U.S. v. Reeds, 76-1351

• Decision Date: 01 March 1977
• Docket Number: No. 76-1351,76-1351
• Citation: 552 F.2d 170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Duncan REEDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 170

552 F.2d 170

UNITED STATES of America, Plaintiff-Appellee, v. William Duncan REEDS, Defendant-Appellant.

No. 76-1351.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 11, 1977.

Decided March 1, 1977. ^*

Richard S. Jalovec, Stephen M. Komie, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U. S. Atty., Gordon B. Nash, Jr., Ann C. Tighe, John L. Sullivan, Chicago, Ill., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, SWYGERT and PELL, Circuit Judges.

PER CURIAM.

Defendant-appellant, William Duncan Reeds, has filed this appeal from a finding of probable cause made by a United States Magistrate at defendant's preliminary hearing held pursuant to the Government's complaint charging Reeds with attempting to manufacture phencyclidine (PCP), a schedule III controlled substance, in violation of 21 U.S.C. § 846. Defendant was thereafter indicted by a grand jury for the same offense charged in the complaint, and is presently at liberty on bond.

Defendant offers multiple arguments that the magistrate's finding is appealable as of right to the circuit court of appeals, including: (1) the finding is a determination of a substantial right against which defendant has no further adequate relief; (2) the finding is appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); (3) due process requires immediate appellate review to protect against loss of valuable constitutional rights, and (4) this court has review jurisdiction by reason of its supervisory power over the district courts within the Seventh Circuit. We do not reach the question of whether the return of the indictment renders moot any infirmity in defendant's preliminary hearing for we hold we are without jurisdiction to entertain the appeal.

Alleged defects at an accused's preliminary hearing have been reviewed by way of habeas corpus or mandamus filed in the district court. See United States v. King, 157 U.S.App.D.C. 179, 482 F.2d 768, 771 (1973); contra, DiCesare v. Chernenko, 303 F.2d 423 (4th Cir. 1962) (commissioner's finding of probable cause not reviewable by habeas corpus). Prior to the enactment of the Federal Magistrates Act, 28 U.S.C. § 631 et seq. (1968), whereby United States Commissioners were supplanted by magistrates with expanded duties and powers, the district courts had, on occasion, assumed jurisdiction to review a finding of probable cause by a United States Commissioner. Review was had by motion in the district court to dismiss the warrant of arrest, pending the return of an indictment, and where the circumstances were "extraordinary and unusual." United States v. Zerbst, 111 F.Supp. 807, 810 (E.D.S.C.1953); United States v. Vassallo, 282 F.Supp. 928 (E.D.Pa.1968).

Although there is authority for review of a finding of probable cause in the district court under limited circumstances, the defendant has not directed our attention to, nor does further research reveal, any authority whatsoever for the proposition that appeal lies as of right to the circuit court of appeals. Whatever the efficacy of defendant's several arguments for review of the...