Winter,*fn* Aldisert and Gibbons, Circuit Judges.
On December 16, 1969 a Federal Grand Jury sitting at Newark, New Jersey, handed up a seven count indictment (Crim. No. 545-69) against appellants, Majuri and Caruano, along with others not parties to this action. Three counts of that indictment charged appellants with conspiracy to make, the making of, and the collection of extortionate extension of credit, in violation of 18 U.S.C. §§ 891, 892, and 894 (Supp. V, 1970). That criminal case was routinely assigned to the Honorable Leonard I. Garth for pretrial motions, and he directed a time schedule for the orderly filing, briefing and argument of such motions. In the criminal case the defendants have filed a motion to dismiss so much of the indictment as charges them with violations of 18 U.S.C. §§ 891, 892, and 894, on the ground that those sections of Title 18 were enacted by Congress without constitutional authority and in violation of the Ninth and Tenth Amendments to the United States Constitution. Their contention is that Congress is without power to prohibit intrastate loansharking.
Appellants' motion to dismiss the loansharking counts of the indictment is still pending and undecided in the district court, solely because of the pendency of the civil action in which this appeal arises. On March 30, 1970, appellants filed a complaint alleging the fact of indictment Crim. No. 545-69, and:
4. Plaintiffs alleged that Sections 891, 892, and 894 of Title 18, United States Code, are repugnant to the 9th and 10th Amendments to the United States Constitution, in that they are vague, speculative, and do not charge an offense cognizable under the United States Constitution.
5. Plaintiffs allege that unless the defendants are restrained from enforcement of these provisions, the plaintiffs will suffer severe and irreparable harm, as more fully set forth in the affidavits attached hereto.
In the affidavits referred to, Majuri and Caruano allege their indictment, that they have been arrested, and that they are free on substantial bail awaiting trial. They also allege:
3. As a consequence of the same, they have already expended, and will be in the future obliged to expend, great sums of money, as well as to undergo grave personal inconvenience and anxiety in the preparation of a defense to these charges.
4. Unless the Defendants are enjoined and restricted from committing the threatened acts, the Plaintiffs will suffer great and irreparable damage in that they believe, upon the advice of counsel, that Sections 891, 892 and 894 of Title 18, U.S.C. are unconstitutional and repugnant to the 9th and 10th Amendments to the United States Constitution * * *.
Defendants in this civil action are described in the complaint as "the sovereign, and Law Enforcement Officials charged with the Prosecution of these matters." The prayer for relief seeks a preliminary and a permanent injunction restraining the defendants from proceeding with "any prosecution based on the provisions of Sections 891, 892, and 894 * * *."
With the complaint and affidavits, appellants filed a motion pursuant to 28 U.S.C. § 2284 (1964) for the convening of a three-judge district court and a motion for a preliminary injunction. The civil action was also assigned to Judge Garth. Both motions were heard by him on April 13, 1970. No answering pleadings were filed but the United States Attorney appeared and filed an ...