United States v. Robinson

42 F.R.D. 421, 1967 U.S. Dist. LEXIS 11751
CourtDistrict Court, S.D. New York
DecidedJune 26, 1967
DocketNo. 67 Cr. 440
StatusPublished
Cited by3 cases

This text of 42 F.R.D. 421 (United States v. Robinson) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robinson, 42 F.R.D. 421, 1967 U.S. Dist. LEXIS 11751 (S.D.N.Y. 1967).

Opinion

MANSFIELD, District Judge.

The defendant has moved for (1) dismissal of the indictment or, in the alternative, for a preliminary hearing; [423]*423(2) inspection of Grand Jury minutes; (3) a bill of particulars; and (4) suppression of evidence seized from the defendant on April 27, 1967.

The indictment, which was filed on May 12, 1967, charges the defendant with unlawful receipt and concealment of 6.10 grams of heroin in violation of 21 U.S.C. §§ 173, 174. The background is as follows:

On April 27, 1967, the defendant was arrested and taken before the United States Commissioner who informed him of his rights, scheduled a preliminary hearing for May 10, 1967, and fixed bail at $5,000, which the defendant posted. On May 10, 1967, the Commissioner adjourned the preliminary hearing for two days, i. e., until May 12, 1967, after the defendant appeared on May 10th with his counsel, who had not yet filed a notice of appearance. On May 11, 1967, the Grand Jury returned the indictment, and on June 8, 1967, the defendant filed the present motion.

The motion to dismiss the indictment is denied for the reason that there is no showing of unnecessary delay in the scheduling of the preliminary hearing or that the two-day adjournment caused any harassment or oppression of the defendant or any denial of his rights. He was not detained during the period of the short adjournment, but had been released on bail. It does not appear that he was interrogated or deprived of his right to counsel. On the contrary he was represented by counsel who had apparently failed to file a notice of appearance.

The moving papers indicate that defendant’s counsel now desires a preliminary hearing in order to obtain a discovery of the Government’s evidence, including the identity of any informers or special investigators used by it, and thus be better prepared for defense of the case.. The sole purpose of a preliminary hearing, however, is to determine whether there is sufficient evidence to warrant the defendant’s detention, and the filing of the indictment conclusively establishes probable cause for such detention, thereby eliminating the necessity for a preliminary hearing. United States v. Heap, 345 F.2d 170 (2d Cir. 1965); United States v. Gilchrist, 347 F.2d 715 (2d Cir. 1965); Vincent v. United States, 337 F.2d 891 (8th Cir. 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281 (1965). The return by a legally constituted Grand Jury of an indictment valid on its face requires the defendant to stand trial on the charge made against him. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Once a valid indictment is filed, the defendant cannot turn the clock back to the preliminary hearing stage.

In the alternative the defendant seeks an order permitting inspection of the minutes of the Grand Jury proceedings that resulted in return of the indictment against him. This motion must be denied as frivolous, in the absence of any showing of particularized need or of any grounds for departure from the traditional secrecy accorded to such minutes. United States v. Weber, 197 F.2d 237 (2d Cir.), cert. denied, 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649 (1952). No facts or circumstances have been offered indicating that the evidence before the Grand Jury was insufficient to warrant a finding of probable cause, or demonstrating some particularized need on the part of the defendant for the minutes.

Defendant’s motion for a bill of particulars contains 35 items or demands, most of which seek evidence that is not required to be furnished in order to fulfill the function of such a bill, which is to apprise the defendant of the charges against him so that he can prepare his defense, avoid surprise at trial, and be protected against double jeopardy. United States v. Murray, 297 F.2d 812 (2d Cir.), cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962); United [424]*424States v. Glaze, 313 F.2d 757 (2d Cir. 1963); United States v. Cimino, 31 F.R.D. 277 (S.D.N.Y.1962), affd., 321 F.2d 509 (2d Cir. 1963), cert. denied, 375 U.S. 974, 84 S.Ct. 491, 11 L.Ed.2d 418 (1964).

The Government has consented to furnish a substantial amount of information in response to 10 of defendant’s requests,

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Bluebook (online)
42 F.R.D. 421, 1967 U.S. Dist. LEXIS 11751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robinson-nysd-1967.