The opinion of the court was delivered by: ROSENBERG
A series of motions have been presented by counsel in behalf of Richard E. Henkel, one of the defendants in the above entitled case. For the purpose of making a determination on the motions of defendant, Henkel, certain facts are here recited as they relate to this defendant. A complaint was filed on April 18, 1969 before the United States Commissioner as supported by an affidavit of an agent of the F.B.I. On April 21st a bond was ordered and on April 28th a bond was posted for appearance before the Commissioner or the District Court. On June 18, 1969, the grand jury presented an eight-count indictment against this defendant and others on the charges as contained in the information made before the Commissioner for the procurement of a warrant for arrest. The counts are based upon charges of criminal violations as of January 18, 1969 and January 24, 1969. The defendant Henkel appeared with counsel for the arraignment on August 7, 1969 and pleaded not guilty.
MOTION FOR PRELIMINARY HEARING
In his motion for a preliminary hearing, counsel for the defendant Henkel asserts that the then defendant's counsel, Ronald N. Watzman, on April 7, 1969, sent a written request for a preliminary hearing to the United States Commissioner Alexander N. McNaugher, but that the government ignored his request and secured an indictment on June 18, 1969; that this foreclosed the defendant's right to cross-examine the witnesses against him at the preliminary hearing; that on a second occasion, he was charged with another violation and taken before the United States Commissioner when the defendant again requested a preliminary hearing; that the defendant's request was ignored; and that the government secured another indictment against the defendant.
Rule 5 subsection (b) relates to the statement to be made by the United States Commissioner so as to inform the defendant of the complaint against him and of any affidavits filed therewith; of his right to retain counsel; of his right to request the assignment of counsel; and of his right to have a preliminary examination. He also informs the defendant that he is not required to make a statement and that any statement made by him may be used against him, and of his right to consult counsel within a reasonable time and further, he is required to admit the defendant to bail as provided in the Rules.
Rule 5 subsection (c) provides that the defendant shall not be called upon to plead, and if the defendant waives a preliminary examination, the Commissioner is required to hold him to answer in the district court, and if the defendant does not waive examination, the Commissioner is then required to hear the evidence within a reasonable time, at which time the witnesses are subject to cross-examination, and the defendant may introduce evidence in his own behalf. Thereupon the Commissioner is required to ascertain whether there is probable cause to hold him on the charges for which he has been brought before the Commissioner, and he is further required to admit the defendant to bail as provided in the Rules. Thereafter the Commissioner is required to transmit all papers to the Clerk of Court.
Rule 5 does not vest a defendant with a constitutional right to a preliminary examination. The law only requires that a defendant be granted a preliminary hearing before a Commissioner, or that the grand jury return an indictment against him. As the Supreme Court stated in Jaben v. United States, 381 U.S. 214, 220, 85 S. Ct. 1365, 1369, 14 L. Ed. 2d 345 (1965) rehearing denied 382 U.S. 873, 86 S. Ct. 19, 15 L. Ed. 2d 114 (1965):
"* * * we think that the Government must proceed through the further steps of the complaint procedure by affording the defendant a preliminary hearing as required by Rule 5, unless before the preliminary hearing is held, the grand jury supersedes the complaint procedure by returning an indictment. This interpretation of the statute reflects its purpose by insuring that within a reasonable time following the filing of the complaint, either the Commissioner will decide whether there is sufficient cause to bind the defendant over for grand jury action, or the grand jury itself will have decided whether or not to indict."
The return of an indictment by the grand jury obviates the necessity for a hearing by a magistrate. United States v. Gross, 416 F.2d 1205, C.A. 8, 1969; Austin v. United States, 408 F.2d 808, C.A. 9, 1969; Sciortino v. Zampano, 385 F.2d 132, C.A. 2, 1967; cert. den. 390 U.S. 906, 88 S. Ct. 820, 19 L. Ed. 2d 872 (1968); Crump v. Anderson, 122 U.S. App. D.C. 173, 352 F.2d 649, 1965. Although the appearance before the United States Commissioner may afford a certain amount of examination before the trial of an accused, its principal purpose is for the ascertainment of whether probable cause exists for the holding of a defendant for prosecution in the district court. That situation did not exist here. The grand jury took the matter out of the Commissioner's control when the indictment was filed against this defendant. In any event the indictment would have muted any necessity for holding preliminary examinations. United States v. Gross, supra; Austin v. United States, supra; Grant v. United States, 406 F.2d 1295, C.A. 5, 1969; Sciortino v. Zampano, supra. Any possible error in a denial to a defendant of his right to a preliminary hearing is cured by a subsequent indictment of the accused. Grant v. United States, supra. A return of the indictment by the grand jury resolves the question of probable cause which a Commissioner would be required to determine. It thereby eliminates the necessity for any preliminary examination. United States v. Gross, supra; Austin v. United States, supra; Grant v. United States, supra; Sciortino v. Zampano, supra.
Circuit Judge Burger, now the Chief Justice, said this at page 338 in Footnote 2a in Goldsmith v. United States, 107 U.S. App. D.C. 305, 277 F.2d 335, 1960:
"We have used here the terminology into which the courts and the bar have drifted over a period of years, which inaccurately describes as an 'arraignment' the 'Appearance before the Commissioner' under Rule 5, Fed. R. Crim. P. The hearing called for by Rule 5 is not an 'arraignment' but a preliminary examination of the arrested person. Rule 5(a) commands the police to take the person 'without unnecessary delay before the nearest available commissioner'; Rule 5(b) requires that the person must be informed of the complaint against him and be warned of his right to counsel, to remain silent and other rights.
The purpose of this preliminary examination is also to have a judicial determination as to whether the person should be held. He is not then called to plead. If the arrest is without a warrant * * *, a complaint must be filed at once, i.e. at the hearing. The terminology of describing this first step after arrest and 'booking' as an arraignment traces back many years. In Mallory v. United States, 1957, 354 U.S. 449, 454, 77 S. Ct. 1356, 1359, 1 L. Ed. 2d 1479, the Court said: 'The next step [after arrest and booking] in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights * *.' (Emphasis added) Whatever terminology is used it is important to be aware of the significant distinction between a true arraignment under Rule 10, which comes only after the indictment or information, and the earlier process under Rule 5, which, as we have noted, is a preliminary examination and the occasion for judicial warnings as to his rights. Cf. Anderson v. United States, 1943, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829; Mallory v. United States, supra."
Judge Maris of our Court of Appeals for the Third Circuit in Rivera v. Government of Virgin Islands, 375 F.2d 988, 1967, referred to the pertinent question, here raised by the defendant, and demonstrated that Rule 123 of the Virgin Islands municipal court paralleled Rule 5 of ...