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UNITED STATES v. WOLFF

December 17, 1993

UNITED STATES OF AMERICA
v.
MARTIN WOLFF, Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 BACKGROUND:

 On October 14, 1993, defendant Martin Wolff was indicted by a grand jury sitting in the Middle District of Pennsylvania for willfully disobeying, resisting and refusing to comply with a lawful order of this court, in violation of 18 U.S.C. §§ 401(3), 2. The order in which defendant is alleged to be in contempt was one issued by this court in the case of United States v. Martin Wolff, No. 1:CR-92-163, in which defendant had been charged with mail fraud, wire fraud, money laundering, and conspiracy. Trial is pending in both cases.

 Before the court are defendant's motion to dismiss and the government's motion to join the offenses for trial.

 DISCUSSION:

 I. MOTION TO DISMISS

 The government argues that a motion to dismiss under Fed. R. Crim. P. 12(b) is intended for situations in which there is a defect in the indictment or information, or some other defect in the institution of the prosecution; it is not intended to raise issues going to the merits of the case. The raising of a factual defense is improper under Rule 12(b). See generally United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.), cert. denied, 484 U.S. 969, 98 L. Ed. 2d 404, 108 S. Ct. 465 (1987), and cases cited therein.

 We find, however, that defendant has proven that there is a defect in the indictment or institution of the prosecution. The grand jury returned an indictment indicating that there is probable cause to find that defendant committed the offense charged. Defendant's contention, though termed as one challenging the sufficiency of the evidence to be presented at trial, also may be termed a challenge to the sufficiency of the evidence presented to the grand jury; in other words, the grand jury legally could not have found probable cause based upon the evidence presented to it. In such a case, Ayarza-Garcia, supra, does not control.

 The Ninth Circuit Court of Appeals described the situation of a defendant in a situation analogous to that of defendant as follows:

 
Prescott claims that the evidence presented to the Grand Jury was insufficient to warrant her indictment. The Grand Jury proceedings were not transcribed; hence there is nothing in the record to show what evidence the government did, or did not, present. Prescott merely speculates.
 
An indictment, regular on its face and returned by a legally constituted and unbiased Grand Jury, is presumed to be founded upon sufficient evidence, and a heavy burden is placed upon one who challenges this presumption of validity, Martin v. United States, [335 F.2d 945, 949 (9th Cir. 1964)]. Prescott's showing is plainly insufficient.

 United States v. Prescott, 581 F.2d 1343, 1347 (9th Cir. 1978). See also United States v. Johns, 742 F. Supp. 196, 223 (E.D. Pa. 1990) (government need present to the grand jury evidence sufficient to warrant a finding of probable cause).

 The record before this court, on the other hand, reflects the evidence in the hands of the prosecution in defendant's proffer of what the government will attempt to prove at trial, the government's statement of facts in its response to the motion to dismiss, and the government's ...


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