Federal offense has been committed and that the person charged committed it. But we reiterate that at the hearing we are here reviewing, the indictment returned by the Grand Jury of New Jersey was not in itself sufficient to establish probable cause to believe that relator had committed the Federal crime, under the rule of the cases referred to above.
We think the error of the Commissioner created a fatal flaw in the proceedings below, making the hearing basically unfair to relator and depriving her of due process of law. Furthermore, applying the correct legal test to the evidence produced by the Government, we think that the Commissioner could not have reasonably concluded that there was probable cause to believe that relator had committed the Federal offense as charged.
We turn finally to the question of whether or not we have the power to issue a writ of habeas corpus under the circumstances of this case. Section 2241 of Title 28 of the United States Code provides, inter alia:
'Power to Grant Writ. * * *
'(c) The writ of habeas corpus shall not extend to a prisoner unless --
'(1) he is in custody under or by color of the authority of the United States or is committed for trial before some court thereof.'
It is well settled that Federal courts will not review the weight of the evidence heard by the Commissioner, nor will the court substitute its judgment for that of the Commissioner on disputed issues of fact. However, the court may inquire as to whether there was any evidence presented before the Commissioner from which he could have reasonably concluded that there is probable cause to believe the defendant committed the crime charged. Price v. Henkel, 1910, 216 U.S. 488, 30 S. Ct. 257, 54 L. Ed. 581. We conclude that had the Commissioner applied the correct legal principles, there was no evidence presented by the Government upon which he could have reasonably found probable cause to believe that Mrs. Reis committed the Federal crime charged. Therefore, relator is entitled to have the writ issue if she is still 'in custody.'
The Government has argued that even though we were to decide that the writ should issue because of the Commissioner's error, still we should refrain from issuing the writ because the relator has been released on bail and, therefore, the question of the legality of her confinement is moot. The confusion here lies in the Government's failure to distinguish between the case of a defendant released on bail pending the trial on the merits, and the case of a defendant released on bail pending the hearing and decision on the writ of habeas corpus itself. We agree with the Government that had the Commissioner released the relator on bail pending her appearance before the United States District Court in New Jersey, the question of whether the writ of habeas corpus should now issue would be moot. United States ex rel. Potts v. Rabb, 3 Cir., 1944, 141 F.2d 45. But the Commissioner did not release the relator on bail at the conclusion of the February 24 hearing. Instead, he ordered her delivered into the custody of the United States Marshal. We ordered bail set pending our hearing and decision on the propriety of issuing the writ. Relator posted bill accordingly, but this fact in no way abrogated her right to have us decide the issues raised by the petition for the writ. U.S. ex rel. Binion v. O'Brien (Opinion by Judge Welsh, December 17, 1958, No. M-1888).
For all of the foregoing reasons, we enter the following Order:
And now, to wit, this 9th day of March, 1961, the writ of habeas corpus is issued as prayed for and it is ordered that the petitioner, Lillian Reis, is hereby released from the custody of the United States Marshal which attached on February 24, 1961, and any detention resulting therefrom.
It is further ordered that the bail posted pending hearing before this Court is discharged.