Blue v. United States, 18401.

Decision Date29 October 1964
Docket NumberNo. 18401.,18401.
Citation119 US App. DC 315,342 F.2d 894
PartiesWilliam D. BLUE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Carroll J. Savage (appointed by this court), Washington, D. C., for appellant.

Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BASTIAN and McGOWAN, Circuit Judges.

Certiorari Denied March 15, 1965. See 85 S.Ct. 1029.

McGOWAN, Circuit Judge.

The principal question presented by this appeal relates to the adequacy of the pre-trial proceedings held before the United States Commissioner.1 Because of an asserted defect in this regard, we are asked to direct the dismissal of the indictment.

I

At the time of his arrest, appellant was a juvenile, seventeen years of age, with an educational experience terminating in the seventh grade. As required by law because of his age, he was first placed in the custody of the Juvenile Court, but that tribunal a few days later elected to waive its jurisdiction over him. The same day a complaint was filed with the Commissioner, and appellant was brought before him.

Rule 5 of the Federal Rules of Criminal Procedure, which is applicable to all U. S. Commissioners within and without the District of Columbia, specifies certain procedures to be followed in an appearance of this kind. Paragraph (b) of that Rule is as follows:

"Statement by the Commissioner. The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules."

The record before us shows that the Commissioner here may be deemed to have complied with these directions. The proof in this respect is that the printed record form used by the Commissioner bears what appears to be a mechanical imprint with this legend:

"Complaint prepared. Defendant was informed of the complaint and of his right to have a preliminary hearing and to retain counsel. Defendant was not required to make a statement and was advised that any statement made by him may be used against him. Defendant was advised of his right to cross-examine witnesses against him and to introduce evidence in his own behalf."

Below this there is a typewritten statement that "Deft. Waived Preliminary Hearing."

This last recital of appellant's waiver of preliminary hearing derives from paragraph (c) of Rule 5 which provides in substance that, unless hearing is waived, the Commissioner is to hear the evidence against the defendant, with the latter having the right to cross-examine witnesses and to offer evidence of his own. Thereafter, the Commissioner is to determine whether the defendant is to be released or to be held to respond in the district court, depending upon whether he finds probable cause to believe the defendant committed the crime charged.2

The record here having recited a waiver of such hearing by appellant, he was bound over and subsequently indicted. After the indictment was returned, counsel was appointed by the District Court to represent appellant in the trial which resulted in the convictions now on appeal.

II

As the tribunal vested with the penultimate authority and responsibility for the supervision of criminal justice in the District of Columbia, our mandate comprehends alertness to see that the directions of Congress are complied with. Rule 5 is such a direction which, as noted above, is as binding upon the U. S. Commissioner in this jurisdiction as it is upon his counterparts in Alaska or Alabama. But, unlike his confreres outside the District, the Commissioner here is subject to additional instruction from Congress in the matter of the provision of counsel for indigents in preliminary hearings in felony cases. Thus, even if it be assumed that, on this record, the proceedings before the Commissioner were in literal compliance with Rule 5, our inquiry is not at an end for the reason that that Rule does not exhaust the responsibilities of a U. S. Commissioner sitting in the District of Columbia.

In 1960 Congress enacted the District of Columbia Legal Aid Act, 2 D.C.Code §§ 2201-2210. Its purpose was clearly reflected in its very first section which recited that the Legal Aid Agency thereby created was "to provide legal representation of indigents in judicial proceedings in the District of Columbia, as provided in section 2-2202." Section 2-2202 is equally clear as to the nature of the judicial proceedings which Congress had in mind. The full text of that section, because of its critical importance in the resolution of the issue before us, is set forth in the margin.3 We observe only that it sets forth two explicit obligations: one is that of the Agency to make attorneys available in preliminary hearings in felony cases, including those before the Commissioner; and the second is that of each court and tribunal, which in the context clearly includes the Commissioner, "to provide assignment of counsel as early in the proceeding as practicable."

It seems to us that this language cannot be read — at least with anything like a due regard for the fair intendment of Congress — as limiting the Commissioner's responsibilities in a case like the one before us to a routine notification under Rule 5 that appellant may retain his own counsel.4 Neither do we understand that the Commissioner himself regards his responsibilities as so limited when the defendant before him raises the issue of the protections provided by Congress in the 1960 statute. On June 1, 1964, as it is commanded to do in the law creating it, the Board of Trustees of the Legal Aid Agency submitted its report of operations for the immediately preceding year. Because of its relevance to the matter at hand, the section of that report relating to the U. S. Commissioner is printed in the margin in full.5 The question it immediately raises is: Why did attorneys appear for indigents in such a small percentage of hearings before the Commissioner when the other figures suggest that a much higher proportion of them were in fact indigent, as indicated by their eventual provision with counsel after indictment? And how did it happen that 197 out of a much larger number of indigents, had counsel assigned to them in the Commissioner's proceedings and the others did not?

It may fairly be inferred, we think, both from what is said in the Board's report and from what appears in the record in this case, that the answer lies in an assumption by the Commissioner that he is not called upon to do more than to inform the defendants before him of the matters specified in Rule 5. Unless the defendant before him takes the initiative to assert his indigency and to seek actively the provision of counsel under the 1960 statute, the matter silently goes by default, an uncounselled waiver of preliminary hearing is ordinarily made, and the proceedings before the Commissioner are at an end. Contrarily, the defendant who himself raises the issue of the availability of unpaid counsel apparently becomes one of those who, like the 197 last year, have the benefit of counsel at the preliminary hearing and who, if they choose to waive the receipt of evidence and the making of a finding as to probable cause, at least do so after legal instruction and advice.

We need not pause, however, to speculate about what the Commissioner has been doing generally. Our problem is to determine whether he functioned properly as an instrument of the will of Congress in this particular case. We think he did not; and our conclusion rests upon what we conceive to be the letter, as it is certainly the spirit, of the 1960 statute. We find in it a clear and explicit prescription for the District of Columbia, as unique perhaps as the District is unique in the lead which it, thanks in large part to an enlightened bar which has shouldered a truly professional responsibility of staggering scope, has attained over other jurisdictions in the quest of one of the ideals of a free society — equal justice for all. And, given the Legal Aid Act, we also need not speculate, at least in order to decide the case before us, as to what the Constitution demands of criminal procedure as administered in Hawaii, or whether Rules 5 and 44 of the Federal Rules of Criminal Procedure should be interpreted to mean now what they will clearly mean if the proposed amendments to them presently in circulation become effective next year.6

We do not believe that the 1960 statute reflects any assumption by Congress that its benefits were to be available to a seventeen-year old boy with a seventh grade education only if he affirmatively raised the question and requested them. There is nothing in this record which remotely suggests that he was apprised of these benefits, and, indeed, the shorthand formalism of the papers recording the appearance before the Commissioner raises a strong inference to the contrary. These pre-trial proceedings, thus, do not seem to us to have measured up to the standard fixed by the Congress in the 1960 statute; and we regard the uncounselled status of this appellant when he waived preliminary hearing as infecting that waiver.

III

The Government suggests to us that, even if the pre-trial proceedings before the Commissioner in this case were inadequate, the subsequent return of an indictment cured any inadequacy. We do not believe, however, that the mere existence of an indictment renders academic any defects in the Commissioner's...

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