U.S. v. Mulligan

• Decision Date: 01 August 1975
• Docket Number: No. 74-1765,74-1765
• Citation: 520 F.2d 1327
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin MULLIGAN and Melvin Markowitz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1327

520 F.2d 1327

UNITED STATES of America, Plaintiff-Appellee, v. Marvin MULLIGAN and Melvin Markowitz, Defendants-Appellants.

No. 74-1765.

United States Court of Appeals Sixth Circuit.

Aug. 1, 1975.

James Thomas, Richard S. Walinski, Hayward, Cooper, Straub, Walinski, Cramer & Co., LPA, Toledo, Ohio, for defendants-appellants.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Ivan Michael Schaeffer, Shirley Baccus-Lobel, Washington, D. C., Appellate Section, Crim. Div., U. S. Dept. of Justice, for plaintiff-appellee.

Before LIVELY, Circuit Judge, ENGEL, Circuit Judge and MILES ^*, District Judge.

PER CURIAM.

This is an appeal by habeas corpus petitioners from the District Court's denial of their application.

Appellants were convicted in the same District Court now appealed from in this action in March, 1974 of the offense of transporting a stolen treasury bill in interstate commerce, knowing the same to have been stolen or taken by fraud. ¹ The security in question had a maturation value of One Hundred Thousand Dollars ($100,000.00) and was one of three thousand bills taken in a theft in New York City from the Morgan Guaranty Trust Company of New York between the dates of the 16th and 20th of October, 1969.

On February 20, 1970, appellants were arrested on a complaint filed in the Southern District of New York and brought before the United States Magistrate for arraignment in the United States District Court for the Southern District of Texas. Motion for an immediate hearing relative to probable cause was denied and February 27, 1970 was set as the date for preliminary examination. Thereafter, upon motion of the government, and over appellants' attorney's objections, the hearing date was continued until March 3, 1970.

On March 3, the New York complaint was dismissed on the government's motion, a grand jury indictment for the same offense having been returned that Following arraignments of appellants (one on March 23 and the other on March 30, 1970) on Michigan Indictment No. 44727, the government filed a superseding indictment (Michigan No. 4500) on May 28, 1970. The government's motion to dismiss indictment No. 44727 was granted on August 4, 1970. Proceeding under the superseding indictment, trial commenced on March 21, 1972. Appellants' subsequent conviction by a jury was appealed and affirmed in all respects in a decision (ORDER) by this Court. Mulligan v. United States, 473 F.2d 912, cert. den. 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58, reh. den. 414 U.S. 1087, 94 S.Ct. 610, 38 L.Ed.2d 493.

day in the Eastern District of Michigan. Bail was reduced on March 4, 1970, and petitioners were released from custody.

Appellants presently attack the trial court's denial of their Petition for a Writ of Habeas Corpus (28 U.S.C. § 2255) on three grounds: (1) an instruction of the trial court; (2) the alleged refusal of the Texas magistrate to provide them with a hearing on probable cause on the New York complaint upon which they were first arrested; and (3) the time interval between their original arrest and ultimate conviction.

THE INSTRUCTION

Appellants attack the instruction of the trial court in this proceeding as it related to what inferences may be drawn by a jury by the possession of recently stolen property. The complete instruction by the trial court as it relates to inferences from such possession was before this Court in appellants' direct appeal (473 F.2d 912) and was attacked in briefs filed by their counsel. This Court is unpersuaded by additional claims of appellants that prejudicial error was committed by the trial court in such instructions. Mulligan v. United States, supra ; Stephan v. United States, 496 F.2d 527 (CA 6 1974); Van Buskirk v. United States, 343 F.2d 158 (CA 6 1965).

THE MAGISTRATE'S CONTINUANCE OF PRELIMINARY HEARING

Appellants' second contention is that the U.S. Magistrate's denial of a hearing pursuant to probable cause under Fed.R.Crim.P. 5(c) operated to effectively deny them of their Sixth Amendment right to confront all of the witnesses against them at a critical stage of the proceedings. It is apparent that the thrust of appellants' objection is directed at their inability to cross-examine a key government witness prior to trial. ²

The charge for which appellants were ultimately convicted and upon which this petition is predicated was based on a finding of probable cause through a grand jury indictment (No. 4500). Action by the grand jury in returning the indictment brought formal charges against the accused and thus superseded the complaint procedure and eliminated the necessity of a preliminary hearing. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); Spinelli v. United States, 382 F.2d 871, 887 (CA 8 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). If the grand jury returns a true bill prior to the time a preliminary hearing is held, the whole purpose and justification of the preliminary hearing has been satisfied. Vincent v. United States, 337 F.2d 891 (CA 8 1964), cert. den. 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281. In United States v. Luxenberg, 374 F.2d 241 (CA 6 1967), this Court rejected petitioner's contention that he was denied due process of law because an indictment was returned against him without first being granted a preliminary examination as required by Rule 5 of the Fed.R.Crim.P.

"This court has repeatedly held that there is no denial of due process where a person is indicted by the Grand Jury without having a preliminary examination. There is no constitutional requirement for such an examination. United States v. Smith, 343 F.2d 847 (6 Cir.), cert. den. 382 U.S. 824, 86 S.Ct. 55, 15 L.Ed.2d 69; Dillard v. Bomar, 342 F.2d 789 (6 Cir.), cert. den. 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 123; United States v. Shields, 291 F.2d 798 (6 Cir.), cert. den. 368 U.S. 933, 82 S.Ct. 371, 7 L.Ed.2d 196, rehearing den. 368 U.S. 962, 82 S.Ct. 401, 7 L.Ed.2d 393; Boone v. United States, 280 F.2d 911 (C.A. 6). See also United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 55 S.Ct. 781, 79 L.Ed. 1501; Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343." P. 248.

Appellants additionally argue, however, that under Fed.R.Crim.P. 5(c) at that time Commissioners were under a directive to "hear the evidence within a reasonable time," and that granting continuances for the purpose of obtaining an indictment under similar charges in Michigan is contrary to the rule. ³ Rule 5(c), Fed.R.Crim.P. serves as a complement to the constitutionally necessary grand jury system. Although the preliminary hearing provided for in Rule 5(c) may be a practical tool for discovery by the accused, the only legal justification for its existence is to protect innocent persons from languishing in jail on totally baseless accusations.

Appellants' first request for an immediate hearing was denied on February 20, 1970, with the hearing set for one week later. On February 27, 1970, the government requested and obtained a second continuance for a week over appellants' objection. The Michigan indictment was returned on March 3, 1970 and the New York complaint was thereupon dismissed which eliminated any need for the preliminary hearing. See Byrnes v. United States, 327 F.2d 825, 834 (CA 8 1964), cert. den. 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739, citing Boone v. United States, 280 F.2d 911 (CA 6 1960).

Appellants' contention, while new to this circuit, has been confronted in several other circuits. Byrnes v. United States, supra ; United States v. Stith, 479 F.2d 315 (CA 8 1973), cert. den. 414 U.S. 845, 94 S.Ct. 107, 38 L.Ed.2d 83; Spinelli v. United States, 382 F.2d 871, 887 (CA 8 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

In Spinelli v. United States, supra, appellant argued that while the Commissioner has authority to grant continuances, the granting of a continuance for the purpose of providing time to obtain an indictment is contrary to the spirit of the rules. Citing Byrnes v. United States, supra, the Court rejected the claim, absent a showing of legal prejudice. The Spinelli Court observed at 382 F.2d 887:

". . . (w)e do not see anything inherently inequitable with continuing a preliminary hearing for a short period of time to allow intervening grand jury action. Though appellant might well have enjoyed the discovery benefits that flow from a preliminary hearing, he has no absolute right to these benefits if the underlying purpose of the preliminary hearing is supplanted."

See also United States v. Stith, supra, 479 F.2d at 317.

Moreover, the indictment to which the appellants eventually were required to respond to was that of the Eastern Michigan District, the original Complaint upon which they were held having been filed on another charge in the Southern District of New York.

We find no legal prejudice to appellants as they address their grievance to the failure of the government to provide them with an opportunity of confrontation with a key witness in the New York Complaint.

APPELLANTS' CLAIM OF ABSENCE OF SPEEDY TRIAL

Appellants' final contention is that they were denied their right to a speedy trial by reason of a twenty-five month interval between the date of their arrest in February of 1970 and their trial in March of 1972.

Assessment of appellants' claim requires consideration of the guidelines adopted by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and by this Court's application of those considerations in United States v. LaBorde, 496 F.2d 965 (CA 6 1974); United States v. Gibson, 513 F.2d 978 (CA 6 1975) (decided and filed 4/16/75).

In Barker, the Supreme Court, after determining that the deprivation of the right to a speedy trial does not prejudice an accused's ability to defend himself per se, ⁴ adopted a balancing test to determine when and if such right is denied.

"A balancing test...