WYATT, District Judge:
William W. Holland appeals from a judgment of conviction of criminal contempt, such judgment having been entered by the United States District Court for the Middle District of Alabama (Honorable Frank M. Johnson, Jr., District Judge) on September 27, 1976. The contempt for which Holland was convicted was disobedience of an order of the District Court made and filed, under circumstances to be related, on July 1, 1976.
We find that there was no authority to make the July 1,1976 order. The judgment of conviction of criminal contempt for disobedience of that unauthorized order must therefore be reversed.
1.
At all relevant times Holland was an inmate of Holman Prison, an institution of the State of Alabama located at Atmore, Alabama.
In early 1976, postal inspectors had reason to believe that a scheme was in operation in the Alabama prison system for altering postal money orders, raising them in amount and then cashing them for the raised amounts. The scheme was thought to involve a number of inmates and also others, both inside and outside the prison system.
Based on an affidavit of a postal inspector, the United States Attorney for the Middle District of Alabama in April and May, 1976, obtained orders of the District Court authorizing representatives of the Postal Service to open and inspect mail of several named inmates. Appellant Holland was not one of those named nor was he referred to in the postal inspector’s affidavit. The caption on the papers, apparently placed there by the United States Attorney’s office, was “United States of America v. Jerry Neal Baker, et al” and the file number was given as “Cr.Misc.No.77”. Jerry Neal Baker was the first of the inmates listed in the motion for the orders. Appellant Holland was not one of the “et al” because, as noted above, he was not referred to in the papers.
On June 30, 1976, the United States Attorney filed a “motion to compel handwriting exemplars”. This was based on an affidavit of Mr. Martin, a postal inspector, sworn to June 1, 1976. The affidavit recited that Holland and six other Holman Prison inmates “are suspected of writing false information on altered Postal money orders”. There followed as to each named inmate a statement of the information which caused suspicion to attach to him. As to appellant Holland, this was the statement:
“U.S. Postal money order # 2,022,816,-750-6 was issued at Atmore, AL on 3-15-76 in the amount of $1.00. This money [670]*670order was altered and raised to $200.00. Holman Prison Guard William C. Freeman has admitted he gave this money order to his wife and that she cashed it on 3-17-76 at Piggley Wiggley Store, At-more, AL. Mr. Freeman stated the money order was given to him by William W. Holland on 3-16-76.
“On 4-27-76 William W. Holland refused to furnish handwriting.”
The affidavit of the postal inspector was made for the purpose of obtaining from the District Court a writ of habeas corpus ad testificandum so that the named inmates could be produced as witnesses before a grand jury. His affidavit declared: “Writs are needed to require these individuals to appear before a Federal Grand Jury to furnish handwriting exemplars”. The habeas corpus statute contemplates the production of prisoners, state or federal, “to testify”. 28 U.S.C. § 2241(c)(5); see Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514 (1845).
For some reason not explained, however, the United States Attorney did not present the matter to a grand jury nor did he ask for a writ of habeas corpus ad testificandum to bring Holland and the others as witnesses before a grand jury. Instead, the United States Attorney submitted to the District Court the “motion to compel handwriting exemplars”. This motion was given the same file number (“Cr.Misc.No.77”) and the same caption as the earlier mail inspection motions and orders: “United States of America v. Jerry Neal Baker, et aF. Jerry Neal Baker was not one of those sought to be compelled to give handwriting exemplars. Holland and four others sought to be compelled by the motion to give handwriting exemplars had not been named in the earlier papers.
On July 1, 1976, the day following the submission of the motion, the District Court made and filed an order that Holland and the other six inmates “provide to agents of the United States Postal Inspection Service samples and exemplars of their handwriting”. The Marshal’s return shows that a copy of the order was served personally on Holland on July 7, 1976.
On July 13, 1976, a postal inspector and state prison officials interviewed Holland, who refused to obey the court order and, according to a memo of the postal inspector, asked for “a court appointed attorney to advise him on the legality of the court order”.
On August 19, 1976, the United States Attorney filed a “motion for order to show cause”. On the same day, the District Court made and filed an order requiring Holland and four others to show cause “in writing” why they should not be held in contempt of court. On the same day, the District Court appointed Sterling G. Culpepper, Jr., Esq., a member of the Alabama Bar, as counsel to Holland.
On September 1, 1976, counsel for Holland filed a “response” stating that he had refused and would refuse to give handwriting exemplars “for the reason that he has not been charged with any offense connected with forgery or falsification of written documents”.
Later on the same day the District Court issued and filed a “citation for criminal contempt of court”. This directed Holland to appear before the Court on September 27, 1976, “for a hearing on the merits of this criminal contempt citation”. The citation confirmed the appointment of Mr. Culpepper to represent Holland.
The hearing on the citation of Holland for criminal contempt was duly held on September 27, 1976. Holland was present in Court and was represented by counsel. The evidence for the government established that Holland had refused to obey the July 1, 1976 order that he give handwriting exemplars. Holland offered no evidence. There was no argument. The Court announced its finding that Holland was guilty of criminal contempt of the Court.
Holland then told the Court that he (Holland) was being used “as a lever to get the other people”; that he (Holland) had not been charged with any crime; that there was no evidence to show that he was impli[671]*671eated in the scheme; and that he felt that he should not be “used in this way”.
The Court next imposed a sentence of imprisonment for six months, the sentence to be consecutive to any sentence earlier imposed on Holland.
This appeal followed.
2.
The taking of handwriting exemplars does not violate any Fifth Amendment constitutional privilege against self-incrimination nor any Sixth Amendment right to the assistance of counsel. Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct.
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WYATT, District Judge:
William W. Holland appeals from a judgment of conviction of criminal contempt, such judgment having been entered by the United States District Court for the Middle District of Alabama (Honorable Frank M. Johnson, Jr., District Judge) on September 27, 1976. The contempt for which Holland was convicted was disobedience of an order of the District Court made and filed, under circumstances to be related, on July 1, 1976.
We find that there was no authority to make the July 1,1976 order. The judgment of conviction of criminal contempt for disobedience of that unauthorized order must therefore be reversed.
1.
At all relevant times Holland was an inmate of Holman Prison, an institution of the State of Alabama located at Atmore, Alabama.
In early 1976, postal inspectors had reason to believe that a scheme was in operation in the Alabama prison system for altering postal money orders, raising them in amount and then cashing them for the raised amounts. The scheme was thought to involve a number of inmates and also others, both inside and outside the prison system.
Based on an affidavit of a postal inspector, the United States Attorney for the Middle District of Alabama in April and May, 1976, obtained orders of the District Court authorizing representatives of the Postal Service to open and inspect mail of several named inmates. Appellant Holland was not one of those named nor was he referred to in the postal inspector’s affidavit. The caption on the papers, apparently placed there by the United States Attorney’s office, was “United States of America v. Jerry Neal Baker, et al” and the file number was given as “Cr.Misc.No.77”. Jerry Neal Baker was the first of the inmates listed in the motion for the orders. Appellant Holland was not one of the “et al” because, as noted above, he was not referred to in the papers.
On June 30, 1976, the United States Attorney filed a “motion to compel handwriting exemplars”. This was based on an affidavit of Mr. Martin, a postal inspector, sworn to June 1, 1976. The affidavit recited that Holland and six other Holman Prison inmates “are suspected of writing false information on altered Postal money orders”. There followed as to each named inmate a statement of the information which caused suspicion to attach to him. As to appellant Holland, this was the statement:
“U.S. Postal money order # 2,022,816,-750-6 was issued at Atmore, AL on 3-15-76 in the amount of $1.00. This money [670]*670order was altered and raised to $200.00. Holman Prison Guard William C. Freeman has admitted he gave this money order to his wife and that she cashed it on 3-17-76 at Piggley Wiggley Store, At-more, AL. Mr. Freeman stated the money order was given to him by William W. Holland on 3-16-76.
“On 4-27-76 William W. Holland refused to furnish handwriting.”
The affidavit of the postal inspector was made for the purpose of obtaining from the District Court a writ of habeas corpus ad testificandum so that the named inmates could be produced as witnesses before a grand jury. His affidavit declared: “Writs are needed to require these individuals to appear before a Federal Grand Jury to furnish handwriting exemplars”. The habeas corpus statute contemplates the production of prisoners, state or federal, “to testify”. 28 U.S.C. § 2241(c)(5); see Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514 (1845).
For some reason not explained, however, the United States Attorney did not present the matter to a grand jury nor did he ask for a writ of habeas corpus ad testificandum to bring Holland and the others as witnesses before a grand jury. Instead, the United States Attorney submitted to the District Court the “motion to compel handwriting exemplars”. This motion was given the same file number (“Cr.Misc.No.77”) and the same caption as the earlier mail inspection motions and orders: “United States of America v. Jerry Neal Baker, et aF. Jerry Neal Baker was not one of those sought to be compelled to give handwriting exemplars. Holland and four others sought to be compelled by the motion to give handwriting exemplars had not been named in the earlier papers.
On July 1, 1976, the day following the submission of the motion, the District Court made and filed an order that Holland and the other six inmates “provide to agents of the United States Postal Inspection Service samples and exemplars of their handwriting”. The Marshal’s return shows that a copy of the order was served personally on Holland on July 7, 1976.
On July 13, 1976, a postal inspector and state prison officials interviewed Holland, who refused to obey the court order and, according to a memo of the postal inspector, asked for “a court appointed attorney to advise him on the legality of the court order”.
On August 19, 1976, the United States Attorney filed a “motion for order to show cause”. On the same day, the District Court made and filed an order requiring Holland and four others to show cause “in writing” why they should not be held in contempt of court. On the same day, the District Court appointed Sterling G. Culpepper, Jr., Esq., a member of the Alabama Bar, as counsel to Holland.
On September 1, 1976, counsel for Holland filed a “response” stating that he had refused and would refuse to give handwriting exemplars “for the reason that he has not been charged with any offense connected with forgery or falsification of written documents”.
Later on the same day the District Court issued and filed a “citation for criminal contempt of court”. This directed Holland to appear before the Court on September 27, 1976, “for a hearing on the merits of this criminal contempt citation”. The citation confirmed the appointment of Mr. Culpepper to represent Holland.
The hearing on the citation of Holland for criminal contempt was duly held on September 27, 1976. Holland was present in Court and was represented by counsel. The evidence for the government established that Holland had refused to obey the July 1, 1976 order that he give handwriting exemplars. Holland offered no evidence. There was no argument. The Court announced its finding that Holland was guilty of criminal contempt of the Court.
Holland then told the Court that he (Holland) was being used “as a lever to get the other people”; that he (Holland) had not been charged with any crime; that there was no evidence to show that he was impli[671]*671eated in the scheme; and that he felt that he should not be “used in this way”.
The Court next imposed a sentence of imprisonment for six months, the sentence to be consecutive to any sentence earlier imposed on Holland.
This appeal followed.
2.
The taking of handwriting exemplars does not violate any Fifth Amendment constitutional privilege against self-incrimination nor any Sixth Amendment right to the assistance of counsel. Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). These last two decisions also establish that it does not violate the Fourth Amendment protection from unreasonable searches and seizures.
So much is undisputed. There is no defect in the order below because it compels the furnishing of handwriting samples.
3.
The argument for appellant is that the District Court had no jurisdiction to make the July 1, 1976 order; that the order was made without authority; and that thus, not being a “lawful . . . order”, the District Court had no power to punish for contempt (18 U.S.C. § 401(3)). We find this argument persuasive.
4.
It is elementary that, whereas most state trial courts have a general jurisdiction, all federal courts (other than the Supreme Court), trial or otherwise, have a limited jurisdiction. Congress was given authority in the Constitution (Article III, Section 1) to “ordain and establish” inferior courts. Congress thus has power to fix precisely the jurisdiction of those courts. The presumption is that a federal court lacks subject matter jurisdiction until it is shown to exist. Edwards v. Selective Service etc., 432 F.2d 287, 290 (5th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1637, 29 L.Ed.2d 122 (1971).
5.
There are a number of instances in which orders have been made by District Courts that handwriting examples be furnished or similar non-testimonial identification be made (appearance in line-ups, voice exemplars). In all those instances to which our attention has been called by counsel, or which our researches have discovered, the jurisdiction of the District Court over the proceeding, or over the person affected, was clearly made to appear. There was either an arrest of the person, or an indictment, or a grand jury investigation for which testimonial compulsion by the Court was required. There was something before the court, a proceeding or a person or both, over which the Court had jurisdiction.
Examples of orders for non-testimonial identification in aid of a grand jury investigation are United States v. Dionisio, above cited, (voice exemplars), and United States v. Mara, above cited, (handwriting exemplars). Another example is in the Second Circuit, United States v. Doe, 405 F.2d 436 (Friendly, C. J.; 2 Cir. 1968) where a contempt conviction was affirmed after a grand jury witness had disobeyed orders of the foreman and of the District Judge to give handwriting exemplars to the grand jury.
In the grand jury cases, the authority of the Court is clear. The grand jury is, on history and on principle, an “appendage of the court” (Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959)), “an agency of the court” which “exercises its powers under the authority and supervision of the court” (United States v. Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975)). If a grand, jury is investigating a matter, this is an investigation by an agency of the court and under the court’s supervision. Congress, since the time of the Judiciary Act of 1789, has authorized the District Courts to issue orders for the testimony of witnesses before federal courts. 1 Stat. 73, [672]*67288-89, Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) The same authority is now found in Fed.R.Crim.P. 17(a). This authority has always been interpreted to include the compelling of testimony before grand juries, as well as before the Court itself. United States v. Calandra, 414 U.S. 338, 346 fn. 4, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)
In other cases, orders were made for non-testimonial identification after an indictment had been returned, a proceeding over which the District Court clearly had jurisdiction.
In United States v. McNeal, 463 F.2d 1180 (5th Cir. 1972) a District Court had ordered McNeal, then in state custody, to give handwriting examples and he had complied. The power of the Court to make such an order was not raised as an issue. It appears that there were “federal charges” pending against McNeal at the time and the District Court had jurisdiction over such charges (presumably an indictment). This Court said (463 F.2d at 1181; emphasis supplied):
“Here, McNeal was lawfully detained in State custody with federal charges against him and he was under Court order to give the handwriting exemplars”.
A leading case in this Circuit involved an order made during the trial of an indictment before a District Court. United States v. Nix, 465 F.2d 90 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972)
The Sixth Circuit has sustained a trial court order to a defendant to give handwriting examples where the defendant had earlier been indicted. United States v. Ruggirello, 454 F.2d 725 (6th Cir. 1972)
There are other cases in which the jurisdiction of the District Court to make an order is based on jurisdiction over the person of the defendant resulting from a lawful arrest and the then pendency of a proceeding (arrest, presentment to a magistrate, complaint) over which the Court also had jurisdiction.
The significance of a lawful arrest to establish a proper basis for compelling handwriting exemplars is shown in Bradford v. United States, 413 F.2d 467 (5th Cir. 1969), a case in which the exemplars were taken by postal inspectors without a court order. This Court said (at 472):
“We hold that the taking of the handwriting exemplars from Bradford is similar to blood sampling and fingerprinting and that if Bradford was under arrest at the time given they were admissible.
“If on the other hand he was not under arrest or the exemplars were not given voluntarily, it was error to admit them.”
In Lewis v. United States, 127 U.S.App.D.C. 269, 382 F.2d 817, cert. denied, 389 U.S. 962, 88 S.Ct. 350, 19 L.Ed.2d 377 (1967), there was an arrest and the taking of handwriting exemplars before presentment of defendant to a magistrate. This was held to violate , no constitutional rights. The Court, through then Circuit Judge Burger, said (382 F.2d at 819; emphasis supplied):
“Routine procedures, such as taking photographs, fingerprints, or handwriting exemplars of lawfully arrested suspects, invade no conceivable right that the Mallory [Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479] rule was designed to protect.
“ . . . Appellant’s writing could have been compelled on pain of contempt at any stage after he was before the Court”
The point of significance is the acquisition of jurisdiction over the person by virtue of the lawful arrest.
In Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968), cert. denied under the name of Roots v. United States, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1969), the Court of Appeals for the District of Columbia dealt with the admissibility of identification evidence at a compelled lineup against persons who had been arrested but had not been timely presented to a magistrate as required by Fed.R.Crim.P. 5(a). In the course of its opinion, the Court had this to say (399 F.2d at 578-79; emphasis supplied):
[673]*673“But, had the police heeded Rule 5(a) and taken appellants after booking before a magistrate, it is by no means certain that the police could not legally have arranged for other victims to view appellants in line-ups. Such line-ups would have to meet due process standards, and to include the opportunity to have counsel present. Once brought under judicial authority by virtue of the presentment to a magistrate commanded by Rule 5(a), the police could invoke the aid of that authority to make the prisoner reasonably available for line-up identification in respect of other crimes for which there is less than probable cause to arrest.”
The Court was thus suggesting that where a person has been arrested and presented to a magistrate, the District Court has jurisdiction over such person and may make orders for line-up appearances; orders for handwriting exemplars would seem to stand on the same footing.
The suggestion in Adams was adopted in the District of Columbia, where District Judges and magistrates were asked to sign, and did sign, orders that arrested persons appear in line-ups for identification, including line-ups as to crimes other than those for which they were arrested. See, for example, United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969); Spriggs v. Wilson, 151 U.S.App.D.C. 328, 467 F.2d 382, 383 (1972).
Similarly the Ninth Circuit has affirmed the conviction of a defendant for contempt in refusing to pbey an order to give hand-printed exemplars. Jurisdiction to make the order was abundantly shown because defendant had been arrested, a complaint had been filed, and a preliminary hearing had been commenced. United States v. Rudy, 429 F.2d 993 (9th Cir. 1970).
6.
On October 7, 1969, a bill (S. 2997) was introduced in the Senate by Senator McClellan. This bill would have authorized an application to a United States District Judge by an investigative officer of any agency of the United States. If the application made the prescribed showing, the District Judge was authorized to issue a subpoena requiring the person named to appear before a magistrate for the obtaining of evidence of identifying physical characteristics, including handwriting. 115 Cong.Rec. 28900. Senator McClellan described the bill as a “new and novel approach” and explained that he wanted it given “close scrutiny and study”, that he was “not necessarily committed to the bill”, that it was based on dicta in the Supreme Court’s opinion in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and that this dicta had suggested that detention to secure identifying evidence might be constitutionally permissible “even though there is no probable cause in the traditional sense”. 115 Cong.Rec. 28896, 28897.
Senator McClellan’s bill was referred to the Committee on the Judiciary and was never heard of again, apparently dying in Committee.
7.
Under date of March 31, 1971, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States submitted to the Bench and Bar for comments and suggestions a draft of proposed amendments to the Federal Rules of Criminal Procedure and of some “additional rules” of Criminal Procedure. These had been prepared by the Advisory Committee on Criminal Rules.
Among the new rules, the “additional rules”, was “Rule 41.1 Nontestimonial identification”. This new rule would have authorized a magistrate to issue a “nontestimonial identification order” on request of a federal law enforcement officer or an attorney for the government and on a prescribed showing by affidavit. The radical change proposed by the new rule was to authorize such an order before arrest and on evidence less than that required to make an arrest.
The Judicial Conference, at its meeting on October 26-27, 1972, approved for transmittal to the Supreme Court certain amend[674]*674ments to the Criminal Rules and certain new Rules but the Conference specifically did not approve the proposed Rule 41.1. The “Report of the Proceedings of the Judicial Conference of the United States” has this to say on the subject (pp. 46-47; emphasis supplied):
“The Conference was advised that the standing Committee did not recommend approval at this time of the proposed new criminal rule 41.1 with respect to non-testimonial identification before and after arrest. This proposal which has been circulated to the bench and bar has evoked a number of serious questions which require further study and the committee believes that before a procedural rule on this subject is recommended to the Supreme Court, the committees and the Conference should have the benefit of more experience with such procedure in the states and in the District of Columbia and of judicial consideration of the Constitutional questions involved. The committee was further of the view that such a procedure is one with which the federal courts would have little occasion to deal except in the District of Columbia where the crimes of violence involved are, under recent reorganization, tried in the local Superior Court rather than in the United States District Court. The committee was of the view that the Superior Court could establish procedures under its own rule-making authority, thus meeting the need in the District of Columbia.”
Neither the proposed new Rule 41.1 nor any similar Rule has ever been approved.
8.
That a bill was introduced in Congress to authorize District Courts by their orders to aid executive investigations, and that a Criminal Rule to achieve the same result was considered and disapproved, shows that no such authority otherwise exists. If there were such authority, as the government here contends, there would have been no need for Senator McClellan’s bill or for the proposed Rule 41.1.
9.
In the case at bar, Holland had not been arrested for any federal offense. No complaint had been made before any magistrate charging Holland with any federal offense. No subpoena had issued requiring Holland to testify before a grand jury or other body. No indictment had been returned nor information filed charging him with any federal offense. There was nothing which conferred any authority on the District Court to make its July 1, 1976 order. There was no matter pending in that Court and affecting Holland over which the Court could exercise any jurisdiction. The person of Holland was not before the Court, as, for example, would be the case had he been arrested and presented for arraignment. What the District Court did in substance was to make an order in aid of an investigation by the Postal Service. Congress has not authorized any such aid, either by enacting Senator McClellan’s bill or in the Postal Reorganization Act (39 U.S.C. §§ 101 and following) or elsewhere.
The government cites us to no specific authority for the order below. The government argues that authority existed by virtue of the Court’s power “through its process to summon witnesses to give testimony and its supervisory role over grand jury investigations” (Brief of Appellee, p. 2). The conclusive answer to this argument is not in law but in the facts of the case at bar: Holland was not summoned to give testimony, no subpoena was served on him, and there was no proceéding before the Court nor ancillary proceeding (such as a grand jury investigation) in which he could give any testimony. Fed.R.Crim.P. 17(a) requires that a subpoena state “the title, if any, of the proceeding”. “Implicit in this rule is the proposition that a court can issue a subpoena only if it has before it some proceeding to which the witness is being summoned”. United States v. Polizzi, 323 F.Supp. 222, 226 (C.D.Cal.), reversed on other grounds, 450 F.2d 880 (9th Cir. 1971). There was no grand jury or other “proceeding” over which the District Court had any jurisdiction and thus no subpoena could [675]*675lawfully have been issued by that Court. See Katz v. Briggs, 550 F.2d 310 (5th Cir. 1977).
Our dissenting brother finds authority for the order below in the power of the District Court to issue a search warrant upon a showing of probable cause. Leaving aside the question whether probable cause for a search warrant was in fact shown, a question by no means free from doubt, there was no intent here to ask for or to issue a search warrant. The supporting affidavit was for the purpose of securing a writ of habeas corpus ad testificandum to produce Holland before a grand jury. Moreover, the order below was not a search warrant either in form or in substance. A search warrant is not an order but is a grant of authority for a law enforcement officer to search premises for and to seize specified objects already in existence. Nothing need be done by the person who is the cause or object of the search. The order below, however, was directed solely to a subject of the investigation and ordered him to create something — namely, handwriting exemplars.
10.
There are some situations where violation of a court order may be punished as a criminal contempt even though the order violated is set aside on appeal. This was recognized in United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947) but, as the Court there emphasized, these are situations “where . . . the subject matter of the suit, as well as the parties, was properly before the Court” and “where the elements of federal jurisdiction were clearly shown” (330 U.S. at 294, 67 S.Ct. at 696).
Chief Judge Brown for this Court made the same point in United States v. Dickinson, 465 F.2d 496, 511 (5th Cir. 1972):
“Of course, the rule that unconstitutional court orders must nevertheless be obeyed until set aside presupposes the existence of at least three conditions: (i) the court issuing the injunction must enjoy subject matter and personal jurisdiction over the controversy; . . .”
In the case at bar, the District Court had no jurisdiction to make the order for handwriting samples. Accordingly, appellant cannot be punished for violating the order.
The situation here is like that in the old case of Ex parte Fisk, 113 U.S. 713 at 718 and 726, 5 S.Ct. 724 at 726 and 730, 28 L.Ed. 1117 (1885) where the Supreme Court said:
“When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void.
^ * * * *
“The Circuit Court was, therefore, without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt. Its order finding him for contempt and committing him to the custody of the marshal was without jurisdiction and void, and the prisoner is entitled to his release.”
The judgment of conviction of criminal contempt is
REVERSED.