United States v. Zerbst, No. 2720-A.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: E. K. Pritchard, J. C. Long and Arthur Rittenberg, Charleston, S. C., for defendant
• Citation: 111 F. Supp. 807
• Parties: UNITED STATES v. ZERBST.
• Decision Date: 02 April 1953
• Docket Number: No. 2720-A.

111 F. Supp. 807

UNITED STATES
v.
ZERBST.

No. 2720-A.

United States District Court E. D. South Carolina, Charleston Division.

April 2, 1953.

111 F. Supp. 808

Louis M. Shimel, Asst. U. S. Atty., Charleston, S. C., for plaintiff.

E. K. Pritchard, J. C. Long and Arthur Rittenberg, Charleston, S. C., for defendant.

WILLIAMS, District Judge.

The defendant has moved that the warrant against him be dismissed on the following grounds:

"1. There was no legally competent evidence before the United States Commissioner at the preliminary hearing to sustain a finding of probable cause of the commission of any Federal offense by the Defendant.

"2. The testimony before the United States Commissioner at the preliminary hearing, if believed in toto, was insufficient in law to sustain a finding of probable cause of the commission of the offense charged.

"3. That no witness testified before the United States Commissioner who could or did give legally competent evidence against the Defendant which could support a finding of probable cause of the commission of the offense charged.

"4. That the holding of the Defendant to answer in the District Court, after a preliminary hearing before the United States Commissioner, upon evidence which was legally incompetent to sustain a finding of probable cause, constitutes a deprivation of liberty and property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States."

The only questions presented in the oral and written arguments of both the Government and the defendant are as follows:

(1) Does the District Court have the authority to review the action of the United States Commissioner in finding that there was probable cause for holding the defendant for the grand jury?

(2) Was there sufficient evidence before the commissioner to warrant his finding that there was probable cause to believe that the defendant violated the provisions of Section 2913 Title 26 of the Internal Revenue Code?

The defendant J. D. Zerbst, Jr. was charged in a warrant with aiding and abetting John B. Connell in violating the provisions of Section 2913 Title 26 of the Internal

111 F. Supp. 809

Revenue Code, 26 U.S.C.A. § 2913. John B. Connell, Investigator of the Alcohol Tax Unit, testified before the United States Commissioner that in October, 1951, he was sent to Charleston on an undercover assignment to purchase whiskey for evidence; that the defendant J. D. Zerbst, Jr., a county police officer, together with Overstreet, another county police officer, were paid $20 by John B. Connell to convoy him to the city limits of Charleston; that Connell had purchased some whiskey in Berkeley County and met the defendant J. D. Zerbst, Jr. and Overstreet at Mike's Place, where an informer had previously made arrangements for them to stop; that it was at this place that the defendant J. D. Zerbst, Jr. and Overstreet were paid $20 to safely convoy the car of John B. Connell, which had nontaxpaid liquor in it, to the city limits of Charleston. Connell testified that he asked the officers at Mike's Place what would happen if they were caught before they got into the city limits, and the officers stated that they would follow right behind Connell and the informer, and if it appeared that some one was going to stop them, they (Zerbst and Overstreet) would stop them first; that the defendant Zerbst and Overstreet did follow Connell and the informer to the city limits and then turned around and went back on the dual highway

The first question to be determined is: Does the District Court have the authority to review the action of the United States Commissioner in finding that there was probable cause for holding the defendant for the grand jury?

I think the District Court does have the authority to review the action of the United States Commissioner in finding that there was probable cause in holding the defendant for the grand jury. The United States Commissioner is a ministerial — or, at best, only a quasi judicial — officer and his acts, therefore, are subject to review by the District Court. This question was presented to the court in 1923 in the case of United States v. Casino, D.C., 286 F. 976, 979, in which Judge Learned Hand had this to say:

"It was held in this court, in United States v. Maresca, supra, that a commissioner sitting as magistrate to issue a search warrant, and later to hear the question of its legality, was sitting in the District Court, and that for that reason this court could not undertake a review of his action, but that the party aggrieved must proceed by writ of error. Being a prior decision of a judge sitting in this court, I should ordinarily follow it, except for the fact that the Supreme Court has decided that a commissioner sitting to issue warrants of arrest on preliminary hearing is not holding any court of the United States at all (Todd v. U. S., 158 U.S. 278, 15 S.Ct. 889, 39 L.Ed. 982), and there is certainly no distinction between his action in such a case and in issuing a search warrant. In United States v. Berry, 4 F. 779, the Circuit Court denied prohibition against a commissioner for the reason

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