Lawrence D. Coleman v. The Honorable Arthur L. Burnett, United States Magistrate for the District of Columbia

This appeal tenders for resolution questions as to the examinatorial entitlements of the criminally accused at federal preliminary hearings. Appellants, Lawrence D. Coleman, Jorge D. Dancis and Ronald Shepard, were arrested and charged1 with the commission of unrelated crimes within the District of Columbia. Following arrest, each was brought before a judicial officer2 for the proceedings prescribed by then Rule 5 of the Federal Rules of Criminal Procedure.3 Coleman and Dancis each sought, and each was denied, a subpoena requiring the attendance at his preliminary hearing of the only apparent eyewitness to his alleged offenses. Shepard, during his preliminary hearing, was restricted in cross-examination of the complainant and a corroborating Government witness, and in the presentation of evidence of his own.

Subsequent to the preliminary hearings, the three appellants joined in a class-action complaint in the District Court. They sought declaratory judgments that the preliminary hearings were defective, writs of mandamus reopening them, and an injunction restraining, pendente lite, presentation of their cases for grand jury consideration.4 The District Court denied a preliminary injunction and dismissed the action,5 and this appeal ensued. For reasons which follow, we reverse the District Court's judgment to the extent that it denied a declaration that Dancis' preliminary hearing was faulty and remand the case in order that the declaration may be made. In all other respects we affirm, but without prejudice to rectification in the criminal proceeding pending against Dancis of the error committed at his preliminary hearing.

Some of the questions advanced on appeal are common to the cases of two or more of the three appellants.6 Each appeal, however, also tenders an issue not present in either of the others. We therefore treat the three cases separately.

After joining in this appeal, Coleman was indicted in two bills for multiple violations of the federal narcotic laws.7 Two days before oral argument on the appeal, he entered a plea of guilty to two counts, one in each of the two indictments.8 He insists that his preliminary hearing, at which the charges laid in one of the indictments were aired, was fatally infirm and that we should now direct that it be reopened.9 He further argues, as he must, that the plea does not stand in the way of the appeal brought here for that purpose. We do not agree.

A plea of guilty consummating a voluntary and intelligent choice of available alternatives10 has serious ramifications for the criminal proceeding. It operates as an admission of all material facts alleged in the count or counts pleaded to,11 and thus dispenses with the need to prove them.12 More important, however, is the effect of the plea beyond this service for the Government. "[T]he plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial-a waiver of his right to trial before a jury or a judge."13 It is thus an act bringing the prosecution to a successful end by solemnly establishing the offense so acknowledged:

A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.14

We speak, of course, only of a valid plea of guilty, which by definition is one which is understandably as well as voluntarily made.15 The plea cannot take on that character unless, among other things, the accused is aware of the consequences,16 of which its conclusivity on the proceeding is not the least. But if, on the other hand, the accused possesses that awareness and nonetheless enters the plea, it is truly an "intentional relinquishment or abandonment"17 of defenses and procedural entitlements of which the defendant otherwise might have availed himself.18

So it is that "[a]n unqualified plea of guilty, legitimately obtained and still in force, bars further consideration of all but the most fundamental premises for the conviction."19 Emerging from the numerous decisions on the subject is the well settled rule that an unconditional plea of guilty waives all prior infirmities in the prosecution which affect neither the court's jurisdiction nor the substantive sufficiency of the indictment.20 The decisions make equally plain the corollary that as long as the plea stands, it bans consideration of other types of defects on appeal.21 We are unable to distinguish, in terms of the bar, a direct appeal in the criminal proceeding from an appeal in collateral litigation designed, as here, to secure benefits at a criminal trial.

As we have said, the key to waiver, and to conclusivity of the plea on further litigation, combines the accused's understanding that that would become a consequence of pleading guilty and his willingness to so plead on those term.22 The plea is invalid, of course, if the accused did not realize that it would sacrifice his right to judicial determination of the factual and legal issues by a trial with ultimate appellate review.23 And surely an accused is not barred from pursuing his appeal by pleading guilty where a statute authorizes him to do both.24 But there is an inherent conflict in the notion that, absent such a statute-the case in the federal system -an accused can intelligently waive adverse pre-plea rulings with a view to reposing the litigation and still keep the issues alive on appeal.

We are mindful of the suggestion that the ends of sound judicial administration might be better served by permitting the accused to preserve adverse rulings on legal questions for appeal without the burden of a potentially futile trial on the merits.25 That position was asserted in United States v. Doyle,26 but the court answered:

The premise is sound enough but the conclusion does not follow. There are a number of ways to deal sensibly with such a case without departing from the [conclusivity rule]. A plea expressly reserving the point accepted by the court with the Government's consent or a stipulation that the facts are as charged in the indictment are two; failing either of these, the defendant can simply stand on his not guilty plea and put the Government to its proof without developing a case of his own.27

We agree, and believe too that without a choice between the competing values by an exercise of statutory or rule-making powers,28 the availability of appeal must depend on the breadth of the accused's waiver.29

That Coleman's waiver was broad enough to encompass his present appeal is a matter not fairly open to doubt on the record. Unlike the two counts to which he pleaded guilty, other counts of the indictments against him charged crimes for which there were mandatory penalties,30 which anyone would naturally wish to avoid. The Government was willing to accept Coleman's plea on the two counts carrying lighter penalties, but only if the plea were tendered right away. The Government made it plain that it would not hold its offer of acceptance open just to enable Coleman to litigate this appeal. This was fully appreciated by defense counsel, who protested the Government's position to the District Judge, and by Coleman himself, who acknowledged to the judge his understanding that the plea would foreclose both trial and appeal.31 We conclude that Coleman's outstanding plea of guilty has precisely that effect.

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The plea, we are also persuaded, was unaffected by Coleman's simultaneous protestation of innocence.32 While pleas of guilty are usually accompanied by express admissions of guilt,33 lack of that element in no wise conditions the plea.34 In North Carolina v. Alford,35 the Supreme Court held flatly that "[a]n individual accused of crime may voluntarily, knowingly and understandably consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."36 Long prior to the decision in Alford, penalties imposed on defendants who maintained even vigorously that they did not commit the charged offenses, but who nonetheless entered pleas of nolo contendere, were upheld against constitutional attacks upon them.37 In Alford, the Court perceived no difference between a guilty plea refusing to avow the commission of the offense and one simultaneously maintaining the accused's innocence.38 As long as each is voluntarily and intelligently entered, there is no cause for constitutional complaint.39

Similarly, the Government's refusal to extend its acceptance of the plea for the period Coleman continued in this litigation did not vitiate the plea.40 The Government's declination stemmed from its concern that its case against Coleman might deteriorate in the meantime, and it is not for us to substitute our judgment for its. Nor is this a "situation [in which] the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty."41 On the contrary, the record supports amply the conclusion that Coleman made his plea voluntarily, and knowingly at the expense of the appeal. We hold that his attack on his preliminary hearing is now barred.

Appellant Shepard was charged with assaulting a Deputy United States Marshal42 while a prisoner in the cellblock43 of the District of Columbia Court of General Sessions.44 A judge of that court, sitting as a committing magistrate,45 presided over his preliminary hearing. The complaining witness, Deputy Marshal John H. Lonien, testified that while he was on duty in the cellblock, Shepard committed an unprovoked attack upon him, striking him above the right eye with a fist. Another Government witness, Herbert Rutherford, employed as a guard in the cellblock, corroborated Marshal Lonien's testimony.

Shepard's counsel was permitted considerable latitude in cross-examination of these witnesses as to matters they had testified to on direct examination. The judge, however, sustained the Government's objections to a number of inquiries directed to them on other topics. The specific complaint Shepard refers to us runs to the judge's rulings on eleven questions propounded to Marshal Lonien and four to Guard Rutherford.46 Those questions, in the main, solicited testimony as to disparaging remarks assertedly directed to cellblock personnel by prisoners other than Shepard, and to the nature and extent of any injuries inflicted by Shepard on Marshal Lonien and of injuries allegedly sustained by Shepard himself.47 The judge also ruled out Shepard's proffer of photographs purporting to show his post-altercation physical condition, and inquiry of a defense witness as to whether cellblock personnel had tried to confiscate the photographs.

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The more common basis of the Government's objections to defense counsel's cross-examinatorial approach was that he was venturing beyond the boundaries of a hearing designed to explore probable cause and embarking on a quest for discovery of elements of the Government's case.48 After some amount of prior ambivalence on the subject, Shepard now disclaims any attempt at discovery, as distinguished from refutation of probable cause.49 He further argues that the questions addressed to Marshal Lonien and Guard Rutherford bore a substantial relationship to the existence or nonexistence of probable cause.

At the outset, we put aside an otherwise litigable circumstance which has come to our attention. Exercising our power to judicially notice proceedings in related cases,50 we learned that, after oral argument and submission in this court, Shepard entered a plea of guilty to a lesser offense included within the charge on which he was indicted. Unlike their stance with respect to Coleman, appellees have not contended that Shepard's plea affects his appeal, nor indeed did either side see fit to even make us aware of the plea. We have pointed out that a plea of guilty operates as a barrier only when it possesses the elements of a valid waiver of further litigation.51 In Coleman's instance, the record satisfies us that his plea did,52 but in Shepard's we have no record on the matter at all.53 Accordingly, we do not consider this potential problem.

Former Rule 5(c) granted the accused, and its present counterpart continues to confer, the right to "cross-examine witnesses against him" at a preliminary hearing.54 The true dimension of that right is bound to depend in considerable measure upon the degree to which discovery by the defense may be a purpose the preliminary hearing is designed to serve. That, in turn, is a topic upon which the judges of this court have expressed views which, to say the least, have not been entirely harmonious.55 One view has been that the sole objective of a preliminary hearing is to detemine whether there is probable cause to believe that the accused has committed an offense, and that the accused may lay claim to the benefit of only so much discovery as may become incidental to a properly conducted inquiry into probable cause.56 That view has now been incorporated into federal jurisprudence by the Federal Magistrates Act.57

This Act provides mandatorily, with exceptions later to be considered,58 for "a preliminary [hearing] . . . to determine whether there is probable cause to believe that an offense has been committed and that the arrested person has committed it."59 The reason the Act indulges the preliminary hearing no independent discovery role is evident from its legislative history. During hearings before the Senate Committee on the Judiciary, witnesses urged "that preliminary examination afforded a necessary and useful medium for defense counsel to obtain discovery of the prosecution's evidence."60 The Committee, however, was "of the opinion that the problem of discovery should be treated separately from that of the preliminary hearing."61 Although the need for expanded pretrial discovery procedures was recognized,62 the Committee felt that

The preliminary hearing does not present an ideal opportunity for discovery. It is designed for another purpose; namely, that of determining whether there is probable cause to justify further proceedings against an arrested person. Thus, the degree of discovery obtained in a preliminary hearing will vary depending upon how much evidence the presiding judicial officer thinks is necessary to establish probable cause in a particular case. This may be quite a bit, or it may be very little, but in either event it need not be all the evidence within the possession of the Government that should be subject to discovery.63

The Committee accordingly concluded64 "That discovery procedure should remain separate and distinct from the preliminary examination. . . ."65

That settles the matter, of course, for Shepard and others whose hearings took place after the effective date of the Act.66 The mission of the hearing is an investigation into probable cause for further proceedings against the accused. It does not include discovery for the sake of discovery. To be sure, the evidence the Government offers to establish probable cause is by nature also discovery for the accused. So also is information adduced on cross-examination of Government witnesses on the aspects of direct-examination testimony tending to build up probable cause. In those senses, some discovery becomes a by-product of the process of demonstrating probable cause. But in no sense is discovery a legitimate end unto itself.

B. Cross-Examination at Preliminary Hearings

To say merely that discovery is not a primary function of federal preliminary hearings is to respond only incompletely to the issue Shepard poses. As we have said, former Rule 5(c) conferred upon the accused the right to "cross-examine witnesses against him,"67 and that right he continues to enjoy.68 Moreover, in Coleman v. Alabama,69 the Supreme Court, in holding that a preliminary hearing to ascertain probable cause to bind an accused for additional proceedings is a critical stage of the criminal process at which the Sixth Amendment right to counsel obtains,70 pointed out as one of the considerations supporting its holding that "the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the [prosecution's] case that may lead the magistrate to refuse to bind the accused over."71 Since the right to counsel is the right to effective assistance of counsel,72 Coleman requires us to evaluate Shepard's challenge with the increased solicitude appropriate when constitutional rights are at stake.73 This we have done, and we are led to the conclusion that the District Court's disposition of Shepard's grievance should not be disturbed.

According to Shepard's brief on appeal, the purpose of his counsel's questions on cross-examination of the two Government witnesses was to show that "(a) there were no physical injuries to the Marshals; (b) there were severe injuries to Mr. Shepard rendering him unconscious; (c) the assault charge was brought as a subterfuge for the Marshals' own conduct; (d) the Marshals were provoked by disparaging remarks by prisoners other than Mr. Shepard; (e) there was mass confusion in the cellblock seriously impeding the perception of the Marshals; and (f) there was evidence that Mr. Shepard acted in self-defense, if he acted at all."74 The first difficulty we have encountered is that the handling of the cross-examination made this understanding all too difficult to come by. Cross-examination at a preliminary hearing, like the hearing itself, is confined by the principle that a probe into probable cause is the end and aim of the proceeding,75 and the line between refutation of probable cause and discovery into the prosecution's case ofttimes is thin. Here counsel's purpose in pro pounding the questions which the presiding judge excluded was unquestionably blurred by the fact that counsel frequently appeared to be off on an impermissible quest for discovery. At no time prior to the rulings complained of did counsel delineate for the judge's edification the factual thesis he was seeking to promote. Only as the hearing neared its close, and after the rulings had been made, did counsel broach anything remotely similar to the defensive theory now explained on appeal.76 Our reading of the hearing record leaves us with the conviction that the presiding judge, when ruling on counsel's questions, could hardly divine what counsel had in mind. Therefore, we cannot say that he committed error in barring responses to inquiries that seemed unrelated to the task of evaluating probable cause.

Moreover, cross-examination is properly to be limited at preliminary hearing, as at trial, to the scope of the witness' direct examination. To the extent that it is not-and here it was not -cross-examination ostensibly, even if undesignedly, becomes an effort at some sort of discovery. We do not suggest that magistrates may not indulge variations from the usual order of offering evidence, and during presentation of the Government's case permit the defense to get in elements of its own. But when cross-examination exceeds the range of direct examination unaccompanied by an elucidation of its connection with probable cause, it is small wonder that discovery is taken to be the examiner's goal.

An even more important consideration stems from the difference between the objective of the preliminary hearing and that of the trial. While, of course, conviction necessitates proof at trial of all elements of a crime beyond a reasonable doubt, it suffices for purposes of a binding over for trial that the evidence show "probable cause to believe that an offense has been committed and that the defendant has committed it."77 The preliminary hearing is not a minitrial of the issue of guilt, but is rather an investigation into the reasonableness of the bases for the charge, and examination of witnesses thereat does not enjoy the breadth it commands at trial.78 "A preliminary hearing," the Supreme Court has said, "is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial."79

It is the contrast of probable cause and proof beyond a reasonable doubt that inevitably makes for examinatorial differences between the preliminary hearing and the trial. Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.80 Proof beyond a reasonable doubt, on the other hand, connotes evidence strong enough to create an abiding conviction of guilt to a moral certainty.81 The gap between these two concepts is broad. A magistrate may become satisfied about probable cause on much less than he would need to be convinced. Since he does not sit to pass on guilt or innocence, he could legitimately find probable cause while personally entertaining some reservations. By the same token, a showing of probable cause may stop considerably short of proof beyond a reasonable doubt, and evidence that leaves some doubt may yet demonstrate probable cause. In the instance before us, the testimony of two witnesses on direct examination furnished more than an ample foundation for a finding of probable cause which the cross-examination allowed did not impair. By our appraisal the convoluted defensive theory Shepard now says he wanted to develop82 was not likely to change the result. Whatever its potency as a basis for a reasonable doubt at trial, its capability to dissolve enough of the Government's showing to negate probable cause strikes us as highly improbable. We speak not only of the cross-examination which was banned but also of the items of similar purport which on Shepard's presentation were excluded.83 In any event, the situation is far too cloudy to warrant a grant of the extraordinary relief which Shepard seeks.

Magistrates presiding over preliminary hearings, no less than judges presiding over trials, are endowed with broad powers to supervise examination of witnesses.84 Beyond that, they should be indulged some leeway in their resolution of probable cause issues. Courts should not upset these judgmatic exercises unless a supervisory excess or a decisional error is clearly shown,85 and we do not perceive either here. Shepard's counsel was permitted to cross-examine each Government witness closely as to the elements of his direct testimony and, for the reasons stated, we cannot say that disallowance of the questions ruled out was improper. For similar reasons, we are unable to say that the photographs and the questions as to the defense witness possessed such a tendency to dissolve probable cause that their exclusion was erroneous. A writ of mandamus lies only to enforce a plain, positive duty; it is not available to exact a response to a dubious claim.86 At best, any obligation to reverse the rulings on the excluded evidence is entirely too unclear. We accordingly affirm as to Shepard.

Dancis, our third appellant, was charged with two violations of the Marijuana Tax Act.87 The charges came on for ventilation at a preliminary hearing over which a United States Magistrate presided. The magistrate denied his counsel's request for a subpoena requiring the attendance of an unnamed undercover agent, who apparently was the sole available eyewitness to the two marijuana transactions attributed to Dancis. The Government's only witness at the hearing was the agent's supervisor, whose testimony as to the alleged transactions was necessarily hearsay, and as to the transactor's identity was simply that the agent had identified Dancis from a six-year old photograph. The magistrate, on a finding of probable cause, held Dancis for grand jury action, and the District Court, in the case under review, held that the hearing was legally sufficient.

Dancis argues that each of two flaws vitiated his preliminary hearing. One is that the magistrate's refusal to allow him access to the undercover agent's testimony was prejudicial error. The other is that the Confrontation Clause88 outlaws the magistrate's finding of probable cause solely upon the hearsay testimony of the agent's supervisor.89 We deem it unnecessary to reach the constitutional issue posed by Dancis' second contention90 because we agree that he is on sound ground in advancing the first.91

A. Defensive Evidence at Preliminary Hearings

Former Rule 5(c) confirmed the right of an accused to "introduce evidence in his own behalf" at his preliminary hearing.92 It also imposed the requirement that an affirmative decision on probable cause be reached "on the evidence."93 The specifications of present Rule 5.1(a) are identical.94 Thus a federal preliminary hearing is not only the occasion upon which the Government must justify continued detention by a showing of probable cause, but also an opportunity for the accused to rebut that showing.95 Rule 5(c) made it clear that it is as much the arrestee's prerogative to endeavor to minimize probable cause as it is the Government's to undertake to maximize it, and that both sides must be indulged reasonably in their respective efforts. And the Government's demonstration on probable cause must surmount not only difficulties of its own but also any attack the accused may be able to mount against it.96

In sum, "the evidence" which alone must guide resolution of the probable cause issue is the whole evidence-for the defense as well as for the prosecution. The magistrate must "listen to . . . [the] versions [of all witnesses] and observe their demeanor and provide an opportunity to defense counsel to explore their account on cross-examination."97 The magistrate "sits as a judicial officer to sift all the evidence before resolving the probable cause issue. . . ."98 He "cannot decline to issue subpoenas on the ground that only the Government's evidence is probative."99

These provisions of the Rules and our interpretations of them are now reinforced by the holding in Coleman v. Alabama100 that the Sixth Amendment secures for the accused the assistance of counsel at a preliminary hearing having for its purpose a determination on probable cause to hold him for further proceedings.101 Among counsel's potential contributions, the Court stated, is "skilled examination . . . of witnesses [which] may expose fatal weaknesses in the [prosecution's] case that may lead the magistrate to refuse to bind the accused over."102 It cannot be gainsaid that what the Sixth Amendment mandated for Alabama's preliminary hearing it exacts equally for the federal preliminary hearing which, we repeat, is exclusively an exploration into probable cause to hold the accused to answer the prosecution further.103 Nor can it be doubted that Coleman demands more than the mere presence of counsel at the hearing. The right to counsel which Coleman declared would amount to no more than a pious overture unless it is a right to counsel able to function efficaciously in his client's behalf. The Sixth Amendment's guaranty of counsel is a pledge of effective assistance by counsel,104 and Coleman makes it clear that federal preliminary hearings, as critical stages of criminal prosecutions, require no less. If the accused's counsel is reduced to a state of impotence in the discharge of this responsibility, it is evident that the accused is deprived of the very benefit which the Sixth Amendment's boon of counsel was designed to confer.105

So, an accused is normally entitled to subpoenas compelling the attendance at his preliminary hearing of witnesses whose testimony promises appreciable assistance on the issue of probable cause.106 The test, our past utterances on the subject have indicated, couples the witness' materiality107 with an absence of good cause for not requiring his presence,108 and its operation does not depend upon which side might have been expected to call the witness.109 Certainly an accused will not in every instance qualify for a subpoena for the production of a Government witness at his preliminary hearing, but where he succeeds in a plausible showing that that witness could contribute significantly to the accuracy of the probable cause determination, the request for the subpoena should be granted. "This," we have said, "is consistent with the principal purpose of the preliminary hearing as a mechanism to determine whether the evidence is adequate to establish probable cause."110

We think the testimony of the undercover agent Dancis desired at his preliminary hearing met the standard of materiality. From aught that appears, he was the only available person who could testify to the two charged marijuana transfers from personal observation, and by the same token the only one who could directly identify the party responsible for them. Since probable cause to bind Dancis over for further prosecution depended on the caliber of the Government's showing that he was that party and that what he did on the two occasions under scrutiny was illegal, it seems clear that the witness he requested could have given testimony bearing critically upon those matters. In Washington v. Clemmer111 it was the complainant in a rape case who was sought, and in Ross v. Sirica112 the only three eyewitnesses to a murder. In both cases we held that denial of the accused's access to them was error,113 and it appears to us that the sole eyewitness to the transgressions laid to Dancis was equally material.

As we admonished in Ross, "[w]hatever the full reach of the accused's subpoena rights at a preliminary hearing, . . . he is entitled to compel the attendance of eyewitnesses unless, of course, 'because of physical or psychological disability in a particular case' such witnesses cannot attend."114 That seems the more so when the nature of the Government's presentation at Dancis' preliminary hearing is taken fully into account. The Government offered but one witness, and he could testify on the vital issues of offenses and identity only from hearsay, and it is evident that that weakened the showing. To the extent that hearsay is employed, the effort to establish probable cause becomes more prone to attack since the reliability of the absent hearsay declarant always becomes an added factor to be reckoned with. In Ross, where, similarly to Dancis' case the Government's one witness at a preliminary hearing on a murder charge was a police officer who could merely relay what three eyewitnesses had told him about the crime, two judges of this court aptly observed, without dispute from the rest, that

A judicial officer engaged in a judicial determination of probable cause can hardly rest easy solely with the hearsay account of the policeman of what these eyewitnesses told him if the eyewitnesses can be available, so that he can listen to their versions and observe their demeanor, and provide an opportunity to defense counsel to explore their account on cross-examination. The presence of those witnesses impresses us as falling within the orbit of the rights conferred upon the accused by the fourth sentence of Rule 5(c). . . .115

Indeed, the problem addressed in Ross is compounded in the situation before us now. The Government's evidence at Dancis' preliminary hearing was not only hearsay but also hearsay without any apparent means of refutation whatever. The undercover agent was not only absent from the hearing but at the time was also totally unidentified. He did not sign the complaint against Dancis, nor was he named in it, and the testimony at the hearing referred to him simply by his code name "John P." Defense counsel's inquiries on cross-examination as to his real name, and even as to generic characteristics,116 drew objections from the Government which the magistrate sustained. There was little or nothing in the Government's presentation to lend credit to the reliability of either the agent or the observations purportedly incriminating and identifying Dancis. It is difficult to imagine a case wherein the accused was more helpless to defend against a hearsay attribution of probable cause.

To say, as we do, that the testimony of the absent witness was material does not mean necessarily that the refusal of the subpoena was error vitiating the preliminary hearing. A refusal may be justified, and if it is a finding of probable cause climaxing the hearing must stand.117 The record before us, however, is singularly devoid of any such justification. There is no hint that the undercover officer was physically unamenable to a subpoena or in any way disabled from responding to it.118 There is no suggestion that his information about the episodes under exploration was to any extent privileged from compulsory disclosure.119 Nor is there a basis for attributing the denial of the subpoena to the exigencies of any undercover operation.120 The magistrate did not predicate the denial upon any of these grounds, nor did the Government even urge any of them. And to the extent that the record may furnish indications that the magistrate was satisfied on probable cause without hearing from the undercover agent,121 it suffices to repeat that the issue thereon cannot properly be resolved without accommodating reasonable demands of the prosecution and the defense for the production of evidence capable of shaping the outcome.122

Concluding as we do that the magistrate erred in refusing Dancis the benefit of the undercover officer's testimony, we are left to determine how the mistake should be corrected. The first question confronting that effort is whether the indictment returned against Dancis forecloses rectification of the error. It is well settled that an indictment itself establishes sufficient probable cause for holding the accused for trial,123 and that explains why we have consistently held that he is not entitled to a preliminary hearing where he is indicted before a hearing is held. Typical situations are those wherein the accused is indicted prior to arrest on the charges,124 or prior to the date set for preliminary hearing on the