The opinion of the court was delivered by: CURRAN
There comes before the Court at this time a Notice of Appeal from the denial on November 7, 1969, of defendant's motion to re-open the preliminary hearing held September 30, 1969, before the Honorable John F. Doyle, United States Magistrate. We are asked to issue an order, in the nature of mandamus, directing the United States Magistrate to set aside the order holding the defendant to answer in this Court and to re-open the preliminary hearing.
Since the filing of the Notice of Appeal referred to above, an indictment has been returned by the Grand Jury.
This Court, like many others, has increasingly found itself virtually inundated by such appeals, the vast majority of which are wholly devoid of merit and appear styled primarily for the purpose of delay. This dilatory procedure has, and continues, to result in the expenditure of valuable judicial time and machinery which would be more fruitfully expended in the administration of justice in other areas more urgently deserving of such time and attention.
Because the source of this increasing tendency to challenge the preliminary hearing may be due in large part to the ambiguity that surrounds the proper purpose of the preliminary hearing, this Court takes occasion to respond not only to the merits of the challenge in the instant case, but also to review the posture of the preliminary hearing in the prosecution of criminal cases generally, with an eye directed at discerning the appropriate function the preliminary hearing is to serve. To be responsive, such a review must necessarily encompass not only the statutory enactments applicable to the preliminary hearing and the relevant provisions of the Federal Rules of Criminal Procedure, but also the function and purposes that have been judicially ascribed to the preliminary hearing.
The challenge in the instant case is appropriate for such a review in that it is illustrative of what has become a matter of routine practice. Specifically, the challenge in the instant case raises two major questions: (1) the purpose to be served by the preliminary hearing, and (2) the burden the Government must carry in order that the accused may be properly held over for possible action by the Grand Jury.
The most recent statutory enactment dealing specifically with the function to be served by the preliminary hearing is the Federal Magistrates Act of 1968, effective October 17, 1968, and appearing as an amendment to Title 18, United States Code, Section 3060. Formerly, Title 18, U.S.C. Sec. 3060 provided:
"Preliminary examination - (Rule) SEE FEDERAL RULES OF CRIMINAL PROCEDURE Proceedings before commissioner, appearance, advice as to right to counsel, hearing, Rule 5."
As amended, however, Sec. 3060 provides a resolution of the questions posed by the instant case. First, the newly amended statute sets forth in detail those situations in which it is necessary to hold a preliminary hearing; and second, it dictates the function the preliminary hearing is to serve when held.
In an order of this Court issued September 22, 1969, in United States v. Meyers, 303 F. Supp. 1383, this Court took a preliminary step in the analysis of Sec. 3060 and in the impact it has had on the preliminary hearing procedure, focusing on subsection (e) of Sec. 3060, which by its very language qualifies the accused's right to a preliminary examination. This Court's interpretation of subsection (e), as stated in the Meyers case, gives effect to the provision as it is written, the foremost obligation of statutory construction, while at the same time interpreting the provision in a manner consistent with the legislative intent ascribed to the statute as expressed by Senator Tydings, the sponsor of the Act. The language of subsection (e) is explicit and leaves no room for judicial speculation. This Court affirms its interpretation of subsection (e) of Sec. 3060 as being unambiguously aimed at dispensing with the need for a preliminary hearing in those cases in which an indictment is timely returned in accordance with the procedures prescribed by Sec. 3060(e). Further elaboration at this time upon subsection (e) and the issue posed in the Meyers case would be superfluous, for the question is well settled by the very language of the provision itself. Hence, the attention of this Court will be focused upon those situations in which a preliminary hearing is properly held in accordance with Sec. 3060, looking particularly at the function to be served by the hearing, as stated in subsection (a) of Sec. 3060.
It has been suggested that when Rule 5(c) of the Federal Rules of Criminal Procedure and the newly amended Sec. 3060 are read concomitantly that Rule 5(c) must be deemed to have been implicitly repealed by Sec. 3060, inasmuch as Sec. 3060 deals with much of the same subject matter as covered by Rule 5(c). Without engaging in a detailed discussion of the relationship of the two provisions, it appears to this Court that Sec. 3060 as amended does not repeal Rule 5(c), as there is no conflict posed when the two are read in pari materia. Rather, Sec. 3060 serves as a clarification of the standard to be applied in determining whether in a particular case a preliminary hearing is called for, and if so, the purpose of the preliminary hearing. On the other hand, Rule 5(c) complements Sec. 3060 by providing the evidentiary and procedural rules to be applied when a hearing is held. However, to the extent that Rule 5 may have been read in the past to give every person charged with an offense the right to appear at a preliminary hearing, Sec. 3060(e) qualifies this right by dispensing with the necessity of holding a preliminary hearing when an indictment has been timely returned by the Government, as provided by Sec. 3060(e). The Grand Jury, having acted by the return of an indictment, renders the magistrate powerless to conduct an "appellate" review of that action, for the power to indict is vested solely within the province of the Grand Jury.
Although the United States Court of Appeals for the District of Columbia Circuit has commented frequently on the preliminary hearing procedure in this jurisdiction, the proper function to be served by the hearing has become increasingly more uncertain. An examination of the case law developed by the appellate court, authority which would normally be considered binding on the lower courts, reveals that the case law of this jurisdiction, when juxtaposed to the recently enacted Federal Magistrates Act, poses an obvious conflict between the two insofar as the function to be served by the hearing is concerned. At the outset, it is significant to note that the body of law in this jurisdiction dealing with the preliminary hearing procedure was developed by the appellate court prior to the amendment of Sec. 3060, and that since the enactment of the Federal Magistrates Act, the Court of Appeals has not had occasion to respond to the issue as presented in the instant case. However, the directive of Sec. 3060(a) is clear and definite; as regards the function of the preliminary hearing, subsection (a) provides that
"* * * a preliminary examination shall be held * * * to determine whether there is probable cause to believe that an offense has been committed and that the arrested person has committed it ".
The trilogy of cases routinely cited by a defendant when attacking as faulty the conduct of the preliminary hearing is Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715 (1964); Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S. Ct. 1029, 13 L. Ed. 2d 964 (1965); and Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967); the instant case is no exception. In Washington, the appellate court observed,
"One obvious purpose of a preliminary hearing is to provide confrontation between accused and ...