Opinion
No. 16307.
April 21, 1961.
Mr. William B. Bryant, Washington, D.C., for appellants.
Mr. Carl W. Belcher, Asst. U.S. Atty., for appellee.
Before WILBUR K. MILLER, Chief Judge, and EDGERTON and WASHINGTON, Circuit Judges.
This case came on for consideration on appellants' motion for an immediate hearing on the merits and on the original record before the district court.
Appellants alleged in their pleadings in the district court and in this court, and in oral argument before this court, that the committing magistrate had discontinued a preliminary hearing, already in progress, and had over the objections of appellants' counsel postponed any preliminary hearing until a specified future date for the stated purpose of awaiting the possibility of grand jury action on the grounds that appellants were not incarcerated, but were free on bail, that their posting of bond constituted an admission of the existence of probable cause, and, therefore, that the committing magistrate would not allow a hearing before him to be used as a means of obtaining discovery for purposes of later impeachment of Government witnesses. This situation was alleged to be representative of a general philosophy or pattern. Upon said action by the committing magistrate, appellants filed in the district court a petition for writ of mandamus or in the alternative for an order in the nature of mandamus directing the committing magistrate to hold an immediate hearing, from the dismissal of which they have taken this appeal.
It appearing from the statements of counsel that appellants were scheduled to receive a preliminary hearing in the municipal court on this day, namely, Friday, April 21, 1961, and that the ordering of a hearing would in such event be unnecessary, and that the case is thus, in substance, moot, it is therefore Ordered by the court that this appeal is dismissed as moot.
The court has not passed upon any of the questions raised by the parties, including questions as to the jurisdiction of the district court and of this court. However, the members of the court comprising this division are of the view that persons accused of crime are entitled to prompt preliminary hearings pursuant to Rule 5 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and pursuant, also, to Rule 13 of the Rules of the Municipal Court for the District of Columbia; and that the fact that an accused is at liberty on bond does not in itself constitute a reason for denying him a prompt preliminary hearing, or postponing the hearing to a future date.
Appeal dismissed as moot.