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UNITED STATES v. WILKINS

November 30, 1976

UNITED STATES OF AMERICA
v.
HERBERT WILKINS



The opinion of the court was delivered by: DITTER

 Herbert Wilkins was convicted by a jury of kidnapping, *fn1" violating the Mann Act, *fn2" and conspiracy to commit these offenses. He has filed post-trial motions asserting there was improper denial of pre-trial discovery, prejudice from my asking questions of a government witness, prosecutorial misconduct, and error in the jury charge. For the reasons which follow, defendant's motions will be denied.

 The evidence adduced at trial, viewed, as it must be, in a light most favorable to the prosecution, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680, reh. denied, 315 U.S. 827, 62 S. Ct. 629, 86 L. Ed. 1222 (1942); United States v. McClain, 469 F.2d 68, 69 (3d Cir. 1972), established that in the early morning hours of June 15, 1975, the defendant, Herbert Wilkins, in the company of another man, Lilton Smith, *fn3" was driving his automobile along Route 13 near Middletown, Delaware. They observed a vehicle travelling in the same direction and being operated by a woman unknown to them, but now identified as Loretta Dugger. Wilkins maneuvered his car beside hers and Smith pointed toward the rear wheel of Mrs. Dugger's vehicle. Thinking that she might have a flat tire, Mrs. Dugger drove to the shoulder of the road. Wilkins pulled up beside her. Although Mrs. Dugger attempted to discover the problem by looking out the side window, she was compelled to get out of her vehicle when Smith told her the trouble was on the other side. At this point, Wilkins had left the driver's seat and was standing behind his car. He told her that her tires were bad and that he and Smith would give her a ride anywhere she wanted to go. Mrs. Dugger refused, but before she could reenter her vehicle, Wilkins grabbed her and, with the assistance of Smith, threw her onto the back seat of his automobile. While Wilkins drove, Smith attempted to have sexual intercourse with Mrs. Dugger, but was stopped by Wilkins, who told him to leave her alone and that "[you] have plenty of time for that." (N.T. 337). After she was pushed into the front seat, Wilkins forced Mrs. Dugger to commit oral sodomy upon him while Smith held a pocketknife to her side. Shortly thereafter, they observed a sign which said Pennsylvania and Wilkins commented "We're in Philly now. This is my territory." (N.T. 339-40). They drove to a row of white houses, where Wilkins stopped his car, pulled Mrs. Dugger into the back seat, forcibly removed her garments and, while Smith held her arms, had sexual intercourse with her. Thereafter, Smith had intercourse with her against her will. Mrs. Dugger put her clothes back on and was placed in the front seat once more. Wilkins then drove to the truck port of the Philadelphia Food Distribution Center and attempted to sell Mrs. Dugger as a prostitute. This failed, as did a similar effort a short time later, when Mrs. Dugger cried out that she would not be sold to anyone. Mrs. Dugger was then forced to commit oral sodomy on both men again.

 At approximately 9:00 A.M. on the same day, they arrived at the home of Edward Smith, Lilton Smith's cousin. Mrs. Dugger informed Edward Smith of what had happened and he told Wilkins and Smith they should release her. Thereafter, Wilkins and Smith drove Mrs. Dugger to a point near a center city bus terminal and she was allowed to leave the car. However, before they were able to drive away, she noted the license number of Wilkins' vehicle. Mrs. Dugger immediately spoke with a security guard at the terminal, who called the Philadelphia police. She subsequently told agents from the Federal Bureau of Investigation what had occurred and Wilkins was arrested the next day, June 16, 1975, in Philadelphia, at approximately 8:30 A.M.

 I. The Failure of Loretta Dugger to testify at the Probable Cause Hearing.

 Defendant's first contention is that the failure of the prosecutrix, Loretta Dugger, to appear at the preliminary hearing and be available for cross-examination was a denial of the defendant's Sixth and Fourteenth Amendment rights, and that such denial requires the granting of a new trial. Specifically, he argues that the preliminary hearing is a "critical stage" in the prosecution, Conley v. Dauer, 321 F. Supp. 723, 727 (W.D. Pa. 1970), remanded, 463 F.2d 63 (3d Cir.), cert. denied, 409 U.S. 1049, 93 S. Ct. 521, 34 L. Ed. 2d 501 (1972), thereby entitling the accused to effective assistance of counsel, and the denial of the right to call a material witness on the issue of probable cause infringes upon that right to effective assistance. United States v. King, 157 U.S. App. D.C. 179, 482 F.2d 768, 775 (1973); Coleman v. Burnett, 155 U.S. App. D.C. 302, 477 F.2d 1187, 1204-05 (1973). Defendant's argument fails for two reasons.

 First, there is nothing in the language or the history of Federal Rule of Criminal Procedure No. 5.1 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. The rule is not intended to give discovery before trial. See 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); United States v. Barone, 311 F. Supp. 496 (W.D. Pa. 1970); United States v. Johnson, 294 F. Supp. 190 (E.D. Pa. 1968).

 Rule 5.1 provides, "The finding of probable cause may be based upon hearsay evidence in whole or in part." A preliminary examination is not required as a condition precedent to prosecution by information, Rivera v. Government of Virgin Islands, 375 F.2d 988, 990 (3d Cir. 1967). There is no constitutional right to a preliminary hearing and any alleged defects in it are cured by a subsequent indictment. United States v. Farries, 459 F.2d 1057, 1061-62 (3d Cir.), cert. denied, 409 U.S. 888, 93 S. Ct. 143, 34 L. Ed. 2d 145 (1972); United States v. Walker, 491 F.2d 236, 238 (9th Cir.), cert. denied, 416 U.S. 990, 94 S. Ct. 2399, 40 L. Ed. 2d 769 (1974). Of course, where a preliminary examination is held discovery may be a collateral or incidental benefit to the defendant. United States v. Johnson, 514 F.2d 92, 94 (5th Cir.), cert. denied, 423 U.S. 1020, 96 S. Ct. 459, 46 L. Ed. 2d 393 (1975); United States v. Anderson, 481 F.2d 685, 691 (4th Cir. 1973), aff'd., 417 U.S. 211, 94 S. Ct. 2253, 41 L. Ed. 2d 20 (1974); United States v. Brumley, 466 F.2d 911, 915, 916 (10th Cir. 1972), cert. denied, 412 U.S. 929, 93 S. Ct. 2755, 37 L. Ed. 2d 156 (1973).

 Since a defendant has no constitutional right to have a hearing at all, and since he may be held on the basis of hearsay evidence alone, it follows he has no right to have a particular witness appear for purposes of discovery.

 Second, even if I were to conclude that King, supra and Burnett, supra, give the defendant a right to pre-trial discovery, it would not follow that a new trial should be granted in this instance. Here, Mrs. Dugger testified at a state court preliminary proceeding. Counsel for Wilkins was provided with the notes of testimony from that hearing and used them in cross-examining Mrs. Dugger (N.T. 432-36). In addition, Jenks Act statements were made available. In brief, counsel had a great deal of material to assist in cross-examination, albeit that Mrs. Dugger had not testified at the preliminary hearing.

 There is no merit in the defendant's contention that the failure to produce Mrs. Dugger for pre-trial questioning was error.

 II. The Court's Questioning of Edward Smith

 Defendant's second assertion is that reversible error was committed when I asked Edward Smith nine questions regarding the visit of Wilkins, Lilton Smith and Mrs. Dugger to his home. (See N.T. 565-67). Counsel argues that my questioning did not serve the purpose of clarifying Mr. Smith's testimony, but was an attempt to single out this witness and place undue emphasis on what he had to say. There is no merit to this assertion.

 First of all, in preliminary instructions given before trial started, I told the jury that I might ask questions but that no particular significance was to be given to ...


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