KIMBROUGH v. UNITED STATES

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Argument of Edward L. Barrett, Jr.

Chief Justice Earl Warren: Number 128, Vernon Kimbrough, Petitioner, versus United States.

Mr. Barrett.

Mr. Edward L. Barrett, Jr.: May it please the Court.

The facts in this case, maybe simply stated in April 28, 1941, the petitioner was indicted a grand jury in the Eastern District of Kentucky.

This indictment contained three counts.

All charges relating to the National Motor Vehicle Theft Act.

First count charged a conspiracy on behalf of this petitioner and his two codefendants to violate that statute.

Second count charged that on or about the 12th day of February 1941, petitioner and his codefendants did unlawfully and feloniously transport and caused to be transported in interstate commerce from Atlanta in the State of Georgia to Owen County, Kentucky when 1941 Super Deluxe Ford Motor car identified by its motor number which have theretofore been stolen in around three motor companies in Lake City, Florida.

The said defendants knowing had been so stolen.

The third count charged that on or about the 19th day of January 1941 in between said date in the 13th day of February 1941, and then the jurisdiction of this Court, the petitioner and his codefendants did unlawfully and feloniously receive, conceal, and store the same motor vehicle as to which the transportation was charged in the second count, knowing that it was moving -- it was a part of interstate commerce and had been stolen in Florida.

The petitioner pleaded guilty for these three counts.

Also incidentally on April 28th and the same day, the judge gave sentences of two years on Count 1, the conspiracy count and five years on each of Counts 2 and 3, in order that these sentences to run consecutively for a total of 12 years.

The present proceeding began with the motion by the petitioner to vacate the sentence under Count 3 and motion filed under 28 United States Code 2255 filed on April 9th, 1959.

This motion was denied by the District Court.

It was affirmed by the Court of Appeals in the Sixth Circuit and the case is now here.

As a result of a combination of circumstances which don't appear on the record of this case, petitioner is now serving sentence attributable to the last -- some part of the last five years, so there's 12-year sentence in 1941, and so the legality of the sentence under the -- is -- is presently at issue.

The petitioner and the Government are in agreement that the motion under 2255 was a proper motion to raise the question, whether it considering the phase of the indictment, the consecutive sentences here would proper.

There's also an agreement that the issue must be determined from the phase of the indictment because no other facts are numb.

The question then becomes, question of interpretation of the statute, the National Motor Vehicle Theft Act determined whether it permitted consecutive sentences were fence forting and for receiving, concealing, and storing was reference to the same automobile.

This was involved here.

I think the conflicting positions of the Government and petitioner can be quickly set out and would show the dimensions of the problem before us.

Petitioner's contention is essentially this, that under the statute properly construed a single defendant may, with respect to a single automobile, be charged with only one offense.

That is that during a period of time here the statute -- the indictment charged that between January 19th and February 13th, the defendant -- the petitioner here was guilty of receiving, concealing, and storing an automobile.

It charged that on February 12th which is within the period charged in receiving, concealing, and storing count that he transported this automobile in interstate commerce.

Now, the broad contention then of the petitioner here, if it would not regard to what things -- petitioner may have done with this automobile without regard to where he kept it, without regard to whether he took it across six state lines or one state line.

Not regard to whether he repainted motor numbers, re-changed the motor numbers, repainted the car whatever else he did.

He properly construed this statute under this statute that he can be convicted of only one crime.

Now, the Governor's con -- the Government's contention is set forth in their brief, was to much broader contention and that is, as I understand it that in this context, a person may be charged with an almost indefinite number of crimes and receive consecutive sentences so long as he commits separate acts with reference to this automobile.

And the Government's position says that the issue turns at least upon the question of whether or not separate acts were committed.

Now, two examples that may serve to illustrate the problem that we're dealing with, one example would be the case of the professional thief which steals a car in one State, immediately transports to another State and disposes of it to offense.

Under the Government's contention, the State would be chargeable only with one or most and decision of the Government says it's not before us, because it isn't two crimes and it could get most of 10-year sentence under this circumstances.

Now, you take the other type situation, the man who steals the car in order to use it instead of to sell it and he manages to be successful until elude capture for a period of time, three weeks, three months, three years.

And during this period of time, he does many things with his automobile.

He stole it for the purpose of using it.

He may have transported into across 10 States.

He may have repainted it, changed the licence by strange motor number.

It did many things for his automobile.

The Government's contention -- and they set it out clearly at page 13 of their brief seems to be that for each of these offenses he might now be separately punished.

The example I gave you it easily see a sentence of 100 years.

Theoretically, resulting from all these separate acts of transporting and concealing which might take place during the period that he had the automobile.

So, the case comes to issue here, because on the face of the indictment, the petitioner can only show that he was charged with concealing and storing over a period of time an automobile, and that within that period of time, he was charged with transporting the same automobile.

Now, the statute, but as the petitioner goes on -- petitioner is further pointed that the statute is broad.

He looked at the statute as it set out.

The petitioner's brief, the statute says in Section 3, "Whoever shall transport or cause to be transported in interstate or foreign commerce and motor vehicle somewhere."

Section 4, whoever shall receive, conceal, store or barter sell or dispose of any motor vehicle moving as or which as a part of interstate or foreign commerce law.

Now, petitioner's contention is that this statute was conceived in the state of this broadly.

In order that the Government could prosecute each person who had anything to do with this stolen car knowing that it had been stolen.

So that if one individual repainted the -- re-changed the motor number, if another individual received it and sold it, if the third individual get it, if -- if you had a series of individuals dealing with this automobile, if they could all be separately punished and -- but if it was not intended, the Government contends here that when one individual having a car committed these separate acts then he could so be punished with an additional five years sentence possible for each of these separate acts.

Now, the statute on its phase does not resolve the issue.

The legislative history is sparse and conceivably could be ready to weigh, each petitioner contends there is no legislative history, some support for his contention that Congress is primarily thinking of getting at different persons, instead of multiplying offenses against to single person.

If you look at page 11 at the petitioner's brief, they set out irrelevant portions of the House Committee report when this statute was presented to Congress.

The report points out, that state laws have been inadequate to meet the evil because of the interstate movement of cars making it difficult for the States to apprehend them.

And then it says in about the fourth sentence, thieves steal automobiles and take them from one State to another and often times have associates in the crime who receive and sell the stolen machines.

Congress there seemed to be thinking of different persons.

The same thing was reiterated when Congressman Dreier, the sponsor of the legislation spoken the floor of the House, statement setout at the bottom of page 12.

The bill provides gentlemen for only two things, Section 3 provides for the punishment of a thief stealing a car and transporting it from one State to another.

Section 4 provides for the receipt of the stolen car by thieves in another State for the purpose of selling and disposing of it.

Again, the emphasis seemed to be on the two person category the thief and the receiver as being separate.

The only thing in the Senate debate seems to bare on the issue as to somewhat ambiguous statement by Senator Cummins.

This is the statement which the petitioner reads one way and the Governor -- Government reads another way.

This is set out on page 13.

Senator Cummins said, "The first section is intended to punish anyone who does the thing, that is transporting knowing the vehicle have been stolen".

Further practice is it possible to dispose the vehicle to some other party to -- or otherwise when it gets across the state line.

And Section 4 is for the purpose of punishing a man in bars herself or disposes of the property with intent to deprive the owner of the possession thereof or if he conceals it knowing it to have been stolen.

I think that would probably embrace every case that could be reached.

Petitioner's contention here is that he was saying only that he is possible to dispose a vehicle to some other party and then Section 4 is for punishing a man that is the other party who have been gotten the car bought or sells or disposes of the property with intent to deprive the owner of the possession, and not that he was mean in this -- to say that Section 4 was designed to punish not only this person, but also to impose an additional person on the transporter, this additional punishment on the transporter.

Now, this isn't much in the way of substantial legislative history, but this is about what there is on the subject.

Now, given this posture, petitioner argues this is certainly inappropriate case for applying the general doctrine of statutory instruction -- construction which has been known as the Rule of Lenity which has been set forth by this Court in a series of cases.

And while each of these cases have involved particular factual situations and particular statutes, in each of then the rule has been stated broadly in the CIT credit corporation case.

This Court said when a choice that has to be made between two readings of what conduct Congress has made a crime.

It is appropriate before we choose the harsh role alternative to require that Congress should have spoken any language that is clear and definite.

We should not derive criminal outlawry from some ambiguous implication.

In Bell, it may fairly be said that there are presumptive position of our law to result doubts and the enforcement of a penal code against the imposition of a hardship punishment.

Prince reference is made to the policy of not attributing to Congress in the enactment of criminal statutes and an intention to punish more severely from the language of its laws clearly in courts, and so on.

It seems the petitioner, this is an appropriate case.

And to have here -- first, I think it's important to note that we have here a situation for the Federal Government interest, its basically an interest is assisting the State to law enforcement.

This statute has passed, as said in the legislative history because the States were not able to cope with the problem of stolen automobiles knowing in the interstate commerce.

It's relevant here then I think to note that generally speaking, in the law of law of larceny which is the law, the States would be applying the stolen cars.

Generally speaking in the law of larceny, legislatures in the common law have not carved up a crime that a man steals something, he steals it for what purpose, to use it, to sell it, to dispose evidence (Inaudible).

And these things have all been regarded as part of a single crime, and generally, unless you have specific statute, specifically setting them up.

The law has not dealt with the thief by saying, "We'll impose one punishment on you for stealing the article, a separate punishment on you for keeping it, and maybe a third punishment, because you now sold it to somebody else."

Now, since this statute was enacted against this general background of the law of larceny, it would seem that Congress was not here trying to say that each of these acts that the Government talks about is to be regarded in such a criminal offense that a man may potentially be given an additional five-year sentence for each of them.

But every time he takes the car across another state line that every time he conceals the car in a garage so the police will not find it, that every time he repaints it, that every time he changes the motor number, that each of this succession of acts, all of which are properly incident and really a part of the basic concept here that these should each be regarded as separate criminal acts for which he could receive an additional punishment of five years, since the petitioner highly doubtful what Congress intended such a harsh result.

The emphasis as a matter of fact in the legislative history is upon the type situation of the professional thief, who steals occur in one State and quickly disposes of it in another State.

And under the argument put forth by the Government, he would receive the least punishment, the man who stole the car to use it, the joyrider and they've been joyrider problems under this statute.

The serviceman who steals the car to get home who, in the process of using the car, goes through several States who -- who may do a number of acts with respect to that automobile.

He's the one which under this interpretation the statute would permit a pyramiding of consecutive punishments.

Now, this punishment -- obviously the -- this is all subject to the discretion of the prosecution and would have been charged for discretion of the Court as to what it was sentence.

But petitioner's petition for -- position that there seems to be no useful purpose served by so construing this statute in the absence of explicit congressional -- explicit congressional spelling out to permit that kind of nullification punishment.

It seems to bare no reasonable relationship to what Congress was getting at.

It would not seem that criminality multiplies as a factor of time which would seem to be the result of the peti -- of the position taken by the Government, and it would seem that a proper construction here would be a construction contended for by the petitioner which would permit the imposition of a substantial punishment of five years in the federal penitentiary upon any person who commits any of these prescribed acts with reference to a stolen automobile which is transported in interstate commerce.

But -- and further, that it would permit the Government to secure a conviction by charging and proving anyone acting a change, so that the Government's convenience in selecting the -- the act permitted by the counsel would be served.

This would be enough to carry out the general policy of the Congress, without making possible harsh imposition of multiple punishments on persons who steal cars or involved with interstate transportation of motor vehicles.

Now, essentially, this then is the position of the petitioner to start with the fact that they have no notion what the actual facts in this case are, start with the fact that since we are dealing with a plea of guilty to an indictment, we only know that he is charged and received consecutive sentences for (a) transporting and (b) receiving and concealing the same automobile within the same general period of time.

And it is petitioner's contention that this statute should be so construed in cases of this kind, only one punishment upon one person with respect to one automobile that has been transported and held in interstate commerce as a part of a single continuos transaction.

Of course, I'm not taking the position that if he deals the car today and it's later taken back and then six months later, he steals the same car and this is -- wouldn't constitute or transports.

It wouldn't constitute separate crimes that were you have charged a continuous period of possession that within that continuous period of possession, there should be only one crime and therefore only one sentence under the statute.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

Petitioner in his brief characterized the facts which were before the Court has involving the general course of conduct, and that both the acts of concealment and the acts of transportation which were involved -- which were charged in the indictment concerned were within this general course of conduct.

Here, it -- it seems that he agrees with the position that I was going to take that from this indictment, we cannot assume that the general course of conduct was involved.

Instead here, he -- he seems to say that one automobile, one offense even if these acts are totally separate both in -- not only in time but also in criminal impulse and in the purpose for which the acts were committed.

Now, we will prepare to argue that even assuming that there was a general course of conduct that the rule of lenity which was laid down by this Court in the Bell case, in the Hampel case, and the other cases that this rule did not apply to acts that were totally separated in time.

And -- and so why they're separated in time and so -- and so not in -- intimately related, so that they were merely part of the general course of conduct.

We thought that rule of lenity would not apply even to that situation.

But of course, we feel that even more so does the rule of lenity not apply to a situation in which the acts are totally separate, they do not involve a general course of conduct, and they must be assumed to be totally separate in criminal impulse and in purpose.

Chief Justice Earl Warren: But where are the facts in this case?

Mr. Bruce J. Terris: Well, the only facts that we have before us Your Honor is the indictment, because petitioner pleaded guilty, I might say with the advise of counsel, and honest plea of guilty, he admitted his separate guilt to these two separate counts which are before the Court.

Chief Justice Earl Warren: Well, I know but don't you know the facts -- don't you know the facts as to the dates of this -- when -- when he stole the automobile, when he transport it --

Mr. Bruce J. Terris: Oh, there's --

Chief Justice Earl Warren: -- or he concealed it or anything to that kind (Voice Overlap) --

Mr. Bruce J. Terris: There is nothing in the indictment to suggest that he did steal the automobile and that of course --

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: -- is not part --

Chief Justice Earl Warren: -- when the case went farther than an indictment --

Mr. Bruce J. Terris: The only -- the only place farther it went is that there was immediately on the same date of a plea of guilty.

I might say that the Government's investigation to the facts was cut short because they were going to indict him at a later term.

And he -- and he as well as two codefendants pleaded guilty, said that he wanted to plead guilty and that therefore he was indicted in an earlier term.

The -- the facts as -- as the Government knows are -- are therefore very incomplete in addition all of that I've been able to see is FBI report says early stages of the investigation.

They indicated many leads and not yet been followed up.

Therefore, we -- we don't think that that -- the actual facts can be interpreted as any different from what the indictment specifically alleges.

Now, I assume the petitioner must have thought the facts in the indictment were accurate, or he and his counsel wouldn't have -- wouldn't have agreed that he plead guilty.

Justice Potter Stewart: What district was this?

Mr. Bruce J. Terris: This is the Eastern District of Kentucky.

Justice Potter Stewart: Eastern District of Kentucky.

Mr. Bruce J. Terris: That's right.

Now, turning to the indictment, which are the only facts before the Court in which the petitioner agrees he -- as he stated here today are the only facts before the Court.

We believe that the indictment strongly suggest on its phase that these acts are totally separate in every way, the concealment and the transportation.

The indictment is on pages 2 to 4 of the record.

Count 3 of the indictment, which is the concealment count, alleges that the Ford automobile was stolen on January 19th in Lake City, Florida.

It also alleges that it was transported on or about January 19th to Kentucky.

It further alleges that on -- that starting on or about January 19th and lasting to February 13th on 1941, petitioner and his two codefendants received, concealed, and stored the automobile in the Eastern District of Kentucky.

Chief Justice Earl Warren: We'll recess now.

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Argument of Bruce J. Terris

Chief Justice Earl Warren: Vernon Kimbrough, Petitioner, versus United States.

Mr. Terris, you may continue --

Mr. Bruce J. Terris: Mr. Chief Justice --

Chief Justice Earl Warren: -- your argument.

Mr. Bruce J. Terris: -- may it please the Court.

At the recess yesterday, we were discussing the Government's contention that concealment and the transportation involved in this case, were completely unrelated except to the fact that the same automobile and the same persons were involved.

Apparently, petitioner accepts this characterization of the facts since yesterday, you'd not argue the position of his brief if one general course of conduct was involved but instead he maintained the considerably more extreme position that one automobile means one offense no matter how unrelated the acts concerning this automobile may be.

Now, turning to the indictment which is on pages 2 to 4 of the record, Count 3 of the indictment which is the concealment count, alleges that at particular Ford automobile was stolen in Lake City, Florida on January 19th, 1941.

It further alleges that between January 19th and February 13th, 1941, petitioner and his two codefendants received, concealed and stored the same automobile in Kentucky.

And it further alleges that the automobile at that time of the concealment was then and their moving as was a part of and constituted interstate commerce from Lake City in the State of Florida to Owen County near Frankfort, Kentucky.

Chief Justice Earl Warren: Is that the same automobile that was --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: -- involved in the other two counts?

Mr. Bruce J. Terris: That's right.

The same automobile was involved in all three of the counts.

Justice William O. Douglas: And we know that the concealment was after the stealing.

Mr. Bruce J. Terris: The concealment was after the stealing.

We have -- we have no knowledge that petitioner or his two codefendants participated in the stealing, that's not shown in the indictment.

Justice William O. Douglas: The stealing -- the stealing took place or about the --

Mr. Bruce J. Terris: 19th.

Unknown Speaker: 19th.

Justice Potter Stewart: So far as it appears, as you just said the -- the automobile was stolen by somebody else.

Mr. Bruce J. Terris: That's right and was transported to Kentucky by somebody else.

Justice Potter Stewart: By somebody else.

Mr. Bruce J. Terris: That's right.

Now, of course we seek concealment and storage of the stolen automobile was only a federal offense, when the automobile is moving in an interstate commerce.

Now, Count 3 specifically bases its allegation of receipt, concealment and storage of the automobile from Florida to Kentucky, not the subsequent transportation which is involved in Count 2.

Therefore, the acts of concealment which are alleged in Count 3 are specifically tied to the earlier transportation on January 19th.

Now, Count 2 of the indictment, which is a transportation count, alleges the petitioner and his two codefendants transported the same Ford automobile --

Justice William J. Brennan: Is this the first count?

Mr. Bruce J. Terris: No, this is the second count.

The first count is the conspiracy count and that isn't involved here at all, Your Honor.

Count 2 alleges that petitioner's two codefendants transported the same automobile on February 12th from Atlanta, Georgia to Kentucky.

Now, since on or about January 19th, the automobile was in Kentucky and since he moved from Georgia to Kentucky on February 12th, it is clear that sometime between January 19th and February 12th, the car was moved from Kentucky to Georgia.

Now, whether it was by -- moved by petitioner or by someone else, is again not clear from the indictment.

So -- so that for all the indictment shows, the possession of the car may not have even been in continuous possession of petitioner or his two codefendants.

Therefore, the -- the facts of this case are that the acts of concealment alleged in Count 3, were not only in tied in the indictment to a transportation which was not alleged as an offense in the indictment, but an additional transportation, which was not alleged as an offense in the indictment, occurred between the acts of concealment, the beginning of the acts of concealment and the transportation which was charged.

Justice William O. Douglas: What if they've been properly charged as a separate count in the indictment, the transportation from Florida to -- to Georgia?

Mr. Bruce J. Terris: Well, there is -- there was no transportation from Florida to Georgia, unless that was the route that was from Florida to Kentucky.

Justice William O. Douglas: Suppose it was.

Mr. Bruce J. Terris: Well, and --

Justice William O. Douglas: Let's assume.

Mr. Bruce J. Terris: -- and assuming the petitioner was the --

Justice William O. Douglas: Yes, okay.

Mr. Bruce J. Terris: -- was the -- person who did the --

Justice William O. Douglas: Could you take that as --

Mr. Bruce J. Terris: -- the transporting.

Justice William O. Douglas: Transporting through three states to make it two crimes?

Mr. Bruce J. Terris: Well, I'm -- I'm not quite clear on the facts you're posing to me, Your Honor.

If you're -- if you're suggesting a continuous transportation from Florida to Kentucky, whether we can charge an offense for the transportation from Florida to Georgia, then from Georgia to Tennessee and then from Tennessee to Kentucky, that -- that involves a much more difficult issue and as far as I've been able to see, the Government has never made that kind of an allegation in any of the cases which have been reported.

They've always alleged the entire transportation then mentioned the intermediate states in the indictment.

Now, insofar as your -- whether you're suggesting that there was a -- a whether we -- if petitioner had brought the cars from Florida to Kentucky, we could allege that entire transportation plus the transportation from Georgia to Kentucky, which was made three and a half weeks later.

That again is a -- is a different issue and that --

Justice William O. Douglas: You're getting close to -- on this case, when you --

Mr. Bruce J. Terris: That is not -- that is not too separated from the -- from the facts of this case.

If we assume those are entirely unrelated transportations, in the sense that they may well have been done for entirely different purposes.

In short, as we read the indictment, the facts of this case so that the acts of concealment and the acts of transportation which were alleged, were separate and entirely unrelated.

This is suggested very strongly in the indictment, but this is especially true, since we believe that under well-established rules of law, this indictment must be construed in the way which is most favorable for the Government.

It's, of course, a familiar principle that a final judgment is presumed to be correct and that the burden is on the person attacking that judgment to show the facts supporting his claim.

Now, your petitioner pleaded guilty and thereby removed the necessity for the Government to prove the facts underlying the indictment and he admitted his separate guilt on the two separate counts.

And at the same time, he made the indictment, the sole relevant fact when he made this collateral attack, 18 years later.

Therefore, we believe that insofar as the indictment is ambiguous, petitioner has failed to sustain his burden of proof.

Justice Potter Stewart: Was he represented by a counsel (Voice Overlap) --

Mr. Bruce J. Terris: He was -- he was represented by a counsel.

That -- that appears in the record, Your Honor.

Justice Hugo L. Black: Was there any evidence offered?

Mr. Bruce J. Terris: Any evidence offered?

Justice Hugo L. Black: Yes.

Mr. Bruce J. Terris: No evidence was offered as far as we know, Your Honor.

Justice Hugo L. Black: What do you mean then by saying, he failed to sustain his burden of proof?

Mr. Bruce J. Terris: Well, since he pleaded guilty, the sole relevant document before -- for this Court and before the two lower courts on this motion, was the indictment.

And therefore, insofar as the indictment is ambiguous, that he -- that --

Justice Hugo L. Black: Well --

Mr. Bruce J. Terris: -- that is his fault and not -- and not the Government's.

Justice Hugo L. Black: (Voice Overlap) has been opened to him in a habeas corpus proceeding where he challenged the judgment as being invalid and he offered evidence to prove what it seems to be rather studiously kept away from us, what actually happened in this case?

Mr. Bruce J. Terris: Well, first of all Your Honor, not attempting to keep the facts -- the facts away because we don't know what the facts are.

We have --

Justice Hugo L. Black: Well, they're possible of ascertainment.

Mr. Bruce J. Terris: Well, that I -- that I don't (Voice Overlap) that's right, I -- I don't very much at the present time, whether the facts in the -- in the sense of something that one could -- could prove could --

Justice Hugo L. Black: I mean as to who stole this automobile?

Whether he stole it and what part he had to do with it.

I'd suppose that could've been ascertained in the hearing before the Court --

Mr. Bruce J. Terris: Well --

Justice Hugo L. Black: I don't' know that could be done.

But I'm just asking it.

Mr. Bruce J. Terris: I -- I don't get very much, Your Honor.

He didn't make his motion until 1959, judging from what -- our file show, that guy was having a very difficult time finding the facts of this case, back in 1941.

Justice Hugo L. Black: They found it, then you'll own the automobile, doesn't it?

Mr. Bruce J. Terris: They know -- Yes, Your Honor that's the alleged in the indictment, who was --

Justice Hugo L. Black: Somebody down in Florida.

Mr. Bruce J. Terris: That's right.

And -- and of course, they could prove that it would -- that it was stolen.

And -- then perhaps, they could still prove that today.

But that and even the proof of the -- of course the stealing, wouldn't -- wouldn't help us to decide this case.

The stealing is not part of the allegation in any fashion.

Justice Hugo L. Black: That's a question of whether they've been charges, more charges made against him and should have been made.

Mr. Bruce J. Terris: There -- there is indeed that question.

Justice Hugo L. Black: And that could, that evidence would reveal that, wasn't it?

Mr. Bruce J. Terris: The -- the evidence would reveal that if the evidence was -- was still available.

Of course, the Government's primary contention in -- in that regard, is that on -- that on collateral attack, a person is not entitled to re-litigate, when he's pleaded guilty.

Justice Hugo L. Black: I was asking on the assumption of possibility that the Government might be wrong on that and then in habeas corpus, you had the right to go to the very roots of the thing, finding out what actually happened.

Mr. Bruce J. Terris: Well, we think that you've never been entitled in habeas corpus to attack the judgment in this type of situation, where a person has pleaded guilty and then wants to establish the facts contrary to --

Justice Hugo L. Black: Perhaps, that wouldn't be contrary, wouldn't it?

It would just be showing what actually happened.

Mr. Bruce J. Terris: Well, to -- it might turnout not to be contrary.

It might only be an explanation within the face of the indictment or it may -- might turnout to be contrary either -- either way.

We don't think it -- he was entitled under habeas corpus.

There's no entitled on collateral attack to -- to re-litigate that issue.

Justice Potter Stewart: This conviction was almost 20 years ago.

Mr. Bruce J. Terris: That's right.

It that was in 1941, it was done.

Justice Potter Stewart: How come this petitioner is still in prison under these sentences?

Mr. Bruce J. Terris: Well, Your Honor, if it's a -- it's fairly -- it's fairly complicated --

Justice Potter Stewart: But he is, in any event, he is.

Mr. Bruce J. Terris: He is in prison.

Justice Potter Stewart: Under one of these sentences?

Mr. Bruce J. Terris: Under one of these sentences.

He -- he got a conditional release and he violated the conditional release and therefore, he's now back serving the remainder of the -- of the sentence, which he had not completed.

Construing the indictment most favorably for the Government, we can properly assume a state of facts, which the concealment and the transportation were entirely separate.

Justice William J. Brennan: How much longer do they have to serve?

Mr. Bruce J. Terris: Borrowing time off for good behavior, he has -- he has until early in 1965.

Justice William J. Brennan: And he must have been released quite a long period?

Mr. Bruce J. Terris: Well, to be more specific, he -- at the time that he was given this 12-year sentence, he was given an additional five-year sentence, for attempted escape while he was in jail on -- on this offense.

So he had a 17-year sentence to dissatisfy.

He was given a conditional release in 1951.

In 1955, he was picked up again under the direct, under the same statute and convicted.

He served that sentence first and now, he is back serving the -- the sentence which is involved here and that would last about a (Voice Overlap) --

Justice William J. Brennan: And it's not until 1965 that he'd be illegible for release under one of these sentences?

Mr. Bruce J. Terris: Well, that's right.

Justice William J. Brennan: And additional five years -- on escape, was a separate sentence, was it?

Mr. Bruce J. Terris: That's right.

Apparently, he's not serving that sentence or any portion of that sentence at the moment.

Stating the -- the facts of the case more concretely, we feel we can assume consistent with the indictment.

And on January 19th, petitioner and his codefendants, either themselves transported the automobile from Florida or received it in Kentucky from persons who did transport it.

That on that some -- same day or shortly thereafter, petitioner and his codefendants engaged in acts of concealing the automobile, such as changing the motor numbers or repainting the car or similar such acts, which have been held in other cases to constitute acts of concealment under the statute.

And sometime later, perhaps some three weeks, either petitioner and his codefendants or someone else, transported this automobile from Kentucky to Georgia.

And we can -- and we can properly assume that the purpose of the return trip from which petitioner and his codefendants transported the automobile from Georgia to Kentucky, was not for the same purpose as the original concealment.

For example, it may have been to go visit friends, go on legitimate business or even they commit another crime.

If this case is considered on these facts, which we emphasized that it must be, we feel that there is -- there were clearly two separate offenses which are separately punishable under the statute.

We feel that it's clear that if a person transports the same automobile across state lines and then three and a half weeks later, an entirely different criminal impulsive for a different purpose, he repeats the same act that there would clearly be two separate violations of Section 3 of the statute.

We can see no difference when the person commits acts of concealment, violating Section 4 of the Act.

And then three and a half weeks later, for an entirely different purpose and entirely different criminal impulse, he violates Section 3 by transporting the automobile across state lines.

Now, we think that the rule of lenity clearly does not apply in this situation then none of the case is decided by this Court composed to even suggesting that there -- there is only offense involved here or might to delay discussion of the cases applying the rule until after he discussed petitioner's contention, which he makes in his brief and the general course of conduct is involved.

Since as we've persist, I hope to show that the rule of lenity would not apply even if the general course of conduct were involved and for sure, it would not apply if the acts were entirely separate and unrelated.

Assuming the petitioner is correct and then the general course of conduct were involved, I -- I take it that this would mean that there is a single general course of conduct relating to the same automobile from January 19th to February 13th, and this is the only possible construction of the indictment.

The most that a general course of conduct to mean in this context is that a single criminal impulse and a single criminal purpose underlay both of the acts of concealment and the acts of transportation.

It would be consistent with this view of the facts for example, for petitioner and his codefendants to have intended on January 19th to conceal the automobile for purposes of sale and to have taken the trip to Georgia for that purpose and perhaps it was unsuccessful to return to Kentucky.

But we think that even under that -- that group of facts, assuming that would -- that were the case before this Court that the rule of lenity does not apply.

I would like to discuss in order of the cases which petitioner has cited and which this Court has applied the rule of lenity to -- in order to forbid consecutive sentences.

In Bell versus the United States, which of course involved the transportation of two women for immoral purposes across state lines on the same trip, in the same automobile at the same time, therefore, the very same act of transporting the -- of one woman also transported the other woman.

Certain at the least, a common transaction was involved.

In fact, the Court defined a rule of lenity in the Bell case, as a rule and I quote, "Against turning a single transaction into multiple offenses, unless the intent of Congress is clear."

Now, in the Ladner case which petitioner also cites, person -- is all that two federal officers while under arrest, perhaps arguendo and the -- in the facts before the Court by a single discharge of a gun.

Now, obviously, this is a single act in the narrowest physical sense.

Justice William J. Brennan: As a matter of curiosity, what ever happened to Ladner (Inaudible)

Mr. Bruce J. Terris: I'm not -- I don't know, Your Honor.

In the Prince v. United States which involved the Federal Bank Robbery Act, this Court held that -- that a person couldn't be punished both for entry into the bank with intent to rob it and for the completed robbery.

But not only did this involve what the Court called, a narrow question of the unique statue of limited purpose, but the factual situation is clearly again, one were both defenses are a part of the single continuous transaction within a very short period of time.

The case in which petitioner principally relied in his brief is the Heflin case, which also involved the Federal Bank Robbery Act.

Either the Court held that bank robbery could not be separately punished for receiving money, he had helped to steal.

Again, we think the Court was considering a continuous after transaction which was intimately related.

And in fact Justice Douglas speaking for the Court specifically stated that the issue before the Court was the intent of Congress in punishing multiple aspects of the same criminal act.

The petitioner is suggested in his brief that Heflin was considered by the majority of this Court under Rule 35 and therefore only the indictment was before this Court.

The indictment there is not too dissimilar in the -- in the concealment count to the -- to Count 3 of the indictment here.

They were to allege receipt, concealment, storage and other -- and other similar words.

Petitioner therefore suggested in Heflin as here, if the indictment where construed in the manner most favorable for the Government, totally separate acts of bank robbery and concealment, would have been involved there.

But we submit to the Heflin, well, this Court could not construe the indictment in the manner most favorable for the Government, since a transcript of the trial was before the Court.

It certainly would have been strange for this Court to construe the indictment most favorably for the Government in direct opposition to the facts which the Court knew to be truth.

In fact, the Government urged there and it cited the transcript that the only facts there which were -- the only acts by the petitioner there, which were separate from the robbery, was the dividing up of the loot and -- which lose immediately after the robbery.

And no claim was made for the Government that sometime later, separate acts of concealment unrelated to the robbery were armed -- were involved.

The Government's contention of separateness was the acts were physically separate.

And in fact, the Court likewise, considered only the acts of dividing up the loot in its opinion and -- and decided that they were part of the same criminal act.

Justice John M. Harlan: How did the facts in this case differ -- you construe the indictment differ from the Woody case.

Mr. Bruce J. Terris: The facts do not seem significantly differ from the Woody case, but if the Woody case is considered with the transcript, which it was of course, before this Court.

Without the transcript which was the position of the case before the Court of Appeals --

Unknown Speaker: (Inaudible)

Mr. Bruce J. Terris: There is some difference and that the Woody case was the more difficult case for the Government.

Looking purely at the indictment, the indictment in the Woody case alleged that the acts of -- receipt, concealment and storage, occurred on March 16th, 1954.

That was the same date of the transportation alleged in the indictment in the Woody case, so it -- it would -- there was much more possibility of the -- of the prisoner there, arguing that the acts were interrelated.

Of course, as it turned out in the transcript, as this Court considered the case, that there was a considerable separation and time thereto, between the acts of -- of concealment and the acts of transportation.

Although, there was no indication of course, whether there was a different criminal purpose involved, presumably there were -- the criminal purpose for both there was keeping the car from it -- from its owner.

Justice William O. Douglas: That's the one that was affirmed by the -- the divided (Voice Overlap) --

Mr. Bruce J. Terris: That's right Your Honor.

Chief Justice Earl Warren: Mr. Terris, where would your reasoning lead us in the case where two persons agreed one day to transport a stolen car across state lines and the following day, they proceeded to do that and then having cross the state line, they put the car in a garage overnight and to say, they conceal it from (Voice Overlap) --

Mr. Bruce J. Terris: Where the storage, yes.

Chief Justice Earl Warren: And the next morning, they were arrested.

Mr. Bruce J. Terris: That's a considerably more difficult case for the Government.

Chief Justice Earl Warren: Well, that would maybe a more difficult, but where would your -- your reasoning lead us to in the case of that crime, would there be three crimes or not?

Mr. Bruce J. Terris: We still think that the Congress intended to punish the act separately, but that -- that issue would be the much more difficult one, whether the same kind of reasoning that this Court applied in Heflin, characterizing the statute, there is a unique statute.

But if it thought that this statute was -- was similar and the intent of Congress was similar, then we think that the same result would have to come about in that case as in the Heflin case.

Chief Justice Earl Warren: In other words, you think there would be three crimes?

Mr. Bruce J. Terris: Three crimes, Your Honor --

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: -- to detract you mean that the conspiracy and the transportation and --

Chief Justice Earl Warren: Transportation and concealment.

Mr. Bruce J. Terris: Well, we think clearly the conspiracy -- the conspiracy is separate.

Your Honor's decision mandate, although under a different statute, reaffirms that line of cases but as to the other two, we think they were -- they are separate, but I -- I want to emphasize that it is a much more difficult case than as before this Court and that -- and that -- that case involves how far the Heflin case applies to other statutes.

We think the Heflin case has nothing to do with -- with the case that is now before the Court.

Chief Justice Earl Warren: How is this so much different that was -- that was -- it would be a break in that case, they -- they put the car in the garage in the State overnight and -- and --

Mr. Bruce J. Terris: Well, I --

Chief Justice Earl Warren: -- will rest again.

Mr. Bruce J. Terris: I assume that when -- when the intent to transport when the petitioner -- when the defendants there had their intent to transport, that they had unitary intent in which they decided they were going to transport it then they were going to keep it then perhaps, they were going to sell it when they -- when they were finished.

Here, we think that there was no -- there was no such interrelationship and time itself, makes a difference we think, that if a person that -- that contrary to what petitioner argues, that if a person still transports a car today, keeps the automobile and transports it across state lines two years from now, that these -- these are in no -- in no way the same criminal act.

And so we think time doesn't make a difference and the three and a half weeks itself makes a significant difference in the case between the one that you post to me in the -- in the case here.

But in addition, construing the statute, we have an intermediate transportation which may have nothing to do with petitioner and his two codefendants and we may at well have entirely different criminal purposes and impulses.

Briefly, we also think that the Universal C.I.T. Credit Corporation case is also very different.

There, the Court did speak of a course of conduct but we like to emphasize that the course of conduct there was under each different criminal provision that was a separate course of conduct which this Court held, was separately punishable.

If we apply the same kind of reasoning to this case, then -- then a person transports the same automobile twice couldn't be convicted twice no matter how much the separation in time, but that wouldn't at all apply to the facts of this case that would -- it would be a separate course of conduct for concealment, receipt and storage and there would be a course of conduct for transportation and each one of those would be separately punishable.

Finally Your Honors, petitioners argue that a person using a -- a stolen automobile over a long period of time, may cross numerous state lines and therefore, maybe guilty of multiple offenses under the Government's theory.

I suggest that this would make a user of stolen automobiles liable to heavier punishment than a professional criminal.

Well, this may at times be true.

We cannot assume these pre-charges will abuse their discretion by giving consecutive sentences, when they are undeserved.

And we must assume the district judges will properly exercise their discretion as did the District Judge here, when he based petitioner's punishment on the -- on his record, which was not an insubstantial one.

Chief Justice Earl Warren: Mr. Barrett.

Argument of Edward L. Barrett, Jr.

Mr. Edward L. Barrett, Jr.: I may have five more minutes, Your Honor.

Just really two additional points, we've discussed the construction of the indictment.

Petitioner's position I think, differs in the Government's only into this.

Petitioner would say that the indictment charges that in the third count.

The petitioner's codefendants received, concealed and stored the automobile between the 19th day of January and the 13th day of February.

Second count charged that they transported it on the 12th day of February.

Therefore, the petitioner thinks that it's fair to assume from this indictment that petitioner and his codefendants had possession of the car from whatever point at which they received it to and including the period of transportation, because the transportation and his charge is in the middle of the period in which he was charged that they received concealment stored.

So --

Justice Felix Frankfurter: An allegation at the time on important in an indictment?

Mr. Edward L. Barrett, Jr.: Well, if you disregard allegations of time Your Honor, then you could read this indictment of saying that the transportation was on the 12th and their concealment was on the13th.

Justice Felix Frankfurter: Or you just -- if you could read it giving some other time.

Mr. Edward L. Barrett, Jr.: That -- that they're tied together here and perhaps the only sentence that -- that's relevant I think, but generally the course of conduct here, a general period of time, both defenses related to an automobile.

I suspect that in dealing with this problem perhaps, the Court is as well off to have no other facts than it has because I'm not sure there's any stocking place, between saying, this statute meant to get that separate persons who were involved in varying ways with respect to a stolen car and saying on the other extreme, that criminality here becomes a factor of time and distance.

And that the more time that elapses, the more things that a person does with the car, the more possible counts that may be charged against him.

And I suggest here that generally and this is a special kind of statute, generally, we don't calculate criminality in that way.

Certainly in the field of larceny generally, the man's punishment doesn't rise with the length of time that we hold on to the stolen -- or stolen article, or with the number of things he does with the stolen article before the time in which he's caught.

These were all regarded as part and -- of the necessary incidence of effect.

Now true, we're not dealing with a larceny statute here.

We're not dealing with the larceny statute only because Congress didn't have the constitutional authority to make a larceny statute, so they made it to transportation statute and tied it in here, really assisting the States in the enforcement of their own law here not any separate federal interest basically beyond that, assisting the States in enforcing their larceny law.

We accept the Government's contention, the man who steals the car and keeps it within the State where he steals it, probably will get under most state laws the time whereof one charge, one sentence or whatever the local sentences for larceny of automobiles.

No matter how long it keeps it, no matter what he does with it or how many crimes he commits, committed or what.

This was an incident, but here once he go across the state line, the Government's argument now and they make it quite clearly certainly on page 13 of their brief that the longer he keeps the car, the more things he does with it, the more places he drives it and so on, the more crimes, potential crimes he's creating.

All I suggest is doubtful that Congress intended to give to courts the discretion to impose what could be an obviously enormously large sentences for this offense, under -- under this situation.

And beyond that, it seems to me that with respect to the application of the prior cases, I suggest that the Government's construction here is somewhat narrow, that the rule of lenity as I read it, as this Court has adopted it, is a part of the general rule with statutory construction.

Justice Felix Frankfurter: Has this -- has this Court in any case, ever said there is a rule of lenity?

Mr. Edward L. Barrett, Jr.: Well --

Justice Felix Frankfurter: Has it ever said there was -- there was a rule of lenity?

It has said something very different.

It's said that when we are doubtful, we reject the harsh of punishment.

Mr. Edward L. Barrett, Jr.: That's right.

Justice Felix Frankfurter: Which is a very different thing than to have a positive, affirmative governing rule that you apply -- that you read statute, with some notion of lenity in mind?

Mr. Edward L. Barrett, Jr.: Well, within the general statements, Your Honor that petitioner's position that the general statement certainly is not confined as the Government suggests to whether you have separate acts or don't have separate acts.

It's a general proposition which petitioner argues, should apply here.

The statute is not clear.

It can reasonably be read as the saying, we're going to reach different people and not multiply offenses to one individual.

There are potentialities of harsh punishments being imposed if you read the statute, as the Government reads it.

It seems to me here, the conditions are satisfied for the applying of this general notion statutory construction.

Justice Potter Stewart: Your -- excuse me --

Justice Felix Frankfurter: Go on.

Justice Potter Stewart: Your test as I understand it, would be this, that if the same defendant and the same automobile then there can only be one offense under the direct?

Mr. Edward L. Barrett, Jr.: If now, I -- I'd say, you have to qualify this that if -- if the automobile was stolen --

Justice Potter Stewart: And then recovered --

Mr. Edward L. Barrett, Jr.: -- and recovered --

Justice Potter Stewart: -- or re-stolen after (Voice Overlap) --

Mr. Edward L. Barrett, Jr.: -- and then a year later, it's re-stolen, this is different.

Justice Potter Stewart: I see, yes.

Mr. Edward L. Barrett, Jr.: But -- but from time from which the car is stolen until which somebody is apprehended, that one defendant under my construction shall only commit one crime (Voice Overlap) --

Justice Potter Stewart: It wasn't in fact anyone (Voice Overlap) would be.

Mr. Edward L. Barrett, Jr.: That's right.

Justice Charles E. Whittaker: Mr. Barrett, what -- what about this situation.

If the sentence charged with receiving and storing the car on the 1st of January, in Frankfort, Kentucky and then the second count, is charged with transporting that same count on the 4th day of January from Kentucky to Florida.

Is that only one offense written thereto?

Mr. Edward L. Barrett, Jr.: Well, under my contention is we have to regard it -- we really should regard it as one offense.

I think this is basically the trouble we get into here, is because Congress was dealing with the situation where they had constitutional limitations.

They couldn't start out by saying, "We're going to punish you for larceny.

We're going to punish it for receiving stolen property."

So you punished transporting and then you -- you get into -- and then you punish receiving and stealing and you read the -- to what you can get out of the congressional history, they're thinking of different people.

Now, if the man receives the car from this person who stole it in another State and then he subsequently transports it.

I still don't see any reason for interpreting the statute as to say, "Well, he should be charged with the receiving and in the subsequent transporting."

Justice Felix Frankfurter: (Inaudible)

Mr. Edward L. Barrett, Jr.: I just going to add one thing, it seems to me here, particularly difficult and more so than the other statue you've dealt with, to draw any line other than the quite broad line here, because unlike an ordinary theft case such as you have in the Heflin case that the number of -- of offense of separate acts they're going to occur for somebody who stole something from a bank.

It will be going to relatively small normally, but in the automobile case and normal concomitant into the theft of the car, is going to be many -- often, would be many act of transportation, many acts of concealment, because this is what you do.

You steal the car to use it or to sell it, to take it somewhere to dispose of it and this adds up the possibility of creating many separate offenses in the ordinary transaction.

Justice Felix Frankfurter: You -- you started out with, what to me was a very engaging general consideration and just ended it up -- ended up with it, a minute ago.

Namely and it -- and I think very engaging and -- and far reaching, namely that we're dealing here with the crime made so by Congress, not under its extraordinary penal cars, but as an adjunct and as a help to state prosecution because it's assumed with the jurisdiction.

Mr. Edward L. Barrett, Jr.: Well --

Justice Felix Frankfurter: You know very well that the large number, the bulk of penal legislation federally enforced it derived from the Commerce Clause and if you're -- if you're -- generally, all you have to see where this case.

I'm quite aware of it, but since you invoked the general principle, I want to consider it that this is all and you said a minute ago, you start out which I get.

This is all in aid of state, what is really local -- what is really local, what a local misconduct.

Well, when you think of how much there is on the -- on the -- in the Code in 18 U.S.C. and has been for the last one, ever since the champion to way back the lottery cases are, in which Congress has made crimes hanging them on -- pegging -- to peg on which they hung the power in the Commerce Clause, but I don't see that that should lead us in all those cases to say, "Oh, since this as it were, an auxiliary power, we must looks up and confine the person.

Mr. Edward L. Barrett, Jr.: Your Honor, I don't think that my argument is slightly different I think when you suggest.

All I'm arguing is that since here, Congress was -- was passing this law an aid of the States, because they couldn't cope with the stolen car problem.

It's reasonable and to read the statute, so that you don't impose much harsher consequences on the man who transports the car across the state line, than he would ever receive, if he did all the same acts with reference to the same car within a state and in this sense, --

Justice Felix Frankfurter: Alright, that's where --

Mr. Edward L. Barrett, Jr.: Yes.

Justice Felix Frankfurter: I -- I don't think, at least I don't.

I don't think, I --

Mr. Edward L. Barrett, Jr.: This goes to (Voice Overlap) construction, here.

Justice Felix Frankfurter: -- conceive what you said.

But --

Mr. Edward L. Barrett, Jr.: Yes.

Justice Felix Frankfurter: -- at just there that I -- that I -- I'd rather distortedly, because Congress -- the purpose is Congress said, "We don't want to cut her up interstate commerce and make these national auxiliary then submit for crime.

And therefore, I don't find any -- I can't impliedly find any restricted way of looking at the statutes.

If it has in fact, not only make the direct transportation or direct use of the mail, direct crossing state line an offense and also said we're going to go out after all the -- all that is related to the power that we have.

Mr. Edward L. Barrett, Jr.: This really all -- I think all comes down Your Honor, to the simple question here, whether you read the congressional history as an intention merely to reach all the separate persons, could get and have connection with this car as it moves along or whether you read it to improve just to -- multiple offenses to the single individual.

Justice Felix Frankfurter: Or -- or as you read it, not shedding in the light on it at all.

Mr. Edward L. Barrett, Jr.: Yes.

[Laughs]

Chief Justice Earl Warren: Mr. Barret, before you sit down, I should like to express appreciation of the Court to you --

Mr. Edward L. Barrett, Jr.: Thank you, Your Honor.

Chief Justice Earl Warren: -- for accepting this assignment and for your diligence in pursuing it.

Mr. Edward L. Barrett, Jr.: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: And Mr. -- Mr. Terris, may I thank you too, for your able representation of the Government.