DiCesare v. Chernenko, 8595.
| Citation | 303 F.2d 423 |
| Decision Date | 10 May 1962 |
| Docket Number | No. 8595.,8595. |
| Parties | Pasquale DiCESARE, Appellant, v. John CHERNENKO, United States Marshal for the Northern District of West Virginia, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
D. Paul Camilletti, Wheeling, W. Va., for appellant.
Robert E. Maxwell, U. S. Atty. (John H. Kamlowsky, Asst. U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, BRYAN and BELL, Circuit Judges.
The United States Commissioner did not have sufficient evidence to hold him to answer in the District Court for 1955 income tax evasion, Pasquale DiCesare averred in his application to the District Court for habeas corpus and release from the commitment. Finding the evidence adequate to establish probable cause, the Court dismissed the petition. Applicant appeals.
January 30, 1956 is the alleged date of the offense; January 18, 1962 — almost six years afterwards — the complaint was filed and DiCesare arrested; and on February 16, 1962 the Commissioner heard and decided the case. Habeas corpus was refused February 23, 1962. Notice of this appeal was filed February 28, 1962. On March 21, 1962 DiCesare was indicted for tax evasion for the year 1955 and also for 1956, 1957 and 1958.
At the end of the hearing the Commissioner offered to release DiCesare upon his recognizance without security. Declining the offer, taxpayer was committed by the Commissioner into the custody of the marshal in default of bail bond. Within a few hours he applied to the District Court for habeas corpus. He hoped to procure dismissal of complaint, arrest warrant and order of the Commissioner for failure of the evidence to establish probable cause, and thus to lay a foundation for a plea of the six-year statute of limitations to any indictment for the offense. 26 U.S.C. § 6531 (1954 ed.). Only if the complaint of January 18, 1962 were sustained, argues DiCesare, would the Government obtain further time for indictment — the extension of nine months allowed by statute upon presentation of a complaint within the limitation period. Otherwise the time expired January 30, 1962.
We affirm — the sufficiency of the evidence to establish probable cause, we think, need not be considered — because: (1) habeas corpus was not available to DiCesare in the circumstances; (2) the question posed by him of his detention has been made moot by the indictment; and (3) the order of the District Court is interlocutory and so not reviewable in advance of the trial.
Certainly DiCesare was restrained by the commitment, and no less so because release from custody was open to him on his own bond. But save in exceptional instances a Commissioner's finding of probable cause is not reviewable by habeas corpus. Jones v. Perkins, 245 U.S. 390, 391, 38 S.Ct. 166, 62 L.Ed. 358 (1918); see Goto v. Lane, 265 U.S. 393, 402, 44 S.Ct. 525, 68 L.Ed. 1070 (1924). True, recourse to the writ has been allowed to question orders of Commissioners in removal proceedings, but these present a significant difference: they are not before the same court which will try the accused on the charge. Hence no later opportunity will be had to raise the defense in the course of the prosecution. Cf. Price v. Henkel, 216 U.S. 488, 30 S.Ct. 257, 54 L.Ed. 581 (1910); Bryant v. United States, 167 U.S. 104, 17 S.Ct. 744, 42 L.Ed. 94 (1896). A motion in the District Court to dismiss the commitment is the appropriate procedure. It provides an immediate and efficacious remedy — and in the criminal proceeding itself — to correct any wrong to the appellant. In re No. 191 Front Street, 5 F.2d 282, 286 (2 Cir. 1924); United States v. Casino, 286 F. 976 (S.D.N.Y.1923).
But assuming, for argument only, that habeas corpus was the proper remedy, it has by events occurring since the hearing in the District Court been...
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