George E. Ross, Jr. v. The Honorable John J. Sirica, United States District Judge

Jr., Petitioner, George ROSS, E. SIRICA, J.

The Honorable John Judge, Respondent. District States

No. 20535. Appeals

United States Court

District of Columbia Circuit.

Argued Nov. 1966.

Decided Jan. 1967. Rehearing

Petition for en Banc Denied March

proper preliminary in accordance outlined Blue v. U.S.App.D.C.315, denied, 342 F.2d cert. L.Ed.2d follow, For reasons which think the reopened. charge was on a Petitioner arrested degree brought first murder and before a United A con- States Commissioner. granted permit tinuance counsel to was assigned Legal Agency rep- by the to Aid petitioner resent ing. at the hearing, sought Prior to the counsel compel issuance of the at- to support- tendance of He three witnesses. allegation request ed this with an these essary and nec- witnesses were “material they defense, and that were alleged eye-witnesses oc- to so-called currence.” The Commissioner refused subpoenas. to issue of Pro- The Record ceedings recites his reasons “Proba- as: testimony ble Cause adduced rests the Govt.—Rule 17b the Federal [of requires Rules of Criminal Procedure] Feissner, Washington, Karl Mr. G. evidence of witness to be material to the C., petitioner. D. for defense.” The held and a Geoffrey Alprin, Mr. M. Asst. U. S. police concerning officer testified state- Atty., with whom Messrs. David G. ments which these had made Bress, Q. Atty., Nebeker, U. S. and Frank appear. to him. witnesses did Atty., Asst. pleadings, U. S. were on the The Commissioner found respondent. and ordered to held answer Judge, Before Chief Bazelon, the District Court. Judges. Fahy Wright, subsequently An indictment was PER CURIAM: present ap returned and counsel was We are asked to pointed issue a writ in the represent petitioner directing nature of mandamus the Dis- District A Court. number of motions trict filed,2 to remand including this case a were a motion to dismiss 1. Among petition pre-trial motions, The Commissioner’s Record of Proceed 2. other ings sought police recites that counsel “Filed Motion er records access certain contending public Issuance named witnesses— constituted averring testimony contemplation to the issue relative of 4 records within the motion, cause.” That how §§ D.C.Code 135. We think the Dis ever, ruling point is not the record. At hear trict Court’s on this Court, present by extraordinary in the District counsel writ. Car reviewable prove representation Schweinhaut, 19,044, offered to ter v. No. decided quoted February 2, Similarly, in the text was made to the Com order Legal missioner and had the Aid attor District decline now review the Court’s ney testify. investiga appoint private available The Govern refusal pursuant petitioner’s application ment informed the District Court tor object proffer.” Act, “we do not under the Criminal Justice 18 U.S.C. 3006A(e). § Probable cause Government’s evidence. alternatively, or, the indictment states, 5(c) rests, explicitly hearing. as Rule proper preliminary mand for a presented neces- “the evidence” denied, petitioner When that motion sarily ac- includes adduced proceeding. instituted of Gov- cused either in cross-examination recognized that the We have ernment or the introduction witnesses an testimony. independent evidence “(1) affording right him of an accused judicial offi- The Commissioner sits as a opportunity that there to establish an cer to sift all ing resolv- the evidence before probable de cause for continued no Washington probable issue, the * * * (2) chance tention Clemmer, 227-228, supra 339 F.2d v. at foundations trial the learn in advance 727-728, at subpoenas decline to issue cannot charge that will the and the evidence ground the the against government’s comprise case the probative. Government’s evidence is States, supra, 119 United him.” Blue v. 322, U.S.App.D.C. at 901 342 F.2d at argument, although oral At omitted). (footnote held We have opposition, in its the con Government is entitled the assistance accused showing tended before the Com 3 he and that counsel at may missioner was insufficient to warrant subpoenas compel the at obtain disagree.6 subpoenas. issuance of reason tendance of “material sought compel Petitioner attend * * 4 Moreover, ably requested eyewitneses alleged ance of three to the right prelim to a we have held that the crime, “averring testimony relative timely asserted, inary hearing, is not if probable the issue of Such wit cause.” solely by an later return of forfeited compass nesses are within the of Wash indictment.5 ington Clemmer,supra, v. we said: where basis, no ruling “[l]ikely The makes ef Government to be called ad on this witneses, fort to defend the Commissioner’s complain dition to alibi are the solely cause rests on the ant and other material witnesses named States, 19,519, 3. No. Holmes v. United un- information to he entitled * * July 1966; Dancy 21, v. United decided our in Blue Car- der decision States, 58, U.S.App.D.C. Schweinhaut, 19,044, 124 361 F.2d decided ter v. No. (1966); States, supra,. February 2, 75 Blue v. United order 1965. Were otherwise, This is now codified in Federal disre- rule Buie 5 could “be impunity.” garded naught F.B. Buies Criminal Procedure. See and set at with 5(b), 44(a). Dancy States, supra 3, 361 note v. United Crim.P. F.2d at 78. Washington Clemmer, U.S.App. 4. 119 6. Record We read the Commissioner’s 216, 219, 715, and 119 339 F.2d 718 conjunction proffer factual made U.S.App.D.C. 226, (1964). F.2d 725 supra. 1, in the District Court. See note In addition to the eases cited note Petitioner’s counsel announced that he 3, supra, Beard, Drew v. 110 U.S. had “finished the statement App.D.C. 198, 199, 290 F.2d informed the facts” the Government required object our While cases have District it “would showing permit acceptance” “informed sufficient to Your Honor’s of the facts. speculation position, trial itself was The both in the Government’s * * * prejudicially opposition, affected” if District Court and its filed preliminary hearing point is raised after rendered moot is that conviction, States, Shelton v. United infirmities in the U.S.App.D.C. 347, 348, Having procedure. F.2d followed this denied, cert. think can now 382 U.S. we do not the Government (1965), pre-trial argue 15 L.Ed.2d 93 relief a factual issue which prepared prove accordance with the detailed but failed to do States, interposed supra, no Blue v. turns on because objection requirements facts. whether 5 have to his statement Buie Cf. been followed whether the accused Giordenello v. United “substantially 480, 488, 1245, 2 L.Ed.2d 1503 has otherwise af S.Ct. * * * opportunities forded complaint alleging complaint who for reason a some violations tax pe- have not filed been called laws was within limitation Government.” no at riod but was held. 718.7 An indictment was returned after the period limitation had run. The Govern- say This not to that an ac filing timely ment contended that require cused in all circumstances statute; complaint Jaben tolled the subpoenas production of the Gov argued contrary. Court However, ernment’s witnesses. where contention sustained mate shows that witnesses are prosecution and held that was not cause, rial to the re by the limitations. In barred statute of quests for such witnesses opinion, majority the course the Mr. granted. should be This is consistent Harlan Justice observed: principal purpose prelim of the inary hearing deter as mechanism to the think that “[W]e adequate mine whether the steps evidence is proceed through must the further to establish cause. complaint by Whatever procedure afford- subpoena the full reach accused’s ing preliminary the defendant hear- rights preliminary hearing, at a we hold 5, ing required by Rule unless before as compel is held, he entitled to attend hearing preliminary is eyewitnesses unless, ance grand jury complaint supersedes the physical psychological “because of by returning procedure an disa indictment.” bility particular in a ease” such witness at 1369. 85 at S.Ct. Washington es cannot attend. Clem language on which the Gov mer, supra at n. 219 339 at F.2d 718 But the Court was care ernment relies. Moreover, n. 11. to hold otherwise would Jaben, point ful who was out that tobe sanction distinction between the liberty by represented and at counsel indigent rely who on the must bond, prelim made no to obtain a effort Commissioner for the issuance sub inary hearing during one in month poenas moneyed counterpart and his filing complaint terval between the subpoenas instantly pay can secure indictment. 381 and the return of the ing statutory service and witness n. Ac 221 at 1369 3. U.S. n. 85 S.Ct. fees. Anderson, U.S.App. cord, Crump v. 122 foregoing, From the find F.2d 649 think it clear that the im nothing Commissioner such rule inconsistent between properly involving declined holding defec and our in Blue requested timely which preliminary tive which that, consequence, petitioner and in prior im been held properly to the indictment or deprived proper preliminary hearing of a prior waived indictment. in accordance with Rule our 5. Under point Indeed, in Blue careful to we were holdings Washington, in and intending challenge Blue persons out ordinarily would suffice alleged to warrant issu defect in hear Government, ance of the writ. how ing procedure promptly should do and ever, citing Jaben v. United trial. before at 321- U.S. L.Ed.2d 322, S.Ct. at 900-901. Jaben does (1965), argues the return holding in that an undermine Blue ac pre indictment renders defect cused who demands the hear liminary hearing procedure ing “moot.” Ja is entitled to such a quite There, ben hearing that, a different point properly case. and if Jury and, The three witnesses were identified before the nesses Grand complaint fact, only persons the affidavit annexed to the are the known incorporated and therein reference. Government “to be witnesses the crime * * Additionally, record shows that thesé. set forth three were wit- Judge, and Chief Before timely pressed, Bazelon, denial of that and Wright, by pointing to an Burger, Mc- Danaher, be excused Fahy, cannot intervening grand jury indictment.8 Tamm, Robin- Gowan, Leventhal Judges, in Chambers. son, Finally, simply point note a Obviously, raised the Government. ORDER since defects in the PER CURIAM. affect the determination confinement peti- respondent’s consideration On determination, rests such a peti- rehearing en banc tion for promptly remedial measures should be opposition tioner’s memorandum undertaken. Where an accused is ade- thereto, it is quately represented Ly in- counsel banc, court, en Ordered arraign- terim between the is denied. petition spondent’s aforesaid following ment the return of an indict- ment, adequate and where no excuse Judge, concurs FAHY, Circuit failure to raise the denying foregoing order tendered, ques- defect earlier is a serious separate statement. files a banc tion of presented. timeliness would be However, Judge since neither the District LEVENTHAL, Cir- and McGOWAN nor point, the Government raised this foregoing or- in Judges, concur cuit capital case, and since this is a we are not for rehearing banc denying en der sponte. inclined to decide the issue sua separate state- their forth set reasons repeat what was said in Blue: “These day. this ment filed should, remedies of be asserted at possible Where, the earliest moment. Judge, for DANAHER, Circuit however, indictment occurs before it is separate state- in his forth set reasons feasible for assertion or resolution of the respond- grant day would this filed ment claim made, to have been relief is not petition. aforesaid ent’s to be denied for that reason alone.” 119 rea- Judge, BURGER, Circuit at 321 n. 342 F.2d at 900 separate statement his forth set n. sons TAMM, Circuit day in which filed Judge We think the District respondent’s grant Judge, joins would granted petitioner’s should have motion petition. aforesaid and proper remanded for a Judge, for ROBINSON, hearing subpoena where he could and ex separate state- forth set reasons amine the three witnesses whose attend respond- grant day would filed ment timely adequately sought. ance he and petition. aforesaid ent’s We are certain that the District Court promptly will insure that this is done. Fahy op Circuit Statement Accordingly, prayed in lieu of the writ for, will direct our Clerk to transmit Judge: FAHY, Circuit copy opinion certified a of this forthwith. three-judge of the a member I was opinion Jan- its rendered So ordered. which filed point briefs proceedings, and the certiorari 8. At one Jaben writ Supreme in Jaben complain oppor Court did of the denial of an only in the (1) tunity raised a note: to cross-examine witnesses lim- the statute hearing. was Court States (2) Jaben, Blue line F.Supp. 757, (W.D.Mo. issue and itations proper dealing 1963). point ap abandoned on That cases discussed, or procedures hearing peal, was not month no doubt due to Jaben’s one cited, acquiescence during briefs. which no even petition for held. We have examined the uary 23, deciding 1967. I a few lines now to en banc that an indictment al- add rehearing ways invariably point out that denial of a moots the defects of hearing. presum- en these a ably banc is the votes It was court; preoccupation it a three members majority princi- nine with the attractions of this active members broad only judges ple the court. that caused to fail raise the These are point might factual authorized question statute to determine well have led rehearing result, e., in this to a different en i. the failure of banc appellant timely Moreover, opinions case. to seek Because several relief. significant enough statements now filed members issue is not majority justify en consideration, the court that a banc demonstrate deny partici- petition. voted to nine authorized to pate opinion are that the issuance rehearings Bearing in mind necessarily of an indictment does not bar exceptional for clari- banc are an device supplementary in case of seri- fying shaping of the circuit the law preliminary hearing. ous defect in the issues, it unde- we think purpose petition of the Government’s clarification sirable to embark rehearing en banc was establish reasonably clas- case which contrary principle. Its contention atypical. sified as enough be difficult will has been before us a number of times ordering to draw the line given and consideration has been supplemental preliminary when petition en banc. So while diligent, but frus- has been position formally pre- has not trated, pursuing to obtain his efforts styled sented in a brief brief on information in order terminate unlaw- merits, argued orally time, at this ap- Attempting develop ful detention. long pondered is one that has been principles plicable in the absence hard. critical context to us not diffi- seems Putting principle aside the issue of cult but unsound. Had the timeliness to, turning above referred development raised, a full of issue been particular issue whether this case is one relevant to it the facts would been disapproval for the of Commissioner’s had, and this case could and should have preliminary conduct of hearing, the it is disposed of reference to it in the rehearings obvious that en banc are at first instance. There would have been necessarily approv times denied without decide, abstract, no occasion to in the the ing disposition partic a division’s of the question of of whether the return might ular case.* For reasons which uniformly moots the matter differ, majority of the active members preliminary hearing. of a The most re- particular conclude that the facts this experience cent of this court with case are such as to indicate that en grant petition of a Government banc consideration would be fruitful seeking hearing en banc a broad doc- principles terms of broad plication. ap for future hardly encourages trinal declaration us repeat it so soon. Harris v. See U.S.App.D.C. Statement of Circuit McGowan ANDLEVENTHALAS TO WHY THEY VOTE Deny Rehearing En Banc To appellant had The record shows that 17, 1966, petition May date set The counsel before rehear- ing hearing. preliminary Indeed, unpersuasive banc is not in re- spect May of the for the issuance confusion which counsel moved it asserts panel’s opinion intensify. question. here in That will It Thus, day. would have us resolve motion was denied the this same confusion * 216, 225, e.g., Washington Clemmer, J., Burger, See statement 339 F.2d days duty try plain four before the of counsel to to save ing, custody counsel that not have client from believes knew he could which he may prove improper. If there the witnesses he he wanted. be thought presence wit- those embodied focus of solicitude nesses was deprivation prelimi- procedural device appellant’s liberty, he liberty the ac- nary is the sought immediately should have relief away from taken cused. Should Instead, from the District he did Court. probable cause there is him because nothing, a crime that he committed believe held, appellant jail. continued in On grand jury To indict? will which the July exactly 13—almost two months put to its prosecution is that the extent later —the indictment was returned. cause, probable the accused proof of such There, gets discovery not Blue1 much of case. of that This is in effect counsel, comprised provided with accused was not as is case Government's hearing. The and had no to establish it adduces of the evidence for the first in Blue inevitable court announced But that is an cause. that, hearing, of Columbia its consequence time the District and not Act, Legal Agency purpose. reason of the Aid primary well opinion language counsel be offered in the Blue there is relationship reflected now Commissioner—a true which obscures this But, knew discovery court how- the Federal Rules. The cause. who, at lan- cloudy must defendants there misconceived ever guage may be, already down, relationship, came had as it is the time Blue it, given not tried. The court as de- been indicted but to understand us regard wip did not these indictments above. scribed failure to out Commissioner’s that the from It does not follow as it found he furnish them counsel automatically return an indictment required stat to do under of a forecloses the say ute. The was careful to court S.,2 hearing. at best v. U. Jaben any of wanted the these defendants who point, since Delphic utterance on foregone had with justices Supreme Court four what out the of counsel advice or assistance of a claim in the context said there was should seek before trial. a last- filed purpose solely complaint minute principle We think a similar pend tolling of of limitations the statute apply although who, to those defendants Blue, ing grand jury presentment. In provided with Com- counsel before the permit prepared to court was hearings, missioner right to be articulated to counsel there signifi- hearings contend that the were easy supposi by the rendered academic cantly say respect. in some To defective grand jury anticipated ac tion that the hearings that the were de- tion would moot the deffect. say fective is to that the determination probable inadequate of aspect cause was set at This of Blue would be operate deprive naught should not to ac- if Government were liberty pending grand jury cused of his is a its contention jurisdictional an indictment Wholly apart any precluding consideration. from the subse- bar potential quent supplement disorderliness and in- waste effort a defective seeking preliminary hearing. volved in not correction The Government grand jury judicial Commissioner until after the also from scru- would tiny immunize acted, practice whereby preliminary has to us would seem to be the a 1. Blue v. United L.Ed.2d 381 U.S. 85 S.Ct. denied, 342 F.2d 894 cert. L.Ed. 2d 964 through mutuality possibility of contin- and without are avoided granted discovery. routinely of until mooted uances practice If indictment.3 such would, introducing legislation which In District, attempted were would definitively among things, other deal meeting insuperable find no barrier the return when problem through sanction puts the matter of to rest quiring hearing after indictment. Tydings, preliminary hearing, Senator Similarly, jurisdictional we see no bar- above, speech Senate referred coping rier to like sanction for findings of set forth these his Subcom- withholding of critical witnesses mittee on the use of the testimony key whose to the issue discovery aas vehicle: of the reasonableness of continued deten- hearings, was a con- At our there compelling justifying tion. The reason amount discussion siderable that sanction is to avoid the threat discovery as a de- liberty personal risk unlawful —the concluded, Most witnesses how- vice. detention without cause—inher- ever, prefer would that ade- practices, ent and not their de- quate discovery provided be other degree discovery nial of the limited discovery question means, and that the preliminary hearing which a incidental- separately ly, be treated from that of though inescapably, provides. Wheth- agree. preliminary hearing. er and how that sanction is used preliminary hearing well suited should await delineation in cases in- discovery volving a number reasons. the claim that indictments caused First, under current doctrines will timely the frustration of efforts to cure always possible bypass pre- proceedings. defective liminary hearing dis- therefore —and discovery is our belief that in crim- covery by proceeding rapidly to in- — substantially inal cases should be en- by arresting after dictment arrest or larged, regret and we those who the defendant an indictment after drafting had the of the Federal Rules returned, in which ease charge go beyond did not the amend- process Rule 5 July ments effective 1966. But the Second, pos- not involved at it is all. preliminary hearing proper is neither a preliminary hearing sible only hold a on adequate nor an substitute for the more charges, one several later comprehensive discovery which try we think indict the defendant charges. enlarged those other pro- Third, amount of Rules should discovery that a defendant receives why vide. scope We see no reason preliminary hearing depends on the available to a defend- proof amount quires the commissioner re- ant should turn whether he has been bring the Government to for- proceeded against in the first instance cause; ward to establish by complaint magistrate before a may may very quite bit, be or it be grand jury indictment. little, but either it need not event discovery principle Extension of posses- the be all the the evidence within through stretching preliminary the sion of the that should Government ing proceedings subject entails discovery. Moreover, extension of be- the judicial quasi-judicial fore a preliminary hearing or official should be conduct- not promptly arrest, be suitable for the of role ed after but a dis- supervising discovery felony covery proceeding probably cases is more (whether judge efficiently stage, commissioner or nor- conducted a later mally engaged misdemeanors), trial, in trial of closer to after counsel had an practice 3. In a statement to the Senate on Feb- that “in at this was least one ruary last, Tydings Senator indicated district.” subpoenas, original request at least about leisure opportunity reflect at closely holding related that evidence when defense, and when witness likely against more to be The Government’s the record. the accused police complete. at the hearsay of gave account man who discovery crim- believe We eye-wit by three told he what feet. own stand on its inal should cases judicial capital A crime. to a nesses inextricably entwined not judicial engaged determina in a officer establishing probable process of in the cause, hardly rest can tion of designed to fa- but should be of hearsay easy solely account with exchange of information cilitate an eye-witness policeman these of what making meth- rational trial a more eye-witnesses can be told him if the es such, determining As truth. od of their available, can listen to that he de- to all available should be demeanor, and their and observe versions including fendants, ar- those whose coun provide opportunity to defense following takes them rest cross- explore their account sel out of Rule presence of those examination.4 The including process, who for those falling impresses within us as get pre- do not reason or another one upon rights conferred orbit hearing. liminary fourth sentence the accused discovery, Therefore, getting we feel 5(c), The Rule Fed.R.Crim.P. hearing, apart from the testimony eye-witness be on record Rules handled in the Federal should be trial, by preliminary fore either Rule Procedure. A new incidentally, Criminal not, in otherwise, crim- which liberalizes somewhat disadvantage prosecution. variable discovery procedures, took effect inal greatly embar can Government July people this things feel last 1. Some by eyewitnesses who see rassed go enough, par- not new ticularly does far rule differently trial is reached. time not state- in that does cover U.S. See Coleman con- not ments witnesses does cert. App.D.C. F.2d 343 taking template possibility L. denied, depositions. hope viewed, We Su- hold So Ed.2d 875 preme Court and the Judicial Confer- up ing open Government’s does carefully ence and its committees will every to discov case evidence entire operation hearing. scrutinize the new ery at the give 16 and consideration to Rule will judg- began, where we We end further liberalization of the criminal appropriate case is not an ment that this discovery procedures in the Federal through for clarification Congress courts, so that the does not majority apparent An banc. have to act. This is one area which already ponder- court lagged we have behind a number enough to know ed the sys- progressive our more court State sweep- accept do not Cong.Rec. 1883, (daily tems. 113 jurisdictional immunity claim 1967). ed., Feb. agree grounds. with the We difficulty panel’s supplementary are have no discovery, holding we also purely but appellant’s as to the merits of available However, imply ju- cause. lishment of do not intend to that if the We entitled would still be dicial officer is satisfied from the ac- proffer that eye-witness under a count of an summon they negative probable obligated cause as would so cause exists he is nevertheless provide witnesses, of deten to be free to hear other to establish Clemmer, Washington opportunity 119 U.S. v. to examine accused with tion. 216, provide App.D.C. 339 715 them. This would merely that is not incidental to the estab- 566 they may supposed they

believe be available in case of should be the first to seek preliminary hearing majority serious defect in the concurrence. I Of course real- supposedly justified ize the restraint at once that mere exercise of liberty. power opportunity Further clarification is best the denial of provided, think, through non-sitting judges traditional to learn the judicial development scope in terms nature of con- and the and the extent of diligent particular crete ruling, compliance cases where efforts have naught. come to language 46(c) literal of 28 U.S.C. § Obviously, has been had. unless a ma- jority regular of the Circuit Statement Circuit Danaher vote, active service shall so non- Why As To He Votes To Grant sitting judges will not have heard the Rehearing En Banc arguments of the Government nor will they Judge: DANAHER, opportunity, have as at an presentation, oral appropriate ques- Here the Government has asked for tioning impact to ascertain the rule of the January 23, en banc consideration pronounced by sitting division in a opinion of of this court. given case. know, practical fact, as a General, deeming Solicitor The President’s Commission on Crime importance, approved must have recently Gov- District of Columbia ob- petition. ernment’s He can not be un- report served in its released December 15, 1966, aware pages that there is 324, now 325: years last few there has been substantial “[T]he Commission is concerned disagreement among judges of this widespread community feeling “discovery” court on the matter of particular outcome in a case too preliminary hearings. In this area as depends often judges. on the choice of yet questions others where close We believe that the court should be resulting controversy, arisen with resolu- judicial sensitive to the effects of dis- conflicting viewpoints tion of the public, sension on the those convicted judges attempted. of this court should be crime, attorneys argue be- judges, again Sometimes two fore the court. The nature of the case, three, the instant undertake to peculiar jurisdiction court’s in the Dis- promulgate particular as law their own appearance trict makes an of uniform- conclusions no matter what other ity more critical than in courts con- may proper the court take to be the exclusively cerned with Federal crimes. by pronouncements rule. Guided Increased use of the en banc particu- Court and the views salutary contribute to this re- larly of other United States Courts of sult.” Appeals analogous situations, some of point The Commission went on to out non-sitting judges, perhaps not un- reasonably, they appellate rulings think should have the “that im- have a vital argument respecting pact novel, benefit of oral significant proc- the total law enforcement ess, positions both in when terms of the substance urged upon example, particular judicial If court. restrictions and case, sitting certainty the instant the three with which can be judges are upon by police, prosecutors convinced of the rectitude of relied position “discovery” their deciding particular trial cases, In courts. command of the heavy be made court available the court bears the preliminary hearings, sponsibility weighing I would have these consid- seq. discussion re en banc hear 189 et my And see U.S. ings (1961); in Cafeteria & Restaurant Wkrs. S.Ct. 6 L.Ed.2d 1230 U., McElroy, U.S.App. U.S.App. Local 473 v. Hansford seq., et 39, 387, 398, D.C. 284 F.2d 365 F.2d

567 thereby accused, he to reach result nation of the in effort a erations community guaranty deprived to as well his constitutional to fair by witnesses, by to be confronted defendant.” mere its er- statement demonstrates sophistry can obscure amount No ror.” sitting division fact that the ultimate engraft upon hoped our courts had rights accused, said Su discovery, theory notwith- own their preme Court, determined and were by promulgated standing the Rules that protected at trial. Ex Parte United approved Con- Supreme Court 129, States, 241, 250, 287 U.S. 53 S.Ct. any provision gress, for make no (1932). obviously, Mindful, L.Ed. 77 283 single eyewitness Suppose result. law, that Court such was the a murder shall recognized for that may culprit, identify as the the accused detention of stand magistrate probable cause find might trial in established valid many every other him? Must hold grand jury. dictment wrote So produced? There likewise be witnesses Mr. in Justice Black Costello v. United furtherance that no can be 359, 406, States, 363, 76 350 S.Ct. U.S. many truth, concept of a search thought (1956), 100 L.Ed. 397 and so commentators learned writing Mr. Justice Holmes Court discovery pretrial sought an extension States, 245, in Holt v. United 218 U.S. cases. 8 Moore’s criminal Feder- 247, (1910). 2, 31 S.Ct. 54 L.Ed. 1021 Practice-Cipes Committee 1.07 al ft States, And see Jaben v. United relating proposed Note [2] 214, 220, 1365, U.S. L.Ed. 85 S.Ct. 16, points to Rule out amendments Rutledge (1965); 2d Justice Mr. complex is- “a and controversial here is Bondy, writing for this court in Jordon v. refer- source are various sue.” Cited App.D.C. 114 F.2d 599 have considered ences and cases which repeatedly He observed that been had problem. But remains the fact prosecution held is under no Procedure, Federal Rules of Criminal obligation subpoena all to call urging, provid- despite have never much ed the Government. type pretrial ed for sitting en- would here which the and their If to such cases references join upon and the Court the District may suggest holdings uniform- a lack of Commissioner, especially United States ity approach decisional or either returned. since an been indictment suggest process, the exhortation I law, long both It has been settled supra, Commission, the President’s there is and elsewhere that regarded. I vote here pre not even constitutional us those of en banc that liminary hearing prior or indictment state- heard the Government’s have not prior Huff, App. to trial. Clarke v. may position cer- the more its ment of Jurists tainly appraise If mine issue. Associate Chief Justice like Vinson position reference not a reasonable Rutledge, Justice members of this when court, power exercise court, Judges and the late Chief Groner suggest if I amiss not be taken (to Stephens mention noted Congress its consideration deceased) Chief now never had slightest Goldsby problems doubt v. United in the Dis- of law enforcement provision that make trict of Columbia (1895) L.Ed. 343 had stated will, a valid return law when the Court said: facto, ipso cause to establish irrespective of hold an accused for trial “The contention at bar that because there had no exami- decision rule of court. Judges Burger warrant en banc consideration. This Statement of Circuit can, overlooks the fact that we as we and Tamm On Votes To Re- Grant hearing granting hearing, En Banc often do in an en banc define the issues The considered. question presented by the Government’s BURGER, Judge, (with Circuit whom petition may disposition is not what TAMM, Judge joins): Circuit particular made of this case if it is Jury Despite the fact that a Grand banc; question heard en rather the be- indictment, opinion has returned an sitting fore us now is whether the divi- sitting four division which opinion sion’s will create confusion in voted review1 directs the District day-to-day justice administration of preliminary Court to order another ing hear- standing if it is left without exami- The before the tried. nation the full Court. opinion sitting division does that the Court en banc would decide the accomplished by tell us what can be such case on the narrow factual re- element a remand or whether a United States to, although it, seriously ferred doubt Commissioner can “appellate” some sort of conduct sitting but the failure of the of a review the action ground to decide case on that Jury. sitting opin- Grand The division’s not insulate from examination ion, therefore, presents very important rest of us of what six members of the recurring question rela- as to the Judges McGowan and Leventhal Court— tionship preliminary hearing between a confusing included—seem to consider a indictment; and an intensifies the holding important in an area of law. surrounding confusion role of preliminary hearing Judges began with a McGowan Leventhal also misconception opinion suggest, correctly, of what the Blue if we read them really meant. For these while it reasons we voted is difficult a line for to draw grant government’s ordering petition “supplemental” hearing en banc. where the diligent, it is both difficult and unsound Judges McGowan and Leventhal seem diligent. to do so where he was not This say if the case were heard anticipates what an en banc court would might full court it be decided on a consider, e., i. whether a narrow factual basis outside the frame- posed work of issues any purpose can have or func t.2 aspect and that such a narrow does not tion after an indictmen rarely Department 1. (unnamed) of Justice trict” ceiving the Government is re- us to rehear a case en banc asks continuances of ought give great weight ings to those Jury until the Grand acts and moot- requests makes, few as the ness can be claimed. petitions case, Court does to for a writ of Appellant In this had a certiorari authorized the Solicitor long before he was Judges General. indicted. Thus McGowan and talking Leventhal are about “sanctions” Judges express simply McGowan and Leventhal on the basis of a statement power Congress a desire for a reserved of “sanc- prac- about the Government’s against prosecutors tion” and United tice in one of the 90 United States regard States Commissioners but it interest- Districts and without to the facts sitting inquiry note that division did of this case into whether there practice not order as a sanction. in this district. Judges pose, If, evidence, McGowan and Leventhal we should ever find that point, very important their “sanction” a United States Commissioner is act- ing improperly which has not been briefed or this Court and the Dis- argued position and we summarily are not trict Court can direct him to pass note, however, practices. on it. We alter his We have no evidence power reserve this “sanction” on the whatever on this score. basis of a extraordinarily statement attributed a Sen- If we assume the possibility ator “in at least one dis- mote the United States em- Leventhal McGowan and Robinson Statement Why hearing’s pur- phasize As To He To Votes Grant Rehearing pose is En Banc the determination that, while “dis- cause for detention and covery” may consequence sometimes be III, ROBINSON, W. SPOTTSWOOD preliminary hearing, of a is not Judge. by-product. purpose This state- but a members of I share other with significance special com- ment assumes increasing deep concern over the court uncertainty ing as the author from McGowan de- in the wake of the left thought more of Blue. would We have by dif- headed Blue. The cisional series orderly judicial administra- and efficient by dissipated ficulty could, Judges if tion and Leventhal McGowan legiti- judicial as to firm definitions permitted judges would four have hear- mate function of partici- who pate en want an banc to intervening ing impact of an and the any pronounce- way in the usual in during the more than indictment. But ment on this —after panel years elapsing de- since the two hearing. However, full not are since we Blue, not in full court cision has to have we left a full-scale are ques- broad, recurrent dealt with these indicating general acceptance to our my judgment, pro- This, has tions. long standing precedents the ject, sub- imprecision now find moted the agree and to that extent we with important area of law.

Judges that a McGowan and Leventhal preliminary hearing is an examination I think en banc consideration Because determine continued grant overdue, I have voted detention. doing so, I petition. In reaching impediment perceive no It should be from all clear issues, sub- been said or on behalf of the six basic which the statements my colleagues non-sitting judges, majority some that a scribed five joined in agree the Court I not does not three measure address. sitting expressions, and do in their these merits, effort re-write view on author- intimate individual Congress contribute ized neither would since course for a present demand. so conditions as to the solution convert it into whole, mechanism. We have no doubt Dis- the court as Clarification Judges argument, appeals briefing trict who deal with others after hearings these will take accurate as the method me discharge responsibility “head hope count.” our can govern pre- procedures to to mold stable join expressing agreement We our liminary Co- District of statements of Danaher and Robinson. lumbia. alleged Commissioner after corner” because “stand prob ought suggest “critical witnesses” concludes no were not issued. anyone shown, sug judicial power casually able cause is gest would the use of Jury! purpose. he could reverse the Grand with so little any event, colleagues’ heart the “sanction” therefore In our discussion is that the Commissioner and the is irrelevant of “sanctions” Attorney petition. States will have been made banc

Case Details

Case Name: George E. Ross, Jr. v. The Honorable John J. Sirica, United States District Judge

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 24, 1967

Citation: 380 F.2d 557

Docket Number: 20535

Court Abbreviation: D.C. Cir.