Page:Herbert Rosenthal Jewelry v. Kalpakian.pdf/1

  proceedings. Evans v. United States, 325 F.2d 596 (8th Cir. 1963), cert. denied, 382 U.S. 881, 86 S.Ct. 170, 15 L.Ed.2d 121 (1965). See also, [sic] Bistram V. United States, 253 F.2d 610 (8th Cir. 1958). Appellant waived any irregularities in the Rule 40 proceedings when he submitted himself to the District Court for trial, pleaded not guilty, stood trial, and was convicted. Rule 12(b)(2), Fed.R.Crim.P.; Hardy v. United States, 250 F.2d 580 (8th Cir. 1958), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958).

Appellant does not contend that the trial court did not have jurisdiction over him, nor does he allege any infirmities in the information by which he was charged. He complains, rather, that hearsay evidence, improperly admitted, was the basis on which the Colorado District Court found probable cause in the Rule 40 proceedings.

The record does not substantiate Woodring’s contention. At the removal hearing, defense counsel stated that the defendant was Richard A. Woodring, the name given in the information. Woodring told an F.B.I. agent that he was “Richard Allen Woodring,” that he had robbed the bank and the manner in which he robbed it. The agent testified in the Rule 40 hearing to Woodring’s voluntary admissions that he committed the robbery.

There is sufficient evidence to show that the court properly performed its function in the removal hearing. The court expressly found that Woodring was the person named in the complaint charging bank robbery in the United States District Court for the District of Utah, a certified copy of which was filed in the District Court in Denver, that the crime of bank robbery had been committed, and that there was probable cause that Woodring was guilty of the crime charged. United States v. Provoo, 16 F.R.D. 341 (S.D.N.Y.1954); United States v. Binion, 13 F.R.D. 238 (D.Nev. 1952), appeal dismissed, 201 F.2d 498 (1953), cert. denied, 345 U.S. 935, 73 S.Ct. 796, 97 L.Ed. 1363 (1953).

Affirmed.