George E. Ross, Jr. v. The Honorable John J. Sirica, United States District Judge

380 F.2d 557

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 24, 1967
• Docket: 20535
• Status: Published

Opinions

PER CURIAM:

We are asked to issue a writ in the nature of mandamus directing the District Judge to remand this case for a proper preliminary hearing in accordance with the procedure outlined in Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 894, 900 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965). For reasons which follow, we think the preliminary hearing should be reopened.

Petitioner was arrested on a charge of first degree murder and brought before a United States Commissioner. A continuance was granted to permit counsel assigned by the Legal Aid Agency to represent petitioner at the preliminary hearing. Prior to the hearing, counsel sought issuance of subpoenas to compel the attendance of three witnesses. He supported this request with an allegation that these witnesses were “material and necessary to the defense, and that they were alleged eye-witnesses to the so-called occurrence.” ¹ The Commissioner refused to issue subpoenas. The Record of Proceedings recites his reasons as: “Probable Cause rests on testimony adduced by the Govt. — Rule 17b [of the Federal Rules of Criminal Procedure] requires evidence of witness to be material to the defense.” The hearing was held and a police officer testified concerning statements which these witnesses had made to him. The witnesses did not appear. The Commissioner found probable cause and ordered petitioner held to answer in the District Court.

An indictment was subsequently returned and present counsel was appointed to represent petitioner in the District Court. A number of motions were filed,² including a motion to dismiss the indictment or, alternatively, to remand for a proper preliminary hearing. When that motion was denied, petitioner instituted this proceeding.

We have recognized that the preliminary hearing is an important right of an accused affording him “(1) an opportunity to establish that there is no probable cause for his continued detention * * * and (2) a chance to learn in advance of trial the foundations of the charge and the evidence that will comprise the government’s case against him.” Blue v. United States, supra, 119 U.S.App.D.C. at 322, 342 F.2d at 901 (footnote omitted). We have held that the accused is entitled to the assistance of counsel at such hearings ³ and that he may obtain subpoenas to compel the attendance of “material witnesses reasonably requested * * ⁴ Moreover, we have held that the right to a preliminary hearing, if timely asserted, is not forfeited solely by the later return of an indictment.⁵

The Government makes no effort to defend the Commissioner’s ruling that probable cause rests solely on the Government’s evidence. Probable cause rests, as Rule 5(c) explicitly states, on “the evidence” presented which necessarily includes that adduced by the accused either in cross-examination of Government witnesses or by the introduction of independent evidence or testimony. The Commissioner sits as a judicial officer to sift all the evidence before resolving the probable cause issue, Washington v. Clemmer, supra at 227-228, 339 F.2d at 727-728, and cannot decline to issue subpoenas on the ground that only the Government’s evidence is probative.

At oral argument, although not in its opposition, the Government contended that the showing before the Commissioner was insufficient to warrant the issuance of subpoenas. We disagree.⁶ Petitioner sought to compel the attendance of three eyewitneses to the alleged crime, “averring testimony relative to the issue of probable cause.” Such witnesses are within the compass of Washington v. Clemmer, supra, where we said: “[l]ikely to be called on this basis, in addition to alibi witneses, are the complainant and other material witnesses named in the complaint who for some reason have not been called by the Government.” 119 U.S.App.D.C. at 219, 339 F.2d at 718.⁷

This is not to say that an accused may in all circumstances require subpoenas for the production of the Government’s witnesses. However, where an accused shows that witnesses are material to the issue of probable cause, requests for subpoenas for such witnesses should be granted. This is consistent with the principal purpose of the preliminary hearing as a mechanism to determine whether the evidence is adequate to establish probable cause. Whatever the full reach of the accused’s subpoena rights at a preliminary hearing, we hold that he is entitled to compel the attendance of eyewitnesses unless, of course, “because of physical or psychological disability in a particular ease” such witnesses cannot attend. Washington v. Clemmer, supra at 219 n. 11, 339 F.2d at 718 n. 11. Moreover, to hold otherwise would be to sanction a distinction between the indigent accused who must rely on the Commissioner for the issuance of subpoenas and his moneyed counterpart who can secure subpoenas instantly by paying the statutory service and witness fees.

From the foregoing, we think it clear that the Commissioner improperly declined to issue the subpoenas which petitioner had timely requested and that, in consequence, petitioner was deprived of a proper preliminary hearing in accordance with Rule 5. Under our holdings in Blue and Washington, this would ordinarily suffice to warrant issuance of the writ. The Government, however, citing Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), argues that the return of an indictment renders any defect in the preliminary hearing procedure “moot.” Jaben was quite a different case. There, a complaint alleging violations of the tax laws was filed within the limitation period but no preliminary hearing was held. An indictment was returned after the limitation period had run. The Government contended that the timely filing of the complaint tolled the statute; Jaben argued contrary. The Supreme Court sustained the Government’s contention and held that the prosecution was not barred by the statute of limitations. In the course of the majority opinion, Mr. Justice Harlan observed:

“[W]e think that the Government must proceed through the further steps of the complaint procedure by affording the defendant a preliminary hearing as required by Rule 5, unless before the preliminary hearing is held, the grand jury supersedes the complaint procedure by returning an indictment.” 381 U.S. at 220, 85 S.Ct. at 1369.

It is this language on which the Government relies. But the Court was careful to point out that Jaben, who was represented by counsel and at liberty on bond, made no effort to obtain a preliminary hearing during the one month interval between the filing of the complaint and the return of the indictment. 381 U.S. at 221 n. 3, 85 S.Ct. at 1369 n. 3. Accord, Crump v. Anderson, 122 U.S.App.D.C. 173, 352 F.2d 649 (1965). We find nothing inconsistent between such a rule and our holding in Blue involving defective preliminary hearings which have been held prior to the indictment or improperly waived prior to the indictment. Indeed, in Blue we were careful to point out that persons intending to challenge an alleged defect in the preliminary hearing procedure should do so promptly and before trial. 119 U.S.App.D.C. at 321-322, 342 F.2d at 900-901. Jaben does not undermine the holding in Blue that an accused who demands the preliminary hearing as is his right is entitled to such a hearing and that, if the point is properly and timely pressed, a denial of that hearing cannot be excused by pointing to an intervening grand jury indictment.⁸

Finally, we simply note a point not raised by the Government. Obviously, since defects in the preliminary hearing procedure affect the determination of probable cause and the confinement which rests on such a determination, remedial measures should be promptly undertaken. Where an accused is adequately represented Ly counsel in the interim between the hearing and arraignment following the return of an indictment, and where no adequate excuse for failure to raise the preliminary hearing defect earlier is tendered, a serious question of timeliness would be presented. However, since neither the District Judge nor the Government raised this point, and since this is a capital case, we are not inclined to decide the issue sua sponte. We repeat what was said in Blue: “These remedies should, of course, be asserted at the earliest possible moment. Where, however, indictment occurs before it is feasible for assertion or resolution of the claim to have been made, relief is not to be denied for that reason alone.” 119 U.S.App.D.C. at 321 n. 7, 342 F.2d at 900 n. 7.

We think the District Judge should have granted petitioner’s motion and remanded for a proper preliminary hearing where he could subpoena and examine the three witnesses whose attendance he timely and adequately sought. We are certain that the District Court will promptly insure that this is done. Accordingly, in lieu of the writ prayed for, we will direct our Clerk to transmit a certified copy of this opinion forthwith.

So ordered.

Before Bazelon, Chief Judge, and Fahy, Danaher, Burger, Wright, McGowan, Tamm, Leventhal and Robinson, Circuit Judges, in Chambers.

ORDER

1 . The Commissioner’s Record of Proceedings recites that counsel “Filed Motion for Issuance of 3 named witnesses— averring testimony relative to the issue of probable cause.” That motion, however, is not in the record. At the hearing in the District Court, present counsel offered to prove that the representation quoted in the text was made to the Commissioner and had the Legal Aid attorney available to testify. The Government informed the District Court that “we do not object to that proffer.”

2 . Among other pre-trial motions, petitioner sought access to certain police records contending that they constituted public records within the contemplation of 4 D.C.Code §§ 134, 135. We think the District Court’s ruling on this point is not reviewable by extraordinary writ. Carter v. Schweinhaut, No. 19,044, decided by order February 2, 1965. Similarly, we decline now to review the District Court’s refusal to appoint a private investigator pursuant to petitioner’s application under the Criminal Justice Act, 18 U.S.C. § 3006A(e).

3 . Holmes v. United States, No. 19,519, decided July 21, 1966; Dancy v. United States, 124 U.S.App.D.C. 58, 361 F.2d 75 (1966); Blue v. United States, supra,. This right is now codified in the Federal Buies of Criminal Procedure. See F.B. Crim.P. 5(b), 44(a).

4 . Washington v. Clemmer, 119 U.S.App.D.C. 216, 219, 339 F.2d 715, 718 and 119 U.S.App.D.C. 226, 339 F.2d 725 (1964).

5 . In addition to the eases cited in note 3, supra, of Drew v. Beard, 110 U.S.App.D.C. 198, 199, 290 F.2d 741, 742 (1961). While our cases have required a showing sufficient to permit an “informed speculation that the trial itself was * * * prejudicially affected” if the preliminary hearing point is raised after conviction, Shelton v. United States, 120 U.S.App.D.C. 65, 66, 343 F.2d 347, 348, cert. denied, 382 U.S. 856, 86 S.Ct. 108, 15 L.Ed.2d 93 (1965), pre-trial relief in accordance with the procedure detailed in Blue v. United States, supra, turns on whether the requirements of Buie 5 have been followed and whether the accused has otherwise been “substantially afforded * * * the opportunities and information to which he was entitled under our decision in Blue * * Carter v. Schweinhaut, No. 19,044, decided by order February 2, 1965. Were the rule otherwise, Buie 5 could “be disregarded and set at naught with impunity.” Dancy v. United States, supra note 3, 361 F.2d at 78.

6 . We read the Commissioner’s Record in conjunction with the factual proffer made in the District Court. See note 1, supra. Petitioner’s counsel announced that he had “finished the statement as to the facts” and the Government informed the District Judge that it “would not object to Your Honor’s acceptance” of the facts. The Government’s position, both in the District Court and in its filed opposition, is that the indictment rendered moot any infirmities in the preliminary hearing procedure. Having followed this course, we do not think the Government can now argue a factual issue which petitioner was prepared to prove but failed to do so because the Government interposed no objection to his statement of facts. Cf. Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

7 . The three witnesses were identified in the affidavit annexed to the complaint and incorporated therein by reference. Additionally, the record shows that thesé. three were the Government’s only witnesses before the Grand Jury and, in fact, are the only persons known by the Government “to be witnesses of the crime set forth in the indictment * *

8 . At one point in the proceedings, Jaben did complain of the denial of an opportunity to cross-examine witnesses at a preliminary hearing. United States v. Jaben, 226 F.Supp. 757, 758 (W.D.Mo. 1963). That point was abandoned on appeal, no doubt due to Jaben’s one month acquiescence during which no hearing was held. We have examined the petition for writ of certiorari and the briefs filed with the Supreme Court in Jaben and note: (1) the only issue raised in the Supreme Court was the statute of limitations issue and (2) the Blue line of cases dealing with proper preliminary hearing procedures was not discussed, or even cited, in the briefs.