United States v. Foster, 18492.

• Decision Date: 01 April 1971
• Docket Number: No. 18492.,18492.
• Citation: 440 F.2d 390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Francis FOSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

440 F.2d 390 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Francis FOSTER, Defendant-Appellant.

No. 18492.

United States Court of Appeals, Seventh Circuit.

April 1, 1971.

John F. Sandner, Chicago, Ill., for defendant-appellant.

Frank J. Violanti, U. S. Atty., J. William Roberts, Asst. U. S. Atty., Springfield, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, KILEY and PELL, Circuit Judges.

PER CURIAM.

This is an appeal from a conviction and sentence for violation of 18 U.S.C. § 2113(a), (b) and (d) pursuant to a three-count indictment charging defendant with the robbery by force, violence and intimidation of the First National Bank of Wood River, Illinois. The issues raised by defendant-appellant on this appeal are whether it was reversible error for the trial court to (1) deny defendant's request for a preliminary hearing pursuant to Rule 5(c) of the Federal Rules of Criminal Procedure, (2) deny certain other requests of defendant made before trial, and (3) fail to provide defendant with investigational assistance under the Criminal Justice Act of 1964, 18 U.S.C. §§ 3006A, et seq., as he requested. Because of another issue not argued by the parties, the sentence entered pursuant to the judgment of conviction on the jury verdict of guilty must be modified, and, as modified, the judgment of the district court is affirmed.

The First National Bank of Wood River, Illinois, insured by the Federal Deposit Insurance Corporation, was robbed of $7,635.00 by an armed and unmasked man at about 10:15 a. m. on March 10, 1969. Defendant was arrested within one block of the bank approximately ten or fifteen minutes after the robbery under circumstances from which it reasonably could be inferred that he had committed the crime and that the fruits and instrumentalities of the crime were in his possession at the time of the arrest. Defendant was taken before the United States Commissioner on March 11, 1969 and informed of his rights. Bail was set at $25,000.00.

Between March 11 and March 19 the defendant twice requested a preliminary hearing before the Commissioner pursuant to Rule 5(c), Federal Rules of Criminal Procedure. No such hearing was had before the return of the indictment on March 19, 1969. Defendant urges that the failure to hold the requested preliminary hearing vitiates his conviction because he was deprived thereby of the opportunity of anticipatorily discovering the testimony of at least some of the witnesses against him. We disagree.

Defendant contends that the purpose of Rule 5(c) of the Federal Rules of Criminal Procedure is twofold, namely, to determine the existence of probable cause to hold a defendant prior to indictment and to allow the defendant a measure of discovery of the evidence which will be offered against him. The Court of Appeals for the District of Columbia has adopted that position in Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894, 900-901 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L. Ed.2d 964 (1965), and Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557, 559 (1967). However, the Court of Appeals for the Second Circuit has concluded that Blue and Ross are erroneous, stating:

There is nothing in the language or the history of Rule 5 to suggest that the preliminary examination has any purpose other than to afford a person arrested upon complaint an opportunity to challenge the existence of probable cause for detaining him or requiring bail. Sciortino v. Zampano, 385 F.2d 132, 133 (2d Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L. Ed.2d 872 (1968).

We have already indicated our rejection of the position of the District of Columbia Circuit and our adoption of the Sciortino rule of the Second Circuit, United States v. Amabile, 395 F.2d 47, 53-54 (7th Cir. 1968), vacated on another ground sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), and we reaffirm that determination.

Defendant further contends that the trial court erred...