' as required by § 1001, is one that must be determined initially at his trial."
Our Circuit, as previously noted, held that the Trial Court properly granted the Government's motion to strike affidavits and other exhibits alleging no obscenity, in United States v. Ginzburg, supra. And in United States v. Whalen, 337 F. Supp. 1012 (S.D.N.Y.1972), there was a charge of violating the National Firearms Act and a motion to dismiss based on the allegation that the weapons in question were "unserviceable". The Court held that there was an evidentiary issue which could not be tried on a motion to dismiss and stressed that the "unserviceable" argument improperly presupposed the insufficiency of the Government's evidence, and that upon the motion to dismiss the facts in the indictment had to be accepted as true. We, therefore, hold that the Due ...