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360 F.2d 616

Docket No. 22523.

Schultz v. United States

Fifth Circuit Court of Appeals

Decided May 16, 1966.

Rehearing Denied June 10, 1966.

Fifth Circuit Court of Appeals · decided 1966-05-16

Cited by 9 later decisions — most recently May 1971

9 federal appellate ·

2 counsel of record

Applies 18 U.S.C. § 2314

Relies on United States v. Gray

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1966-05-16

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¶1Waldense D. Malouf, Clearwater, Fla. (Court-appointed counsel), for appellant.

¶2Kendall W. Wherry, Asst. U. S. Atty., E. J. Salcines, Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., for appellee.

¶3Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge.

¶4PER CURIAM:

¶5The United States prosecuted Francis Jarad Schultz on a three-count indictment charging interstate transportation of falsely made and forged checks in violation of 18 U.S.C. § 2314. After a federal district court jury found Schultz guilty, the district court, on April 9, 1965, imposed concurrent sentences of three years’ imprisonment on each count. Schultz appeals.

¶6We have carefully considered all of the appellant’s contentions. Only one deserves brief comment. Schultz argues that he was denied the preliminary examination required by the Federal Rules of Criminal Procedure.1 The record shows that on the day of his arrest, January 15, 1965, Schultz appeared before a United States commissioner in New Orleans. There Schultz signed a form which in part stated that the commissioner:

[has] informed me of the charge and of my right to retain counsel and to have a hearing and to execute a waiver thereof, [and I] do hereby waive a hearing before the aforementioned commissioner and consent to the issuance of a warrant for my removal to *617the Middle district of Florida where the aforesaid charge is pending against me.

¶7The commissioner’s order of commitment, also dated January 15, 1965, states that Schultz “duly waived preliminary examination.”

¶8The record therefore indicates that Schultz waived preliminary examination. Even if he waived only the removal hearing, as counsel on appeal contends, his subsequent indictment by a federal grand jury cures the alleged omission of a preliminary hearing. See United States v. Gray, D.D.C. 1949, 87 F.Supp. 436.

¶9The judgment of the district court is affirmed.

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