Friendly, Hays and Anderson, Circuit Judges.
Petitioner seeks an order in the nature of a writ of mandamus directing the district court to order the United States Commissioner to conduct a preliminary examination of petitioner under Rule 5(c) of the Federal Rules of Criminal Procedure.*fn1 We deny the writ.
Petitioner, a Bridgeport, Connecticut physician, was arrested on June 22, 1967 upon a commissioner's warrant charging him with the unlawful sale of depressant and stimulant drugs in violation of 21 U.S.C. §§ 331(q) and 360a(b). He was brought before a commissioner, advised of his rights, and admitted to bail. Petitioner's counsel asked the government to agree to a postponement of the preliminary examination until July 11 because his associate, who would be handling the case, was out of the state. The government consented, but announced that it would present the case to a grand jury on July 10 and that, if an indictment was returned, it would contend that the commissioner no longer had power to hold a preliminary hearing.
On July 10 petitioner moved for an order enjoining the United States Attorney from presenting the case to the grand jury. The motion was denied, and later that day the grand jury returned an indictment.
On July 11 the commissioner continued the preliminary hearing until July 24 and, at petitioner's request, issued a subpoena directed to the government's principal witness. Just prior to the scheduled hearing respondent granted the government's motion to quash the subpoena, and the commissioner adjourned the hearing.
Petitioner's principal contention is that the preliminary examination provided by Rule 5(c) of the Federal Rules of Criminal Procedure is intended to serve as a means of discovery for the accused as well as a forum for determining probable cause, so that the need for such an examination is not eliminated by the return of an indictment.
There is nothing in the language or the history of Rule 5 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 extensive review of the history of the drafting of Rule 5 contained in 1 Orfield, Criminal Procedure under the Federal Rules, 203-224 (1966), contains not a word to suggest that in the drafting of the rule there was any purpose to provide the accused with a discovery procedure. See also 1 Orfield, Section 5:7, Functions of Preliminary Examination: "But the purpose is not to give discovery, before trial, of the government's case. The indictment plus a bill of particulars is all that the defendant is entitled to."
There is extensive authority in the cases for the proposition that the return of an indictment, which establishes probable cause, eliminates the need for a preliminary examination. In Jaben v. United States, 381 U.S. 214, 220, 85 S. Ct. 1365, 1369, 14 L. Ed. 2d 345 (1965) the Supreme Court said:
"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."
See to the same effect: United States v. Heap, 345 F.2d 170, 171 (2d Cir. 1965); Rivera v. Government of the Virgin Islands, 375 F.2d 988, 990 (3d Cir. 1967); United States v. Chase, 372 F.2d 453, 467 (4th Cir.), cert. denied, 387 U.S. 907, 87 S. Ct. 1688, 18 L. Ed. 2d 626 (1967); Boone v. United States, 280 F.2d 911 (6th Cir. 1960); 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); Byrnes v. United States, 327 F.2d 825, 834 (9th Cir.), cert. denied, 377 U.S. 970, 84 S. Ct. 1652, 12 L. Ed. 2d 739 (1964).
A post-indictment preliminary examination would be an empty ritual, as the government's burden of showing probable cause would be met merely by offering the indictment. Even if the commissioner disagreed with the grand jury, he could not undermine the authority of its finding.
Petitioner relies on the recent decision of the Court of Appeals for the District of Columbia Circuit in Ross v. Sirica, 127 U.S. App. D.C. 10, 380 F.2d 557 (D.C.Cir. 1967). Ross was indicted following a preliminary examination at which his right to subpoena witnesses had been unduly curtailed, and he sought a writ in the nature of mandamus ordering a second preliminary examination. The court held that a second preliminary examination was required in spite of the intervening indictment.
We cannot agree to elevating into a right to be enjoyed by an accused the pure fortuity that where a preliminary hearing is held there is necessarily some discovery of the government's evidence. It is quite clear from the logic as well as the history of the procedure that discovery is not one of its purposes. It defies logic, for example, to allow such discovery to defendants who ...