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January 21, 1966

The UNITED STATES of America,
Beatrice M. MOTTE and Theodore V. Shyvers, Defendants

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 Defendants move herein for an order, pursuant to Section 1361 of Title 28 of the United States Code (28 U.S.C. § 1361 (Supp. 1965)), enjoining and restraining the United States Attorney from moving for pleading indictment 65 Cr. 1121 until a preliminary hearing has been held before the United States Commissioner "as to the facts underlying this prosecution and its inception." In a supplemental affidavit defendant's counsel, on the same factual averments, requests the Court to "dismiss or quash" the indictment and "to discharge the defendants."

 It appears that the defendants were arrested without a warrant on or about October 22, 1965, and a preliminary hearing before the Commissioner was set for December 3, 1965. On that date, the Government applied for and was granted, over the objection of the defendants, a one-week adjournment and the hearing was rescheduled for December 10, 1965. On December 10, 1965, prior to the time scheduled for the hearing, an indictment was returned against these defendants charging them with violations of the Narcotics law. The Commissioner, in view of the return of the indictment, then closed the hearing.

 Thereafter, a superseding indictment was filed against these defendants on December 16, 1965, which cured a technical defect in the prior indictment (i.e., the omission of the date on which the violation allegedly occurred).

 The defendants assert that the failure to accord them a preliminary hearing, on the facts presented, in some way violated their rights and warrants the dismissal of the indictment and/or the postponing of pleading until a preliminary hearing is held. In addition, they apparently contend that the return of the indictment and failure to hold a preliminary hearing unconstitutionally shifted to them the burden of showing (by way of a motion under Rule 41(e) of the Federal Rules of Criminal Procedure) the absence of probable cause to arrest and that accordingly as to them Rule 41(e) is unconstitutional.

 It has been consistently held that an accused has no constitutional right to a preliminary hearing. Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965), and the failure to accord an accused a preliminary hearing is in no way violative of due process. United States v. Smith, 343 F.2d 847 (6th Cir. 1965).

 Rule 5(c) of the Federal Rules of Criminal Procedure provides that the Commissioner, at the preliminary hearing, should determine whether "there is probable cause to believe that an offense has been committed and that the defendant has committed it."

 The only purpose served by a preliminary examination is to determine whether there is sufficient evidence to warrant a defendant being held in custody or, as here, on bail to await action of a grand jury (Boone v. United States, 185 F. Supp. 411 (W.D.Ky.1959), aff'd, 280 F.2d 911 (6th Cir. 1960) (Per curiam); see United States v. Heap, 345 F.2d 170 (2d Cir. 1965)). The grand jury, by returning an indictment, resolved that issue (see United States v. Slaugenhoupt, 102 F. Supp. 820, 821-822 (W.D.Pa.1952)), the indictment conclusively establishing the probable cause (8 Moore, Federal Practice para. P5.04[3] n. 11 (2d ed. 1965)), and thereby eliminated the necessity for the preliminary hearing before the Commissioner. United States v. Gilchrist, 347 F.2d 715 (2d Cir. 1965) (Per curiam); United States v. Heap, supra; Vincent v. United States, 337 F.2d 891, 896 (8th Cir. 1964), cert. denied, 380 U.S. 988, 85 S. Ct. 1363, 14 L. Ed. 2d 281 (1965); United States v. Lodewijkx, 230 F. Supp. 212, 217 (S.D.N.Y.1964).

 In the case at bar, probable cause to believe that an offense had been committed, and that the defendants had committed it, having been shown by reason of the return of the indictment, no further function existed for the Commissioner to perform, and, accordingly, the refusal of the Commissioner to proceed was in accord with the procedure above outlined and with the function of the Commissioner.

 The finding by the grand jury of an indictment, just like action of the Commissioner, in no way precludes a Rule 41(e) motion; indeed, the Commissioner's determination on the issues before him could not constitute an adjudication on the issue of the admissibility of the evidence against these defendants.

"By waiving preliminary examination, a defendant waives no more than the right which this examination was intended to secure him - the right not to be held in the absence of a finding by the Commissioner of probable cause that he has committed an offense.
By the same token, the Commissioner here had no authority to adjudicate the admissibility at petitioner's later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules [Federal Rules of Criminal Procedure] which provides that a defendant aggrieved by an unlawful search and seizure may '* * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * *' the arrest warrant was defective on any of several grounds." Giordenello v. United States, 357 U.S. 480, 484, 78 S. Ct. 1245, 1249, 2 L. Ed. 2d 1503 (1958). *fn1"

 Thus, defendants appear to be misconstruing the function and jurisdiction of the Commissioner and the issues cognizable before him. They similarly appear to be confusing the probable cause in a seizure case that must be shown before the Commissioner with the probable cause that must be shown on a Rule 41(e) motion. *fn2"

 Nor did the return of the indictment during the one-week continuance of the hearing violate defendants' rights. In United States v. Gray, 87 F. Supp. 436 (D.D.C.1949), the defendant moved to dismiss the indictment on the ground that the Commissioner's hearing had been continued on the Government's motion and that in the interim an ...

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