LADNER v. UNITED STATES

Print this transcript Transcript: 

Argument of Leonard B. Sand

Mr. Leonard B. Sand: -- as to what the remedy (Inaudible) 2255 did not lie here, and my answer is that there would be no judicial remedy.

The only remedy that would be available would be that the executive clemency and since the petitioner is already out on -- on parole that would -- that seemed -- seemed very likely.

In other words, the petitioner in this case is in the same position the Government submits as the defendant was in Sunal against Large in 332 U.S. 174.

He had a possible defense which he failed to raise on -- on the appeal and he is thereafter precluded from raising it.

The petitioner was represented at this trial by privately retained counsel.

He had a right to an appeal.

He did not avail of himself of the -- of that right.

There's a concept that there must be some finality to direct review of -- of criminal judgments and that's a policy which should be respected.

And then the district judge should not be asked now to hold a hearing to determine what was the evidence that was introduced at a trial some 13 years ago and to resolve disputes as to what that evidence was.

That's not a collateral attack.

That -- that's something which -- which went to the -- to the resolution of fact questions of the trial itself.

That was the jury's function.

Justice John M. Harlan: Do you --

Justice Felix Frankfurter: Go on.

Justice John M. Harlan: Do you consider that it makes any difference the point of view of the issue between you as to whether it was one shot or dozen shot?

Mr. Leonard B. Sand: Well, if it makes -- if it makes no -- if it makes the difference as to whether there was one shot or two, then I suppose that would be the -- the issue at the hearing.

Justice John M. Harlan: No, but I'm asking you whether you think it makes a difference?

Mr. Leonard B. Sand: I -- I think it makes no difference –-

Justice John M. Harlan: No difference –-

Mr. Leonard B. Sand: -- whether there was one shot or two.

I think you can commit an assault without firing any shots.

We define and we quote in our brief the -- the -- definition in the common law in assault.

It's an act of force which is directed at an individual that's -- the difference between assault and battery, of course, is whether or not there -- there has been an impact and -- and you can assault somebody without firing any shots.

Justice Felix Frankfurter: Well, suppose he would -- instead of making a difference on the line (Inaudible) that you've given, if that was deemed to be the missing deemed to be the annunciation of a new doctrine that say that (Inaudible)

Mr. Leonard B. Sand: I'm afraid I don't understand your question.

Justice Felix Frankfurter: On the assumption that at the time -- the time of the trial, the time when you said he should have -- it should -- the question should've been raised by then counsel if the assumption was it was more than one offense and that then introduced the new rule, the instruction of capital punishment, you would say that makes no difference.

Mr. Leonard B. Sand: Because -- I would because in Sunal against Large, in fact, the defendant attempted to introduce the -- the defense.

The trial judge precluded him erroneously from introducing the defense and despite that, and then there was a -- a later case which -- which would indicate that that defense had been available to him.

This is a -- this is a much easier case.

Justice Felix Frankfurter: Well, I know it's a lot easier if --

Mr. Leonard B. Sand: It's -- I think it is -- it is much less harsh to preclude the defendant in this case from collaterally attacking the judgment than it was in the Sunal against Large in which the defendant attempted to raise the defense and was told by the district judge that -- that the defense was not available.

Justice Felix Frankfurter: But, would you say that the problem as to the scope of the habeas corpus writ sufficiently like a reconsideration of the constitutional question that they didn't want to expect precedence to feel that that's open?

Did they have bound (Inaudible)

Mr. Leonard B. Sand: I --

Justice Felix Frankfurter: -- acceptance of powers that could've been bound by any kind of question actually?

Mr. Leonard B. Sand: I would think, Mr. Justice Frankfurter, that it has been so clearly established in the law that a 2255 proceeding cannot serve the function of an appeal.

Justice Felix Frankfurter: Well, I don't follow it.

That is in generality.

I didn't (Inaudible) to know and I normally in more than other cases like to reconsider a case, that happens to same as the sentence.

When we deal with habeas corpus, we're dealing with something close to the constitutional rights that I would like to have the Government's view to find your position given in consideration of the decision such as in Sunal and Large is a result of the habeas corpus.

Whether you think that decision is close to the problem with the constitutionality and Bill of Rights, one would feel less rigidly bound by the decision.

Mr. Leonard B. Sand: I would think that one would be bound by it in a case in which there was involved no allegation of procedural unfairness, where the only -- where -- where there was not an attempt to raise the defense and preclusion by the judge.

Whether --

Justice Felix Frankfurter: -- procedure on Bennet and Sunal except the consel at the time thought that the decisions were clearly against him and the later counsel had more courage, or more wisdom, or a combination of both, could raise the question and raise suggestion.

Mr. Leonard B. Sand: I have references, Mr. Justice Frunkfurter, to cases which have expanded the scope of habeas corpus where there were instances of procedural unfairness.

This is not such a case.

This is the purest case of a defendant who later thinks that he had a defense which he failed to raise at the trial and which he seeks to raise at -- at some later day and of course, the delay of --

Justice Felix Frankfurter: Because -- because of lawyer's thought with some justification or the deal of justification that at the time he didn't have a defense or what you call a defense.

He didn't have an alleviating point namely, the he shouldn't be punished for (Inaudible) rather than (Inaudible)

Mr. Leonard B. Sand: I -- I -- I accept that, Mr. Justice Frankfurter, and -- and I say that -- that there is a need in the law for finality of judgment and that -- that here is an instance in which the Government has clearly been prejudiced by the passage of time that the Court clerk is deceased.

There is -- there are few people available with the contemporaneous recollection of what the evidence was introduced, what the evidence that -- the present trial was.

Justice Felix Frankfurter: We had in fact contestedly and the evidence might show that he fired (Inaudible)

Mr. Leonard B. Sand: The evidence might show that, the evidence might show that the co-defendant, who also had a shotgun, fired also.

And of course, these people have been convicted of -- of conspiracy and each is liable for the acts of the other.

And so, there might have been one firing -- the petitioner merely alleged that he fired only once or he alleged something which we now -- now construe that the allegation that he fired once.

But -- but, nothing is said about the -- the co-defendant who -- the (Inaudible) alleges that -- that each uses loaded shotguns in the -- the plural.

The allegations of the indictment would indicate that each defendant had a shotgun.

Justice Felix Frankfurter: The problem we have is a conspiracy problem because actually, there was only one attempt.

Mr. Leonard B. Sand: No, I'm -- I'm suggesting what the issues -- if -- if a hearing were held, what the issues would be.

The issue would be, assuming -- assuming it to be material, how many times the defendant fired the shotgun, whether the co-defendant fired the shotgun.

If there -- if there is a conflict as to that testimony, as -- as -- there's certainly will be, the -- the trial judge, I suppose, cases assigned to some other judge can testify that his recollection is that there was more than one shot fired.

But the problem will be resolved in some 13 years after the trial, a conflict in the evidence once it's established what -- what that evidence was and -- and I think that would be a very anomalous -- anomalous proceeding and I think that that would undercut the concept of finality of -- of judgment.

Chief Justice Earl Warren: How does this affidavit get into the record, Mr. Sands?

Mr. Leonard B. Sand: We -- I have to go outside the record to explain how it -- how it gets in the record.

We don't rely on it, Mr. Chief Justice.

Apparently, what happened is that when they were preparing -- when the Assistant United States Attorney was preparing --

Chief Justice Earl Warren: But if you don't rely on it --

Mr. Leonard B. Sand: We don't rely, we don't rely.

The -- the only possible significance it could have is to establish the -- the point that there will be a dispute as to whether there was one shot or two and -- and, of course, the statement of the trial judge and his recollection is there was more than one shot insufficient.

In -- in cases like --

Chief Justice Earl Warren: Corroborated with the judge.

Mr. Leonard B. Sand: I beg your pardon?

Chief Justice Earl Warren: Corroborated with the judge's recollection?

Mr. Leonard B. Sand: It would be corroborated.

That's the whole point for suspending a 2255 case back to the trial judge because it's remanded is the most familiar with the dispute.

Chief Justice Earl Warren: Thank you.

Mr. Rosenwald.

Argument of Harold Rosenwald

Mr. Harold Rosenwald: May it please the Court?

The Government has introduced various matters that -- what the evidence was in this case, there is no record.

Unless we keep, there is no record here at all.

We don't know what the evidence was.

Mr. Sand has stated that the co-defendant, Mr. Cameron, had a shotgun though it is -- there was no evidence to that effect.

As a matter of fact, in the overt action of the indictment, it is stated that the defendant, Lovander Ladner was carrying a shotgun in his hand and nothing whatever is said about a hammer.

And in this affidavit which the Government has claimed, which appears, too in this brief, it is also said that, “Well Mr. Carter.

I noticed that Lovander Ladner was carrying a shotgun in his hand,” nothing whatever was said about the co-defendant, Mr. Cameron.

We don't know what the (Inaudible) had before it.

We don't know what the evidence was that was presented and whether it was contragrated or not.

We simply don't know.

Here are just a few matters I want to mention briefly.

Government predicates most of its argument and claimed that the words in the statute on account of the performance of his duty, it appears in Section 254, mean that there was some kind of a specific intent on the part of petitioner or anyone who brought a statute to commit the offense against the injured party.

I don't read those words as showing any specific intention whatsoever.

It merely -- those words merely describe the circumstances under which the assault or the resistance or the opposition occurred.

The words are no different from the other words in the -- or just above them while engaged in the performance of his official duties.

And as the Court will notice in the present brief of the statute, Section 111, of Title 18, those words are pronged together.

They're no longer separated.

There's one compendious phrase, “While engaged in or on account of the performance of his official duties.”

The Government is using those words to support an argument and then goes on and says, “That the intention must be personal with each defendant, therefore, there's a separate offense of each defendant.”

That the -- the conclusion is the premise's end justified, the conclusion of course with regard with it.

Now, I want to -- I made no contention whatever that if the statute said, “Whoever wounds an officer -- a federal officer, let the wound in the two officers (Inaudible) under the circumstances in this case would constitute two offenses.

What I said was if the statute so read, and we would -- we would have to and go to the problem of the Bell case.

And I argued the Bell case on that assumption but it did say.

But, I certainly didn't concede that there would then be two offenses if the statute so read and I am clear that there wouldn't be.

Now, with respect to Section 2255, I would suppose that the words of the statute itself were clearly broad enough to cover this case.

They are quoted on page 3 of my brief and they allow a prisoner in custody under sentence of a Court to be released if he shows that the Court was without jurisdiction to impose a sentence or if the sentence was in violation of the constitutional laws of the United States or is in excess of the maximum authorized by law.

I can't imagine how we could come more clearly within the statute.

There's nothing in the -- in the statute about what facts can be shown.

If the records of the Court don't show conclusively that he's not entitled for relief, under the statue, he is entitled to a hearing and what facts are necessary to show whether they were brought before the jury or not, the statute decided on all of that.

The remedy has been used repeatedly in cases of excessive sentences.

It was used in the Gore case.

It was used in the Bell case.

In most of the cases cited in my brief, either habeas corpus or Section 2255 were used to attack an excessive sentence.

Justice Felix Frankfurter: Did you brought it up on appeal?

Suppose in this case that you're taking this question of it from the District Court to the Court of Appeals as an ordinary appeal (Inaudible)

Mr. Harold Rosenwald: I -- I have no doubt it could have.

Justice Felix Frankfurter: Well, then, does that mean that he can raise the question of excessive sentence either by the ordinary process of appeal or not appeal and bring him under 2255?

Mr. Harold Rosenwald: Yes.

Justice Felix Frankfurter: That -- that's followed, isn't it?

Mr. Harold Rosenwald: Both. Followed.

We can always -- we can do it both ways, do it any time as long as the matter is still moot.

As a matter of fact, the early occasion seemed to hold this will tell you, certainly, the legal party is sentenced, you may not invoke habeas corpus or 2255.

Those two half the way.

It's too bad we have to go back there in 13 years and I suppose the petitioners thought that until he served the 10-year legal sentence, he has no right to bring this motion.

He did not have to raise it on appeal and the question remains open to that.

Chief Justice Earl Warren: Mr. Rosenwald, before you be seated, I -- I want to repeat to you what I -- what I said to counsel who preceded you, Mr. Fisher.

We -- we do appreciate your -- your representation of this indigent defendant at our -- our request.

You've been here twice also.

It will be the last time on this -- on this case, but it does give us comfort to know that man of -- men of the bar will do which you have done in this matter for us.

And thank you, Mr. Sand for -- for your helpfulness, same language that I expressed to Mr. Weines.

Print this transcript Transcript: 

Argument of Harold Rosenwald

Chief Justice Earl Warren: Number 2, Lovander Ladner, Petitioner, versus United States of America.

Mr. Rosenwald, you may proceed.

Mr. Harold Rosenwald: Mr. Chief Justice, may it please the Court.

This case like the preceding case just before the Court reargued.

Present case finds its origin in an indictment of petitioner in -- in May of 1944 in the United States District Court for the Southern District of Mississippi, Southern Division, the indictment had three counts, the first count alleged that the petitioner and the one Cameron, conspired to violate Section 254 of former title 18 and that by means or rather that they're conspired by a means of deadly and dangerous weapons to commit the assault on agents of the Alcohol Tax Unit of the Internal Revenue Service of the United States.

The second count alleges that -- that on or about the same date, May 22 of 1944, the defendant, by means and use of deadly and dangerous weapons, to wit, loaded shotguns forcibly assaulted a man named Reed, who was an agent of the Alcohol Tax Unit on account of its performance of his official duties and while he was engaged in the performance of such duties.

And that the two defendants shot and seriously wounded that patient.

The third count is the same as the second count, except that a different agent of the tax unit named Frost, was the victim of the alleged assault.

In June 1944, on the 23rd day of the month, the petitioner was arraigned, ended a plea of not guilty.

On that same day, he was tried by a jury and found guilty as charged on all counts and on the same day he was sentenced.

The practices he only matter was this before this Court held that the petitioner is conceded and he has been punished, we think, already for it.

The sentence on the first count, the conspiracy count, was for two years.

On the second count, 10 years and the sentence on the first count was to run concurrently with the sentence on the second count.

The sentence on the third year -- on the third count, was an additional 10 years and that was to be consecutive and meant running at the expiration of the sentence on the second count.

In other words, petitioner was sentenced for 20 years.

Justice William J. Brennan: How long has he served now, Mr. --

Mr. Harold Rosenwald: He has served -- he's on parole now.

He actually served about I think 11 or 12 years.

Justice William J. Brennan: And on parole, extensively under what count -- on the third count?

Mr. Harold Rosenwald: Yes, Mr. Justice Brennan.

I was -- about his own parole, on the -- on balance -- balance of his term, however it's -- there's a third count or second, I don't know.

Justice Felix Frankfurter: He's not distributively on parole, is he?

Mr. Harold Rosenwald: He is.

All I know, Mr. Justice Frankfurter, he's on parole by order of the proper authority.

There is no transcript of evidence taken at the trial and no appeal from the original conviction.

The present proceedings commenced in January of 1955 and the petitioner, brought a motion in the trial court, where he was originally convicted and sentenced pursuant to Section 2255 of title 28, to correct his sentence.

His motion alleged, with the second and third count charged, with a single offense and start to have the sentences under those two counts amended so that they would run concurrently, and therefore, he would have served his full sentence.

Now, the motion was drawn by the petitioner without any professional assistance, I think, and it doesn't clearly state whether or not, there was only one shot fired in accordance with the allegations of the indictment.

But that claim is implicit in the brief in support of the motion and the case has been treated below on the assumption that the claim made by the petitioner is simply this.

That since he discharged the shotgun only once and struck to agents that the single discharge of the weapon was only a single violation of the statute and therefore, it was unlawful to -- to sentence him, at least, for two separate offenses under Section 254.

Justice William J. Brennan: That is (Inaudible)

Mr. Harold Rosenwald: Several power apparently, Mr. Justice Brennan, we have no record here and we have to infer Mr. Justice Brennan.

It is my impression from what I've seen in the record and the allegations of the indictment.

But there was a -- the claim at least is made that there was a single shotgun shell that the appellant scattered and destructed two agents.

Justice Charles E. Whittaker: There is no doubt, as I gathered that it was a shotgun.

Mr. Harold Rosenwald: There is no doubt whatever, Mr. Justice Whittaker, but there was only one shotgun when it comes to that.

Justice Charles E. Whittaker: That much -- and that would settle the question as to whether there were numerous counts with the -- into this --

Justice William J. Brennan: Pardon me.

Justice Charles E. Whittaker: -- from a shotgun?

Mr. Harold Rosenwald: I -- I thought that a shotgun has scheduled some deposits that explodes and sends out small pellets.

Justice Charles E. Whittaker: Yes.

Mr. Harold Rosenwald: Like they're hand grenades.

Justice Charles E. Whittaker: Oh, I thought that was true of all shotguns.

Now, I maybe wrong about that.

I thought the fact it was a shotgun means that it -- this shoots a -- fires a cartridge that is filled with small lead pellets.

Mr. Harold Rosenwald: That is exactly my (Inaudible) and I say Mr. Justice Whittaker, that the record -- we have no real record on the facts.

There has been no -- no extra testimony as to the nature of the charge refused or how it was fired.

My impression, I think, it's been assumed throughout this case, if that's exactly what happened.

There was -- or at least there's a claim that's made.

There was one package, the pellet scattered and struck two further (Inaudible)

I -- I drew the case on that assumption.

The motion under Section 2255 was denied -- the motion under Section 2255 was denied by Judge Myers, the trial judge, he based his decision on several grounds, first, that he personally remembers that there was more than -- that the evidence showed that there was more than one shot fired.

I point out that the trial had taken place about ten-and-a-half years before and the judge may have had a good many other cases in the meantime.

He admitted however that no transcript had been taken.

He stated quite erroneously that the same motion has been made by the petitioner before the Court of Appeals has ruled out the case.

There's no question here at this time that petitioner is making his request for relief under 2255 a second time.

The judge was confused to train the petitioner and his codefendant Cameron and the only one who's made a motion before was Cameron and not petitioner.

But the basis, I suppose, on which Judge Myers clearly based his decision was that the single discharge of those weapons the -- this weapon which has an impact onto federal officials, constitutes not one, but two offenses.

So if that is true, the motion was properly denied.

The Court of Appeals on the petitioner's appeal in the form of (Inaudible) affirmed the judgment of the District Court.

The Court of Appeals reviewed the record, pointed out that there was no offense we've taken, so that there was no proper record before the Court.

That nevertheless, there appeared in the record and the Court doesn't quite know how it got there, but I think the record in this Court shows that the United States Attorney put it there or had the clerk put it there.

An affidavit of a man named (Inaudible) who was -- his brother-in-law of these two defendants in which the affiant stated that he had heard five shots when he was -- when half a mile away from the place where he had seen the petitioner and Cameron, some minutes before.

That's the -- there's no other evidentiary matter in the record except for that grossly improper affidavit that doesn't belong here at all.

The Court of Appeals stated that this affidavit of Mr. (Inaudible) should be disregarded that there was nothing in the -- oh, and that the judge's personal recollection should also be disregarded that this left the record completely void of any evidence could ever -- that there was more than one shot.

They took the motion of petitioner to allege that there was only one shot and said that if a single shot constituted only one violation of the statute, then the petitioner would be entitled to a hearing under Section 2255, that which he could be personally present and endeavor to show that there was indeed only a single shot.

However, said the Court of Appeals, the single shot which affects as an impact on two federal agents constitutes two assaults under the statute and that therefore, the motion was properly denied.

Because even if the petitioner could show that there was only discharge of the gun, the admission that two people were injured by the -- established sufficient to support the sentence in this case.

The Court of Appeals relied in its original opinion upon certain decisions in its own circuit, its own decision under the Mann Act, from which that Court of Appeals have felt that there are more than woman this Court has for moral purposes into the -- in interstate commerce.

There are as many violations to the Mann Act as there are women transported, even though the transportation takes place at one in the same time and in the same vehicle.

At the time the opinion was written by the Court of Appeals, this Court has already ruled to the contrary in the Bell case.

Apparently that the case has been overlooked by the Court of Appeals when it was brought to the Court's attention, they mentioned the case and then said, well, anyway, they thought there were to result in this case, so they affirmed the judgment of the --- of Judge Myers.

The case was then brought here by a petition for certiorari.

And it is here and whether the petitioner was allowed to proceed in forma pauperis.

As I've stated before, petitioner is now on parole.

I don't think I need to spend a time of this Court arguing that the cases is moot on that account.

He's still under certain obligations as the parolee maybe returned to prison to serve the balance of his term if he misbehaves and violates the terms of his parole agreement.

And I would suppose that under the decisions of this Court in Pittsburgh against the United States and U.S. against Morgan, more recently in Pollard against the United States.

There's no question the case is not moot.

We come then to the merits of petitioner's claim.

The statute in this case is no longer apparently criminal code and has been replaced under the revisions of the code, I think, in 1948.

The statute has two clauses.

First, the first clause makes is -- is an offense to forcibly resist, oppose, impede, intimidate or interfere with certain federal officials while they're engaged in the performance of official duties or to assault section of an official on account of his official duty.

That is the first clause and there is a penalty of three years and a fine for violation of that clause.

The Second clause makes any defense to use a deadly or dangerous weapon in the commission of any of the Acts described in the section itself.

And for that, there is a penalty of 10 years and a fine.

We contend that the second clause condemns the use of a dangerous weapon and that the unit of prosecution is the use of a dangerous or deadly weapon and that the consequences of that use are not material.

Justice John M. Harlan: You think the second clause might give the construction -- the first clause, I believe --

Mr. Harold Rosenwald: Yes, Your Honor.

I think the second clause that the unit -- if prosecution under the second clause is the use of the weapon and it's just a different offense.

Of course, it's tied into the first clause, if he's doesn't condemn the use --

Justice John M. Harlan: You want to use the officers in the first clause without any interference, is that --

Mr. Harold Rosenwald: Well --

Justice John M. Harlan: No, that isn't before us, but I was just wondering if you were (Inaudible)

Mr. Harold Rosenwald: No, I think the use of the weapon in pursuance of any of the Acts described in the first clause is the unit of prosecutions under the second clause.

But I emphasized the word, "use" whoever shall use a deadly or dangerous weapon and I suggest to the Court that the consequences of the use are irrelevant.

It would make no difference he did impute that's none at all.

He simply pointed it at these two officials.

Or they shot it in the air, because he's not --- the statute doesn't condemn the offense of shooting anybody or wounding anybody or even assaulting with a dangerous weapon, if the court below -- both courts below construed it.

But it's the use of the weapon even without pulling the trigger.

It could've been a club and he just waved it in the air.

Or it could've waived the -- waive the gun itself without pulling the trigger and he would have violated the second clause, if in -- if it was done in connection with resistance or opposition or impeding of federal officials in the performance of its duties.

Justice Potter Stewart: (Inaudible)

Mr. Harold Rosenwald: No, it's a --

Justice Potter Stewart: (Inaudible)

Mr. Harold Rosenwald: Not at all, Mr. Justice Stewart.

If he used the weapon 20 times, so they will be argued that there were 20 separate uses.

The use, in this particular case --

Justice Potter Stewart: (Voice Overlap) --

Mr. Harold Rosenwald: -- is the pulling of the trigger.Pardon me, sir?

Justice Potter Stewart: (Inaudible)

Mr. Harold Rosenwald: Well, I think -- I think I didn't mean to say that.

I meant to say that the -- that the use in the particular case here was the pulling of the trigger.

He didn't use it as a -- a gun.

I mean, he didn't use it as a club.

He used it as a gun.

When he pulled that trigger that was the Act which was the criminal act denounced by the statute.

And the criminal act is only a single act and therefore, there was only a single offense.

But had he pulled that trigger six or eight times, we would have quite a different question presented.

I don't want to conceive that that regard would constitute more than one offense either.

But that's not the question here.

There was only a single act according to my argument, and that single act was the pulling -- pressure of his finger on the trigger one time.

And that, I could guess, there's only one violation of the statute here.

Chief Justice Earl Warren: Do we have any trouble here, Mr. Rosenwald, if -- if the defendant had been charged in the first count with resisting the officers by -- and using a -- a deadly weapon in one count and then in another count, they -- they charged him with attempt to murder, one of the officers who was -- who was actually shot.

Could we have any trouble then?

Mr. Harold Rosenwald: We might, but we wouldn't have the same problem we have here.

We would have something closer, I think, to the -- to the Prince case.

Chief Justice Earl Warren: But what I'm getting at -- what I'm getting at is this, Mr. Rosenwald.

There might -- there might be one --- just one violation of this resistance to officers in -- in whatever he did, whether -- whether he fired one shot or 20 shots.

But in the firing of those shots, he may have committed other independent clients by which he could've been prosecuted on this indictment, as well as for resisting these officers.

Mr. Harold Rosenwald: Then -- I have no -- I make no claim that he couldn't have violated several statutes or committed several offenses by a single act.

Chief Justice Earl Warren: Have been charged under --

Mr. Harold Rosenwald: Have been charged under separate statutes.

Yes, that's happened lot of times.

Chief Justice Earl Warren: Well, that's what I -- that's all I was asking.

Mr. Harold Rosenwald: No, I -- I make no claim that the criminal transaction always involves only one offense.

Chief Justice Earl Warren: In other words, if -- if we were to say that -- that whatever he did in resisting these officers, that was one crime of -- of resistance.

We are not saying that he could not have been prosecuted for other crimes that he committed at -- at the exactly the same time.

Mr. Harold Rosenwald: Not at all.

I'm not saying that.

It's conceded that he could've.

But no such charge was made.

Now, in analyzing the statute on its phase, do we have to notice that the word, “assault” isn't the only word here and we have resist, oppose, impede, intimidate, or interfere with -- or assault.

There are six separate verbs.

Some of them seemed to be fairly synonymous, but let's take the case of mere resistance.

If this petitioner, without any weapon at all, had resisted six United States marshals who came to arrest him, ran away from them and held the door against them, would this Court say that he had committed six separate violations of the statute?

Would we count the number of -- of persons who resisted and say that resisting each and every one of them is a separate offense?

I doubt if they must -- or suppose that he used the deadly or dangerous weapon and there was -- let us say 40 marshals sent out by a Federal District Court to enforce or particularly important order of the Court and the petitioner and someone else said -- stood there with a shotgun and said, “If anybody comes near me, I shall use this gun.”

So the 40 marshals hid away.

He's resisted them.

He's opposed them, he's impeded them.

He's probably intimidated them.

And he used a dangerous weapon.

Could it be said that he's violated the statute 40 times and that he is subject to imprisonment of 10 years with each such violation, I hardly think so.

The thing that's caused the trouble here is that there was an actual wounding of two federal officers by this shot.

And since -- as we say on the face of the statute, the offense was completed.

When the shot was fired, we don't follow the bullet through the air to determine the consequences of the shot unless, of course, there was another statute coming into play, if he kills someone, and it's another matter.

But under this statute, it's the use of the weapon which is forbidden.

Justice Tom C. Clark: Shot 40 times (Inaudible)

Mr. Harold Rosenwald: If he shot 40 times, it comes to this question whether a single criminal transaction are pursuant to one impulse, the word that's used in the Blockburger case and carried over into the Universal of C.I.T. Commercial -- Credit Corporation case.

Whether those series of events constitute a single violation of the statute, there's another question.

I wouldn't -- actually, a much more difficult question, a question when -- where there was only a single act, and there are some provisions of authority on that question.

And I would rather be excused from answering it very specifically.

I can argue that one both ways, but it's not this case.

It's much --

Justice Tom C. Clark: It seemed to (Inaudible)

Mr. Harold Rosenwald: I would find that one act, Mr. Justice Clark, and I -- the only case I know that has a real bearing on that question is directed against the United States referred to by this Court, the Prince case.

The decision of the Court of Appeals for the Fifth Circuit it's Cited in my brief.

In that case, we had chose entered a bank for the purpose of robbing a bank.

And in the course of his attempt to rob the bank, he put in jeopardy the lives of two persons.

The weapon which he employed was nothing less than a bomb.

Nevertheless, the Court of Appeals for the Fifth Circuit, in spite of the potentialities of that particular kind of weapon and its capability of injuring a great many persons, if he would've to throw it.

Held that there was only a single offense under the Bank Robbery Law, because he had -- it didn't count the number of persons whose lives were put in jeopardy.

There's one offense, nonetheless, despite the nature of the weapon and despite the number of persons involved.

Justice Felix Frankfurter: What kind of guidance are you giving the Court in order to decide in public possibilities?

Mr. Harold Rosenwald: When the -- the only guidance in the attempting at the moment, Mr. Justice Frankfurter, the analysis on the face of this statute, I haven't -- which seemed to me, clear enough on its face, so I haven't yet reached the question.

It has been the subject of several decisions of this Court in very recent years and even months.

Justice Felix Frankfurter: Your -- you're -- at this point you're arguing that is the nature of the offense that Congress has outlawed by the terms of the interdiction, is that it?

Mr. Harold Rosenwald: I am saying that reading the plain English of this statute, there is no need to go to strenuous aids to try to find its meaning as it applies to this particular case.

Justice Felix Frankfurter: And on that basis it's like the cohabitation statute and with that goes a (Inaudible)

Cohabitation doesn't mean the possession of separate act, but means the continuity of relationship.

Mr. Harold Rosenwald: Makes this no case.

I'm not -- not talking about this being a continuing offense.

Justice Felix Frankfurter: I'm not saying -- I'm saying --

Mr. Harold Rosenwald: No.

Justice Felix Frankfurter: I'm saying the same mode of --

Mr. Harold Rosenwald: Right.

Justice Felix Frankfurter: -- dealing with the problem.

Mr. Harold Rosenwald: I agree.

The same mode of dealing with the problem, the face of the statute, you don't have to seek out the intent of a legislative -- intent clearly appears on the provision of the statute itself in the four corners of this Act.

I find strong reason to believe that the number of persons who were affected by the acts of the defendant however comparable those acts maybe, there's no bearing on the number of offenses under the statute; that this Act was only a single act and the consequences are immaterial, that, I think, appears.

Justice William J. Brennan: Well, your closest case, I gather, is your Bell case.

Mr. Harold Rosenwald: It is honored on the next point.

On the next point, the Bell case is my most important guide.

And if we reach that point --

Justice Felix Frankfurter: The first thing, if you don't need the Bell case.

Mr. Harold Rosenwald: I don't need the Bell case.

Justice Felix Frankfurter: Alright.

Mr. Harold Rosenwald: What I'm saying is I don't need anything.

The statute can be examined on its face and this problem disposed off without any authority because this is a new question.

There is no decision on the precise question here under this statute or any exactly similar statute, inquire in every case is one of the statutory constructions.

And I don't -- we don't even get to any authorities.

However, the -- the Court of Appeals and the District Court, in passing on petition on this motion, treated the statute as if it were an assault with a deadly weapon statute.

They said there were two assaults because there were two agents, and they relied upon the language in the statute, whoever resist or assault any person -- any person, a single object of the verbs they talked me that it was a separate offense with respect to each person affected by the acts of the defense.

Or to put it otherwise, they read the statute to -- to -- as if it provided and whoever wounds any federal officer.

And taking it on that basis and passing my first contention, if the statute provided whoever results any person with a dangerous weapon, or whoever wounds any federal official, then we come to the problem that is before this Court, in the Bell case, in the Prince case, in the Universal C.I.T. Corporation case, and most recently in the Gore case.

And I would accept those cases now.

Bell, as what we recall, involved a transportation of two women across state lines for immoral purposes, at the same time and in the same vehicle.

And this Court held that it was -- that the question before the Court was to determine the intention of Congress as to whether Congress intended to punish the -- intended to regard each of the transportation of each -- each woman, a number of women transported, measure the number of offenses of the statute, or the Act of transportation itself was new to the prosecution and it didn't matter how many people were involved in the transportation.

This was a question of the intention of Congress as to what punishments are contemplated as to what was the unit of crime denounced.

And that in determining this question, the Court finding the statute too ambiguous and uncertain, was endeavored to search in the legislative history of the statute, with any help it could be fine.

Grasping its drawers, if necessary and it's frequently is.

And to determine what Congress intended from that legislative history.

And if the legislative history were neutral or didn't clearly show that Congress intended multiple punishments, then the doubt would be resolved in favor of the accused.

And it would not be assumed that Congress intended to provide for multiple punishments for a single criminal act, unless it was clearly stated in some way either in the statute or in its legislative history.

And it was stated in the Bell case that Congress could make explicit provisions that it was easy enough for it to provide as a transportation of each woman would be a separate offense.

And thus having failed to do so, this Court would apply the usual rule of state.

This is an application of the rule of strict construction criminal statutes and would not find multiple offenses and allow multiple punishments.

The Bell case was followed by Universal C.I.T. Corporation case, which involved the continuous crime more like the old cohabitation cases.

But -- but in that Universal C.I.T. case, the Court repeated its general rule that -- and particularly in a criminal statute, we will look for explicit provisions for penalties and where they're not present, we will give the accused the benefit of the doubt.

Prince was based on the same ground.

The legislative history of the statute was examined.

There was some evidence in that legislative history that Congress didn't intend to punish a man for entering a bank for the intent to commit a robbery and also for the robbery, it was somewhat like prosecuting of him for attempt to commit a crime and also for the completed offense.

In the last term, the Court had before the Gore case which I have discussed in my supplemental brief.

The Gore case is a narcotics case.

And the accused in that case was charged by -- in connection with a single sale of narcotics, where they're actually two separate sales, but with respect to each such sale, he was charged with three violations.

Sales, violating for statutes that prohibited the sale of narcotic drugs not in the original stamped package, the violation of the statute thus forbade the sale of narcotics drug except on a written order of the purchasers.

And finally under the Tariff Act, I think, facilitating and concealing the sale of narcotics drugs, knowing that they've been unlawfully imported.

This Court held in the Gore case that the document in the Bell case would not be applied.

It was pointed out in the majority of opinion that these three statutes which the accused had violated had been adopted at different times and were totally separate statutes.

And most important, I think, that the entire history of the narcotics legislations showed the strong almost frantic efforts of Congress to stamp out the narcotics trade.

So where there was no scope at all for the application, at least, the majority of this Court itself, of the principle in the Bell case in any narcotics case.

The Court was also confronted with the Blockburger case, which was a brilliant point and had decided these questions some years ago.

The present case is -- is different from the Gore case, as the Bell case is different from the Gore case, and the Gore case sharply distinguished the Bell case.

On the ground, there was only a single statutory provision involved in the Bell case and that there was no history of these efforts of Congress to provide ever increasing penalties in an effort to stay involved in the narcotics trade as in this -- the Gore case.

The present case is very similar to the Bell case, as only dealing with a single statute.

One -- in fact, one clause of a single statute, there is no such history as we have in the narcotics legislation.

I don't mean to suggest in any way that assaulting federal officers in the performance of their duties is not a serious offense, but there's -- it just doesn't have this kind of -- of strenuous efforts to the Congress to bring more and more severe penalties into play, in an attempt to stop the narcotics trade.

The closest case that we have then is Bell against the United States.

And however, there are other cases that I'd like to mention briefly.

Or rather proposes as mentioned personally, the legislative history of this statute, I've examined it in my brief, its set forth there, all that's available of it.

There isn't very much.

With respect to this particular statute, there is evidence.

The Department of Justice introduced this statute into Congress in 1934, I think.

The -- in a letter from the Attorney General to the Chairman of the respective House committees hearing the Bell, the Attorney General referred to several other federal statutes been in existence the purpose of which was to protect federal officers in the performance of their duty.

A couple of those statutes had a provision making it a crime to wound a federal officer.

This statute has no such provision.

From that I argue, though I'll admit the argument doesn't have overwhelming force, that there was no intention in this case to denounce a crime of wounding a federal officer and that the statute was intended to say no more and appears on its face.

Now, as the Chief Justice pointed out, there's a turning opinion in the Gore case.

The problem of finding the intention of Congress in the legislative history in these cases is a difficult one and somewhat frustrating.

Nobody seems to have to write questions on the -- wrote Congress, if someone would only get up and say what happens if he shoots a gun and it hits two people and -- and we would know a little more than we do what Congress intended in this case.

Justice Felix Frankfurter: You're not suggesting this is legal spectacle action?

Mr. Harold Rosenwald: No.

No, I am not [Laughs].

Until I find the legislative history somewhat favorable to my contention, certainly not adverse to it.

And since, if we could at least have it neutral, report then would apply the rule in doctrine of the Bell case that is enough to -- to control the result in the present case.

And that, I think, the legislative history clearly shows that there is nothing which remotely suggests and that Congress intended to punish them, the petitioner or any other accused, under the statute for the consequences of this Act rather than for the single act itself.

Now, let me run over the cases in -- heard.

Under other statutes though I have fully in mind the admonition of the Court in the Prince case, heard each statute is a separate matter and what Congress intended in enacting one statute is no evidence for what is intended in enacting another.

Justice Potter Stewart: (Inaudible)

Mr. Harold Rosenwald: Thus yet, that was a question about (Inaudible) was not going to be very helpful.

Justice Felix Frankfurter: And I agree, but I -- everybody says and shouldn't do this and then he goes on and does it.

Mr. Harold Rosenwald: Well -- [Laughter] I might as well --

Justice Felix Frankfurter: Chose the -- chosen question is that evil example for us to have mattered --

Mr. Harold Rosenwald: [Laughs]

No.

If I may -- it was mentioned, a few of them, without relying heavily on them.

What I rely on, I've already said.

These are just -- out of an abundant precaution, I will move to the better cases.

It may (Voice Overlap) --

Justice Felix Frankfurter: May I suggest that -- that (Inaudible) more of each statute stands on own basis.

Whatever you may think of it, if the Court has what (Inaudible) not for the past but for the purpose it.

What if Congress wants to file on punishment, it is within its power.

But if he doesn't, this Court may lay down as will of construction.

That isn't compelled upon the penetrate your convenience.

That's not -- that's not an ad hoc doesn't it?

That's a general rule of statutory construction in criminal case.

Mr. Harold Rosenwald: That's right.

It's precisely my understanding.

And I -- and the Gore case didn't exactly went principle of (Inaudible)

The Gore case steps so prior to the principle, but found evidence of congressional intention to be extremely severe in narcotics cases.

So that -- those narcotic cases stand off as another -- be held or they‘re consistent with the principle or in application of it.

Well, I really like to mention these -- these other cases, if I may.

The mailbag cases, for some strange reason, cutting the mailbag although the bag would seem to be the same where you cut several mailbags, there's a separate offense with respect to each mailbag.

That's the decision of this Court.

The Courts of Appeals have followed that decision in Ebeling against Morgan, which is cited in my brief, but have not -- has followed that where there was a cutting involved.

But where there was an effect of mailbags or processed from a single mailbag, some of the courts that appealed have found that there was only a single offense committed and they distinguished the Ebeling case on the ground that there is more than one act in this which is currently you have to have a separate stroke of the knife for these mailbags to be cut, that if you get a real wide -- wherever you can carry a weight of several mailbags at the same time, that was the only one act and therefore, only one offense.

I've seen those mailbags.

I don't see how they do it, but -- [Laughter] the bank robbery cases were headed by Prince against the United States, remember that the application, one-third of the bank robbery statutes tendering a bank with intent to commit a felony and robbing the bank is only one offense.

And there -- because I said, the Court have applied their general principle of statutory construction.

More interesting, for that purpose, is the cases under the section of the Bank Robbery Law, which makes in a -- a criminal offense to put the lives of its -- the life of a -- any person in jeopardy, of any person in jeopardy, in the commission of the -- a bank robbery.

Three Courts of Appeals, in the Fifth Circuit, the Sixth Circuit and the Ninth Circuit have held that there is only one offense, no matter how many persons' lives were put in jeopardy.

And the singular language appears, any person putting in jeopardy the life of any person that appears in the bank statute.

It appears in the Mann Act.

And it's the usual language of statutes.

So the singular, any person despite of the Government's argument, I don't think, helps very much in the decision in this case.

There are state court decisions, unrelated questions and that they are in hopeless conflict.

I don't think they help very much except to say that where a matter comes up in the state court, that this Court held in the (Inaudible) against New Jersey, last term.

The State has a right to decide that there are separate individual robberies, where several persons had robbed at the same.

That was not a decision of this Court, but there were several robberies, or as many as separate crimes with respect to each person robbed.

This Court simply said, “If the State of New Jersey wants to so hold, that's not a denial of due process.”

And there are cases in accord in other states and there are cases to the contrary.

In any offense, the state court cases and the common law cases have very little to do with determining under the decisions of this Court, the intention of Congress which is a controlling criterion for the decisions here.

And the intention of Congress in enacting this particular statute is what we are concerned with.

And I think I've pointed it right, for the determination of their intention.

Chief Justice Earl Warren: Mr. Sand.

Argument of Leonard B. Sand

Mr. Leonard B. Sand: Mr. Chief Justice, may it please the Court.

As counsel for petitioner has indicated this is a punishment case.

The questions involved in this case are solely ones of statutory construction.

In the next case that the Court will hear, the Abbate case, we will return to problems of successive trials by State and Federal Government.

Problems of -- of double jeopardy and federal supremacy, but there are no constitutional problems in this case.

There are no problems of successive trials.

The problem is one of concerning the intent of Congress, the unit of crime which Congress indicated, it intended in this particular statute.

It is the Government's position that this statute which deals with a crime of violence against the person and uses the term “assault” a term which has a recognized and defined meaning at the common law, makes the unit of the crime.

Each individual federal officer assaulted with the intent which the statute requires.

And it is clear, we believe, that at the common law, where a person intends a crime of violence against the person, each victim constitutes a separate crime and we have -- we have summarized in our brief, the state court cases to that effect.

Or it emphasized that we're dealing in that statute with the clause or shall assault him on account of the performance of his official duties.

There is other language in the statute, but that does not -- the language which appears in Counts 2 and 3 of the indictment, which are the counts which are now before the Court.

So this -- the problem before the Court is what did Congress mean when it says, “Assault him, the federal officer, on account of the performance of his official duties.”

Required that there'd be an intent on the part of the defendant to direct an assault against each particular federal officer.

Chief Justice Earl Warren: All, Mr. Sand, there had been 10 men facing -- 10 officers facing the petitioner.

He resisted them and he fired a shot.

He missed everybody.

There's no question about it than what he's assaulted each one of those -- those persons.

Are there 10, as he committed 10 violations of this Act.

Now, without regard to whether he's -- he's committed the separate crime of assault against each of these men, as he committed 10 offenses under this particular statute.

Mr. Leonard B. Sand: I -- I think, if a jury could find that he intended to direct an act of -- of violence, an act of -- of bodily harm against the individual before him and on account of the performance of his official duties, if there was that specific individual intent on the part of the defendant with respect to the persons before him.

And if he had the -- the actual ability to inflict bodily harm against those persons --

Chief Justice Earl Warren: Well my -- my question --

Mr. Leonard B. Sand: Yes.

Chief Justice Earl Warren: -- involved firing the shot in their direction.

Right in their direction, as they came -- as they came at him to -- to arrest him, he fired the shots right in -- right into them.

Miraculously, he missed them all.

I --

Mr. Leonard B. Sand: I think it would be a question of fact for the jury, whether --

Chief Justice Earl Warren: Well take those facts, take those facts.

Those are pretty -- those are pretty simple facts aren't they?

Mr. Leonard B. Sand: But if -- if, in fact, by his weapon he could have injured all 10 persons, if they were so huddled together and the weapon which he used was a weapon which was capable of inflicting a bodily injury on 10 persons.

If it was a -- a bomb, a grenade, then I think the jury could -- could find that there were 10 offenses here.

Chief Justice Earl Warren: Alright.

Let's take the case then of a -- throwing a hand grenade at them and the hand grenade didn't -- didn't injure anyone.

Mr. Leonard B. Sand: Yes.

I --

Chief Justice Earl Warren: You could --

Mr. Leonard B. Sand: I think --

Chief Justice Earl Warren: You'd have 10 offenses under this statute instead of one.

I just --

Mr. Leonard B. Sand: Yes.

Chief Justice Earl Warren: -- just wonder --

Mr. Leonard B. Sand: Yes.

Chief Justice Earl Warren: -- on what's your position.

Mr. Leonard B. Sand: If -- if the jury would -- could find it as under those facts, I think a jury could --

Chief Justice Earl Warren: Yes.

Mr. Leonard B. Sand: -- that there was an intent on the part of the defendant to inflict bodily harm on each of those persons and the defendant has the ability to inflict that harm.

I think that -- that Congress -- it was the intent of Congress to protect each and every one of those federal officers.

This is not a statute which deals with a government function.

This is not a statute which says “Whoever obstructs the passage of a mail shall be guilty of a crime.”

There -- if there were several acts, all of which are designed to affect one obstruction of the mail, of course, there's one offense.

But the legislative history of this statute to which I -- I shall come shortly and the language of the statute itself indicates that it was Congress' intent to protect the federal officers, the human beings, not -- not an abstract concept.

The -- the legislative history is -- is I think, significant in this respect because in the letter of the Attorney General and I am -- I have reference now to pages 14 and 15 of the brief for petitioner in this case.

And this was the letter of the Attorney General to the Chairman of the Senate Committee On he Judiciary in which he requested that this -- the -- the passing of statutes of -- of this sort.

And he talks in -- in the second paragraph on page 14, of the need for general legislation for the protection of federal officers and employees.

And he goes on to talk and the last sentence on page 14 and we first -- continued on page 15 of the agents, several of whom have been assaulted in the course of the year, while in the performance of their official duties.

Contrary and -- and that, of course, was the intent which is embodied in the statute, an intent to protect federal officers against assault.

Now, counsel for petitioner suggest that if the statute said whoever wounds a federal officer as some other federal statutes has done.

And in fact, two federal officers were wounded, be it by one shot or several, there would be two crimes.

But Congress has as much right to protect federal officers against assaults, as against wounds.

The -- the basic premise of the Government in this case is that this is a statute which deals with a crime of violence against the person and requires under the provision applicable in this case, that there'd be an intent on the part of the defendant to inflict bodily harm or to direct an act of violence against the person.

And I know of no case in any court in this country where the defendant had an intent to injure two persons, where it has not been held that the unit of the crime as each person so injured.

There is a conflict --

Justice Potter Stewart: (Inaudible)

Mr. Leonard B. Sand: Yes, Mr. Justice Stewart, because that is a -- a requirement of the statute and that is a specific allegation contained in the indictment.

Justice Potter Stewart: This finding of guilt?

Mr. Leonard B. Sand: The finding of -- of guilty, I think, is inconclusive that the defendant had an intent to assault each of these officers on the count of the performance of his official duties.

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: Mr. Justice Brennan, I -- I agree that the Government's principal burden in this case is to -- is to distinguish the Bell case.

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: Yes.

I -- I think that there are two significant differences between the Bell case and this case.

In the Bell case, the constitutional basis for the Federal Government to act was the commerce clause.

Absolute thing -- crossing of -- of state lines, the Federal Government had -- had no authority.

Concerned as it might be with -- with the morality of the situation, it was powerless to act.

And there -- and the Court said therefore, that the unit of crime -- of the crime would be the single transportation.

There is this other difference --

Justice Felix Frankfurter: May I (Inaudible) what -- what development is that, that the constitutional basis was crossing of state lines?

Once you have a constitutional basis, the consequence which Congress draws from that power is of no difference.

Mr. Leonard B. Sand: I think -- I think, Mr. Justice Frankfurter, that -- that before the rule of -- of lenity can be invoked, there -- there has to be an ambiguity in the statutes.

In -- in other words, if -- if you cannot cease upon some other possible unit of the crime, then -- then you cannot say Congress has spoken ambiguity.

Justice Felix Frankfurter: (Voice Overlap) lenity inclusive of the ambiguity.

Mr. Leonard B. Sand: I think if you can look at a statute as I shall later suggest, you can look at this statute and say there is no other reasonable unit of the crime that -- that we can suppose Congress might have intended, then I think you have to say and we should properly say that -- that Congress has spoken with -- with sufficient specificity.

We cannot reasonably find any other unit of the crime.

Justice Felix Frankfurter: And the whole --

Mr. Leonard B. Sand: -- particularly, if I may, particularly, when you're dealing in the context of a crime of violence directed against the person -- a crime of violence directed against the person, where Congress has used a term which has an accepted meaning at the common law, assault.

And has not otherwise defined that term, I think, you therefore look to what -- what would constitute an assault at common law and what would be the unit of -- of the crime at -- at common law.

Justice Felix Frankfurter: But why -- why is the Government -- why is the United -- why is the Congress interested in making an assault on these things, a federal offense and not leaving it to the local assault statute, because of the governmental interest?

Mr. Leonard B. Sand: That's right, the governmental interest which -- which exists with respect to each particular federal officer.

Justice Felix Frankfurter: Yes, that's right.

And it doesn't mean -- but the transaction, I mean the -- all I'm was suggesting is that I see no difference between the source of the power of the legislation as a basis of arguing whether Congress has indicated when the fatal act has much of a consequence, you should have multiple penalties in one count as in the other.

Mr. Leonard B. Sand: I -- I think the only significance is that it -- it suggests another possibility, something else which might be the unit of the crime.

Justice Felix Frankfurter: According to this, that the -- the doctrine is there is such a thing as you call a rule of lenity.

And as just they mean that Congress hadn't spoken with clarity because there's no full argument.

I don't mean any (Inaudible)

Mr. Leonard B. Sand: Yes, well now --

Justice Felix Frankfurter: This is common ground that Congress has been showed.

They say, “We think this is so serious that we want to leave no doubt of every itemized transaction.

Every itemized consequence of -- of official impulse, the cause wasn't real.

It punished.

If you haven't got there then -- and the rule lenity means that Congress soundly expressed themselves as to offer evidence.

Mr. Leonard B. Sand: But --

Justice Felix Frankfurter: It was on this -- at first, those are general purpose.

In criminal cases, you don't go for the general purpose because of the general doctrine involved (Inaudible)

Mr. Leonard B. Sand: But what I'm suggesting, Mr. Justice Frankfurter is, since we're dealing with a crime of violence against -- against the person, and in light of the common law background, the -- the most logical and reasonable unit of the crime would be the person.

I go beyond that.

I say that you cannot read this statute and -- and compare this with other statutes in this Court's construction of other statutes and find in it, another possible unit of the crime.

And if you can't find some other possible unit of the crime, I think then you must say, “Well, Congress had specifically, has indicated.”

There can't be an ambiguity unless there's an alternative.

Well, the only other -- the only other unit of the crime which has been suggested by the petitioner is the use of a gun.

And this construction is based on the assumption that the second clause in the statute creates a separate crime.

The clause that reads, “And whoever in the commission of any of the act -- I'm reading from page 2 of the Government's brief, “And whoever in the commission of any of the acts described in this section shall use a deadly or dangerous weapon, shall be fined not more than $10,000.”

This is precisely parallel to other federal statutes to the bank robbery statutes.

For example, in which Congress has -- has indicated -- has defined a crime and then has placed a penalty clause, an aggravated penalty clause.

This is precisely parallel to the bank robbery statute which was before this Court in Holiday against Johnston, in 313, United States.

And in that case, the Government conceded that the penalty provisions did not constitute a separate crime.

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: Precisely, Mr. Justice Brennan.

And -- and if the statute itself and the other cases incidentally following Holiday against Johnston, there was a -- a many, many cases in which defendants who have received consecutive sentences were resentenced because it was -- it was accepted that this was not a separate crime.

This was merely a penalty provision.

And as a matter of fact, with respect to this specific statutes referring to page 16 of the brief for the petitioner, the report of the House Committee on the Judiciary contains the following statements.

“The second paragraph imposes a penalty for forcibly resisting,” and so on.

And then it says “If a dangerous weapon is used in the commission of any such offense, the penalty is increased.”

There's not a new crime created, the penalty is increased.

Chief Justice Earl Warren: Well, Mr. Sand, let me get back to the -- to the situation I posed to you before.

Under this statute, it is equally an offense to forcibly resist, oppose, impede, intimidate or interfere with any person designated in Section 253.

Now, let's take the situation where 10 officers come to a person's home or establishment to execute some process or to -- to arrest him or for some other -- other purpose.

The 10 people are in front of him and he waves a gun at them and he says, “You cannot come in this house, any of you.

If you do, I will kill you.”

Which is directed against all 10 of these people, he doesn't pull the trigger, all he does is forcibly resist, oppose, impede, intimidate and interfered with them.

Would you say in that situation that he had committed 10 crimes because the Government said 10 officers and that because they sent 10 officers instead of one that he could be punished for 100 years, instead of 10 years?

Mr. Leonard B. Sand: Mr. Chief Justice Warren, I -- I think that poses a -- a much more difficult case.

It is certainly not the case which is before this Court because we're dealing in this case solely with the other provision of the statute.

There is no -- that the indictment is -- in this case is only on the basis of an assault on account of the performance of his official duties.

Chief Justice Earl Warren: But you -- you --

Mr. Leonard B. Sand: I think that's a clearer case.

Chief Justice Earl Warren: Yes.

But you pointed to the legislative history of it to -- to bring this -- make this a general law instead of having a variety of laws which apply only to -- to certain kinds of officers.

And then each one of those, I noticed according to the letter of Attorney General Cummings, the word, “resist” is in, or “impede” and so forth.

Now, it's all in one -- it's all in one paragraph, all together.

Now, what is there in the legislative history to indicate that if he actually assaulted the officers, you could charge more than one offense, but if he only resisted, he impeded or interfered with them, that you could only charge one?

Mr. Leonard B. Sand: Well I -- I don't -- I think you could charge more than one.

I think you could --

Chief Justice Earl Warren: You -- you could --

Mr. Leonard B. Sand: I don't think you could --

Chief Justice Earl Warren: Then if my answer is yes, that he -- that they -- that they could --

Mr. Leonard B. Sand: Yes

Chief Justice Earl Warren: -- sentence him to 100 years, if there were 10 people or if the Government only send one, that they could only send him for 10 years?

Mr. Leonard B. Sand: Yes.

Chief Justice Earl Warren: Is -- is that your answer?

Mr. Leonard B. Sand: Yes.

Chief Justice Earl Warren: That they could?

Mr. Leonard B. Sand: Mr. Chief Justice Warren.

Chief Justice Earl Warren: Well, I just wanted to know what's your point --

Mr. Leonard B. Sand: And I am reminded, Mr. Chief Justice, of the language which Mr. Justice Douglas used in his dissenting opinion in Universal C.I.T.

He said there, “Of course, horrendous possibilities can be envisioned -- envisaged almost every law, but the prosecutors who enforced this Act, the grand juries who hear evidence of violations and the District Courts who applied these sanctions have to -- to date not made these criminal provisions oppressive and beyond reasons.

Justice Felix Frankfurter: But that merely means, and if you -- you rely on the discretions of possibilities as to whether in the case put by with these judges, the sentence thereon again should be imposed with 10 years.

Mr. Leonard B. Sand: The prosecutor's juries --

Justice Felix Frankfurter: And the whole --

Mr. Leonard B. Sand: And -- and (Voice Overlap) --

Justice Felix Frankfurter: Juries had nothing to do with it, except that they find a number of Senators and they couldn't very well, in case put by the Chief Justice bringing a special verdict and say, “We find him to have resisted only one man in the affray offense, could they?

Mr. Leonard B. Sand: Besides that, they -- they could in a --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Leonard B. Sand: -- in a given factual situation of the Court.

Justice Felix Frankfurter: The rule of lenity precisely wanted to avoid that kind of defendants on the compassionate nature of this prosecutor as against the (Inaudible) of another prosecutor.

Mr. Leonard B. Sand: I would -- I would say to this -- two points.

One, I would again emphasize that the statutory provision which is now before this Court which is the only provision which is involved in the indictments in -- in this case, is an assault on account of the performance of official duties.

I think that that -- that's significant because of the -- of the common law background of assault.

I think --

Justice Felix Frankfurter: The common -- I don't -- I use this.

I --

Mr. Leonard B. Sand: I -- I --

Justice Felix Frankfurter: If I can use certain that there was assault in the common law.

Mr. Leonard B. Sand: Well, I -- I --

Justice Felix Frankfurter: That's not our problem.

Our problem is when a single act, a single conduct, one unified conduct and this is multiple consequences, does the Court or shouldn't the Court announce a rule which guides Congress in this -- in -- in making clear so that we don't have to be puzzled by it, as to what its purposes in -- in the extent of the punishment.

Mr. Leonard B. Sand: Well, of course, our problem is to determine what Congress intended.

Justice Felix Frankfurter: Well, I --

Mr. Leonard B. Sand: And I --

Justice Felix Frankfurter: -- that -- does that encompass --

Mr. Leonard B. Sand: Well --

Justice Felix Frankfurter: -- but the Congress intended not --

Mr. Leonard B. Sand: Well --

Justice Felix Frankfurter: -- unless it were (Voice Overlap) --

Mr. Leonard B. Sand: (Voice Overlap) --

Justice Felix Frankfurter: If it -- if it is explicit, if I've had no property.

If it isn't, then I'm just guessing and imputing an invention which didn't exist.

Mr. Leonard B. Sand: Well, of course, the rule that I'm invoking is -- is the rule that where Congress uses a term which has an established common law meaning and does not otherwise define that term, that the meaning to be given is that which is recognized as the common law.

Justice Felix Frankfurter: I don't have to do with that.

Mr. Leonard B. Sand: I think -- I think, if that is another basis to distinguish this case from the Bell case and the C.I.T. cases because there, we were dealing -- this Court was dealing with -- with statutory crimes which existed only insofar as Congress made them a crime.

Congress was writing on -- on a blank page, so to speak, not so here.

Here, we're dealing with a -- with a crime (Inaudible) in which Congress has used a term recognized by the common law.

And it is clear, we submit, under the common law that where there is an intent directed to each of the -- of the victims --

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: I -- I think that's right.

And as a matter of fact, Mr. Justice Brennan, the statute now reads --

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: Well -- well --

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: I -- I've --

Justice William J. Brennan: (Inaudible)

Mr. Leonard B. Sand: Well -- I -- my argument is this.

Congress has used the term, “assault.”

It is -- it's used other terms as well.

I would agree that the intent of Congress with respect to -- to assault, it was probably the same as that with respect to the other verbs that he used, which he opposes and keeps.

I would reason from that Congress using assaults, using a term which has these established meanings, must have meant to use that term, since it didn't otherwise define it.

In accordance with the meaning which it had given -- had been given at -- at the common law, so we know when Congress says, whoever forcibly assaults as the -- as the new statute now reads, that needs whoever does act, which at the common law reconstitutes an assault, he shall be guilty -- guilty of a crime.

And -- and then, I think that the same reasoning would apply to the other terms that Congress used.

But of course there's -- that these are not terms that are recognized by the common law that -- that I -- I can't invoke that argument.

I have to reason from the fact that Congress first --

Justice William J. Brennan: Now, would you give a gloss to resist and interfere and impede from --

Mr. Leonard B. Sand: From the (Voice Overlap) --

Justice William J. Brennan: -- the meaning you give to us all.

Mr. Leonard B. Sand: Yes.

Justice William J. Brennan: You would.

In other words, you -- your reason that if assault meant that each -- each individual who accepts the assaults, than as each of occurrence with that individual will be accepted in the theory or accepted an immediate person, is that it?

Justice Felix Frankfurter: Use no answer to the Chief Justice and I --

Mr. Leonard B. Sand: Yes.

Justice Felix Frankfurter: From your point of view, am I correct?

Mr. Leonard B. Sand: Yes.

Yes, I -- I would.

I think this is an easier case, of course, if that was an assault case and this is a case in which there's a specific requirement that the defendant has an intent as to that particular victim.

I -- and you could --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Leonard B. Sand: -- get two ways.

Of course, you could -- you could say as I say, the Government or the Congress says whoever saw, this is a (Inaudible) which has been established.

Meaning -- the same meaning applies to the other terms.

I don't think -- I don't think the converse is a -- an effect of an argument.

It's the -- the new statute, of course, begins with assault whoever -- the new statute reads whoever forcibly assaults, resists, opposes, impedes.

The -- the --

Chief Justice Earl Warren: Well, Mr. Sand --

Mr. Leonard B. Sand: These are the --

Chief Justice Earl Warren: -- isn't -- isn't a resisting in the -- in the situations I gave you exactly the same as assault under -- under the common law, wasn't pointing a loaded revolver at this person an assault?

Mr. Leonard B. Sand: I -- I don't -- no, wasn't there -- as I -- I -- a common law concept of -- excuse me, a common law concept of -- of resistance, that's the fact.

I -- I would suppose that it's -- that if there weren't, it -- it would be.

Justice Felix Frankfurter: Mr. Sand, you suppose that Congress had been asked -- had been this forethought wouldn't it?

Well that's in the Congress.

Don't you suppose they would've said, sure it's a different -- it makes a difference to us, whether as a matter of liaison, you think a young woman across the North River, Jersey or from Jersey.

I want a specific place and --

Justice William J. Brennan: Was there --

Justice Felix Frankfurter: Well because that's on the other side of the Northwest or wouldn't they've make a difference between that kind of a case and taking 10 women as a professional finder of cause.

And yet I don't understand the Bell case, calls to find out to make such moralistic inquiry.

Mr. Leonard B. Sand: I -- I would like to -- to reverse in response to your question, Mr. Justice Frankfurter, to the contention which -- which the Government makes that there is no other reasonable unit of the crime he has.

Because I -- I agree that it is not enough to say well, Congress would have wanted 10 crimes and -- and made a hypothetical, which -- which Your Honor suggest, if it didn't say so.

I think -- I think it has to say so.

I think it has said so here, because there is no other reasonable alternative.

As I said before, I think before there is an ambiguity, there has to be an alternative.

Justice Felix Frankfurter: But Justice Brennan's question to you, to which you responded logically, but I think the subject is from your point of view that assault might be just one unit.

And if you think that owns a resist and oppose, which do not carry those common law issues, is the certiorari unit, gets the color from the fact that assault being a common law single unit, the others derive that color from the fact although, they're not common law units, but assault of the common law unit.

That's what your argument --

Mr. Leonard B. Sand: Yes.

Justice Felix Frankfurter: -- is that right?

Mr. Leonard B. Sand: That's right.

That -- that we can reason from assault which is the case (Voice Overlap) --

Justice Felix Frankfurter: -- then I would presumably meant to have the same consequences follow, if this contention will resolve intentions.

Mr. Leonard B. Sand: Yes.

Yes, but my -- the argument which I -- which I am now advancing is not dependent upon the common law and nature of assault.

The argument which I'm now advancing is dependent on the absence in the statute of an alternative unit of the crime.

Justice Felix Frankfurter: But I suggest to you that the difficult is that you're confronting two things, namely, what is the unit of crime and two, what should be deemed to be the penalizing consequences even though you permit 10 units.

Mr. Leonard B. Sand: I don't think, Mr. Justice Frankfurter --

Justice Felix Frankfurter: No, they're two very different things.

Mr. Leonard B. Sand: I don't think, Mr. Justice Frankfurter, that this statute is unconstitutionally vague.

I think Congress had --

Justice Felix Frankfurter: I don't know.

I --

Mr. Leonard B. Sand: -- has -- and -- and since Congress here has spoken of a crime against the person, if there's no other possible unit of the crime, but the persons, can't we then say Congress has specifically enough indicated that the person is to be the unit of the crime.

And the only other suggested unit of the crime is the use of the gun.

I don't understand under that reasoning what the unit of the crime would be in the case in which no gun is used.

Suppose with your fist, you physically assault two officers.

Under the reasoning of petitioner, you would then have two crimes.

So that if by your fist, you assault two officers --

Justice Felix Frankfurter: Depends --

Mr. Leonard B. Sand: -- you have -- you have --

Justice Felix Frankfurter: Pardon me.

Mr. Leonard B. Sand: May I, Mr. Justice Frankfurter, just complete what I started.

If by your fist you assault two officers under petitioner's reasoning, there would be two crimes.

But if you use a gun, then that's only one crime.

Justice Felix Frankfurter: Well, I didn't understand his argument.

Suppose -- suppose a man was sent over some strong man of the day whether to stand on the circuit, one case, one deputy marshal and 10 of them are in a row like dominoes and they all go over.

Why do I have to bother what the unit of the offense is in determining whether that should be punished or whether that the three isn't got to a 30 years, that's a different problem.

Mr. Leonard B. Sand: Well --

Justice Felix Frankfurter: Congress could have written out and said, if by a single act -- if by a single act although 10 people or three people or five people are adversely and violently affected nevertheless, only a single punishment could be given.

Congress could do that, now, what I understand the rule of lenity to be that they construe it to be that.

Mr. Leonard B. Sand: You said, Mr. Justice Frankfurter, that you did not understand the counsel for petitioner's argument to be.

That the --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Leonard B. Sand: -- same as I understood it to be.

Justice Felix Frankfurter: (Inaudible) is one and on the nine other deputy marshals behind him and they all topple over like dominoes.

I didn't understand that you almost suggest that was the 10 crimes.

And that (Inaudible) it's only one.

Mr. Leonard B. Sand: Well, I suggested that the unit of the crime was the use of the dangerous weapon taking, I think, what is clearly the -- the penalty provision and making of that the crime.

And you must then -- in the hypothetical which you -- you're suggesting whether if, there's only one crime there, that the unit I suppose, you'd then be saying that the unit of the crime is the entire transaction.

But this is not such -- this is not a statute where Congress has -- has used such language.

This is not a statute which says whoever obstructs the -- the performance of Government operations, whoever obstructs the passage of the mail, this is a -- a statute in which Congress has dealt with a crime of violence against the person.

Justice Felix Frankfurter: I can agree -- I agree with your (Inaudible)

Suppose in my case they're toppling over 10 fellows, then that is (Inaudible)

The prosecutors would lay the indictment by charging the crime as against any one of the 10.

So that on your point of view, I have no difficulty in saying there were 10, this unit of offense in the violence committed upon each one of the humans, but the problem of what the consequence is if you have a single impulsive act, it's a totally different part.

And that's the question of how we are to conclude the penal part of the statute and then their difference -- two different problems in my mind.

Mr. Leonard B. Sand: Well --

Chief Justice Earl Warren: Well, Mr. Sand, we'll take Justice Frankfurter's situation and revise it just (Inaudible)

Suppose the Government sends 10 officers to -- to arrest the man who - who's a pretty husky fellow and -- and they close in on him and he starts to resist and he -- he just fights the whole outfit and strikes it all of them until they finally suppress him.

Would you say that he had committed 10 crimes and he could be sent to penitentiary for 30 years instead of just three years, because there were 10 men present and he -- he struggled with them and resisted and impeded and -- and did all the other things that -- that the Act says.

He assaulted them too, and would you say that the Congress would intend that in that situation that they could charge 10 crimes against him and convict him of and sends him to the penitentiary for 30 years instead of three?

Mr. Leonard B. Sand: Yes, Mr. Justice.

Chief Justice Earl Warren: You --

Mr. Leonard B. Sand: I think that Congress intended to protect each of the officers against bodily assault.

I think -- I think that was the request which was directed to the Congress to protect the federal officers against assault.

I think to take a hypothetical rather close to Mr. Justice Frankfurter's hypothetical, I think if a defendant lying his victims up, if he require that his victims to stand directly next to each other and fired a shotgun at them, one pulling of the trigger and they die, I think that would be 2 murders.

Counsel for petitioner concedes that if the statute said wounds, whoever wounds a federal officer and that shotgun trigger was -- was pulled once and wounded both the officers that would be two crimes.

I think similarly because Congress can't protect officers against assaults, as well as against wounds, and against murder.

There would be -- there would be a crime with respect to each person towards whom the -- the defendant intended to direct a bodily injury.

I think -- I think that every case which has dealt with an injury to the person in which there was an intent to inflict injury to the person has held the unit of the crime is the victim.

I would like straightly to call the Court's attention to the procedural problem which is involved in this case.

It's a problem that of diminishing importance because it -- it -- that this case was tried at the time when the federal law did not acquire that there'd be a transcript.

And there's a serious question which has never been decided by this Court whether you can in a proceeding under 2255 challenge a -- a conviction and have a hearing, the purpose of which is to ascertain what the evidence was which was introduced at the trial.

In the Bell case or in the Prince case there was no -- there was no problem as to whether the facts constituted whether there was one transportation or -- or several.

This was -- this was conceded.

But here, the Government, of course, cannot concede that there was only -- only one shot fired of each indication to the contrary.

So petitioner is requesting that he be given a hearing the purpose of which would be to establish what the testimony was that was adduced at the trial which took place some -- some 13 or some years ago.

And presumably that -- that testimony will be -- will be in conflict.

The judge -- the trial judge indicated that his recollection was, that there was -- that there was more than one shots fired.

And -- and proceeding on the assumption that it somehow makes a difference how many shots were fired even though both counsel for petitioner and -- and for the Government concede its number of shots, you don't have to fire the gun at all, to constitute himself.

Justice William J. Brennan: I'd assume, Mr. Rosenwald, would take -- would make a difference whether one shot was fired or more one shot.

And his -- his argument was premised upon the assumption that only one was fired.

Mr. Leonard B. Sand: Well, if that -- if that be the case, I -- I -- my impression was that it took no position that's left, but if that be the case -- if that is the material factor whether the defendant was -- was a -- a good enough marksman and used a -- a weapon capable of inflicting multiple injury and was -- was a good enough criminal marksman, so that he could -- he could wound these two with -- with one act.

If -- if that -- if that is the issue, we question whether that the purpose of a hearing under 2255 to resolve disputes at the testimony which was introduced at the trial.

Now, clearly if -- if petitioner had -- had taken an appeal, there would've been a bill of exceptions, there would have been a contemporaneous record of what the trial was -- of what the evidence at the trial was.

He complained of no -- of no procedural unfairness here.

There was no -- there is no suggestion of a violation of -- of any of the procedural rights.

He complains in essence, I suppose, of an instruction which the judge may have engaged to the jury saying that they could find guilt under -- under both counts the evidence established only -- only one shot but -- but that would be a clear case of using collateral attack under 2255 for the purposes of an appeal.

We think that -- that 2255 is not so intended that you cannot use 2255, the collateral attack with a history which that section had for purposes of resolving disputed fact issues at a trial, indeed, for purposes of attempting to establish what the evidence at that trial was.

This, relying on -- on cases such as Sunal against Large which is cited in our brief, we submit that -- that you cannot by 2255, have a hearing to determine what the evidence which was introduced at the trial -- at the trial was.

Justice Tom C. Clark: What would be the remedy of -- on the said -- that it would -- (Inaudible) pardon me, because I --

Chief Justice Earl Warren: We'll recess now.