and March 15. The government planned to do so on March 15.
Unfortunately, on that date, a Monday, Pennsylvania (as well as a number of other states) was digging out from a record blizzard. Postal inspectors therefore were not available to take the exemplars from defendant on March 15, despite the fact that defendant was transported to Harrisburg specifically for that purpose. He was not asked to give exemplars that day, and there is no evidence that if asked he would have refused.
On March 10, 1993, defendant filed a motion to "annul" our order of March 2. The motion to annul was denied by order dated March 18, 1993. We therein stated that the motion to annul was "clearly without merit."
After March 15, the government demanded the exemplars on at least three occasions: in a March 17, 1993, meeting with postal inspectors; by letter to counsel for defendant dated March 23, 1993; and in an October 5, 1993, meeting with government counsel and postal inspectors. Following defendant's refusal on the latter occasion, the government sought and obtained an indictment charging defendant with disobeying, resisting and refusing to comply "with a lawful order of the Court directing WOLFF to produce handwriting exemplars." Indictment (record document no. 1).
The events, then, may be summarized as follows:
March 2 Order directing exemplars be provided on or before
March 10 Defendant files motion to annul
March 15 Blizzard; deadline passes without a demand for
March 17 Demand made and refused
March 18 Motion to annul denied, with statement that motion
was without merit
March 23 Letter to defense counsel reiterating demand, to
which there was no response
October 5 Demand made by government counsel, postal
Based upon the foregoing, the grand jury cannot have been presented with evidence which established probable cause that an offense was committed because the conduct of defendant, even if established by the government, does not constitute contempt of any order of the court. No demand was made on or before March 15, 1993; defendant therefore did not unlawfully refuse to comply with our order. There is no ambiguity in the order: the exemplars were to be presented on or before March 15.
The government argues that the March 2 order should be read in conjunction with the March 18 order to show that defendant knew that he was required to provide the exemplars. While such may be the case, neither order, alone or in conjunction with the other, directs defendant to provide the exemplars after March 15. Our order of March 18 can in no way be read as extending the deadline for compliance with the March 2 order, as setting any new deadline, or as creating a continuing obligation.
In short, there simply was no failure on the part of defendant to comply with any order of this court. The grand jury cannot have had evidence constituting probable cause of contemptuous conduct, since no such evidence exists. The indictment having been returned without probable cause having been established, the court will dismiss the indictment. The court is not precluded from doing so, as the lack of evidence goes not to a factual defense, but to a defect in the indictment.
We realize that the dismissal of the instant case is unusual. However, the circumstances of the case are unusual. The court has been presented with an indictment involving alleged contempt of its own order. The order was drafted by the government, which now is attempting to prosecute contempt of the order despite its own failure to follow the order. The facts of the case have been made clear on the record, in a manner similar to a statement of undisputed material facts in a motion for summary judgment under Fed. R. Civ. P. 56 and Local Rule for the Middle District of Pennsylvania 401.4. All of these circumstances take this case out of the realm of the "usual" for purposes of a motion to dismiss.
If the court were to deny the motion to dismiss, it is crystal clear to the court that further trial preparation, jury selection and presentation of the government's case would be a complete waste of judicial resources and an unnecessary imposition on the jurors. There is absolutely no doubt that the court would grant defendant's motion for judgment of acquittal at the close of the evidence offered by the government, in accordance with Fed. R. Crim. P. 29(a). Under these extraordinary circumstances, the court has construed Rule 12(b) in the only possible fashion consistent with the directive in Rule 2 to eliminate "unjustifiable expense and delay" in providing a "just determination" of this criminal proceeding. This motion is fully "capable of determination without the trial of the general issue." Fed. R. Crim. P. 12(b).
The only issue remaining, then, is entirely legal: whether the conduct of the defendant may constitute contempt of this court's order. Since the conduct to be proven is not unlawful, there cannot have been probable cause established before the grand jury that a crime was committed. Our holding, however, should be limited to the unusual circumstances of the case.
II. MOTION TO JOIN OFFENSES FOR TRIAL
Since we will dismiss the indictment, the motion to join offenses for trial becomes moot, and therefore will be denied.
An order will be issued consistent with this memorandum.
James F. McClure, Jr.
United States District Judge
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. Defendant's motion (record document no. 11) to dismiss is granted pursuant to Fed. R. Crim. P. 12(b)(1).
2. The government's motion (record document no. 9) to join offenses for trial is denied.
James F. McClure, Jr.
United States District Judge
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