Ross v. Sirica

Decision Date23 January 1967
Docket NumberNo. 20535.,20535.
Citation380 F.2d 557,127 US App. DC 10
PartiesGeorge E. ROSS, Jr., Petitioner, v. The Honorable John J. SIRICA, United States District Judge, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Karl G. Feissner, Washington, D. C., for petitioner.

Mr. Geoffrey M. Alprin, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the pleadings, for respondent.

Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit Judges.

Petition for Rehearing en Banc Denied March 24, 1967.

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 hearings3 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: "likely 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 case" 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:

"We 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 by 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

PER CURIAM.

On consideration of respondent's petition for rehearing en banc and of petitioner's memorandum in opposition thereto, it is

Ordered by the...

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