ABBATE v. UNITED STATES

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Argument of Charles A. Bellows

Chief Justice Earl Warren: Number 7, Louis Joseph Abbate and Michael Louis Falcone, Petitioners, versus United States of America.

Mr. Bellows.

Mr. Charles A. Bellows: Mr. Chief Justice, may it please the Court.

The petitioners in this case were indicted with two others on the charge of conspiracy to destroy government communications.

All four of them were convicted and all four of them were sentenced to terms in the penitentiary.

The conviction was taken up to the Court of Appeals for the Fifth Circuit.

Two of the defendants -- their case was reversed and remanded for a new trial because the trial court had failed to give some cautionary instructions relating to the statements made by the two petitioners.

This happened more than 15 months ago.

The other two defendants in the case have not been tried.

Prior to the indictment in the federal court in Mississippi, the two defendants had been indicted, with one of the men who was indicted in the federal court of Mississippi on the charge of conspiracy to destroy the properties of the Southern Bell Telephone Company.

I represented the two petitioners in the trial in Cook County in Chicago, and on a plea of guilty, they were both sentenced to a term of not more than three months.

The sole question in this case is whether or not the petitioners were placed in jeopardy under the Fifth Amendment because of the fact that they had been convicted twice in the state court and then convicted again in the -- in the federal court.

Now, the facts in this case are of extreme importance.

The law has been very carefully analyzed.

I know of Mr. Fisher personally from Chicago.

As Your Honors have said, he's a very able lawyer.

He made a great research under the law in this case.

And much of the law that I have in my brief frankly comes from conversation with him and from reading his brief and of course some personal research on our part.

But the facts in this case are extremely important because the Government raises questions that the two offenses were not actually dissented.

And so, I would like to briefly state the facts in this case.

The indictments arise out of activities of some men in connection with a -- with a strike of the Southern Bell Telephone Company.

A man by the name of Shelby, who was an international representative of the -- of the union, came to Chicago and communicated with a man by the name of (Inaudible)

Apparently, he was seeking somebody to help him destroy the communications on the properties of the Southern Bell Telephone Company for the purpose of expediting the settlement of the strike.

This man, (Inaudible), that is the record, communicated with Abbate and told him that he would receive a call from somebody from the South.

Mr. Shelby the representative was a southerner from -- also from Mississippi and lived at the time in Maryland and a man by the name of Perry, who was the -- the president of the local in Jackson, Mississippi where the act of violence had taken place.

And so, we find that Shelby contacts Mr. Abbate and there is a meeting between Abbate, Falcone and a man by the name of McLeod who was not indicted in this case and Shelby.

Shelby has with him the plans for the destruction of the -- of the various installations marked.

Shelby had worked for the Southern Bell Telephone Company.

He knew the whereabouts of the various installations.

So, on the plans, they were located at various spots where he thought they ought to destroy.

He gave Abbate $500 as a down payment and said that if they carried out their job, there would be more money afforded.

There is an effort made by Falcone to get some dynamite, I think it was a pretext.

I don't think Falcone, for the record, could ever get an indictment.

The next day -- the next day, the petitioners, Abbate and Falcone, tell McLeod.

McLeod was a man who is on parole from Oklahoma for having committed a robbery.

They told McLeod that they wanted no part of this deal and that they could make more money by conveying this information to the telephone company.

They gave him part of the $500 and McLeod insisted on going down to Jackson, Mississippi.

McLeod, when he gets to Jackson, Mississippi meets Perry who was the president of the local down there and he also meets Shelby.

One of the men connected with the union took McLeod around and showed him where the various locations where they were located.

We expect to show from the record that both Perry and Shelby began to have misgivings about McLeod.

And so, they took him forcibly.

He protested.

He wanted to stay there and blow up the installation.

But they took him forcibly to a railroad station and sent him back to Chicago.

In the meantime -- in the meantime Abbate and McLeod almost the next day the record shows -- almost the next day after meeting Shelby, communicated with the telephone company and told them that they had information in reference to plans for the destruction of these installations.

We expect to show at the most perhaps four or five days later there are conversations between Abbate and the officials for the telephone company.

There was a meeting arranged between the -- the telephone officials who is an investigator and a policeman acting as -- as a member of the -- of the telephone company.

They meet with Abbate and Falcone at which time the two petitioners are arrested.

They gave him the plans that Shelby had given them, gave him all the information and reference to this plan with the scheme to destroy this communication.

And as part -- and -- and they didn't give him the reward.

Instead of giving him a reward, they -- they indicted, and charged him with a conspiracy to destroy the property of Southern Bell Telephone Company.

Now, the -- the judge who heard this case in the criminal courts of Cook County, I suppose, took into consideration the fact that these men have almost immediately abandoned the enterprise.

I had raised the question on the Court of Appeals that there was abandonment but the Court of Appeals removed otherwise.

And in -- and in Illinois there is no need of an (Inaudible) act -- the mere -- the mere agreement between the parties, a decision to constitute a conspiracy whereas in the federal court, there must be some covered act.

But the judge took into consideration that these men had come clean.

They had conveyed all the information, had told it to the telephone company, had informed the police and the State's Attorney, and so the -- why judge gave them not more than 90 days to both defendants.

After the defendants had served their time, the petitioners had served their time, an attorney for the Southern Bell Telephone Company came to visit McLeod who has been taken back to Oklahoma prison.

And this is important because it's in the record and in some ways those -- and refers or to the -- to the other case that Mr. Fisher had, the Bartkus case.

The attorney for the telephone company came to McLeod and said, "I want your help.

The telephone company wants your help.

Now, you can help the telephone company by testifying for the Government." And so -- and so the deal was made.

McLeod was never indicted.

And I think in my petition for rehearing before the Court of Appeals, I -- I think I stated that there was a news item that appeared in the -- in the Southern Newspapers that McLeod had been given a parole at the instance of the telephone company and had been given a reward of $7500 for his aid of the telephone company.

But McLeod agrees to testify for the -- the Government and there is this trial and there is this -- this conviction in this case.

Now, it's important to know just what properties the telephone -- the Government had which they claim was the subject of this conspiracy.

The evidence shows that it was directed at coaxial -- at a coaxial cable and the evidence showed that the coaxial cable was capable of transmitting 2400 conversations.

Out of these, the Government had leased, owned, or operate -- or controlled rather, not owned, leased, operated, and controlled 20 circuits of the 2400 circuits of the coaxial cable.

And so we find that the state prosecution was directed at all the properties of the Southern Bell Telephone Company.

The Government takes only 20 circuits out of the 2400 circuits in that coaxial cable and says, "That belongs to me.

We'll indict you on that," as that's -- that's what they did.

Well, in spite of the fact that the jury perhaps got the grip of what these two petitioners had done and the jury recommended leniency as to one but there wasn't much leniency to get it.

And one who has recommended leniency got one year and the others all -- all got three years.

Now, it is our position and we concede that the Federal Government within the framework of its constitution and the States may deal with the same subject matter and thereby have concurrent jurisdiction.

And there -- there's no question about it.

We also concede that each sovereignty within the framework of the Constitution has the right to determine what shall be a defense against the peace and dignity of its sovereignty.

However, the dual doctrine should not be extended to areas in which its application causes a violation of the basic concept of justice which occurred in this case where the -- where two men are convicted and given a sentence and then taken -- taken broadly from Chicago and taken back to Mississippi, that is hundreds of miles where they're forced to stand trial so far away from their homes, with all the difficulties that go with a -- with a second trial.

And there's something basically unjust about convicting a man twice.

Mr. Fisher in his -- in his brief says, an -- an acquittal is perhaps worse.

I -- I disagree with my learned friend.

I think double convictions are worse.

I think it's worse to convict a man once and then convict him again.

We say this.

That to permit the -- the doctrine of dual sovereignty to extend to this and to nullify the protection of the Fifth Amendment will leave open a large area of concurrent jurisdiction to which accused persons may not avail themselves of the right of the Fifth Amendment not to be tried twice.

I predict, may it please the Court, and I practiced for many years both as a prosecutor and as a defense lawyer, I predict that if -- if these convictions are prevented to stand that it will open up a great distance of prosecution by the Government on the one hand and by the State.

We're asking no more than the Court to apply what was the common law rule at one time before the -- the so-called (Inaudible).

The Government in its argument says this isn't the same effects.

But it is the same effects because the offense in -- in Cook County, Illinois was conspiracy which means an agreement to do an illegal thing or to do unlawful thing by illegal means.

The charge in the federal court was also a conspiracy.

It was again an agreement to do an illegal thing and the -- the gist of a conspiracy is the unlawful combination of men and their punishment for that.

And the remarkable thing is that the substance of offense in this case is only punishable by three years, whereas the conspiracy charged here is punishable up to five years.

The Government argues in its brief that the federal offense is not the same as the state offense because there's additional element here which had to be proved, though that this operation and control.

And it is our position that is a matter of jurisdiction just the same as in a -- in a civil -- in a -- in a state case.

The -- the prosecutor must prove that it occurred within a certain county in the State.

And there is really no difference.

I see no difference but a verbal difference between the charge contained in the indictment in Illinois and the indictment contained in the -- in the federal court.

It is argued by the Government that it is not advisable to permit a state prosecution to preclude federal enforcement of the law.

We don't quarrel about that the Federal Government has a right to enforce the law but they could have tried -- they could have tried the petitioners before the State.

The field could have been preempted if it was of that importance.

If it was of that importance to the Government, Congress could have preempted the field and still has no excuse for convicting a man twice.

And this is the first time this Honorable Court has had a chance to pass on this exciting question and we submit as Mr. Fisher stated, the Lanza case isn't a -- isn't a question involved in this case.

The Government argues that -- that it would mean, and raise of offenders to the state courts.

Well, we didn't.

We didn't do it.

I think the state courts are competent to handle crimes.

Justice John M. Harlan: What was the time in the rule between your plea of guilty in the state courts and the commencement of the federal prosecution?

Mr. Charles A. Bellows: The -- the state court, the indictment was returned in April and the federal indictment, I think, was returned in August.

Is that correct?

There was enough time for the Federal Government to step in and have tried it.

And certainly, the Federal Government has told the state authorities of -- let us take in first.

We wanted if they had sent out a case with -- with a margin to take these men and bring them down to Jackson, Mississippi for trial, they would have tried it first ahead of -- ahead of the state authorities.

Justice John M. Harlan: The federal indictment didn't follow until after you'd pleaded guilty in the state court?

Mr. Charles A. Bellows: That -- yes, Your Honor.

The Government in its briefs several times by at least by innuendo admits that the -- the Bartkus case, the state of the federal was almost the same except that it had a separate sovereignty involved in it.

We see no difference between -- actually, between the Bartkus case and our State.

I -- I would say they were both the same, and although the Bartkus case was a -- was a robbery, call it what you like and in this case it was a conspiracy to destroy -- to destroy property.

It is our position in trying and convicting a man twice for the same act is so repugnant to the American concept of justice and fair administration of justice that this Court order its power to supervise the administration of justice and prevent the second -- the second conviction and nullify it.

In conclusion, may it please the Court, it is my feeling that the second conviction by the -- in the hard concept wasn't commonly -- embraces as a fair administration of justice and it's a violation of the -- of the Fifth Amendment of the Constitution of the United States.

Justice John M. Harlan: From your experiences on both sides of defense, the prosecutor and the defense lawyer, any idea how frequently this so-called double prosecution problem arises as a practical matter?

Mr. Charles A. Bellows: Mr. Justice Harlan, it's -- it's rare.

And my belief in is that in this case, there was pressure by the telephone company to -- to do this because have the -- the attorney for the telephone company not gone down to prison several times to see this man McLeod and finally cause him to turn State's evidence, or Government's evidence, a witness, there would -- never would have been any prosecution.

It's a rare instance.

But now if you should decide that it can be done, I think there's been hesitation about it.

But if this Court should decide that it can be done I predict it -- it would open up a complete double vest of prosecution.

That -- and there are so many ways of having concurrent jurisdiction today.

And it's so -- it's so easy to make almost any crime also a -- a federal offense by way of our Commerce Clause that you would find -- you'd find in state crime, and then if there was a non-successful prosecution, the Federal Government is coming in and try him again and by its notice.

Chief Justice Earl Warren: Mr. Sand.

Argument of Leonard B. Sand

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

The Government's position embraces two points.

The first which is a -- a non-constitutional basis for the determination of this case is that the offense for which the Federal Government prosecuted the petitioners is a different offense from the Illinois offense.

It's a different offense not merely verbally, but it's different because it embodies different gist, different purposes.

Justice John M. Harlan: What's the difference between the gist in this case and the gist in the Bartkus case?

Mr. Leonard B. Sand: In the -- in the Bartkus case, the legislative history of the bank robbery statutes shows that those statutes were enacted to aide what was basically a local law enforcement problem to aide the States in protecting banks against robbery.

It was first -- the -- the State, the local law enforcement problem, there were subsequently the federal statute which was enacted to aide the States in enforcing the laws.

With respect to this statute however, the legislative history indicates that it was enacted after the Civil War.

It was enacted as a military measure.

It was referred to the House Military Affairs Committee.

During the Civil War, the -- the Federal Government nationalized the telegraph facilities.

And any act destructive of those facilities was -- was an enemy act, and very severely punished.

Subsequently, legislation was enacted authorizing private companies to operate telegraph facilities and to use the public domain, giving certain priorities to the Federal Government and giving the Federal Government the power to repurchase, to -- to purchase the property, to nationalize the telegraph facilities.

Ultimately, it was decided as -- as the case today that that private industry would -- would operate the telegraph facilities, but -- but this statute which was passed in 1874, and as -- as I say, was referred to and recommended by the House Military Affairs Committee.

It was designed to protect the interest, the direct primary interest in the Federal Government in maintaining its -- its vital communication facilities free from destruction.

There is no history here of the federal legislation being designed to aide the States.

And -- and the -- the interest of Illinois in this case is the interest of a State in its police power in protecting private property.

Illinois has a -- has a common law conspiracy of crime, a common law conspiracy.And it was that -- that statute which was violated in this case.

Illinois protecting private property, and as a matter of fact, it was an essential element of the Illinois crime that the particular private ownership be alleged, and -- and had there been a trial, had there been a plea of guilty, it would have been essential element for the Illinois to prove the private ownership of that property.

We submit that however adequate Illinois may have regarded the three-month sentence imposed upon petitioners for having conspired to destroy property located not in Illinois, but located in Mississippi, Louisiana, and Tennessee.

That is not the measure of a Federal Government to protect its communication facilities.

Justice Hugo L. Black: Did the Federal Government operate these facilities --

Mr. Leonard B. Sand: The --

Justice Hugo L. Black: Of the company?

Mr. Leonard B. Sand: The facilities were operated and controlled by the -- by the Federal Government on page 7 of the -- the -- on page 7 Government's brief, in -- in footnote 3.

We described the nature of the Government operation and control over these facilities.

Some of these circuits were used by the Strategic Air Command which had its communications headquarters nearby and they were part of the National Emergency Warning Systems of -- the Strategic Air Command could get aircraft off the ground in an emergency.

The circuits --

Justice Hugo L. Black: The Government owned it?

Mr. Leonard B. Sand: The Government did not own them.

No.

They were owned by the Bell Telephone Company.

The Government leased them under -- under contractual agreements with the telephone company.

Justice Hugo L. Black: Did it operate the line?

Mr. Leonard B. Sand: Some of these were operated by the Government exclusively.

The -- the telephone company could come in and -- and make repairs or -- or deal with the -- with the physical facilities only with the approval of the Federal Government.

Some of these circuits as -- as we indicate were -- were teletype circuits and they were marked as Government circuits.

And the -- and --

Justice William J. Brennan: You say none of them was owned by the Federal Government, you say?

None was owned at least one of those?

Mr. Leonard B. Sand: None of the -- the facilities in this case were not owned, that -- that the petitioner has conspired to destroy, were not owned by the Federal Government.

They were operated and controlled by --

Justice William J. Brennan: But what about the cables?

Mr. Leonard B. Sand: -- Federal Government.

The -- the cable itself was owned by the -- by the telephone company until the point that it entered into -- into a military installation.

And from thereon, the -- the physical facilities were -- were owned by the Federal Government.

But the facilities which were involved in this case --

Justice William J. Brennan: This reference in the footnote, the distribution cable, is something into which the cables within these facilities tied up, is that it?

Where the sentences --

Mr. Leonard B. Sand: Yes.

Justice William J. Brennan: -- some instances where the military owned the distribution cable, is that what you're telling us here?

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

Those -- those are the facilities, the distribution facilities after the line enters -- enters the -- the Government preservation itself.

The answer to Mr. Stewart, future air force (Voice Overlap) --

Justice Hugo L. Black: Was there a charge that they conspired to destroy those?

Mr. Leonard B. Sand: It was -- it was charged that they conspired to destroy facilities that were operated and controlled by the Federal Government, not the facilities on the Government reservation themselves, no.

This -- whether in fact, these facilities were operated or controlled by the Federal Government was a -- disputed at the trial, it was a -- one of the questions raised in the petition for certiorari was whether these facilities were in fact operated or controlled by the Federal Government.

This Court did not grant certiorari as to that question.

Certiorari was limited to the question of -- of the -- of the debate.

Justice Hugo L. Black: It still enters to that.

I don't -- I didn't know about the -- that the Government operated line -- telephone lines owned by the telephone companies?

Mr. Leonard B. Sand: Well, the -- the contractual arrangement between the telephone company and the Government was that the control of the facilities would be in the Government and it was only with the permission of the Government that the telephone company could come in.

Justice John M. Harlan: And it was --

Mr. Leonard B. Sand: It -- it was like a leasing arrangement.

During the duration of the lease, the -- the possessory right was in the Government if they -- if they -- as if they have rented anything else.But this business --

Justice Hugo L. Black: (Voice Overlap) you mean.

Mr. Leonard B. Sand: They had rented its use and the telephone company could do nothing whatsoever with respect to it without the prior permission of the Federal Government.

Some of these circuits caried -- caried cryptographic messages and -- and the -- before any private individuals could -- could do anything with respect.

This is the testimony at the trial.

The permission of the Federal Government is -- is required.

Chief Justice Earl Warren: Am I correct in understanding that there was a coaxial cable of which there were 2400 lines, and of these 24,000 lines, the Government had taken over 20 of them.

And that as to those 20 lines in the channel, the Government operated them itself and the company had nothing to do with those lines except to go in and repair them on the request of the Government, is that -- that's about --

Mr. Leonard B. Sand: Correct.

Chief Justice Earl Warren: -- correct?

Justice Felix Frankfurter: Well, if lines not -- if other than government lines were out of order and had to be repaired, would the repairing have to be done of physical properties that were under the control of the Government?

Or are -- are these -- I don't understand it but I'm holding that's about it.

What I want to know is whether the Government had such a hold on the -- the cables or the channels that it controlled repairs to be made on the lines other than those which it itself use.

Mr. Leonard B. Sand: No.

It -- it had control over any circuit, over anything which contained a circuit which had been leased to the Government and which was so marked some of these circuits that the Government --

Justice Felix Frankfurter: Well now --

Mr. Leonard B. Sand: -- required the telephone company.

Justice Felix Frankfurter: Would -- would the circuits which it used and which got out of the repair, influence through connections or otherwise, circuits which it had not used.

The next thing is the --

Mr. Leonard B. Sand: I -- I suppose the entire cable might -- might have -- might have been destroyed --

Justice Felix Frankfurter: Well, that's what I want to know.

Mr. Leonard B. Sand: -- been destroyed.

But before the -- before the telephone company could do anything with respect to any of those any cable which contained a frequency, leased to the Government.

Justice Felix Frankfurter: The Government had to assent --

Mr. Leonard B. Sand: The Government has to assent.

If the Government (Voice Overlap) --

Justice Felix Frankfurter: What I want to know is, the Government assent was restricted to what will come to if it loses control or whether its assent would also require as to and possibly operated were not under -- that were not in fact used by it.

Mr. Leonard B. Sand: My -- my impression is that the Government's assent was required only with respect to those circuits which the Government had -- had designated.

Justice Felix Frankfurter: And -- and my inquiry derived from this differentiation that the Government has only 20 out of 2400.

Would that make a difference?

Mr. Leonard B. Sand: Well, I -- I think the Government's interest here in preserving those 20 circuits particularly in the case with those circuits, were of vital military importance where they were part of the National Emergency Warning System of the Strategic Air Command, for one of the mailer when she was lost and -- and --

Justice Felix Frankfurter: Well it took 20 out of 2400 is irrelevant and meaningless with reference to our problem.

Mr. Leonard B. Sand: I think entirely.

Justice Felix Frankfurter: All right.

Thank you for saying.

Mr. Leonard B. Sand: But I -- I would contrast here the -- the interest of Illinois in preserving the sanctity of private property reflected in the general conspiracy statute of Illinois with the specific interest under Federal Government in preserving communication facilities vital to the -- to the national welfare invalid.

I think it -- that this is a case in which the interest of the State and the interest of the Federal Government are different.

They have different purposes and this wasn't --

Justice William J. Brennan: That is -- does that distinguish this case from Bartkus?

Mr. Leonard B. Sand: I -- I think that distinguishes this case from Bartkus if -- if one assumes that in the Bartkus case, the interest of the State and the Federal Government are the same.

I think that is the ground.

I think we have different statutes here with different legislative history.

Justice William J. Brennan: Do you think that -- do you think that might mean that this is the result that you're saying?

Mr. Leonard B. Sand: Well, I think -- I think and -- and that -- that brings me to my second argument, which is that, even if the statutes were identical except for the jurisdictional difference.

That it's inherent in the concept of Federalism, that the State cannot include the Federal Government from enforcing a valid -- a valid federal policy.

Justice William J. Brennan: Well, that's then to say that the result should be the same for this.

Mr. Leonard B. Sand: With respect to this aspect of the case, other issues in the Bartkus case is here.

Justice Felix Frankfurter: In other words --

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

Justice Felix Frankfurter: -- view in this case is not in Bartkus, is that right?

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

Justice William J. Brennan: Some of them happens (Voice Overlap)?

Mr. Leonard B. Sand: I -- I think it -- I think it is of -- of importance that in this case, the federal prosecution followed a state conviction and not the converse, because they think the interest of federal supremacy is -- is different.

In here, you -- you do not have a state revising what the Federal Government has done.

You have the Federal Government saying, "We will protect our -- our facilities as we see fit regardless of -- of what the State has done."

Now of course, Congress can, if it wishes, if that's in accord with congressional intent, can preclude a federal trial following a -- a state conviction or acquittal.

And Congress has done that on -- on many occasions and we cite at pages 36 and 37 of our brief, statutes passed by Congress in which it has specifically stated that if there shall be a -- if there is a prior state acquittal or conviction arising out of the same acts, that shall preclude federal prosecution.

And Chief Justice Taft in the Lanza case in which he upheld the power of the Federal Government to -- to try a man after a-- and try a state conviction, said that this is something which Congress can -- can deal with if it sees fit.

And we think it's inappropriate that the matter be left -- be left to Congress.

When we -- when we assume that there -- the identity of interest dealing now with this -- the alternative argument that -- that is advancing, of -- of course, the -- there's always the problem of preemption.

Of -- of course, there's no such problem in this case because if there had been federal preemption, petitioner's complaint was to the jurisdiction of the state court and -- and not to this Court.

The Government regards it as -- as very important to the enforcement of major federal policies that the power to -- to prosecute under these circumstances be upheld.

There are areas where conflicts exist between the policies of the States and of the Federal Government with respect to conduct which both nominally or otherwise designate as criminal.

I -- I think -- I think the prohibition case lands itself, illustrates that and -- and Chief Justice Taft is concerned about the fact that the state courts might be used as -- as an avenue to obtain immunity from the Federal Government which regarded this as a far more serious matter than did the States for violation of the particular statutes that are involved.

Justice William J. Brennan: Certainly in the record, (Inaudible) stand to show whether federal prosecution was prompted in many ways by the length of the state court's (Inaudible)

Mr. Leonard B. Sand: But there is none.

There is none.

Justice Tom C. Clark: Is there any Government statement as suggested to us?

Mr. Leonard B. Sand: Agents of the -- of the -- there -- of course, there -- there were Government -- there are FBI agents and -- and military officers who testified as to the nature of these circuits and -- and --

Justice Tom C. Clark: (Inaudible)

Mr. Leonard B. Sand: As to -- they testified as to the operation and control.

Yes, there was extensive testimony.

Justice Tom C. Clark: Any -- at any federal officers (Inaudible)

Mr. Leonard B. Sand: I know of no federal -- the State has presented in the plea of guilty and so there was no -- there was no testimony there.

We cite at pages 44 and 45 of -- of our brief, an opinion by a district judge in -- in Oregon in 1884.

And we think that his language is -- is -- was very --

Justice Hugo L. Black: (Voice Overlap)

Mr. Leonard B. Sand: Pages 44 and 45 of the Government's brief.

And, that had reference to the civil rights legislation which had been recently been enacted and to the possibilities which might exist of state action being used to frustrate federal enforcement of the -- of civil rights legislation.

As -- as the Government said to this Court in its brief in the Screws case.

With respect to civil rights legislation, it is the general policy to defer to -- to wait to see what the States would do.

And if the States in fact initiated a bonafide prosecution where -- where the acts which were criminal under the state law also violated federal civil rights statute to wait and see what the States did.

And, if the States took action themselves which adequately protected the federal interest, then the Federal Government would not act.

And we submit that that's a --

Justice Felix Frankfurter: Could not or would not?

Mr. Leonard B. Sand: Would not -- would not act, I think that's a -- it's a crucial difference.

We think that's a very healthy policy.

That makes for a more harmonious state federal relations, but the alternative which is suggested is that there'll be a race, that there'll be either preemption which -- which is not always possible unless a -- a drastic remedy or that they'd be erased.

So that --

Justice Hugo L. Black: Why do you say -- why do you say not always possible if the Government has jurisdiction over a crime?

Mr. Leonard B. Sand: Well, I -- I have in -- in mind the fact that in the Nelson case, the Court pointed out this was not -- not a general police power of -- of the State of Pennsylvania.

I think -- I think there -- there maybe areas which are of such interest to the State that -- that perhaps they -- they cannot be preempted.

But -- but those are the alternatives, preemption or the race.

There would be -- there would be substituted for the -- for the present policy of -- of deferring in -- in areas where -- where conflict between the States and -- and federal policies may exist, the policy of deference to see whether the States themselves take adequate correction -- corrective measures.

Instead of that, the Federal Government would -- would be faced with the situation of -- of knowing that if it waited to see whether the States themselves acted to correct the situation, it would forever preclude the Federal Government from acting.

And in this -- the Barnhart (ph) case which -- which the Government cites at -- at page 44 and 45 to which I made previous reference, the judge went on and said, "Indeed, if the trial and the acquittal of punishment in the state court under such circumstances is a bar to a prosecution in this Court for the crime of which these defendants stand indicted herein, it is difficulty to see why a pardon by the Governor of the State would not have the same effect."

And he went on to say, "That of course, that was inconceivable in our federal system that a State should have the power to preclude the Federal Government with enforcing the federal policy."

Justice Felix Frankfurter: I don't quite get the thought or rather -- I think I had fairly understood.

But I don't quite get it.

I appreciate direction of the argument in your reference of what the Government may have in the Screws case, the argument before us.

I rely on -- on a medial recollection.

As I remember long time ago, as I remember, the point of that argument was, one, to ameliorate the -- the fear of a construction of the civil right statute in the Screws case of excessive taking over and those upon they've attributed.

And the Government made that argument.

I think there's much to it myself.

That the Government is going to be wise and benevolent and careful, and it will not unduly interfere with what the law of -- of the State, is that right?

Mr. Leonard B. Sand: Yes.

My -- my -- the purpose of my reference is to show the -- I think --

Justice Felix Frankfurter: Which is why I'm between two governments in the same spot and try to be sensible and cooperative and --

Mr. Leonard B. Sand: And you can't --

Justice Felix Frankfurter: -- and worked out a common result.

That quality of business.

Mr. Leonard B. Sand: That's -- and all I'm saying --

Justice Felix Frankfurter: It has nothing to do with this constitutional question, not a thing.

Mr. Leonard B. Sand: No, all I'm saying is that you can't be sensible and cooperative.

And the Federal Government can't say, "We will wait and see if the States adequately protect this matter in which the Federal Government also has a vital interest.

If waiting would mean that the Federal Government would be forever precluded from acting if the States act.

In other words, if -- if -- well, in -- in the most --

Justice Felix Frankfurter: Because your argument is on the basis of sensible relationship.

It can't be on the basis of constitutional exclusiveness, one or the other.

Mr. Leonard B. Sand: The -- the argument is predicated on the -- on the concept which -- which one finds in the Federalist.

That -- that in our federal system, there is a -- a concurrent jurisdiction and -- and that each sovereign can act.

Justice Felix Frankfurter: And it involves not fairly some sections, it is also necessarily involved that the show has to go on from sensible cooperation.

Is that right?

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

Justice Felix Frankfurter: All right.

Justice Hugo L. Black: Do you think -- do you think that the literal language of the Fifth Amendment itself is accepted as it's written, but suppose the argument you're making?

Mr. Leonard B. Sand: Oh, yes.

I think it would.

I would think it would support the argument that it is not the same offense --

Justice Hugo L. Black: Well, what -- what --

Mr. Leonard B. Sand: In the -- in the first --

Justice Hugo L. Black: What does it say?

Mr. Leonard B. Sand: Well, no person should twice place in jeopardy for the -- for the same offense.

And --

Justice Hugo L. Black: Is there anything in the Constitution anywhere else that indicates that meant that the Federal Government itself subject a man for a second punishment.

Mr. Leonard B. Sand: Well, I think the Supremacy Clause indicates --

Justice Hugo L. Black: The Supremacy Clause, you think did not.

Mr. Leonard B. Sand: I -- well, I think that it in the light --

Justice Hugo L. Black: Would you think -- would you think it's relevant at all that when the amendment was up in the Congress, a suggestion was made that it'd be amended so as to limit it, the fight for indefinite by the laws of the United States.

Mr. Leonard B. Sand: I -- I'm familiar with -- with that (Voice Overlap)

Justice Hugo L. Black: Wouldn't that take you back to this.

Do you think it has any relevance here?

Mr. Leonard B. Sand: The reference is so brief.

It's -- it's so cryptic.

One does not know whether that merely meant to say under the laws of the United States, merely meant that the First Amendment applies only to the Federal Government.

It might have meant --

Justice Hugo L. Black: That's right.

Mr. Leonard B. Sand: -- I might have meant --

Justice Hugo L. Black: You couldn't say that -- do you think it's relevant?

Now, do you think if what came before it with the expression, vigorous expression, the man was needed to be tried and punished twice or to be tried the second time after he was convicted.

Did you find anything in that which indicates that the Government was free to prosecute a man the second time as he's been tried for the same offense somewhere else.

Mr. Leonard B. Sand: I found -- I found nothing which would go counter to the concept that in a federal system which there is supremacy in the Federal Government, that action taken by the subordinate state governments could preclude the Federal Government if need be from trying a man a second time if that was necessary to enforce the laws enacted by the -- by the supreme government by the Federal Government.

Justice Hugo L. Black: That would depend somewhat on how you look at the amendments how you gave emphasis, would it not?

To what was said by time it was up.

And maybe that was wrong, maybe that doesn't -- on to which it should be construed.

But was the one single word said by anybody in connection to that amendment which indicates that the Federal Government to prosecute a man the second time.

That was all the language expressing a hostility based on tradition and history of putting a man to trial, apply the punishment for the same offense without regard to where?

Mr. Leonard B. Sand: Well, I -- I find nothing which dealt specifically with this problem.

I know that as -- that the interpretations placed by this Court from the -- from the earliest days have been to support the notion that a man can buy a single act such as an assault on -- on a Federal Marshal violate the laws of both the State --

Justice Hugo L. Black: That's right.

Mr. Leonard B. Sand: -- and the sovereign and be prosecuted for each.

Justice Hugo L. Black: Well now, you -- you mean you found that repeated and repeated and repeated in the State.

That he can be punished by both of them.

But that's subjecting him for double jeopardy.

I understood Mr. Fisher to argue quite the contrary to that.

That's in his study of the cases.

Mr. Leonard B. Sand: I -- I think that the -- that the language of the decisions of this Court as cited by -- by Chief Justice Taft after-- after he enunciates the rule, he cites perhaps 12 of 15 decisions by this Court.

Justice Hugo L. Black: Do you think that's support when you cited them for that?

Mr. Leonard B. Sand: With -- I think that they support.

I -- I think they support the proposition that it has been the understanding in this country since the -- since the adoption of the Constitution that a man may be tried by both the federal and the State -- and the state government.

Justice Hugo L. Black: But does it follow, because they can be tried by it.

That, maybe it should be followed from the cases but does it follow?

Because a man can be tried by both the State and Federal Government for one offense, one crime, one state effect, one misconduct.

That the Federal Government can then prosecute him the second time after he's been prosecuted by the State.

Is that possible?

Mr. Leonard B. Sand: I think it -- I think it was -- it was the -- the understanding of -- of the authors of -- of that, the language in those opinions, in fact did follow.

Justice Hugo L. Black: Have you found anything in the history of the amendment itself outside of those opinions.I asked because I've been looking to see if I can find.

Mr. Leonard B. Sand: I -- the only thing that I have found is the -- the proposed amendment to which Your Honor had reference.

And that does --

Justice Hugo L. Black: What about the State -- what about the States and before that as referred to the hostility doing in trying a man or punish him twice.

Mr. Leonard B. Sand: For the same offense.

Justice Hugo L. Black: Well, that's for the same offense, yes.

Mr. Leonard B. Sand: For the same offense.

And -- and the -- the concept I think of federalism is that it is not the same offense.

Justice Hugo L. Black: Well, that's the -- you're talking about a concept now.

Was there anything about that concept in any of the discussion?

Mr. Leonard B. Sand: Well, certainly in the federalist.

Certainly in the federalist.

In number 32 in the --

Justice Hugo L. Black: I think they're referred rather emphatically to the history which has been referred to here in England and in this country, as they just did not make a man himself applied for the same offense.

Mr. Leonard B. Sand: I -- I would like to say a word about this.

Justice Hugo L. Black: Yes, early years.

Mr. Leonard B. Sand: Those are early English cases.

The -- they dealt with this situation and they dealt with the case of England saying -- England being the -- the sovereign of citizenship, saying that it shall be a crime for an English subject to meet a -- commit a crime anywhere in the world.

And in the Hutchinson case for instance, the defendant committed a crime in Portugal.

And he was tried in Portugal and acquitted.

Thereafter, he was sought to try it in -- in England and it was said that -- that that could not be done.

In other words, that the sovereign of -- the sovereign of the citizenship, the national sovereign would accept the acquittal of the territorial sovereign.

I think that there are different concepts involved when you are dealing with coequal sovereigns and -- and matters of international relations and comity between states.

I think that that poses a different problem than problems of American federalism where there is concurrent territorial jurisdiction, where the act which the man commits directly violates the interest of the -- of the Federal Government.

It is not a -- a derivative interest derived from -- from that of -- of some -- some foreign sovereign.

I think the cases which -- which Professor Grant analyzes in his -- in his articles which -- which raised this question are distinguishable on the grounds that they were -- on the grounds that they were acquittal cases.

And this is a conviction --

Unknown Speaker: (Inaudible)

Mr. Leonard B. Sand: -- acquittal cases.

And this is a conviction case.

And on the grounds also that they are not cases which deal with the peculiar problems of American Federalist, I -- I can see why England would say, "We will not be concerned with whether a man has a -- with the accusation that a man has committed a murder in Portugal, whether our citizens have behaved themselves abroad, "If the territorial sovereign, if Portugal says, "No, he did not commit the murder."

I think the English interest then would be adequately protected.

Their citizens would not be -- he kept violating the laws of -- of foreign countries if the countries said they haven't violated the laws.

That's -- that's different, I think.

Justice Hugo L. Black: Would you as the -- we -- that's a reasoning that the -- the English court used in that case?

Mr. Leonard B. Sand: Well, the -- the English opinions, these are very early cases.

That some of them are in -- are in French.

Justice Hugo L. Black: I mean that case, you're talking about Portugal case.

Did they base their decision on the reasoning of just suggestion?

Mr. Leonard B. Sand: My recollection of the opinion is that it -- it merely stated the result.

This is -- this is in the most part of my analysis.

Although in -- in the Welch case, there was a problem of interpreting a statute which made it a crime in -- in England to commit an offense in Wales, and as a matter of -- of determining the extent of the extraterritorial statute.

They said, "(Inaudible) in Wales is a good thing in England."

Where the crime is committed in England, in Wales where the -- where the territorial sovereign had acquitted, and where the -- the basis of English jurisdiction was an extraterritorial statute.

I -- I think that -- that those -- that's a different problem.

That is not the problem which -- which -- to which this Court addressed itself in -- in Lanza and -- nor to which it addressed itself from the language which it use in -- in those -- the cases upon which Lanza relied.

Justice Felix Frankfurter: May I suggest that it might have been pertinent to make two or more observations.

In the first place, that the materials that we have regarding the proposal and the debates in the Congress and the adoption of the resolution that the submission of the bill of rights are so meager and so inadequate to discourage judgment and not as yet be based on it.

There is now under way a de -- detailed study which eventually may give us the full record which it thus far had not been public.

There are manuscripts but not have been in public.

And what we have to be entered are all too meager basing the judgment on what was meant to what was said and taking the events to this day in England, October 22nd, 1958.

A man who appealed from a conviction and get the reversal, can't be retried.

(Inaudible) double jeopardy, it's very different from ours.

Justice Hugo L. Black: Do you accept that argument?

Mr. Leonard B. Sand: I --

Justice Felix Frankfurter: I didn't make an argument.

I make a statement.

[Laughter] That's part of the fact that should be taken into account.

Mr. Leonard B. Sand: I -- I think that certainly with respect to the -- to the proposed amendment in the Fifth -- proposed amendment to the Fifth Amendment, I think certainly, the material there is so meager that -- that we dealt --

Justice Hugo L. Black: In short -- in short, but it says they offered the amendment that was denied, doesn't it?

Justice Felix Frankfurter: We don't know what else was there.

Mr. Leonard B. Sand: And -- and --

Justice Felix Frankfurter: And that's what we need to work on now.

Mr. Leonard B. Sand: And we don't know if --

Justice Felix Frankfurter: The -- the United States permission on the publication of historical --

Justice Hugo L. Black: Yes --

Justice Felix Frankfurter: -- supplement --

Justice Hugo L. Black: -- that's right.

Justice Felix Frankfurter: -- is at work.

Justice Hugo L. Black: That's right.

Justice Felix Frankfurter: A government commission that has its work, Professor (Inaudible) who's at work on these materials.

Chief Justice Earl Warren: Thank you, Mr. Sand.

Mr. Bellows.

Justice Hugo L. Black: You can -- you can buy in anything additional and anything that's permitted that's already done, would you submitted to us?

Justice Felix Frankfurter: You can't find it because the materials are not yet available.

They're in manuscripts.

Chief Justice Earl Warren: Mr. Bellows.

Rebuttal of Charles A. Bellows

Mr. Charles A. Bellows: Mr. Chief Justice, may it please the Court.

I think the framers of the Constitution at the benefit of these old English cases.

I think the -- the idea that a man can't be tried twice is so engraved in the thoughts, feelings of -- of our people that I'm sure that the framers thought that no man could be tried in the federal courts if he had been acquitted or convicted in the state courts.

And Mr. Justice Black's observation concerning that proposed amendment which we set out on page 11 of our brief, I think is a litigation of that.

I -- I think it was so fundamental to the concept of early framers of the Constitution, that -- that no man could be tried twice.

It's just there's something repugnant about the argument.

The ordinary labor when you're telling that a man is being tried a second time after he has been acquitted once or convicted once just can't understand how it can be done.

There's been a question asked about the -- the significance of the 24, of the 20 lines out of the 2400.

Now, there are no actual lines in these coaxial cables.

They're all frequencies.

And the -- the State had tried these petitioners on the -- on the whole coaxial cable, anything else that the Southern Bell Telephone Company got.

Well, it's -- it's just an impulse.

There are no separate lines.

It isn't --

Justice William J. Brennan: One of Southern cables and --

Mr. Charles A. Bellows: It's one -- there, it's one -- it's a cable.

And within it are two other cables running inside.

But there are no 2400 cables or lines or wires running through that coaxial cable.

Justice William J. Brennan: You mean 21 (Inaudible) rather than -- the Government has --

Mr. Charles A. Bellows: The Government had leased it.

And --

Justice William J. Brennan: What do they need it?

Mr. Charles A. Bellows: They just -- just as Your -- Your Honor would do when you have a number given to you in -- in the city for your use it was many more than what the Government has.

It would just control or I may have a private line.

Justice William J. Brennan: Are you -- are you telling me that looking at these transactions --

Mr. Charles A. Bellows: You couldn't, Your Honor couldn't tell it.

Justice William J. Brennan: Two solid cables?

Mr. Charles A. Bellows: Two solid cables with another cable.

You couldn't get wrench it and you couldn't take it apart, we couldn't fix it.

Sure at the end where the Government had it, were abundant of their reservation and went on their -- on their board, it was actually attached to these automatic typewriters, sure it could be fixed.

But there was nothing really to fix anyway.

It was nothing really to fix any place.

Justice William J. Brennan: Well, what do this -- meaning (Inaudible) the Government's dissent was get in there and repair them, what -- what's that mean?

Mr. Charles A. Bellows: The evidence shows that before they would go in to fix some of those circuits, they would just notify the Government that they were coming in and they were going to repair it.

And that's all there is to it.

Justice William J. Brennan: What would they repair?

That's what I don't follow.

What repair did they decide, the cables?

Mr. Charles A. Bellows: It certainly wasn't the cable, unless something broke somewhere down the line on the -- on the coaxial and became disconnected or a thunderstorm or a -- or tornado may have turned that hot, but there really isn't anything to -- to repair.

Justice Felix Frankfurter: Could the Government say no, if they wanted to come in and repair whatever there was to repair?

Mr. Charles A. Bellows: Yes, I suppose the Government --

Justice Felix Frankfurter: Doesn't that mean with full --

Mr. Charles A. Bellows: Well --

Justice Felix Frankfurter: -- desire to get your permission to do something, don't you control my (Voice Overlap) --

Mr. Charles A. Bellows: But we're -- we're not raising here the point, Mr. Justice Frankfurter about the control that's been over.

But I'd like to call the attention of the Court --

Justice Felix Frankfurter: Well, I don't understand what the point of your argument?

Mr. Charles A. Bellows: Then, it's the same thing.

My point is, the Government says -- now, there are different cases because the Government had 20 of them and that's why it's a different case.

But I think it's important to know that there was an effort made to amend this act, to -- to carry the word "lease".

Somebody in -- in the Senate, I forget -- get his name right now, attempted to propose an amendment to this act to include the word "lease" because it was a real question whether or not the operated control is the same thing as -- as leasing.

Justice Felix Frankfurter: Well, do I -- the inference I get from your argument is important.

It is valid here that the Government has no special interest to protect its cryptographic word, is that right?

Mr. Charles A. Bellows: Oh no, Your -- Your Honor.

I do say that.

Justice Felix Frankfurter: And it -- because I understand that it's protected by -- not even relying to the telephone company turned in and accept why it say so.

Isn't that right?

Mr. Charles A. Bellows: Yes, it protected in that respect, but only to the extent that if there anything has to be done, the telephone company will just call up the government official and say, "We're coming in and we're going to fix it."

That's -- that's all there was to that.

Justice William J. Brennan: Suppose Uncle Sam says, "No, you can't do this," then what?

Mr. Charles A. Bellows: Well, I suppose it would be the same as if I had a lease wire and the telephone company wanted to come in and fix them -- the line and I -- just says, "No, you can't do it."

Justice William J. Brennan: But there's no question that the Government could deny the telephone company access to whatever it has --

Mr. Charles A. Bellows: I -- I would agree that the Government could.

It -- it has come to my attention since I began to talk but there is a case pending now in Philadelphia where a person was charged with robbing an interstate ship and was acquitted.

And that the Pennsylvania state prosecutor is awaiting the outcome of what happens here.

Justice John M. Harlan: Was that (Inaudible) -- isn't it?

Usually, the -- wasn't that your experience?

If a fellow had been convicted under a federal statute, state prosecution that your State would hold his hands and see how things worked out.

Mr. Charles A. Bellows: Well, it just wouldn't try him again.

Justice John M. Harlan: He can't be tried.

Mr. Charles A. Bellows: Wouldn't try him again.

I -- I don't remember in all the years, I -- I've never heard of any cases except the Bartkus case and -- and this particular case.

Should this -- should the Court permit this to be, then I predict that there'll be a great plenty this.