Opinion
Cr. No. 17037.
January 29, 1948.
Henry L. Hess, U.S. Atty., and Edward B. Twining, Asst. U.S. Atty., both of Portland, Or., for the United States.
No appearance for defendants.
Henry Clay Tollett and Henry Clay Green were indicted for bank robbery, and the clerk of the court requested instructions as to whether he should transmit certified copies of the papers in the case to the clerk of the district court of the eastern district of Oklahoma under Federal Rules of Criminal Procedure, rule 20, 18 U.S.C.A. following section 687.
Clerk advised to forward certified copies of the papers to the clerk of the eastern district of Oklahoma.
Defendant Henry Clay Green has been indicted in this Court for bank robbery. Later, the Honorable Lowell Mundorff, Clerk of this Court, requested instructions as to whether he should transmit certified copies of the papers in the case under Rule 20, Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. The matter was held in abeyance until the conditions of the Rule were met. See Petition of Mundorff, D.C., 8 F.R.D. 7. Now the objections mentioned have been rendered less pertinent by other proof. The Court therefore advises the Clerk to forward certified copies in accordance with the express command of the Rule. Neither this Court nor the Judges nor the Clerk defy this mandate even in view of doubts as to validity.
United States v. Bink et al., D.C., 74 F. Supp. 603.
It is the sentencing court which must be satisfied that jurisdiction is present. It is with confidence that this Court passes on this file with these engaging questions. Even if the District Court of the Eastern District of Oklahoma should be of the opinion that they had jurisdiction of this cause contrary to the holdings of this Court, such a decision would indicate the integrity and independence of the federal judiciary as well as a decision in conformity with the position taken here. It should be noted that heretofore neither the criminal rules committee nor the Supreme Court nor the hearings before congress had indicated to the Courts the question.
In re Schwindt, D.C., 74 F. Supp. 618.
There should be no doubt about one position. This Court has jurisdiction over the crime charged and over the indictment. For that reason the Court retains the original indictment in the files. This Court claims the power now or later to bring all defendants named upon the indictment, including Green, before the Bar here. The Court may proceed by bench warrant, mandamus or writ of habeas corpus ad prosequendum. This action may be taken at any time until all of the defendants have answered to the indictment here, even though they may have been sentenced or committed in some other jurisdiction upon a copy of the indictment or otherwise.
Since other defendants are here involved, this Court may recommit the cause to another Grand Jury for sufficient reason, may dismiss the indictment, may discharge any of defendants or may send the case for trial. Even if a defendant had been elsewhere sentenced, the power of this Court over the indictment returned here has nowhere been taken away by decision, statute or rule.
United States v. Bishop, D.C., 76 F. Supp. 866. Following delivery of the opinion in the Bishop case here cited, the defendants Henry Clay Tollett and Sam Scribner were removed from California and presented for arraignment on the indictments against them in the District Court of Oregon. The dates theretofore set for trial in the cases of U.S. v. Henry Clay Tollett and Sam Scribner and U.S. v. Henry Clay Tollett and Henry Clay Green were cancelled with the provision that these would later be set for trial on order of the Court.
We reiterate this insistence upon jurisdiction is not particularly for protection of Green, who says he is guilty. But we reiterate that if trial by jury and in the vicinage laid by Article III of the Constitution can be waived at all, both can be held to have been waived if defendant is found or arrested outside the state where the crime is charged to have been committed.
The Clerk is advised to forward certified copies of the papers in the case to the Clerk of the Eastern District of Oklahoma.