Appendix — United States ex rel. Potts v. Rabb

APPENDIX.

IN THE

DISTRICT COURT OF THE UNITED STATES,

For tHe Mippue District or PENNSYLVANIA.

No. 160. Haseas Corpus.

UNITED STATES OF AMERICA, Ex Ret. THEODORE

ROOSEVELT POTTS,

Vv.

ROBERT W. RAAB, U. S. Marsuat, Mippie District oF

PENNSYLVANIA.

Opinion.

October 20, 1943, Theodore Roosevelt Potts and others

were indicted (No. 10,984 October Term, 1943) and, in the

indictment were charged with violation of the laws of the

United States. November 15, 1943, Potts and the other de-

fendants were detained in the custody of the marshal pur-

suant to processes of this court issued upon the indictment

referred to. On the same day all of the Defendants were

called for arraignment. They appeared in the court room

before the Judge, and counsel for each defendant presented

a petition for a writ of Habeas Corpus. On the same day

after hearing in open court and, upon due consideration, the

prayers of the petitions were denied. The petition of Potts,

which is the only case I shall discuss in this opinion, alleges

that he is illegally in the custody of the United States Mar-

shal for this district, because there are two indictments

pending against him charging the same offense involving

the same facts and evidence, and that he is, therefore, un-

lawfully restrained upon a charge for which he has been

(7)

8 Appendia

previously indicted, and which said previous indictment has

not ‘‘been discharged, quashed, or withdrawn.’’ The Peti-

tioner has not yet gone to trial under either indictment, and

the present petition for Habeas Corpus is in advance of

trial. On November 20, 1943 a Nolle Prosequi was entered

as to the first or previous indictment (No. 10,784 December

Term, 1942). Therefore, the question as to whether the

Petitioner is entitled to a writ of Habeas Corpus for the

reason set forth in the petition and above referred to is

moot. However, in my opinion, the reason is entirely with-

out merit. Kastel v. U. S. (CCA.2) 30 Fed. (2d) 687, and

cases there cited.

It is further alleged in the petition that no witnesses

testified, nor could any witness testify before the Grand

Jury which returned the second indictment who could

legally give competent evidence of the charge set forth in

the said indictment. This is clearly an attempt to test the

legal sufficiency of the indictment by collateral proceedings.

The Supreme Court has definitely pointed out that such

proceedings are improper. Glasgow v. Moyer, 225 U. S.

420, 429. If it were permissible for defendants to test the

validity of indictments by proceedings of this character the

result would be intolerable confusion in the administration

of justice, and such was not the intention of Congress when

it vested the courts with power to issue writs of Habeas

Corpus. Ex parte, Finn, 16 Fed. Supp. 1.

It appears from the petition itself that the Petitioner

was not entitled to a writ of Habeas Corpus, and the prayer

of the petition was, therefore, denied. .

Apert L. Watson,

United States District Judge.

Scranton, Pa.

Dee. 3, 1943.

Appendix 9

UNITED STATES CIRCUIT COURT OF APPEALS,

For THE Tuirp Circuit.

No. 8543. October Term, 1943.

JNITED STATES OF AMERICA, Ex Re. THEODORE

ROOSEVELT POTTS,

Appellant,

v.

ROBERT W. RABB, Unirtep States MarsHaL FOR THE

Mipp.Le District or PENNSYLVANIA.

AppeaL From THE District Court oF THE UNITED STATES

FoR THE Mipp_e District or PENNSYLVANIA.

Before Biccs, Jones anp Goopricu, Circuit Judges.

OPINION OF THE COURT.

(Filed February 14, 1944.)

By Bices, Circuit Judge.

The appeal at bar, stripped to its essentials, requires

us to decide the question of whether an individual, arrested

upon a bench warrant issued under an indictment, may test

by writ of habeas corpus the sufficiency of the evidence be-

fore the grand jury which returned the indictment.

The indictment charges the appellant with a conspir-

acy to defraud the United States in connection with the

construction of a naval depot at Mechanicsburg, Pennsyl-

vania. It was returned by a duly constituted grand jury of

the District Court of the United States for the Middle

District of Pennsylvania. After its return the appellant

was advised by the United States Attorney to appear in

court on November 15, 1943 for arraignment. When the

appellant came into court his counsel filed a petition for

Se on er Sar ee ee

10 Appendix

a writ of habeas corpus. The court decided that the ap-

pellant was not entitled to the writ because he was not

in custody. The United States Attorney then asked for

and received a bench warrant for the arrest of the appel-

lant. He was arrested in the courtroom by the United

States Marshal. His counsel immediately filed a second

petition for a writ of habeas corpus.

The appellant’s second petition asserted (as did his

first) that no witness testified before the grand jury who

could or did give legally competent evidence against him.

He contends, therefore, that the bench warrant was issued

without probable cause and in derogation of his rights

under the Fourth Amendment to the Constitution of the

United States.! The court again refused to issue the writ.

About two hours later the court admitted the appellant

to bail which he immediately made. A few days later the

appellant filed a motion to quash the indictment,’ the

grounds of the motion being those stated in his petitions

for habeas corpus.

The appellant in effect argues that because there was

a short period of time following his arrest on the after-

1The history and development of the Fourth Amend-

ment show that it guarantees the right of the individual to

be secure in his person against unreasonable arrests, as

well as against unreasonable searches of houses and seiz-

ure of papers and effects. See ‘‘The History and Devel-

opment of the Fourth Amendment to the United States

Constitution’’, Lasson, Series LV No. 2 of the Johns Hop-

kins University Studies in Historical and Political Science,

1937, and in particular pp. 35, 95, 117 and 132 and the au-

thorities and notes cited therein.

2 The court in its opinion dated December 3, 1943, gave

the reasons for its refusal, stating, inter alia, ‘‘If it were

permissible for defendants to test the validity of indict-

ments by proceedings of this character the result would

be intolerable confusion in the administration of jus-

tice, and such was not the intention of Congress when it

vested the courts with power to issue writs of Habeas

Corpus. Ex parte, Finn, 16 F. Supp. :.”

This decision has not been reported.

8'This has been made part of the record before us.

Appendia 11

noon of November 15, 1943 in which he was in the custody

of the United States Marshal he is entitled to prosecute

this appeal despite the fact that he was admitted to bail

a little later upon the afternoon of that very day. We can-

not agree. The appeal at bar is moot. It was moot even

when the notice of appeal was filed on November 29, 1943.

The writ of habeas corpus is one of the great writs upon

which the liberty of the individual depends. Its grant can-

not be permitted to turn upon an academic question of

whether at a given instant of time an individual was within

the custody of a United States marshal when in fact he was

enlarged on bail a few hours later. Indeed, if we were to

reverse the order of the court below and direct it to grant

the writ, our mandate would be a nullity for the appellant

is not presently deprived or restrained of his liberty. See

the actual wording of R. S. Par. 754, 28 U. 8. C. A. Par.

454.4 Cf. the facts of Ex parte Catanzaro, 138 F. (2nd)

100, 101 (CCA 3).

But quite aside from the foregoing, the learned Dis-

trict Judge committed no error in denying the petition for

the writ. The courts of the United States have held almost

without exception that the writ of habeas corpus will not

serve as a writ of error. Knewel, Sheriff, v. Egan, 268 U.S.

442; Frank v. Mangum, 237 U.S. 309; Valentina v. Mercer,

201 U. S. 181; Horner v. United States, 143 U. S. 570; Ex

parte Mason, 105 U. S. 696; Ex parte Carll, 106 U. 8. 521; In

re Frederich, 149 U. S. 70, 75. The court below had juris-

diction of the appellant and of the offense with which he

is charged. As we have stated the appellant has raised

substantially the same objections to the sufficiency of the

indictment in his motion to quash as he has in his petition

4R.S. See. 754 provides in part: ‘‘ Application for writ

of habeas corpus shall be made to the court, or justice, or

judge authorized to issue the same, by complaint in writ-

ing, signed by the person for whose relief it is intended,

setting forth the facts concerning the detention of the party

restrained, in whose custody he is detained, and by virtue

of what claim or authority, if known.”’

12 Appendix

for habeas corpus. His rights under the Fourth Amend-

ment can be protected fully under the motion to quash. If

there was no legally competent evidence before the grand

jury which returned the indictment, that fact can be ascer-

tained on the hearing of the motion. See In re Lancaster,

137 U. S. 393, 395; Brady v. United States, 24 F. (2nd) 406,

407-408: Nanfito v. United States, 20 F. (2nd) 377, 378;

United States v. Rubin, 218 F. 245, 247-250.

The appeal is dismissed as moot.

—

TABLE OF CASES

Brady v. United States, 24 F. (2d) 405.----------------------- 5

Chapman, Inre, 156 U.S. 211_----------------------------- 5

Glasgow v. Moyer, 225 U.S. 420...-------------------------- 4,5

Godbersen v. United States, No. 525, this Term, certiorari denied,

MGrCh: 27, 1084. oc cone ences de wiecesued Hote ~cesesessus

Gotiw, Lake, 266. U. 8; 808.0... 2222 ccc ccdacscnsnenes sas

Homer ¥. Uniied States, 143 U.S. 870.3 22 ocean cence nscucs

Jouneon Vv. Hoy; 227 Us Bi 246. . 2 ann nce nce cn nsasesseece 4,

ARES; POFRINE, DEO Uc BD. CUO ksian ooccw csc ne eck ccassacseens

Lancaster, In re, 187 U. 8. 3938. ...--.----------------------~

Nanfito v. United States, 20 F. (2d) 376__.--------------------

Riddle v. Dyche, 262 U. 8. 383. -..-.....--------------------

Riggins v. United States, 199 U.S. 547-----------------------

Roche v. Evaporated Milk Assn. 319, U.S. 21_---------------- 4,

Rodman v. Pothier, 264 U.S. 309....-.-.-.----------2--+--0-

Stallings v. Splain, 253 U.S. 339_.....----------------------

United States, Ex parte, 287 U.S. 241------------------------

Usted States v. Rubin, 218 Fed. 246. .. 2. 1s cnncccwccccacs

United States v. Tittemore, 61 F. (2d) 909__-.--------.---------

Unverzagt v. United States, 5 F. (2d) 494, certiorari denied, 269

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580927—44

NR as ee ane Oe Oe a ol Fan SO BS os BEKO BATA KABA LES A TE EPO RELA! IAIN RO a ie En TOA A te IE A

Ynthe Supreme Gourt of the Wnited States

OctoserR TERM, 1943

No. 763

Unirep Srates oF AMERICA, EX REL. THEODORE

RoosevELT Ports, PETITIONER

Vv.

Rosert W. Rass, Unirep States MARSHAL FOR

THE Mipp._e District oF PENNSYLVANIA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS FOR THE

THIRD CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

On October 20, 1943, a grand jury impaneled

for the October 1943 term of the District Court

of the United States for the Middle District of

Pennsylvania returned an indictment against pe-

titioner and others charging them with con-

spiracy to defraud the United States in connec-

tion with the construction of the Naval Supply

Depot at Mechanicsburg, Pennsylvania (R. 1,

3-7). On November 3, 1943, the United States

Attorney advised one of the defendants’ attorneys

by letter to have the defendants appear in court

on November 15, 1943, for arraignment on that

(1)

.*

indictment (R. 14, 59). When petitioner ap-

peared in court with counsel on the latter date,

he filed a petition for a writ of habeas corpus

alleging that he was being unlawfully restrained

in the custody of respondent, the United States

Marshal for the Middle District of Pennsylvania,

because a prior indictment returned against him

at the December 1942 term had not been dis-

charged or withdrawn, and for the further reason

that no witnesses testified before the October 1943

term grand jury who could or did give legally

competent evidence of the charge set forth in the

indictment returned by that body (R. 14, 26-27).

The court refused to grant the writ on the ground

that petitioner was not in the custody of respond-

ent. Immediately thereafter the United States

Attorney secured a bench warrant for the arrest

of petitioner and petitioner was arrested by re-

spondent in the court room. Petitioner’s counsel

thereupon renewed the application for a writ

of habeas corpus. (R. 14.) The court denied

the application on the grounds that it con-

stituted a collateral attack upon the legal suf-

ficiency of the indictment and that the matters

asserted therein should be raised by a motion

to quash (R. 1-2, 14). Petitioner then pleaded

not guilty to the indictment and a few hours later

he was released on bond (R. 14-15).

On November 26, 1943, petitioner filed a motion

to quash the indictment on the ground that no

competent evidence was produced before the

3

grand jury (R. 29-30, 31, 34, 41-45). The United

States Attorney interposed a motion to strike and

an answer to petitioner’s motion (R. 54-58), and

on December 9, 1943, a hearing was held on these

motions, after which the court took them under

advisement and set the case for trial on January

3, 1944° (R. 16-17, 31, 34-35).

In the meantime, on November 29, 1943, peti-

tioner filed a notice of appeal from the order of

the district court denying his petition for a writ

of habeas corpus (R. 15, 33, 63). On December

22, 1943, on motion of petitioner (R. 15-19), the

Cireuit Court of Appeals for the Third Circuit

ordered that trial of the indictment be stayed

pending determination of the appeal (R. 60-61).

On February 14, 1944, the Circuit Court of Appeals

entered its opinion and judgment dismissing the

appeal as moot (R. 62-65).

1. The court below properly dismissed peti-

tioner’s appeal. As shown above, he was released

on bond in the criminal proceeding on November

15, 1943, within a few hours after the district

court had denied his petition for a writ of habeas

corpus, and he has been at large on bond since

that date. It is well settled that one at liberty

on bond in a criminal proceeding is not subject

to such restraint as furnishes a basis for habeas

1 Meanwhile, on November 30, 19438, the Government en-

tered a nolle prosequi as to the prior indictment returned

by the grand jury for the December 1942 term (R. 28, 34).

FRR ONL EL ONO TEEN SS

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corpus. Stallings v. Splain, 253 U. S. 339, 343;

Johnson v. Hoy, 227 U. S. 245, 247-248; United

States v. Tittemore, 61 F. (2d) 909 (C. C. A. 7);

Unverzagt v. United States, 5 F. (2d) 494

(C. C. A. 9), certiorari denied, 269 U. 8. 566;

Godbersen v. United States, No. 525 this Term,

certiorari denied March 27, 1944. The cause was

consequently rendered moot the instant petitioner

was released.

2. Furthermore, the petition for a writ of

habeas corpus was properly denied as a premature

and collateral means of presenting an objection

which orderly procedure required to be raised

by motion ‘in the criminal cause. Jones v. Per-

kins, 245 U. S. 390; Goto v. Lane, 265 U. 8. 393,

401-402; Redman vy. Pothier, 264 U. 8. 399, 402-

403; Johnson v. Hoy, 227 U. S. 245, 247; Glasgow

v. Moyer, 225 U. S. 420, 428-430; cf. Roche v.

Evaporated Milk Assn., 319 U. S. 21, 25. Such

a motion, incorporating the objection to the indict-

ment raised in the petition for habeas corpus,

was in fact filed by petitioner following the denial

of his petition, and that motion remains unde-

cided. (See R. 16-17, 34-35, 41-45, 64.) As the

court below indicated (R. 64), it is settled that

a writ of habeas corpus will not lie, either before

or after trial, to question the validity or suff-

ciency of an indictment which on its face does not

present any question as to the jurisdiction of the

court in which it is returned. Glasgow v. Moyer,

i aaa a i a a ae ae hs a ee ae Tee eee et ‘!

eat a ae

5

supra; Riggins v. United States, 199 U. S. 547,

550-551; In re Chapman, 156 U. 8. 211, 217-218;

Horner v. United States, 143 U. 8. 570, 577-578 ;

In re Lancaster, 1387 U. 8. 393, 395. It is not

disputed that the district court has jurisdiction

of petitioner and of the offense with which he is

charged, and his right to a determination of the

validity of the indictment is fully preserved and

protected under his pending motion to quash (Jn

re Lancaster, supra; Brady v. United States, 24

F. (2d) 405, 407-408 (C. C. A. 8); Nanfito v.

United States, 20 F. (2d) 376, 378 (C. C. A. 8);

United States v. Rubin, 218 Fed. 245, 247-249 (D.

Conn.) ); if the indictment is held good and peti-

tioner is ultimately convicted, error, if any, in the

trial court’s ruling on the motion may be cor-

rected on appeal from the judgment of conviction.

Riddle v. Dyche, 262 U. 8. 333, 335; Johnson v.

Hoy, supra; Glasgow v. Moyer, supra; Riggins

v. United States, supra; In re Chapman, supra;

ef. Roche v. Evaporated Milk Assn., supra, at 27.’

* Petitioner’s contention (Pet. 2-4) that he was entitled

to a writ of habeas corpus as the only effective means of pro-

tecting his right under the Fourth Amendment against arrest

without probable cause, is unavailing. For “in the court to

which the indictment is returned, the finding of an indict-

ment, fair upon its face, by a properly constituted grand

jury, conclusively determines the existence of probable cause

for the purpose of holding the accused to answer.” Ea parte

United States, 287 U.S. 241, 250.

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6

For the reasons stated, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

CHARLES Fay,

Solicitor General.

Tom C. CLARK,

Assistant Attorney General.

Rosert §. ErpDAHL,

SHELBY FIrTze,

Special Assistants to the Attorney General.

ApRIL 1944.

BU. 6. GOVERNMENT PRINTING OFFICE: 1944

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