Opposition — Yellow Freight System, Inc. v. United States

Vit . Fp

i

Dftice-Suptome Oourt, U.S,

ir EILED

No. 80-1759 ) JUM 21 1988

| ic hank Ga dig hk OEE a :

OcToBER Term, 1980

YELLOW FREIGHT SysTEM, INC., AND

DUNCAN CERAMICS, INC., PETITIONERS

Vv,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wane H. McCrez, Jr.

Solicitor General

D. Loweit JENSEN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217 ..

MICHAEL L, MARTIN

Special Assistant

United States Attorney

Interstate Commerce Commission

Washington, D.C. 20423

QUESTIONS PRESENTED

1, Whether petitioners may take an interlocutory appeal

from a pretrial ruling that they were properly charged by

information rather than a grand jury indictment.

2. Whether petitioners have a right to be charged by an

indictment even though the allegations against them cannot

under any circumstances result in imprisonment.

3. Whether petitioners may take an interlocutory appeal

from a pretrial ruling that they are not entitled toa prelimi-

nary hearing on charges set forth in an information,

(I)

TABLE OF CONTENTS

Page

Opinions Below 2... ccccccccccccccccesscccecccsece l

FUCMEIONOD gic dcccccdiccvotcccreccuccespecseseey l

Statutory provision involved ........seeeeeeeeeeees l

GURIOMIOME ccc cnccbdccevcccevecacccccvccuscédoes 2

AIMBOT co cecccccccsccccccsescccececcoedcceedes 3

COMGIMSIOR cccccccccccccccccpsdepeevesessocencs 12

TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S.

GPP ncccccnegbacnsdessesevent’s 4, 5,6, 7,8, 10

Armored Transport, Inc. v. United States,

cert. denied, No. 80-948 (Mar. 2,

POET). cccacccccndccsevesteveceveveccccoens 9

Bain, Ex parte, \21 U.S. 1 ccc cece cece eeeeene 7

Beck v. Washington, 369 U.S. 541 ......e0eees 11

Berman v. United States, 302 U.S. 211 ......... 4

Cobbledick v. United States, 309 U.S.

FED odes vadocsnavveeananseseteensineeses 4,6

Cohen v. Beneficial Industrial Loan Corp.,

SPF Ui POE cebeneecaccsiaens vedeansecs 4, 10

DiBella v. United States, 369 U.S.121 ......55. 4

Duke v. United States, 301 U.S. 492 ......665: 10

Firestone Tire & Rubber Co. v. Risjord,

No. 79-1420 (Jan. 13, 1981) .. ccc cece eee eee 4.5

Gerstein v. Pugh, 420 U.S. 103 ......eeeees 10, 11

IV

Page

Cases—Continued:

Green v. United States, 356 U.S. 165 .......... 10

Heike v. United States, 217 U.S. 423 ........... 6

Helstoski v. Meanor, 442 U.S. 500 ........... 5,6

Kordel v. United States, 335 U.S. 345 ......... 10

Lem Woon v. Oregon, 229 U.S. 586 .......... 11

Mackin v. United States, 117 U.S. 348 ......... i)

Ocampo v. United States, 234 U.S.91 ......... 11

Parr v. United States, 351 U.S. 513 ............ 6

Roche v. Evaporated Milk Association,

eek EN poh ove tev beccececcese 6

Stack v. Boyle, 342 U.S.1 1... ccc eee eee ee ees 5

United States v. Calandra, 414 U.S. 338 ........ 7

United States vy. Central Liquor Co., 628 F. 2d

1264, cert. denied, No. 80-556 (Dec. 1,

DR AUUEREGONEM GSN pelbbencéereccecces 6

United States v. Griffin, 617 F. 2d

DP MUEEEAR Ls op ebeoctbeebdesecccevces 7,8

United States v. MacDonald, 435 U.S.

LeU. waiy s p'veeb co'cececcces 4,6, 11

United States v. Sorren, 605 F.2d 1211 ........ 6

United States v. Wilson, 639 F. 2d

eee ee L EE. sb Léepecebcecceccce 7,8

United States v. Wright, 622 F. 2d 792,

cert. denied, No. 80-5469 (Nov. 3, 1980) ....... 6

Wilson, Ex parte, 114 U.S.417 ........50ee eee 10

Page

Constitution, statutes and rules:

United States Constitution, Fifth

PIO tee ceidaciepcdsckiesidveccs 7,9

Interstate Commerce Act, 49 U.S.C. | ef seq.,

and as recodified by the Act of

Oct. 17, 1978, Pub. L. No. 95-473,

92 Stat. 1337, 49 U.S.C. (Supp. III)

SUNT HOMIES Sa vevcnivivcctsisepocvereveszes 2

PE wkd abestadihpvesdevesdmevedis 2

SP RM TED die ebintnceedeseyeee 1,2, 10

49 U.S.C. (Supp. IIT) 11903 ............4-. 2

A TUE Si dbs dv dnk so beenwas's ohaecunes 4

Fed. R. Crim. P. :

SG piibbbs ches swabedeskegunnedeess 11

CEN esicwinh daedisanensdantaces 12

PE Ach lads oveenehehane es ens4oeke 11

REED bese ckevanebbo sbbwewede coos 12

DAMEN ch cas chee s kad eeasewessenees 12

Miscellaneous:

Advisory Committee Notes to Fed. R.

GEM Me ic Sopbiatdaseeccchawebaatece neue II

1 C. Wright, Federal Practice and Procedure

(1969) ..... Waka RCE Ges Kae chk aweboheessaé 10

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1980

No. 80-1759

YELLOW FREIGHT SYSTEM, INC., AND

DUNCAN CERAMICS, INC., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A12) is

reported at 637 F. 2d 1248. The opinions of the district

court (Pet. App. AI5-A17) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 17, 1980. A petition for rehearing was denied on

February 20, 1981 (Pet. App. Al3-A14). The petition for a

writ of certiorari was filed on April 18, 1981. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

49 U.S.C. 41(1) provides in relevant part:

* * * Every person or corporation, whether carrier

or shipper, who shall, knowingly offer, grant, or give.

or solicit, accept or receive any * * * rebates, conces-

2

sion, or discrimination shall be deemed guilty of a

misdemeanor, and on conviction thereof shall be pun-

ished by a fine of not less than $1,000 nor more than

$20,000: Provided, That any person, or any officer or

director of any corporation subject to the provisions of

sections 41, 42, or 43 of this title or of the Act to

regulate commerce and the Acts amendatory thereof

* * * or person acting for or employed by any such

corporation, who shall be convicted as aforesaid, shall,

in addition to the fine herein provided for, be liable to

imprisonment in the penitentiary for a term of not

exceeding two years, or both such fine and imprison-

ment, in the discretion of the court. * * *{']

STATEMENT

The relevant facts in this case, which are not in dispute,

are set forth in the opinion of the court of appeals (Pet. App.

A2-A3). Petitioners are two corporations. Petitioner Yel-

low Freight System is a motor carrier. Petitioner Duncan

Ceramics is a manufacturer and user of freight services. In

November 1977, the United States filed informations

against petitioners in the United States District Court for

the Eastern District of California. Those informations

alleged that on 50 occasions petitioner Yellow Freight Sys-

tem gave, and petitioner Duncan Ceramics received, rate

concessions on interstate shipments of goods, in violation

of the Elkins Act, 49 U.S.C. 41. Section 41(1) of the Act

proscribes rate concessions and imposes a fine of $1,000 to

'After the filing of the informations against petitioners under 49

U.S.C. 41(1), the Interstate Commerce Act was recodified. See Act of

Oct. 17, 1978, Pub. L. No. 95-473, 92 Stat. 1337, 49 U.S.C. (Supp. 11)

10101 et seg. The penal provision relevant to this case now appears at 49

U.S.C. (Supp. 11) 11903. The recodification introduced no substantive

change in the law. Section 3 of Pub. L. No. 95-473, 92 Stat. 1466,

provides that the new statute “may not be construed as making a

substantive change in the laws replaced,” and that offenses committed

under prior law are deemed to be offenses committed under the corres-

ponding provision of the new law.

3

$20,000 on corporations that violate the Act. Natural persons

who engage in the grant or receipt of illegal concessions may

be imprisoned in a penitentiary for up to two years. /bid.

In A nril 1979, petitioners moved to dismiss the iniorma-

tions. . aey contended that the informations were defective

because they alleged “infamous” crimes that could not be

prosecuted without a grand jury indictment. They also con-

tended that the prosecutions could not proceed without a

preliminary finding of probable cause. The district court

denied those motions (Pet. App. AI5-A17), noting, inter

alia, that petitioners are corporations not subject to impris-

onment and that a charge against a corporation under the

Elkins Act, which can result in nothing more than a fine or

forfeiture, is not an allegation of an “infamous crime”

requiring indictment by a grand jury.

Petitioners attempted to take an immediate appeal from

the district court’s pretrial ruling denying their motions to

dismiss the informations. The court of appeals affirmed the

district court's decision in part, and dismissed the attempted

interlocutory appeal in part. The court affirmed the district

court’s ruling that petitioners had no right to be prosecuted

pursuant to a grand jury indictment (Pet. App. A8-A12). It

also held that petitioners’ claims concerning their entitle-

ment to a finding of probable cause were not appealable on

an interlocutory basis, and dismissed the appeal relating to

that issue (id. at A6-A8). In refusing to entertain an interloc-

utory appeal on that issue, the court of appeals noted that

petitioners’ theory concerning their entitlement to a prob-

able cause determination was “foreclosed” by decisions of

this Court (id. at A8).

ARGUMENT

1. Petitioners argue (Pet. 5-18) that they were entitled to

be charged by a grand jury and therefore the informations

against them should be dismissed. They assert that, because

natural persons may receive two-year prison sentences for

4

violations of the Elkins Act, similar violations by corpora-

tions must be deemed “infamous crimes” even though Con-

gress has provided that corporations are subject only to

fines. That contention is not subject to appeal on an inter-

locutory basis. In addition, the contention is foreclosed by

governing decisions of this Court.

Although the court of appeals entertained petitioners’

interlocutory appeal on the grand jury issue and decided the

question adversely to petitioners on the merits, we submit

that interlocutory review is barred by the final judgment

requirement embodied in 28 U.S.C. 1291. The finality

requirement contemplates a lower court decision that “ends

the litigation on the merits and leaves nothing for the court

to do but execute the judgment.” See Firestone Tire &

Rubber Co. v. Risjord, No. 79-1420 (Jan. 13, 1981), slip op.

5; Cobbledick v. United States, 309 U.S. 323, 324-326

(1940). And, of course, “{f]inal judgment in a criminal case

means sentence. The sentence is the judgment.” Berman v.

United States, 302 U.S. 211, 212 (1937). Adherence to the

rule of finality is particularly important in criminal cases

because “the delays and disruptions attendant upon inter-

mediate appeal are especially inimical to the effective and

fair administration of the criminal law.” DiBella v. United

States, 369 U.S. 121, 126 (1962); see also United States v.

MacDonald, 435 U.S. 850, 853-854 (1978); Abney v.

United States, 431 U.S. 651, 656 (1977).

The traditional requirement of a final judgment is not

satisfied here since the denial of petitioners’ motion to

dismiss obviously did not terminate the criminal proceed-

ings in the district court. The court of appeals nonetheless

concluded that the district court’s order was immediately

appealable because it satisfied the standards for the “collat-

eral order” exception to the final judgment rule, which was

first pronounced in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), and since then applied in only

5

three criminal cases: Stack v. Boyle, 342 U.S. 1 (1951)

(reasonable bail guarantee); Abney v. United States, supra

(double jeopardy guarantee); Helstoski v. Meanor, 442

U.S. 500 (1979) (speech or debate privilege). However, as

this Court recently emphasized in Firestone Tire & Rubber

Co. v. Risjord, supra, slip op. 6, the collateral order excep-

tion is “a narrow exception” that applies only to a “small

class” of interlocutory orders. In particular, an interlocu-

tory order will not be afforded immediate review if effective

review may be had after completion of trial. /d. at 7.?

The claim that an accused has been deprived of a right to

indictment by a grand jury is not one that will be irreparably

lost unless vindicated in a pretrial appeal, and it does not

fall within the “small class” of interlocutory orders subject

to immediate review. Should petitioners ultimately be con-

victed, their claim that the institution of the prosecution

was defective could be fully litigated in the normal course of

appeal from a final judgment. That, of course, requires

petitioners to proceed to trial on the merits, but the desire to

avoid the burdens of trial is not a basis for departing from

the final judgment rule (except in the special circumstances

?The cases in which this Court has permitted “collateral order”

appeals have little similarity to the present case. In Abney, the defend-

ant was subjected toa retrial over his objection that the second trial was

barred by the Double Jeopardy Clause. Petitioners, in contrast, have

not yet defended themselves in any trial. In Helstoski, the Court held

that a Congressman was entitled to an interlocutory appeal to assert his

Speech or Debate Clause privilege because the Speech or Debate Clause

was designed to protect Congressmen “not only from the consequences

of litigation’s results but also from the burden of defending themselves”

(442 U.S. at 508). In Stack, the Court concluded that a delayed appeal of

the issue of bail entitlement would totally undermine the constitutional

right to reasonable bail prior to and during trial. In cach of these cases,

the particular nature of the constitutional guarantee and the facts of

record led to the conclusion that the interlocutory orders in question

were “effectively unreviewable on appeal from a final judgment.” Fire-

stone Tire & Rubber Co. v. Risjord Co., supra, slip op. 7.

6

involved in Abney and Helstoski). As this Court observed

in Cobbledick v. United States, supra, 309 U.S. at 325-326:

Bearing the discomfiture and cost of a prosecution for

crime even by an innocent person is one of the painful

obligations of citizenship. The correctness of a trial

court’s rejection even of a constitutional claim made by

the accused in the process of prosecution must wait his

conviction before its reconsideration by an appellate

tribunal.

Accord, Roche v. Evaporated Milk Association, 319 U.S.

21, 30(1943); United States v. MacDonald, supra, 435 U.S.

at 860 n.7.

Accordingly, both this Court and the courts of appeals

frequently have held that claims of defects in the institution

of a prosecution are insufficient to establish the kind of

irreparable damage that would warrant an immediate

appeal. See, e.g., United States v. MacDonald, supra, 435

U.S. at 860 (claim that an indictment was barred by the

Sixth Amendment’s Speedy Trial guarantee); Abney v.

United States, supra, 431 U.S. at 662-663 (claim that an

indictment did not state an offense); Parr v. United States,

351 "J.S. 513, 518-521 (1956) (claim that a superseding

indictment had been improperly brought to defeat the

defendant’s successful transfer motion); Heike v. United

States, 217 U.S. 423, 430-431 (1910) (claim that an indict-

ment was barred because of a statutory immunity grant).’

Petitioners’ claim here does not differ materially from the

‘See also United States v. Central Liquor Co., 628 F. 2d 1264, 1266

(10th Cir.), cert. denied. No. 80-556 (Dec. |. 1980) (claim that the

prosecutor improperly pyramided charges to prejudice the defendant at

trial); United States v. Wright, 622 F. 2d 792, 793-794 (Sth Cir.). cert.

denied, No. 80-5469 (Nov. 3, 1980) (claim of prosecutorial abuse and

overreaching); United States v. Sorren, 605 F. 2d 1211, 1213-1215 (1st

Cir. 1979) (claim of lack of personal jurisdiction duc to governmental

involvement in defendant's abduction in a foreign country).

7

claims in the foregoing cases, where the courts properly

have denied interlocutory appeals despite assertions that

the defendants were immune from federal prosecution on

various statutory and constitutional grounds.‘

In the wake of Abney, the Ninth Circuit has taken a

singularly expansive view of the kinds of interlocutory

orders that should be treated as collateral to a criminzj case

and therefore appealable before trial. It has permitted inter-

locutory appeals not only of claims that a proceeding was

improperly instituted for lack of an indictment, as here, but

also of claims that certain portions of an indictment have

been added as a result of prosecutorial vindictiveness (e.g.,

United States v. Griffin, 617 F. 2d 1342 (1980)) and that

there has been impermissible selective prosecution ( United

States v. Wilson, 639 F. 2d 500 (1981)). The consequence

of this position has been a plethora of pretrial appeals in the

Ninth Circuit that have both burdened the court and

delayed the prompt administration of criminal justice, even

though the vast majority of these appeals were found lack-

ing in merit. This situation has been of concern not only to

the Department of Justice, but to at least some of the judges

on the Ninth Circuit itself. See United States v. Wilson,

supra, 639 F. 2d at 502 n.1.

It may well be that we will ask this Court at some point to

undertake review of the propriety of the Ninth Circuit's

expansive allowance of interlocutory appeals. This might

be done even in a case in which the claims on the merits are

not substantial, as was the situation in Abney. We do not do

so in the present case for two reasons. First, we believe that

there presently exists a realistic prospect that the Ninth

‘The underlying purpose of the Fifth Amendment's Indictment

Clause—to protect against false charges or unwarranted harassment

(see United States v. Calandra, 414 U.S. 338, 342-343 (1974), Ex parte

Bain, 121 U.S. 1, 11 (1887))—can be effectuated by dismissal of any

improper prosecution by an appellate court.

8

Circuit would be willing to reconsider its position in this

area, and we are seeking an appropriate case in which to ask

it to undertake en banc review of the jurisdictional issue.°

Should it agree to do so and, upon reconsideration, over-

rule decisions such as Griffin and Wilson, there may be no

need for this Court to consider the question, since, at least at

present, we are not aware of any other circuits that have

followed the lead of the Ninth Circuit in expanding the

availability of interlocutory appeals in criminal cases.

Our second reason for aot inviting review of the jurisdic-

tional issue in the present case is that the particular claim

held reviewable here—the need for an indictment—is one

that arises infrequently. If the Court is to review the appeal-

ability issue, we believe it would be preferable to do so ina

vindictive prosecution case, which, along with Abney

claims, makes up the bulk of pretrial appeals in criminal

cases in the Ninth Circuit. Indeed, because of the difference

in character between the instant claim and vindictive or

selective prosecution claims, it is uncertain whether a deci-

sion of the jurisdictional issue in the present case would

resolve the more important issue in the other, more com-

mon cases.

2. Inany event, even if petitioners’ arguments about their

right to a grand jury indictment were properly before this

Court at this time, the court of appeals correctly ruled on the

merits that petitioners do not have a constitutional right to

be charged by indictment (Pet. App. A8-A12).

Petitioners argue broadly (Pet. 5-18) that because the

Elkins Act provides for a possible punishment of two years’

imprisonment for natural persons, any offense under the

Elkins Act is therefore an “infamous” crime and is charge-

able only by grand jury indictment. However, petitioners

‘It is, of course, somewhat difficult for us to request en banc rehearing

in cases in which we have prevailed on the merits.

9

wholly ignore the fact that, under the statute, Congress has

prescribed separate punishments for corporations and nat-

ural persons. Because petitioners are corporations, they

cannot, under any circumstances, be subjected to impris-

onment. As the court of appeals emphasized (Pet. App. A9

& n.6), the Elkins Act treats individuals and corporations

differently and “by its terms limits penitentiary confinement

to individuals.”

The court of appeals correctly ruled that a corporation,

which cannot be subjected to the penalty of imprisonment,

is not exposed to infamous punishment and is not entitled

to be indicted by a grand jury. There is no conflict among

the circuits. No court has ever held that a corporation,

exposed only to fines for violation of a regulatory statute,

must be prosecuted by indictment. Moreover, this Court

recently denied review in a case presenting the same issue

under the Sherman Act. See Armored Transport, Inc. v.

United States, cert. denied, No. 80-948 (Mar. 2, 1981).’

Petitioners offer no reason for granting review of the same

question in this case.

The decisions of this Court establish that it is the nature

of the punishment that may be imposed upon the defend-

ant, not the abstract nature of the offense, which determines

whether the crime is infamous for purposes of the Indict-

ment Clause of the Fifth Amendment. See, e.g., Mackin v.

United States, 117 U.S. 348, 350 (1886). Punishment by

fine, rather than by imprisonment ina penitentiary for more

‘Petitioners concede (Pet. 17-18) that “{i]f the maximum prison term

provided for in the statute is over one year, it is an infamous crime. If the

maximum sentence is one year or less, it is most likely not infamous

** *” Applying that standard, it is plain that the crimes alleged in this

case are not “infamous crimes,” since petitioners are exposed to no

prison sentences at all.

’We are forwarding a copy of our brief in opposition in Armored

Transport to petitioners.

10

than one year, demonstrates that the offense is not “infam-

ous.” See, e.g., Green v. United States, 356 U.S. 165, 183

(1958); Kordel v. United States, 335 U.S. 345, 348 n.3

(1948); Duke v. United States, 301 U.S. 492, 493-495

(1937); Ex parte Wilson, 114 U.S. 417, 423-426 (1885); see

also | C. Wright, Federal Practice and Procedure § 121, at

212-213 (1969) (collecting cases). Accordingly, because

petitioners are subject only to a fine under 49 U.S.C. 41(1),

and are not “in danger of being subjected to an infamous

punishment if convicted,” the Constitution does not require

the government to proceed by indictment. Ex parte Wilson,

supra, 114 U.S. at 426.

3. Petitioners finally argue (Pet. 18-28) that, if only an

information is required to bring charges against them, a

pretrial judicial finding of “probable cause” is a prerequisite

to holding them to answer. The district court rejected that

claim on the merits and the court of appeals declined to

reach it for want of appellate jurisdiction. The court of

appeals noted that petitioners have failed to assert an

“important right” (see Abney v. United States, supra, 431

U.S. at 658) that requires immediate appellate review, since

petitioners rely on “a legal theory foreclosed by the

Supreme Court”(Pet. App. A8).* In particular, the court of

appeals found that petitioners’ argument was defeated by

this Court’s decision in Gerstein v Pugh, 420 U.S. 103, 119

(1975), which reaffirmed the weli-established rule that “a

judicial hearing is not prerequisite to prosecution by

information.”

8In the seminal decision of Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546-547 (1949), which originally prescribed the

“collateral order” exception to the final judgment rule, this Court

emphasized that the claim raised by the interlocutory appeal in that case

presented “a serious and unsettled question” and that the question was

“too important to be denied review.” When it appears that the conten-

tion sought to be litigated on appeal is foreclosed by a decision of this

Court, however, it is wholly proper to summarily dismiss the appeal.

Ibid.

We agree with the court of appeals that petitioners are

not entitled to interlocutory review of their probable cause

contention. For the reasons summarized on pages 4-7,

supra, that claim does not involve a right that would be

irreparably lost absent immediate review. If petitioners

have been wrongly denied a probable cause hearing, they

may present that contention in the court of appeals follow-

ing a final judgment. The fact that petitioners will be forced

to stand trial due to the denial of immediate appellate

review is not a basis for departing from the final judgment

requirement. See United States v. MacDonald, supra, 435

U.S. at 860 n.7.

We also agree that prior decisions of this Court establish

that petitioners’ claim is frivolous. In addition to the Ger-

stein case, which reaffirms that a preliminary finding of

probable cause is not required before proceeding to trial on

an information, see Beck v. Washington, 369 U.S. 541,545

(1962), which notes that prosecutions by information have

been filed “on many occasions without even a prior judicial

determination of ‘probable cause’ “and have “had approval

here.” See, e.g., Ocampo v. United States, 234 U.S. 91,

100-101 (1914); Lem Woon v. Oregon, 229 U.S. 586, 587-

590 (1913). Petitioners cite no relevant authority to the

contrary.’

*Petitioners refer to Fed. R. Crim. P. 5 in support of their argument

that a preliminary hearing is required. However, Rule S(c) states

unequivocally that a “preliminary examination shall not be held if the

defendant is indicted or if an information against the defendant is filed

in district court before the date set for the preliminary examination.”

The Notes of the Advisory Committee on the 1972 amendments to Rule

5 point out that the Rule “makes clear that a defendant is not entitled to

a preliminary examination if he has been indicted by a grand jury prior

to the date set for the preliminary examination, or, in appropriate cases,

if any information is filed in the district court prior to that date.” As

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WaApE H. McCreE, JR.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

MICHAEL L. MARTIN

Special Assistant

United States Attorney

Interstate Commerce Commission

JUNE 1981

noted above, this is an “appropriate case” for prosecution by informa-

tion. Accordingly, there is no need for a judicial finding of “probable

cause.”

Finally, we note that one of the principal purposes of a probable

cause hearing—to avoid unnecessary pretrial incarceration of persons

arrested by law enforcement officers on insufficient grounds—is com-

pletely inapplicable to a corporate defendant not subject to arrest and

incarceration. See Fed. R. Crim. P. 5(a), 5.1(a)-(b).

DOJ-1981-06