Lawrence D. Coleman v. The Honorable Arthur L. Burnett, United States Magistrate for the District of Columbia
477 F.2d 1187
D.C. Cir.
1973
Check Treatment

*1 Treasury Department, certified lawfully might been made well have Co., thereafter

Crescent Firearms appellant, unlawfully transferred pos- receipt and would make his which (b)— of subsection

session violation (c)— The

but not 26 U.S.C. § pertinent evidence introduction

record is Government’s he appellant

of the statement persons un-

bought firearm from Strip for self- 14th Street known (Tr. 30). protection judgment as to count is vacated count 2.2 as to

and affirmed ordered.

So al., et COLEMAN

Lawrence D. Appellants, BURNETT, Arthur

The Honorable L. Magistrate for the Dis- States Columbia, al. et trict

No. 71-1114. Appeals, Court

United States District of Columbia Circuit.

Argued June March

Decided disposes appellant’s Miran testimony police claim under The uncontradicted Arizona, da v. advised officer rights defendant was any questions 16 L.Ed.2d 694 before he was asked

1189 *5 criminally

ments of the accused at feder hearings. Appellants, al Jorge Coleman, Lawrence D. D. Dancis Shepard, and Ronald were arrested and charged with the commission of unre lated within the crimes District of Col Following umbia. arrest, each was brought judicial Axelrod, before a officer2 for Washington, C., Jon P. D. proceedings prescribed Washing- then Rule Lefstein, with whom Norman 5 of the ton, C., Federal Rules of brief, Criminal appel- on the D. for Procedure.3 Coleman and Dancis each lants. sought, denied, subpoena and each was Brewer, Atty., C. Madison Asst. U. S. requiring prelimi the attendance at his Flannery, with whom Thomas A. U. S. nary hearing only apparent eye Atty. Terry, Gregory Brady, John A. C. alleged Shep witness to his offenses. Joseph Hannon, Attys., M. Asst. U. S. during ard, preliminary hearing, filed, at the time the brief was C. Fran- Murphy, Corp. cis Counsel for the Dis- restricted in cross-examination of the Columbia, trict of Richard Barton W. complainant corroborating and a Gov Gorman, Corp. and Leo N. Asst. Coun- witness, presentation ernment and sels, brief, appellees. were on the of evidence of his own. Flynn Charles F. H. William Subsequent hear- Attys., Schweitzer, Asst. U. S. also en- ings, appellants joined in the three appearances appellee tered Burnett. complaint class-action the District FAHY, Judge, Before Senior Circuit sought They declaratory judg- Court. ROBINSON, McGOWAN Cir- hearings ments that Judges. cuit defective, were opening them, writs of mandamus re- injunction re- ROBINSON, III, SPOTTSWOOD W. straining, lite, pendente presentation of Judge: Circuit *6 grand jury their cases for considera- appeal This tenders for resolution a tion.4 The District Court denied preliminary injunction questions as to and the examinatorial entitle dismissed charged violating magistrate 1. Coleman was with anee before the and Rule 5.1 (1964) hearing. § U.S.C. and 26 with his §§ U.S.C. 4704(a), 4705(a) (1964), Dancis with Act, Magistrates Pub.L. The Federal violating 4742(a) (1964) 26 U.S.C. and 303(a), III, § No. tit. 82 Stat. possession drugs unlawful of im- narcotic (1968), § 18 U.S.C. pinging (1967), on §§ D.C.Code 33-402 implemented (1970), Rule which former Shepard assaulting deputy with a United 5(c) 5.1, in and now Rule is discussed transgression States in Marshal of 18 11(A), III(B), Parts infra. § 111 U.S.C. invoking Appellants, Fed.R.Civ.P. presented 2. Coleman and Dancis were purported repre brought the action as Magistrate. a United States See former composed sentatives of a class of them 636(a)(1) Fed.R.Crim.P. § U.S.C. similarly all selves and others situated. (Supp. 1968). Shepard brought IV was determination The District Court made no judge before a of the District of Columbia litigation main as to whether the could be (now Superior Court of General Sessions a tained as class action. See Fed.R.Civ. Court) sitting magistrate committing as a registered 23(c)(1). Appellants P. have pursuant (1964) § 18 U.S.C. objection error no or claim of (c) § D.C.Code 11-963 account. deem the omission harmless AVe 5(e), present 3. Former Fed.R.Crim.P. at the since we affirm as to Cole which is critically Shepard case, quoted the determina involved in this man and and since is open in note the District Former Rule 5 re- tion will be Court was infra. cently amended. our remand as to Dancis. Fed.R. Fed.R.Crim.P. 5.1 (effective 1, 1972). Now, Oct. Rule 5 Civ.P. appear- deals with the initial accused’s counts, action,5 appeal ensued. one in each two this two pre follow, He that his reverse indictments.8 insists we For reasons which charges liminary hearing, judgment at which the District Court's indictments were laid one declaration it denied a extent aired, fatally infirm and that we was that Dancis’ reopened.9 it be should now direct that faulty the case order and remand argues, must, may He he further be made. In all the declaration way ap plea affirm, does respects not stand in without but brought peal purpose. here for that prejudice criminal rectification agree. pending do proceeding Dancis at his the error committed consummating guilty a plea of A hearing. intelligent voluntary choice of avail ap- questions of the Some advanced ramifica has serious alternatives10 able peal or are common to cases two op proceeding. It for the criminal tions appellants.6 ap- more of the three Each material of all admission as an erates peal, however, also tenders issue counts alleged count facts present in either of the others. We dispenses to,11 pleaded thus separate- treat the three therefore cases important, prove More them.12 need ly. beyond plea however, effect of Government. for service this I. COLEMAN’S APPEAL plea admission is more than “[T]he joining appeal, After in this Coleman conduct; the defendant’s past it multiple was indicted in bills for vi two judgment of conviction consent that olations the federal narcotic laws.7 trial —a waiver a entered without days argument Two before oral on the jury or a to trial before appeal, plea guilty bringing he entered a an act judge.”13 thus It temporary 5. The District Court issued laid on 26 U.S.C. were These two counts restraining enjoining 4704(a) .(1964). order United text § infra Attorney presenting appel- States grand ap- jury gain admittedly lants’ cases to a until an strategy a de- tois 9. The pre- plication reopening.of injunction for cision favorable pos- liminary view to with a request pre- could heard. After District Court later motion sible liminary injunction denied, this court plea. to withdraw leave temporarily, continued the restraint Miller, appellees’ following States United dissolved concession Cf. 1961); (2d States Cir. the return of indictments would not (7th Swaggerty, 218 F.2d v. Cir.), preclude reopening challenged pre- *7 959, denied, 75 U.S. 349 cert. liminary hearings if found to be defective. (1955). 889, L.Ed. 1282 99 S.Ct. III(B), See Part infra. 33, Smith, 35 F.2d v. 407 11. United States discovery 6. These include the function of Fragus, ; (2d 1969) v. United States Cir. preliminary hearing and the effect of 1970) ; 1244, (5th Cir. 422 F.2d 1245 upon prior an indictment defective hear 869, States, 254 F.2d v. Newalk United ings, II(A), III(B), Berg 1958) ; discussed in Parts (5th v. United 870 Cir. (9th Cir.), F.2d 122, infra, present States, cert. 125 and the accused’s 176 137, denied, 876, 94 S.Ct. U.S. 70 hearing, 338 witnesses discussed Part States, (1949); Kahl v. United L.Ed. 537 (A), III infra. (10th 1953). 864, F.2d 866 Cir. 204 indictments, 7. There were two multicount Bishop, g., F.2d 431 v. 12. E. United States charges predicating each 21 § on U.S.C. (5th 1970) ; 481, v. Williams 482 Cir. (1964) 4704(a), §§ 174 and 26 U.S.C. 217, (5th States, 218 Cir. 290 F.2d United (1964). 4705(a) These have all sections States, 1961) ; v. Bartholomew United repealed. since been Pub.L. No. (8th 1961). 779, Cir. F.2d 781 286 III, 1101(a)(2), 1101(b)(3)(A), tit. §§ 742, Brady States, 1291, (1970), 397 v. U.S. 84 1292 but 13. United Stat. 1463, 1469, prosecutions by 748, 25 L.Ed.2d 747 90 were unaffected re S.Ct. peal. (1970). (1970). 1294 84 Stat. 1194 truly plea, an “intention prosecution end enters the it is to a successful establishing solemnly relinquishment of al or abandonment”17 offense so ac-

knowledged procedural of entitlements defenses : might which the defendant otherwise guilty purpose plea differs A have availed himself.18 admission or from a mere and effect confession; extra-judicial it it- is unqualified it that “[a]n So is verdict of a Like a self conviction. guilty, legitimately plea obtained jury More is not re- conclusive. is force, still in bars further consideration nothing quired; court to do has prem of all but the most fundamental give judgment and sentence.14 Emerging ises the conviction.”19 course, speak, from the numerous decisions on the sub of a ject plea guilty, rule un definition is the well settled that an which valid plea guilty understandably conditional waives all as well one is is which prior voluntarily plea prosecution cannot infirmities made.15 among jurisdic unless, which affect neither court’s on character take sufficiency tion things, nor the aware of substantive other the accused is conclusivity consequences,16 make indictment.20 The decisions of which its long corollary equally plain proceeding the least. But is not plea stands, if, hand, pos as the it bans consideration on the the accused appeal.21 types nonetheless of other of defects sesses that awareness 1968) Parker, States, ; v. 292 Cir. United States 14. v. 274 Kercheval United U.S. 2, (6th 1961) ; 582, 220, 223, Cir. L.Ed. 1009 F.2d 3 United States S.Ct. 71 47 (7th Alabama, Hetherington, 792, (1927). Boykin v. F.2d 796 v. 279 1709, Cir.), denied, 908, 242, 238, 23 364 81 S.Ct. 89 L. cert. U.S. 395 U.S. S.Ct. ; (1960) Hopkins 271, (1969); v. v. 5 L.Ed .2d 224 Machibroda United Ed.2d 274 (8th States, 229, States, 487, 493, 510, F.2d United 344 234 82 S.Ct. 368 U.S. 1965) ; Berg States, supra (1962). Cir. v. United 7 L.Ed .2d 473 125; 11, v. 176 F.2d at note Salazar McCarthy See, g., e. 15. Fed.R.Crim.P. 726, (10th Rodriguez, 371 F.2d 729 Cir. States, 459, 465-470, 394 v. U.S. United Guilty pleas survived, 1967). are how ; (1969) 1166, 22 89 L.Ed.2d 418 S.Ct. ever, by claims fails the indictment Gillies, 708, 724, Moltke v. 332 Von U.S. charge offense, g., v. e. Kolaski (1948) ; 316, 68 92 L.Ed. 309 S.Ct. States, 847, (5th United 362 F.2d 848 supra 14, States, note Kercheval v. United 1966) ; Marteney States, v. Cir. United 582, 223, U.S. at 47 71 L.Ed. 274 S.Ct. (10th 1954), F.2d 762 Cir. 216 the statute under which defendant Acceptance plea guilty of a or nolo charged unconstitutional, g., e. judge contendere is forbidden unless States, Haynes v. United 390 U.S. plea made . . . determines “that the 2 L.Ed.2d n. 88 S.Ct. understanding with ; parte Siebold, (1968) Ex 100 U.S. consequences plea.” Fed.R.Crim.P. 374, 25 L.Ed. 717 supra the cases note See also cited supra Compare Doyle, v. United States note 18. infra 718-719; 348 F.2d at Fowler Zerbst, 458, 464, 17. Johnson v. 304 U.S. States, supra 391 F.2d United 58 S.Ct. 82 L.Ed. 278; Taylor States, United (8th 1967), denied, States, cert. Cir. See Edwards United U.S. 181, 21 App.D.C. 152, 155, L.Ed.2d U.S. S.Ct. ; (1968) Haynes denied, United cert. U.S. States v. L.Ed.2d 82 *8 923; 722, (2d 1967). L.Ed.2d Kolaski Warden, 209, 19 v. United F.2d 381 213 Cir. 848; 20, States, supra 362 F.2d Doyle, v. F.2d 19. 348 United States States, v. 333 538 Jaben United F.2d Cir.), denied, (2d 382 718-719 843, cert. U.S. (8th 1964), aff’d, 381 85 Cir. U.S. (1965). L.Ed.2d 84 S.Ct. (1965). 14 L.Ed .2d 345 plea bargain- Washing all sense 20. v. “In a ... Id. United States right ; compromise ton, (3d 1956) ing to a of the 237 F.2d Cir. involves appeal. guilty plea States, 211 A works as a waiver F.2d Bloombaum United ‘non-jurisdictional’ (4th 1954) ; the violations of Fowler v. of all Cir. rights, States, (5th and it therefore defendant’s United

H95 Doyle,26 distinguish, in United but in terms asserted States We are unable appeal crimi- the court answered: bar, direct the a of appeal in collat- proceeding from an nal premise enough The the sound but here, litigation designed, to se- as eral follow. conclusion does not There are trial. cure at a criminal benefits ways sensibly a number of to deal departing with without such a case said, key to [conclusivity plea have As we from the A rule]. plea conclusivity waiver, expressly reserving point of the accepted and to litigation, ac by combines on further court with the Government’s understanding that would stipulation cused’s that the facts consent or a guilty pleading consequence charged are become in the indictment are two; willingness plead these, failing on those to so and his either of the de invalid, course, if plea simply The term.22 on his not fendant can stand guilty put that it would plea accused did not realize Government judicial proof developing determina sacrifice his its without a case legal issues tion of the factual and own.27 his appellate review.23 trial with ultimate agree, We and believe too that without surely is not barred And an accused competing values choice between the by pleading appeal pursuing from his rule-making statutory or exercise guilty him authorizes where a statute availability appeal powers,28 must inherent con do both.24 But there is an depend of the accused’s on the breadth that, in the notion absent such a flict waiver.29 system statute —the case the federal waiver was That Coleman’s intelligently waive ad —an accused can enough present encompass broad rulings pre-plea a view to re verse fairly open appeal is matter litigation keep posing still doubt on record. Unlike two appeal. alive issues on guilty, pleaded counts to which he against him of the indictments counts suggestion are mindful of the charged crimes for which there were judicial administra the ends sound anyone mandatory penalties,30 which might by permit tion be better served naturally The would wish to avoid. ting preserve rul adverse accused to willing accept Cole Government was ings legal appeal questions with carrying plea counts man’s lighter on the two potentially futile out the burden of a plea penalties, if the position was trial on the merits.25 That right away. tendered The were Govern-. States, U.S.App. Briscoe United becoming prevent violations those D.C. appeal.” Alschuler, The the basis for Zuckert, Redwine v. Bargaining, In Plea Prosecutor’s Role (1963). 130, 132, 317 F.2d (1968). 83 n. 78 U.Chi.L.Rev. plea Warden, supra say This is renders 24. not to See States United court, may By leave 214-215. the case moot. 381 F.2d at sentence, withdrawn or after before Wright, Practice and 25. 1 C. Federal See 32(d), if withdrawn Fed.R.Crim.P. 175, at 381 § Procedure prosecution resumes, It resumes. Supra 19. course, following any determination (footnote omitted). F.2d at plea invalidly entered. outstanding plea See Judicial Conference doctrine that valid ordinarily guilty litiga- Rules of Practice Committee forecloses further Procedure, Proposed upon Amendments tion does not rest notion that controversy consequence, Procedure of Rules of Criminal is dead. Its Courts, 11(c) accurately, District Rule United States more is that the issues are 1971) (3), (4) (Prelim. repose long plea 52 F.R.D. Draft a state of re- as the 409, 415-416 mains effect. supra at notes 22-23. text text at notes 16-18. See *9 ; (1964) Compare Warden, supra 26 § 21 174 U.S.C. 23. 30. U.S.C. States v. United 8, supra. 18, 4705(a) (1964). also note § note at 214-215 with 1196 Alford, In them.37 plain it not tutional attacks that would ment made open just perceived be acceptance to the no difference Court its of hold offer refusing appeal. guilty plea to litigate avow tween a this enable Coleman by one si appreciated and fully defense commission of multaneously offense This was counsel, maintaining the accused’s protested the Government’s who long Judge, is volun innocence.38 As each and

position District intelligently entered, acknowledged tarily himself, there and who Coleman understanding complaint.39 judge no cause for constitutional his trial plea both foreclose would Similarly, re the Government’s appeal.31 conclude Coleman’s We plea acceptance of its fusal extend guilty precisely outstanding plea has period continued this Coleman that effect. litigation plea.40 The did vitiate declination stemmed Government’s per plea, are against its concern that its case Coleman suaded, si Coleman’s unaffected might meantime, deteriorate protestation of innocence.32 multaneous judg our it is for us substitute usually guilty pleas accom are While Nor is this a “situation ment its. guilt,33 panied by express admissions of judge, prosecutor or which] [in in no wisé condi lack of that element charging deliberately employ both, their plea.34 v. In tions the North Carolina sentencing powers par induce flatly Alford,35 Supreme Court held plea of ticular defendant to tender a crime accused of individual “[a]n 41 guilty.” contrary, the record On knowingly' may voluntarily, and under supports amply the conclusion that Cole imposition standably aof consent to the plea voluntarily, man made his unwilling prison sentence even if he knowingly expense appeal. at the participation in or unable admit his prelimi hold that his attack on constituting the crime.”36 the acts nary hearing is now barred. Long Alford, prior decision imposed penalties who on defendants vigorously they did II. APPEAL maintained even SHEPARD’S charged offenses, but not commit the charged Appellant Shepard was pleas nolo

who entered nonetheless assaulting Deputy United States upheld contendere, were consti prisoner Marshal42 while a 31. Before 32. North 33. guilty, McCarthy 22 L.Ed.2d voluntarily with 15, pired : “determin[e] nature (1970). Supra Hudson Id. DEFENDANT COLEMAN: Yes. accepted, THE will [*] 394 defendant be no plea,” the District COURT: 91 S.Ct. note 32. U.S. Carolina v. United accepting v. 91 S.Ct. there [*] 418, appeal; you Fed.R.Crim.P. charge at United personally” and the will be If understanding 160. [*] and the Alford, this Judge Coleman’s States, L.Ed. 347 plea understand following plea no 89 S.Ct. [*] L.Ed.2d 162 11; “address[edl consequences [was] trial, supra U.S. order U.S. guilty plea see also trans that? 1166, there made [*] note 40. United States 38. North 37. 39. See 36. 32, Carpenters 973 L.Ed.2d 397 U.S. Ed.2d 785 348 F.2d at 1076 U.S. States, supra note 34. 330 281 U.S. Id. Brady 400 18 U.S.C. 400 397 U.S. 759, 770, (1947) ; (1930). Brady U.S. See also United Brotherhood U.S. U.S. Carolina 619, 622, 395, 412, (1970). at & Joiners v. United § 719. v. United McMann v. 37, Parker v. North at And see United States 37, 91 S.Ct. 50 67 States, supra Doyle, supra S.Ct. 91 Alford, S.Ct. S.Ct. States, supra Hudson S.Ct. S.Ct. Richardson, at 1470 S.Ct. at 424, 775, 167. v. 160. v. Carolina, 91 74 L.Ed. L.Ed.2d n. Norris, United States, 25 L. L.Ed. note *10 and four Guard Those of the District Columbia Rutherford.46 cellblock43 questions, main, judge A in the solicited testimo- Court of General Sessions.44 committing ny sitting disparaging assertedly court, as to remarks as a by personnel prison- presided prelimi- directed to cellblock over his magistrate,45 witness, Shepard, hearing. nary complaining ers other than and to the na- The any injuries Lonien, Deputy ture and extent of inflicted testi- Marshal John H. duty Shepard on Marshal Lonien and of in the fied that on while he was injuries Shepard allegedly cellblock, unpro- Shepard sustained committed judge striking out upon him, The also ruled him voked attack himself.47 Shepard’s proffer pur- photographs eye above the with a Another fist. porting post-altercation witness, to show his Ruther- Government Herbert physical condition, inquiry ford, employed guard of a de- in the cell- block, fense witness as to whether cellblock corroborated Marshal Lonien’s personnel testimony. had tried to confiscate the photographs.

Shepard’s permitted counsel con- The more common basis Gov- siderable latitude cross-examination objections they ernment’s to defense counsel’s of these witnesses as matters approach cross-examinatorial was that had testified to direct examination. venturing beyond however, the boundaries judge, he was The sustained Gov- hearing designed prob- explore objections in- ernment’s to a number of embarking quest quiries topics. able on a them on directed to other discovery specific complaint Shepard for of elements of the The refers to Govern- rulings judge’s ment’s After some amount us on eleven runs case.48 prior subject, Shep- questions propounded ambivalence on the Lonien Marshal 46. See note excluded: in that case. of Columbia. Marshal $300 D.C.Code ment Now some marshals Shepard, floor with other marshals? Shepard pened you? because of attempted to lead him? ing ' Q. Q. Can Q. Q. Q. [*****] * Q. Did ***** [*] [*] * escape attempt? subsequently following questions bond on a Did Did Did Isn’t on this Lonien on cross-examination prisoners § had 2, supra. Superior made 22-2202 making [*] * * [*] you you you this you you infra. been day lose prisoners, see Mr. incident? ever describe true, hear disparaging entered a nolle to move faster? petit to Mr. Luke racial * * [*] [*] Court of the District describe held in default of any any Marshal were directed to larceny time from work Shepard slurs [*] * * [*] beside Mr. The Govern- remarks how what Moore as and tell- prosequi Lonien, charge, other * [*] * [*] hap- you 48. There were other ness’ direct they questions, ford but confinement? led how Mr. Questions trouble Mr. place conscious attempt Shepard Shepard’s Q. Q. Q. Q. Q. * * Q. Q. ***** * Q. * ***** Q. * ***** were outside in? your Shepard on that date? Did Did Do Did Did Did Did Did Mr. in the cellblock as excluded were: principally ? injuries? * * * * * Rutherford, examination. you you handcuffs off? you you addressed to Guard you place you you Shepard you prisoners have a receive eye? ever describe ask know, see know who took Mr. see Marshal * * * * * objections anybody on the anybody Shepard part scope medical have Marshal they rendered * * * * * you riot? ground restraining what treatment kick Mr. are the wit- had Ruther- solitary Lonien, specific Lonien help? being * * * * * took Mr. un- *11 any attempt of further discov- of a valid waiver at ments disclaims now ard instance, litigation.51 distinguished In Coleman’s ery, refutation from as - did,52 argues plea us record satisfies that his probable further He cause.49 Shepard’s record on Marshal in we have no questions to addressed that Accordingly, the matter at all.53 we do bore Guard Rutherford Lonien and potential problem. relationship existence not to the consider this substantial probable cause. or nonexistence Preliminary Hearings Discovery A. at outset, put aside At 5(c) granted Former Rule the ac litigable which circumstance otherwise cused, present counterpart con and its Exercising to our come attention. has right confer, tinues to to “cross-ex judicially proceed power to notice our against pre him” amine witnesses that, cases,50 ings in related we learned hearing.54 liminary The true dimension argument oral and submission after depend to in con that bound court, Shepard plea of this entered degree upon the to siderable measure guilty a lesser included within to offense discovery by may be which the defense charge on indicted. which he was purpose de respect their to Cole stance Unlike signed turn, top That,’ in is a to serve. man, appellees have contended that not upon judges this ic which the court plea appeal, Shepard’s nor in affects his say expressed which, have to views side even make deed did either see fit to entirely least, have harm not been plea. pointed have us aware onious.55 One view has been that plea guilty operates as a that a out objective the sole hear of a only possesses ele- when it

barrier concluding position vided these After rules. 49. That clear us for became proceeding shall the commissioner time from a the first memorandum filed forthwith the clerk of the transmit had us. after the case been submitted to proceed- papers all in the district court Washington, See Craemer 168 U.S. ing bail him. taken ; (1898) 42 L.Ed. 407 Magistrates now exercise States United Eaton, 11 Butler v. U.S. formerly com functions committed to 35 L.Ed. Zahn S.Ct. Act, Magistrates : missioners Federal Corp., v. Transamerica 162 F.2d 303(a), III, No. tit. § Pub.L. 1947). (3d n. 20 Cir. (1968), 18 82 Stat. U.S.C. supra at 22-24. *12 for another It incorporated determining purpose; namely, That view has now been that of probable cause jurisprudence by whether there is into federal the Feder against justify proceedings further Magistrates al Act.57 degree Thus, person. arrested provides mandatorily, This Act preliminary discovery in obtained a exceptions considered,58 later to be hearing vary depending how will preliminary “a [hearing] ... presiding judicial much evidence the probable determine whether there necessary officer thinks is to establish cause to believe that an offense has been probable particular cause a case. person committed and arrested may quite bit, may This be be has committed it.”59 The reason the very little, but in either it need event indulges Act no pos- not be all the within the evidence independent discovery role is evident should session of Government that legislative During history. from its subject discovery.63 hearings before Senate Committee accordingly The Committee concluded64 urged Judiciary, on the “that witnesses procedure discovery “that should remain preliminary examination afforded a nec separate prelimi- and distinct from the essary and useful medium for defense ”65 nary examination. . . . discovery prose counsel to obtain of the matter, That settles Committee, evidence.”60 cution’s course, Shepard however, and others whose opinion was “of the hearings place problem took after the effective discovery should be treated date of the Act.66 The separately mission of the from that of the liberty, ; (1965) Dancy States, straints v. United U.S.App.D.C. examination should be held within 361 F.2d short time after accused is first Holmes Discovery, hand, arrested. on the other place usefully (1966). can most take at a later stage, trial, much closer when the Sirica, supra 56. Ross v. 127 U.S. nearly complete evidence is more App.D.C. (state 380 F.2d at 563 prepared. defense counsel is better Judges Leventhal). ment of McGowan and Id. at 34-35. Magistrates Act, 57. Federal Pub.L. No. 65. Id. at 35. III, 303(a), tit. § 82 Stat. Appellees suggest (1968), (1970). the Federal do § 18 U.S.C. Magistrates repealed 5(c). Act Rule As 140, infra, accompanying 58. See note Hinkle, was said United States v. text. F.Supp. (D.D.C.1969) : Magistrates Act, 59. Federal Pub.L. No. appears [I]t . . . that Sec. 3060 III, 303(a), § tit. 82 Stat. repeal (c), as amended Rule 5 does not (1968), 18 U.S.C. § posed the two there is no conflict when S.Rep. pari Rather, Cong., are read in materia. Sec. No. 90th 1st Sess. 3060 serves as a clarification of the determining applied standard to be Id. pre- particular whether in a case Id. so, liminary hearing for, if is called Id. hearing. purpose of the specified 5(c) comple- hand, 64. The Committee another On the other Rule by providing reason: ments Sec. 3060 addition, evidentiary procedural In because its fundamental rules to be purpose prevent unjustified applied is re- when a is held. investigation proceedings stage probable into is a critical is an process proceedings criminal at which the for further Sixth cause right obtains,70 include discov- Amendment counsel It does not the accused. pointed ery discovery. To out as one of considera- for the sake holding supporting sure, tions lawyer’s of- “the the Government its the evidence probable na- skilled examination and cross- fers to establish may expose discovery examination of witnesses So for the accused. ture also [prosecution’s] fatal weaknesses adduced cross-ex- also is information magistrate to case that lead the Government witnesses amination of refuse to bind accused over.”71 aspects of direct-examination testi- the mony right tending up to counsel is the Since to build cause. counsel,72 discovery assistance of Cole- senses, effective becomes In those some requires Shepard’s man to evaluate by-product process of demon- us challenge strating with the increased solicitude in no cause. But rights appropriate when constitutional discovery legitimate unto end sense is *13 done, are at stake.73 This we have itself. we are led to the conclusion that the Preliminary B. Hearings at Cross-Examination disposition Shepard’s District Court’s grievance of not should be disturbed. merely discovery say To that According Shepard’s to pre primary of federal not a function purpose appeal, coun brief the hearings liminary respond in questions sel’s cross-examination Shepard completely poses. the issue the two witnesses was to Government 5(e) said, As we Rule con have former “(a) physical that there were no show right upon the accused the ferred (b) injuries Marshals; there 67 against him,” “cross-examine witnesses injuries Shepard ren were severe to Mr. right enjoy.68 and Moreover, he that continues dering unconscious; (c) him the assault Alabama,69 the in Coleman v. subterfuge charge brought for as a holding Supreme Court, pre in that a conduct; (d) the the Marshals’ own liminary probable to ascertain disparaging provoked by Marshals were cause to bind an accused for additional ination the witnesses at the State’s 5.1(a) confirms now Fed.R.Crim.P. trial, preserve testimony or favorable Advisory view. Committee’s Note See the accused of witness who does thereto. appear Third, at the trial. trained supra. effectively the counsel can more discover 54, supra. 68. See note against has his client and case the State possible preparation proper L.Ed.2d 69. 399 90 S.Ct. 26 the U.S. make (1970). 387 at the trial. defense to meet case Fourth, can influential counsel also be 7-10, Id. at 90 making in at hear at federal to counsel arguments effective the accused on statutorily granted. ings Criminal is also necessity early an such matters as No. Justice Act of Pub.L. psychiatric 399 examination bail.” amended, (1964), 18 552 § 78 Stat. at 2003. 90 S.Ct. U.S. (1970). 3006A(b)-(c) § U.S.C. Alabama, g., 72. E. Powell v. “Plainly guiding hand of counsel (1932) ; L.Ed. 158 pro- preliminary hearing tlie is essential Hammonds, U.S.App. United States indigent an tect accused 600-601 D.C. F.2d prosecution. First, improper erroneous or (1970) ; States, Harried lawyer’s cross- skilled examination and U.S.App.D.C. 330, 333-334, F.2d expose may fatal examination of witnesses 284-285 Bruce v. United may case that weaknesses State’s magistrate to refuse to bind the lead Second, any event, over. accused interrogation by Compare Fauntleroy, skilled of witnesses Brown v. U.S. experienced lawyer App.D.C. 116, 2, 442 F.2d can a vital & n. fashion impeachment & 2 tool for use eross-exam- n. hearing, trial, by prisoners scope Mr. as at than of the remarks (e) Shepard; direct there confusion witness’ examination. To the was mass ex- seriously impeding tent it is not—and in the cellblock here it was not (f) Marshals; perception ostensibly, of the —cross-examination even if Shepard undesignedly, that Mr. there evidence becomes an effort at some self-defense, discovery. suggest acted in if he acted at sort of We do not magistrates difficulty indulge The first en- all.” have varia- handling offering is that of the from the countered tions usual order of evidence, during presentation cross-examination made this understand- ing by. permit all too difficult to come Cross- case Government’s defense to get preliminary hearing, examination at a its elements of own. But when hearing itself, range like the is confined cross-examination exceeds principle probe unaccompanied by into direct examination proba- cause is the end and aim elucidation of its connection with proceeding,75 cause, and the line between refu- ble small wonder that discov- discovery ery goal. tation of cause and is taken to examiner’s prosecution’s into the case ofttimes is important An even more purpose pro thin. Here counsel’s consideration stems from the difference pounding questions pre- which the objective between siding judge unquestiona- excluded was While, and that of the trial. bly blurred the fact that fre- counsel course, proof conviction necessitates quently appeared imper- off on an beyond trial of all elements a crime *14 discovery. quest missible for At no doubt, pur reasonable it suffices for rulings prior complained time to the of poses binding of a over for trial that the judge’s did counsel delineate for the edi- “probable evidence cause to show believe fication the factual thesis he seek- was that an offense been committed has and ing Only promote. hearing to as it.” that defendant has committed close, rulings neared its and after is not a mini- made, any- had been did counsel broach guilt, trial of the issue of is rather thing remotely to similar the defensive investigation an into the reasonableness theory explained appeal.76 now on Our charge, of the bases and exami reading record leaves us nation of witnesses thereat does en presiding with the conviction that joy the breadth it at trial.78 commands judge, ruling ques- when on counsel’s Supreme preliminary hearing,” “A tions, hardly could divine what counsel said, ordinarily Court has a much “is Therefore, say had in mind. we cannot searching exploration into less the mer barring that he committed error re- simply trial, its of a case than a because sponses inquiries to that seemed unrelat- its function is more limited one of evaluating ed to probable the task of determining probable cause ex whether cause. hold ists to the accused for trial.” Moreover, cross-examination proba It contrast is the of properly beyond to be limited proof ble a cause and reasonable Appellants, goes Court, Brief for at 12. that the case over District to place an take this assault didn’t and 11(A), supra. 75. Part up. was a cover point 76. At that counsel stated : specified 77. That is the standard both If I could show this hear- present 5.1(a). 5(c) Rule former Rule and ing, Honor, Your the reason this 54, supra. charge brought up was a to cover Green, 78. See California v. 399 U.S. wrongful Shepard, assault Mr. and 26 L.Ed.2d you go would me let into some these (dissenting opinion) ; Moore, 8 J. Federal questions as to who made the decision (Cipes 1965). ed. § 5.1.02[3] Practice charge what and Marshal Lonien [the afterwards, Page, witness] did I I think could Barber v. prove right now, to Your Honor before 20 L.Ed.2d presentation In inevitably were excluded.83 for exami makes doubt cloudy event, prelimi situation is far too between differences natorial extraordinary grant re a Probable warrant the trial. nary Shepard to lief which seeks. signifies sufficient evidence cause ordinary prudence and person of a cause Magistrates presiding over conscientiously a entertain caution hearings, no less than guilt.80 of the accused’s belief reasonable trials, judges presiding en over are doubt, on strong beyond reasonable a Proof supervise powers dowed with broad hand, evidence connotes Beyond examination witnesses.84 abiding enough conviction to create that, they indulged some lee should be gap certainty.81 The guilt to a moral way probable their resolution cause concepts A is broad. two these between magistrate upset issues. these Courts should not may about satisfied become judgmatic supervisory exercises unless a he probable less than on much cause clearly excess or a decisional error is he be convinced. Since need to would shown,85 perceive do not either we guilt pass inno not sit does Shepard’s permitted here. counsel was legitimately proba cence, find he could to cross-examine each Government wit entertaining personally while ble cause closely ness di elements token, By the same some reservations. testimony and, rect for the reasons stat stop showing probable cause ed, say we cannot disallowance beyond a considerably proof short questions improper. out ruled doubt, evidence reasonable reasons, For similar say are unable may yet demonstrate some doubt leaves photographs ques that the the possessed before In the instance probable cause. tions defense witness on di us, testimony of two witnesses tendency such to dissolve than more furnished rect examination cause their exclusion was erroneous. finding of ample foundation A writ of mandamus lies to enforce cross-examina which the duty; plain, positive it is not available ap impair. By our did tion allowed response to exact a dubious claim.86 theory praisal the convoluted defensive *15 obligation best, At the reverse says Shepard wanted now he rulings on the excluded en evidence is 82 change likely develop the was not tirely accordingly too unclear. We af potency basis its as a result. Whatever Shepard. firm as to trial, capa its doubt at for a reasonable enough bility of the Govern to dissolve III. DANCIS’ APPEAL negate probable showing to cause ment’s Dancis, highly improbable. appellant, our third us was strikes speak as charged only the two violations of the cross-examination Mari juana charges Act.87 items Tax The was came on which banned Shepard’s purport for ventilation on at a which similar Compare People Wisecarver, Id. 80. v. 85. 67 Cal. 203, App.2d 778, (1944) ; P.2d 153 781 U.S.App.D.C. Laughlin Reynolds, v. 86. 90 Gilbert, 179, 2 v. Stroman Conn.Cir. 197 414, 415, 863, ; (1952) 196 F.2d 864 (1963) ; Howland, 99, 102 v. A.2d State Chapman R.R., v. 90 Santa Fe Pac. U.S. 352, 801, 110 153 Kan. P.2d 806-807 App.D.C. 34, 498, 38, 198 F.2d 502 (1941). denied, 964, (1951), cert. 72 See, g., States, v. 81. e. McGill 121 United 1058, (1952) ; 96 S.Ct. L.Ed. 1361 Clark 4, U.S.App.D.C. 179, F. & n. 348 183-186 Memolo, U.S.App.D.C. 65, 67, 85 174 791, (1965). n. 4& 2d 795-798 ; Hull, (1949) F.2d 980 Hammond 301, 303, U.S.App.D.C. supra at note 76 131 text 74. See (1942), denied, cert. 25 318 63 U.S. 47, supra, and text fol- note See 1145 87 L.Ed. lowing note 47. F.Supp. 4742(a) (1964), Bates, § which 26 was States v. 287 U.S.C. United repealed by (E.D.Tenn.1968). since Pub.L. tit. No. 660-661

1203 Magistrate argues States over which United Daneis that each of magistrate presided. two The denied his flaws vitiated his hear ing. requir- magistrate’s request subpoena One is counsel’s that refus ing un- al to him of an unnamed allow the attendance access the undercover agent’s apparently testimony agent, prejudicial was the dercover who was error. eyewitness The mar- sole available the two that the Confrontation ijuana magistrate’s Clause to Daneis. outlaws transactions attributed find ing probable solely upon The at Government’s witness cause agent’s hearsay agent’s supervisor, testimony was testimony alleged supervisor.89 unnecessary whose trans- as We deem it necessarily hearsay, posed reach the actions was as constitutional issue identity simply to the transactor’s second Daneis’ contention90 because agent agree ground we that had identified Daneis that he is sound on six-year advancing photograph. from a old the first.91 magistrate, finding Preliminary A. Evidence at Defensive grand cause, jury action, held Daneis for Hearings Court, and the District under case review, legally 5(c) held that Former Rule confirmed right sufficient. of an accused to “introduce ev III, 1101(b) (3) (A), Sirica, supra 84 Stat. § Ross v. which, however, (1970), prosecu U.S.App.D.C. left 330 F. tion unaffected. 2d Stat. Howard v. United U.S.App.D.C. 336, 341, prosecutions, 88. “In all criminal (1967), question was probable as whether a enjoy accused shall . finding of cause to hold the be confronted with the witnesses predicated accused answer be U.S.Const, him . . . .” amend. VI. hearsay alone, g., Washington evidence e. it, argument, Clemmer, 89. The understand supra, totally hearsay be as ex See, must however, F.2d at id. at preliminary hearings it is (statement cluded from 339 F.2d at 724-725 trials, but seems rather to be Judge Burger). [now Chief Justice] dependent Now, however, elements pro 5.1(a) Fed.R.Crim.P. upon eyewitness observations finding “may cannot vides based wholly hearsay upon hearsay on a basis. established or in evidence whole hearsay may part.” an arrest “Credible” underlie supra. Harris, g., warrant. E. States v. accept argument 90. We cannot 573, 579, 2075, 29 L. 91 S.Ct. U.S. Alabama, supra Coleman v. estab Warden, (1971) ; Whiteley Ed.2d validity lishes contention. 28 L. U.S. Coleman vindicates Sixth *16 the Amendment (1971) ; Ed.2d v. 306 States right preliminary hearings, to counsel Thornton, 454 147 II(B), supra. see Part But did Coleman sup (1971). Hearsay may 957, F.2d 960 right not the issue of touch to confronta port grand g., jury a indictment. E. hearings, tion at and other such decisions 359, Costello v. United 350 U.S. speak the to confrontation ; (1956) 363, 406, L.Ed. 397 76 S.Ct. 100 Evans, 74, trial. Dutton v. 400 U.S. Callahan, 852, v. F.2d 439 United States 210, (1970) ; 91 L.Ed.2d 213 S.Ct. 27 (2d Cir.), denied, 826, 860 cert. 404 U.S. Green, supra v. California note ; 56, (1971) 92 30 L.Ed.2d 54 S.Ct. Texas, 400, S.Ct. Pointer v. 380 U.S. 85 Aloisio, 705, v. 440 F.2d United States 1065, 13 L.Ed.2d 923 As stated (7th Cir.), denied, question text, 404 do the 707-708 cert. U.S we not reach on appeal. 824, 49, (1971) ; this 92 51 30 L.Ed.2d . Daddano, 1119, questions v. 432 United States F.2d are to 91. Constitutional (7th 1970), denied, impera 1125 Cir. cert. 402 to resolved unless the need do so is 1366, Rosenberg Fleuti, See, g., 91 S.Ct. 645 U.S. L.Ed.2d e. v. tive. (1971) recently, question . Until the 83 S.Ct. L.Ed.2d 97 U.S. hearsay pre (1963) ; Texas, whether was admissible in Bush hearings us, liminary open remained 83 S.Ct. L.Ed.2d 958 Washington Clemmer, U.S.App. Army Municipal Court, see Rescue following remand, D.C. 91 L.Ed. U.S. U.S.App.D.C. 226, 229, prelimi explore on cross- his their account own sel to

idence nary his behalf” magistrate hearing.92 imposed the re “sits It also The examination.” judicial decision all the quirement that an affirmative a officer sift evi- resolving probable “on probable reached before cause be dence on ”98 specifications . He “cannot cause issue. . . evidence.”93 The ground 5.1(a) subpoenas present identical.94 Rule are decline to issue on hearing only preliminary is evidence is a federal Government’s Thus that probative.”99 only upon which the occasion justify de must continued Government cause, provisions These showing by probable a tention interpretations of and our them Rules opportunity for the accused an but also holding by 5(c) showing.95 are now reinforced Rule to rebut v. Alabama100 that Sixth Coleman the ar much it clear made is for the accused the Amendment secures mini prerogative to endeavor restee’s of counsel at probable assistance cause as it is Govern mize having purpose it, for its deter ment’s to undertake to maximize probable to hold him indulged mination on cause reason must that both sides Among proceedings.101 for further respective ably in their efforts. And contributions, potential prob counsel’s demonstration Government’s stated, is examination Court “skilled diffi able cause must surmount not may . witnesses ex [which] culties of its own attack [prosecu pose may fatal weaknesses be able to mount accused magis may lead the case tion’s] it.96 to refuse the accused trate to bind sum, which In “the evidence” gainsaid It that what over.” cannot be guide prob must alone resolution for Amendment mandated Ala the Sixth is cause issue the whole evidence— able it exacts bama’s prose the defense as for the well as equally for the federal hear magistrate must “listen to cution. exclusively ing which, repeat, is all witness [of versions [the] probable exploration into cause hold and observe their demeanor es] prosecution the accused answer provide opportunity coun- to defense doubted Nor it be further.103 can 54, supra. 92. See note magistrate, presentation and warrant- supra. are on information less arrests made See arresting parte ex communicated 54, supra. See function of the The traditional officers. accused either 95. This the undertake preliminary hearing determina- is second production of witnesses of own probable cause, after this time tion pre- witnesses cross-examination op- according the a reasonable accused by tlie Part IX sented Government. portunity the accused rebut it. Unless (B), supra. indulged respect, in that 96. While standard duplication little than a more pre- which the Government must meet at foreran cause decisions liminary hearings roughly equivalent his arrest. required standard issuance of an Sirica, U.S. 97. Ross arrest warrant or for an arrest without *17 (state 18, App.D.C. 565 at F.2d at 380 77-81, warrant, supra see text at notes Leventhal). Judges and ment of McGowan hearings procedure preliminary at the 12, at 559. 98. Id. at 380 F.2d upon that from the issuance of differs in at least warrant or warrantless arrest 99. Id. important respect. very That dif- one Supra 69. 100. note ' presence the accused at ference is of the 1999, 26 at 90 101. 399 S.Ct. U.S. right the and his L.Ed.2d 387. prosecution witnesses and cross-examine 71, 9, note at 90 at 2003. See 102. Id. evidence in his own behalf. introduce supra. warrants, hand, are Arrest on the other parte II(A), supra. Part issued ex 103. See Government’s

1205 production more the mere Coleman demands than of a Government witness at hearing. The presence hearing, of at counsel his he where right showing Coleman declared plausible to counsel which succeeds pious significantly more no than a could would amount witness contribute right accuracy probable to counsel it is of the overture unless cause deter- efficaciously mination, request subpoena in his cli- able to function for granted. “This,” ent’s Amendment’s behalf. Sixth we have should pledge guaranty said, principal is a of effec- of counsel “is consistent with counsel,104 and Cole- purpose tive assistance prelimi- man makes clear that federal the ev- it mechanism determine whether stages nary adequate probable hearings, critical of crim- to establish idence 110 require prosecutions, If the no less. inal cause.” reduced accused’s counsel is to a state testimony of the under think discharge re- impotence in this agent pre desired at his Dancis cover sponsibility, ac- is evident it liminary hearing standard met very deprived of the benefit cused is materiality. aught appears, From Amendment’s boon which Sixth person only who he was available designed was to confer.105 counsel charged testify to mari could the two personal juana transfers observa normally So, accused is tion, by the token the one same subpoenas compelling the at entitled identify party directly re could who at tendance his sponsible cause them. Since testimony ap promises witnesses whose prose for further to bind over Dancis preciable prob assistance issue depended on the caliber cution test, past cause.106 The utter able our showing that he was that Government’s indicated, subject have cou ances party he did on the two and that what ples materiality107 the witness’ with an illegal, scrutiny it under was occasions good requiring absence not request he seems clear witness presence,108 operation its does bearing given testimony have ed could might depend upon which side have critically upon In those matters. Wash expected been call the witness.109 ington the com v. Clemmer111 every Certainly an will accused sought, plainant rape in a who case qualify subpoena instance for a for the 107. Ross v. 106. Ross v. 104. See we stated in the latter alibi App.D.C. 163, 170, complaint who for some ington App.D.C. App.D.C. ington App.D.C. 158; Newberry Wingo, 72, be called on this Compare 287 U.S. at (6th witnesses, material witnesses named in the eases Clemmer, supra Cir. Powell v. at at at Clemmer, supra Sirica, supra Sirica, supra 65 S.Ct. 13, White 1971). States v. cited are the 71, 380 F.2d at v. 329 F.2d at 718. See supra Alabama, v. basis, F.2d at 978, case, Ragen, note note complainant note Huff, reason have 89 L.Ed. 1348 F.2d those note 72. 449 F.2d 55, 560; 55, at 718. As addition to supra “ 127 U.S. 77 127 U.S. 119 U.S. [1] Wash Wash L.Ed. ikely U.S. note 344, not 110. Ross v. 109. Ross App.D.C. Leventhal). Washington Ross v. App.D.C. App.D.C. n. of other supra been witnesses unable to the witness’ witness U.S.App.D.C. *18 Supra Limitations (statement 11, U.S.App.D.C. called note evidence, negative Sirica, note 89. at testify, Washington at 18 have been Sirica, Sirica, supra F.2d 89, physically testimony at on the Clemmer, supra 119 n. supra at 718 n. the Government.” 219, Judges at U.S.App.D.C. recognized 339 note could F.2d at note McGowan and F.2d at psychologically F.2d 11, 339 F.2d at not, v. where 559-560; Clemmer, 127 U.S. 127 U.S. subpoena at 127 U.S. at cause, where light 219 119 n. only eyewitnesses told him if the three what and in Ross v. eyewitnesses these Sirica available, eyewitnesses In cases the so to a murder. both can their ac that he can listen to versions we denial of accused’s held that demeanor, error,113 appears pro- and their and was observe cess to them eyewitness opportunity vide an to defense counsel to the sole us equal explore transgressions their account cross-ex- laid to Dancis was presence ly amination. The of those wit- material. falling impresses nesses us as within Ross, As we admonished rights of the conferred orbit reach the ac the full of “[w]hatever of accused the fourth sentence rights subpoena at a cused’s 5(c). Rule . . . hearing, to com- he is entitled . . . Indeed, problem addressed in Ross eyewitnesses pel un- of the attendance compounded us before is situation less, course, physical or 'because at now. evidence The Government’s disability particular psychological in a hearing not Dancis’ was case’ cannot attend.”114 such witnesses hearsay only hearsay but without also the more so when the nature That seems any apparent means of refutation what- presentation at the Government’s agent ever. The undercover was hearing taken Dancis’ fully absent from the but at of- into account. Government totally He time was also unidentified. witness, tes- one and he could fered but against sign complaint Dan- did tify on the vital issues offenses and it, cis, nor he named and the tes- was hearsay, identity only evi- from it is timony referred to him at showing. dent that weakened simply by De- his code name “John P.” hearsay employed, To extent inquiries fense on cross-exami- counsel’s probable be- the effort to cause establish name, nation as to real and even as prone re- more to attack since the comes generic characteristics,116 objec- drew hearsay liability declarant of the absent tions Government which the from the always becomes added factor magistrate sustained. There little was Ross, where, reckoned with. In similar- nothing .presen- in the Government’s ly to one Dancis’ case Government’s reliability tation lend credit to witness at a agent pur- either or the observations charge police who murder officer incriminating identifying portedly merely relay eyewit- could what three imagine It is a case Dancis. difficult crime, told two had him about the nesses helpless wherein the accused more judges observed, aptly of this court hearsay defend attribution dispute rest, without from the cause. engaged judicial judi- A officer in a say, do, testimony To that the cial determination of the absent witness was material does hardly easy solely can rest with the necessarily not mean that the refusal of hearsay policeman account of Judges Leventhal) ment McGowan Supra 1 12. note 55. (footnote omitted). Washington Sirica, 1 13. v. Ross note Clemmer, supra U.S.App. note U.S.App.D.C. at 380 F.2d at D.C. at 339 F.2d at 728. Washington Clemmer, supra note U.S.App.D.C. inquired at F.2d at 116. When defense counsel supervisor undercover officer’s on cross- “Now, full examination what is John P’s Sirica, supra Ross 127 U.S. name?” “What officer’s nation- App.D.C. quoting at F.2d at ality?” race?”, “What is the officer’s Washington Clemmer, supra magistrate objections sustained n. question. each Government n. 11. Sirica, supra 115. Ross v. 127 U.S .App.D.C. (state F.2d at

1207 vitiating subpoena B. was error Indictment the preliminary Return of hearing. may A refusal Concluding as we do that justified, finding proba- and if it is a magistrate refusing erred Daneis climaxing hearing must ble cause the benefit of the undercover officer’s us, The record before how- stand.117 testimony, we left are to determine how ever, singularly any devoid of such is the mistake should be corrected. The justification. is no hint that the There question confronting first that effort is physically undercover officer was una- whether the indictment returned subpoena any way menable or Daneis forecloses rectification of the er responding disabled from to it.118 There ror. It well settled that an indict suggestion is no information proba-' ment itself establishes sufficient episodes exploration about under holding ble cause for trial,123 the accused for any privileged was to com- extent from explains why and that we have pulsory Nor there a ba- disclosure.119 consistently held that he is not entitled attributing sis for the denial sub- of the hearing where he is in exigencies poena undercov- hearing Typical dicted before a is held. magistrate operation.120 er did not situations are those wherein the accused predicate upon any the denial of these prior indicted to arrest on the grounds, nor did the Government even charges,124 prior or to the date set for urge any of And them. to the extent preliminary hearing charges,125 on the may that the record indications furnish custody where he is in on another magistrate was satisfied charge when indicted.126 In none of cause without these can a instances hear agent,121 repeat undercover it suffices ing probe probable serve need properly issue thereon cannot accused, to detain the for the indictment accommodating without rea- resolved has fulfilled need.127 Nor can prosecution sonable demands merely be invoked as a device production of evi- obtaining defense for discovery, discovery capable shaping dence outcome.122 independent of the ascertainment of 108, accompanying supra, 1 17. note supra See 122. text at 95-99. *20 relitigation ques- the of dictment bars of probable not one its cause is course, cause, probable of tion of but the functions.128 disrespect of fact remains that save for however, us, The case before rights the larged he have en- accused’s would given markedly Dancis was a different. insight his into the Government’s hearing pending preliminary on the by-product case a of ef- him—as charges prior the return of indict probable pro and in forts con on cause allega hearing, his ment. At that the of submis- course the Government’s right then tion, the con he was denied Since, however, 5(c) a sion. Rule 5(c) Rule to examine a ferred former part dishonored, lost a was the accused in his behalf. That conten witness own by-product, and have held of that we tion, think, keeps de Dancis court hearing reopened to should be that the spite post-hearing of the rendition the opportunity to re- afford accused indictment. part which has been lost.132 trieve requirements Where terms of the past our deci- That is rationale of hearing Rules, preliminary of the respecting post-indictment supple- sions obviously defective, enti- the accused hearings. sup- mental hearing reopening tled of to en- hearing plemental was not an occasion able if that remediation defect cause, probable for of a reexamination grand jury can before a acts be done that for the had settled issue. indictment say prelimi- the nary hearing[] “To matter. discovery purpose Nor its its for was say tois defective [was] discovery sake, own but such as cause that the determination accompanied inexorably would have scru- inadequate operate was and should not 5(c) pulous Rule observance liberty deprive his the accused of right. Reopening grand pending jury consideration.”129 emerged ap- then, hearing, both Accordingly, we not hesitated to di- have propriate for sanction and remediation hearing supplemental preliminary rect a violations, unlike, 5(e) of Rule original on hearing demonstration at though than, more famil- less drastic get just did accused 5(a) iar of former Rule which sanction course, remedy,' due.130 That is addi- Mallory Supreme decision Court’s prerogative to the tional accused’s supple- supplied.133 The effect of dissolution of the commitment seek a to confer mental only much inci- itself.131 the benefit of so accused discovery been his would have dental have, moreover, adhered infringement 5(c).134 Rule deprivation that such a can rem- view development prophy- this Since our by reopening even edied however, doctrine, the Federal lactic in- after return of an indictment. The case, ob- statements the doctrine of II(A), supra. 128. Part See unreasonable an arrestee after tained from Sirica, supra 129. v. note 127 U.S. Ross presenting delay in him to a commissioner (state App.D.C. at F.2d at 563 (now magistrate) from the are excluded Judges Leventhal). ment of McGowan McNabb v. at trial. evidence States, 63 S.Ct. Clemmer, 318 U.S. supra United Washington note 130. v. L.Ed. U.S.App.D.C. at F.2d at U.S.App.D.C. at at F.2d Sirica, supra Ross at 12 n. at Chernenko, 303 F.2d Di Cesare v. 131. See 16-17, 18-19, F.2d at n. id. (4th Cir. 1962). 423, 424 (statement Judges 563-564, 565-566 supra Sirica, 127 U.S. Ross Leventhal) ; Blue McGowan App.D.C. 560-561. F.2d at States, 119 U.S. United App.D.C. at 899- Mallory By 1 L.Ed.2d 1479 hearing.142 Ross, adopted, But like other deci Magistrates Act135 was theory day, sions its rested on the Act has question whether becomes naught. discovery a function The Act was as much doctrine for set the as an investi lays the broad mandate down gation to bind the into be offered an arrestee prosecution.143 The hearing,136 must be accused further for which the date decided, passed a Act Ross was appearance before after initial fixed at his *21 imposed magistrate abso judge and whether or not it an his arrest.137 or after reopenings preliminary hearing lute ban on “within be conducted The must hearings, certainly destroyed following ap- discov initial reasonable time a ordering ery a any reason for pearance, event not later in but nothing reopening.144 Furthermore, in days re- where the arrestee than” ten holdings twenty days any custody138 Ross nor in of our other or mains inexorably enlarged required supplemental hear interim.139 where he is ing might procedure however, specifies, when another do in Section Act equal superior con 303(e) preliminary examina- or service. On the that “[n]o trary, practice required to be it was our uniform to rel tion . . . shall be egate person problem remediation, not to an arrested accorded magistrate, judge any subsequent the initial to the trial if at time deficiency preliminary person a when appearance of such before hearing light magistrate prior judge to the first came to after ac or preliminary examina- cused had been convicted.145 date fixed for the re- an indictment tion ... importantly, Ross Even more turned. ...”140 predated the Act but also Supreme ponder in Coleman the Act decision need whether Court’s Alabama,146 post-indictment an and Coleman introduced to a erects a barrier remedy problem which pretrial reopening element of a seriously occasion not hitherto had- defective un this court has which is put what specified To in a nutshell in the Rules. to consider. der the criteria elucidate, sure, remedy provided identifies in we later Coleman To be we right as Sirica,141 to effective com the constitutional Ross v. in circumstances pre here, as an incident sistance of counsel parable was a remand to those yindiea- hearings liminary magistrate supplemental assures for pursuant 303(a), 90-578, III, to subsection dition of release tit. § 135. Pub.L. No. subsequent any (d), (1968), time if at § 18 U.S.C. 82 Stat. person appearance (1970). before 3060(a) of such initial magistrate prior judge the date 136. Id. pur examination fixed for 90-578, III, 303(b), (c) (b) 137. No. tit. in § Pub.L. subsections suant (1968), appropriate or, § 82 Stat. U.S.C. dictment is returned 3060(b) (1970). against cases, filed such an information is person in a court of the United States.” 303(b) 90-578, III, tit. § 138. Pub.L. No. III, 303(e), § No. tit. Pub.L. (1) , (1968), 82 Stat. 18 U.S.C. (1968), § 18 U.S.C. Stat. 3060(b)(1) (1970). § 3060(e) 303(b) III, § 139. No. tit. Pub.L. Supra 141. note 55. (1968), (2) , U.S.C. 82 Stat. F.2d at 3060(b)(2) § in com examination 140. “No id. at F.2d at 559. See (a) pliance this section subsection required II(A), supra. to be accorded shall Part person, arrested nor shall such arrested 145. See cases cited note 160. infra custody person discharged or from from Supra any requirement note 69. con of bail or evident, then, open unnecessary, in this It It tion of that case.154 right.147 against then, us to decide whether an indictment that the return of need event such a would be available cannot eliminate the accused issued, after an indictment and that procedures kind to redress has of some day. pretermit to another On decision of the Coleman violations right.148 Coleman-type hand, reme- the other Remedy C. The trial, prior em- dy, invoked when Coleman v. Alabama155 bestowed array for dissi- alternatives braces an protection Dancis an inviolable So, pating potential prejudice.149 even flowing consequences harmful reopening survives if magistrate’s permit refusal to alternatives, of these the Act as one agent examination of undercover particular compel cannot Dancis Coleman hearing.156 choice. guidance proper offers as to the following extraordinary where, trial course be taken rem- is an Mandamus *22 conviction, only the seeks to rem a accused to enforce available edy,150 deficiency edy his a constitutional clear, It unequivocal does duty.151 hearing. preliminary Coleman, the In lie to an exercise control judgment.152 entitled, not determine from the Court say, notwith- Dancis, could is we protection the of counsel standing indictment, record whether absence to the hearing magis- resulting the from actually accused’s injury the trial, prejudice so worked at his is not But Dancis trate’s mistake.153 pro- it the conviction and remanded vacated necessarily that to receive entitled to for an through case the Alabama courts supplemental the tection assuming inquiry on In event that magistrate, even before score.157 found, remedy prejudice open aas that course that the Act leaves if, trial; applying Additionally, would be new we later possibility. Chapman v. test out set supplemental suffers discuss, a in it was found that by comparison alternatives California,158 denied, 41, 901, 902, 8 F.2d cert. 270 U.S. at notes 155-159. See text 147. See infra 650, 351, (1926). 69-73, 46 70 L.Ed. supra S.Ct. 781 100-105. at notes text Compare 55, Sirica, supra supra Alabama, 153. Ross v. note note v. 148. See Coleman U.S.App.D.C. 13-14, 1999, 10-11, 69, at 380 F.2d at 127 at 90 S.Ct. U.S. 399 560-561; supra States, Blue v. United note 387 and cases cited 26 L.Ed.2d infra 55, U.S.App.D.C. 320, 119 at 342 160. at cited F.2d cases infra 149. See text infra. 160. 90, States, 389 U.S. 150. United text Will 154. See infra. 269, 95-96, 19 L.Ed.2d 305 S.Ct. 88 Supra 155. note 69. Corcoran, 132 U.S. Thornton v. 7-10, 1999, 695, 232, 234, App.D.C. 26 at 407 F.2d 697 399 U.S. 90 S.Ct. Gasch, U.S.App. supra ; (1969) at also text L.Ed.2d 387. See Jones v. 131 (1967), 265, 1231, 1242 254, 100-105. *23 have that one within the the framework of' criminal prived just of his due at a prosecution pending against Dancis. ordinarily only may, judge preside The who is to at Dancis’ must, seek rectification court amply equipped dissipate trial may immediately.161 position re This prejudice by whatever risk of was bred undesirability permitting flect the an inability to Dancis’ call the undercover complaint accused to withhold until his officer as a his witness at gamble jury’s after he has lost the hearing. opportunities There are event, any certainly verdict. In it re uniquely open judge, particu- to the trial prej preference flects a decided to avert larly cooperation parties, with the of the udice before it occurs rather than to magistrate’s to seek remediation of the wait and deal with it after the fact. damage any done, error before real judge upon and the is free to draw think, too, the We imagination remedy-fash- in the kind of arising problem pretrial, of remediation ioning traditionally which has been a emerges no less than when it con after prerogative judiciary. of the federal viction, by be is one to addressed the Moreover, advantageous it would be nothing court itself. There is be prosecution the and the accused alike to gained, by handling over above the and problem the eliminate realm of judge, by sending the case back to litigation. future magistrate supplemental prelimi for a nary hearing against after accused been has indictment Dancis named magistrate agent, may indicted. The rein- cannot the undercover and well be 10-11, denied, 399 U.S. at 90 S.Ct. 1999. L.Ed.2d Blue United States, supra 160. Holmes v. United note supra States, U.S.App.D.C. note U.S.App.D.C. at F.2d at 342 F.2d at 899-901. 210-211; Dancy States, at v. United U.S.App.D.C. Sirica, supra note at Ross U.S. App.D.C. 361 F.2d at 79. See Ross at 380 F.2d at Blue Sirica, supra States, supra U.S. App.D.C. at 12 n. 380 F.2d at 559 n. 5. 321-322 & n. Cf. U.S.App. Shelton v. United & n. 7. 900-901 65, 66, D.C. cert. scholarly grand jury. opinion. I also concur Part before he testified (Dancis’ appeal). judge might to Part As II so, consider III the trial If grand jury (Shepard’s appeal) I of a

making agent’s am different testimo- I Alter- think the cross-examination view. ny defense counsel. available government principal witness was the Gov- natively, after indictment since unduly longer interest restricted at an has had no ernment secret, hearing. subsequent agent’s identity events Unless keeping the produce him as a are considered court obviously which have to will disposition voluntary trial, lead to a different interview should witness case, sup- judge be, think entitled to a his plemental preliminary I he is may need indicated. If hearing. in- might appropriate for an bounds set agent’s arrange par- for the terview and position accept purpose I that, by ticipation therein. It preliminary hearing deter- approval parties consent not to mine obtain deposition by inter- judge, written discovery, but the effort defense agent rogatories would suffice counsel was to cross-examination to ex- expedient. effort Without testimony upon elicit bore the is- which these possibilities, make haust Shepard sue cause. had suggestions of simply as observations govern- principal been identified safeguard procedures Dan- calculated ment witness as the one who had made consistently prejudice cis involved him. The assault expeditious progression orderly recognized magistrate explicitly that the point we do trial. The of the case to designed to im- cross-examination was judge posi- emphasize is in peach Defense counsel this witness. anything magistrate could tion do endeavoring pan- show a situation great undertake, and indeed to do a now cellblock, in a in which the demonium judge, trial more. leave for the deal Shepard officer’s identification of as the instance, the decision in the first might attacked him have been one who suitable relief. general due to melee mistaken follow- *24 ing slurs an attack racial and judgment appealed from is re- himself, Shepard felled who was and requested insofar as it denied the versed rendered with a fractured unconscious preliminary declaration that Dancis’ hearing Moreover, in the cross-examina- by skull. was rendered defective seeking to was not test tion counsel magistrate’s subpoena refusal to allow credibility complaining of the wit- commanding appearance un- but, good intelligent, in a faith and ness agent witness, as and dercover seeking lawyer-like manner, was to to Court case is remanded the District bring magistrate expo- a fair may before in such a order that declaration by occurred, of what which had no judg- sition respects, made.162 In all other adequately developed means been prejudice affirmed, ment is but without Thus, government’s after witnesses. pend- steps proceeding in the criminal being repeatedly rebuffed, designed counsel stat- ing against Dancis which are ed: remedy appropriately com- error hearing. mitted at his AXELROD [defense MR. counsel]: So ordered. I in If could show this hearing, Honor, Your that the reason FAHY, Judge, concur- Senior Circuit charge brought was to cover this ring dissenting part part: in wrongful Shepard, up on Mr. assault case) go (the you concur in Part I I into some Coleman would let me Judge very questions Robinson’s careful to who made the of these 162. We leave for the District Court’s deter- on an individual or tion should made question 4, supra. mination the whether the declara- basis. See note class charge proper provided Marshal at a and what decision cross-examination — discovery complaining witness is in- Lonien [the afterwards, cause, being probable I did cidental the issue of examined] prove to Your Honor is in. line with the modern trend for think I could greater right goes proceed- now, discovery over in criminal the case before ings. Court, that an assault to the District place was a didn’t take and this cover intervening which, Unless events as I (P. up. Transcript of Prelimi- 26 of said, considered, have we have not nary Hearing.) it, require preclude should I would given Shepard supplemental now be you Sir, THE have heard COURT: hearing. Only cause about an I to limitations I am what said as hour would be consumed. placing will be on the evidence that hearing. on this admitted scope limitations, of those Within may

you proceed. my opinion

The limitations de-

prived opportunity of a defense fair probe the issue of

contemplated Rule F.R.Crim.P. seeking impeach UNITED STATES America It is clear that a witness on cross-examination counsel may affecting question him on matters JONES, Appellant. Clarence E. including credibility, his lack knowl- Nos. 72-1284. edge capacity, perceptive or his or bias litigation, Appeals, adverse interest United States Court of District Columbia Circuit. including any prior inconsistent 611(b) statements acts. Rule Argued Nov. proposed explicit- new Rules of Evidence Decided March ly grants go beyond scope of the direct cross-examination trial, jury

of a witness in a with discre- judge

tion in the as indicated:

A witness be cross-examined

any issue in matter relevant case, including credibility. In the *25 may justice, judge

interests respect

limit cross-examination

to matters not testified to on direct

examination. complaining

Here the witness was the

witness, and the cross-examination was during jury

not before a a trial but be- judge hearing,

fore

during hearsay which both and other-

wise inadmissible evidence

presented. F.R.Crim.P., 5.1, Rule effec- overly

tive October 1972. The restric- imposed upon

tive limitations counsel keeping develop-

are with these

ments. Moreover, “discovery” time- seeking

honored method of the truth— See text notes § 3060 text See notes 30-41. provides (a) : Fed.R.Crim.P. 5.1 Present appears transcript proceeding If that evidence it 53. No probable plea appears eventuating change that an there is cause to believe Shepard’s that the case. offense has been committed and in the record criminal it, federal defendant magistrate committed (c) provided: 54. Former Fed.R.Crim.P. 5 him to shall hold forthwith upon The defendant shall not be called finding in district The answer court. pre- plead. If the defendant waives probable may cause based of hearsay liminary examination, the commissioner part. evidence in whole or hold him answer in shall forthwith may The defendant cross-examine wit- If the district court. the defendant does against may him and introduce nesses examination, not waive the commissioner Objections in his evidence own behalf. a reason- shall hear evidence within ground that it was evidence on the may The able time. defendant cross- acquired unlawful means are may him examine witnesses properly exam- made introduce evidence in his own behalf. suppress Motions must be ination. appears If from evidence it provided the trial made to as court probable commissioner there is Rule 12. to believe an offense has been expressed in Ross and that has the several views the defendant See committed it, Sirica, U.S.App.D.C. 10, shall committed commissioner him also Blue in the dis- forthwith hold to answer U.S.App.D.C. 315, court; trict otherwise the commissioner denied, (1964), discharge cert. him. commissioner shall The pro- L.Ed.2d admit the defendant shall to bail ing hearing.” Although ex is to whether the need for determine there discovery procedures panded pretrial believe cause to the ac offense, recognized,62 cused has committed an the Committee felt lay may the accused claim discovery benefit so much does properly become con incidental present opportunity for dis- an ideal inquiry ducted into cause.56 designed covery.

Notes

See notes text. States, supra 123. v. Costello United note 108, supra, accompanying 118. note 89, 363, See 406, 350 at 76 L. S.Ct. 100 U.S. text. parte States, Ed. Ex United 287 Compare Illinois, McCray 241, 250, 129, 119. v. 53 S.Ct. 77 L.Ed. U.S. 283 1056, (1932) ; States, supra 62 87 18 L.Ed.2d S.Ct. Howard v. United ; (1967) Rugendorf States, 89, U.S.App.D.C. 341-342, v. United 376 128 528, 534-535, 825, 293-294; Crump Anderson, 11 L.Ed. U.S. 389 F.2d v. States, (1964) ; 173, U.S.App.D.C. 2d v. Roviaro 122 887 United 352 F.2d 62, 53, 623, 649, (1965). 353 77 1 L.Ed.2d U.S. S.Ct. 651-653 (1957) ; Skeens, 639 v. 145 United States Lewis, U.S.App. v. 140 United States U.S.App.D.C. 404, 407-408, F.2d 449 40, 3, 1146, n. 42 433 F.2d 1148 n. D.C. 3 1066, (1971). 1069-1071 (1970). Godfrey See United Compare States, Robinson v. United States, U.S.App.D.C. 286, 122 353 U.S.App.D.C. 58, 61-62, 148 459 F.2d (1965). F.2d (1972) ; 850-851 Ross v. United Crump Anderson, States, U.S.App.D.C. U.S.App.D.C. 352 F.2d F.2d We note that at 651-656. Daneis’ was not U.S.App. Clemons reached until three months after the date 44 n. D.C. alleged offenses, with the result (en 1968), denied, n. 19 bane cert. any ongoing operation undercover U.S. L.Ed.2d 567 prior the latter date have terminated Rodgers, Walker v. 128 U.S. preliminary hearing. App.D.C. 420, 389 F.2d 961 Sirica, supra Ross II(A), supra. 127. See Part at 18 n. at 565 (statement Judges n. 4 McGowan and Leventhal).

F.2d notes D.C. 404 1414, denied, 390 88 S.Ct. cert. U.S. 157. Id. at 90 S.Ct. (1968). 20 L.Ed .2d 286 17 L.Ed.2d 87 158. 386 U.S. S.Ct. cases See cited Chapman, In was held 705 Flasphaler, error can constitutional 152. In re 97 before federal “harmless,” denied, the court must be 351 held 228 cert. U.S. be beyond it was harmless L.Ed. the belief that S.Ct. (1956) ; Dilling at doubt. 79 U.S. reasonable U.S. App.D.C. ; (1944) find there The must court 142 F.2d S.Ct. possibility ICC, App. error no reasonable Bartlesville Zinc Co. might complained contributed have D.C. cert. Fahy denied, v. Con- Id. the conviction. U.S. 85, 86-87, necticut, ; (1929) ex L.Ed. 997 rel. United States ICC, App.D.C. 40, Ry. 11 L.Ed.2d & Abilene S. vestigate firmity probable cause, for the indict- existence, harmless, conviction would ment establishes its nor Coleman, anything prior there else that officer can do reinstated.159 Even judge said, post-conviction that cannot do better. we have in our own same concern is settled that the suffer decisions we have accused forthcoming prejudice at where his trial remedial serious flaws course hearings infringement rights left them infirm.160 his at the hear- ing, prejudice and avoidance of is the route chart the These decisions duty judge function and himself. judicial be traveled when error Obviously judge not, by could direct- ly But detected after conviction. ing magistrate reopen prelimi- situation, he that is for while not Dancis’ nary hearing, responsibili- shift his own yet been has been indicted he has not magistrate. ty view, In our could, course, proceed tried. Dancis unmitigated pre- where an blunder knowledge trial secure liminary hearing may ensuing infect the prejudice should he encounter because trial, obligated the court is to scrutinize subpoena requested refusal of the possible injury, the accused’s claim of hearing, conviction appropriate and to take corrective ac- naught. would set for But it have tion. require would be to un senseless him perceive why, no reason in the cir- dergo trial and conviction before under presented, problem cumstances taking repair defect. the con On fully hand cannot be accommodated trary, emphasized de