SALDANA v. UNITED STATES

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Argument of Stephen R. Reinhardt

Chief Justice Earl Warren: Leonard Saldana, petitioner, versus United States.

Mr. Reinhardt.

Mr. Stephen R. Reinhardt: Mr. Chief Justice and may it please the Court.

Before commencing the oral argument, I would like to move the admission of Mr. Herbert Bernhard pro hac vice.

Chief Justice Earl Warren: Yes, Mr. Bernhard may be so admitted --

Mr. Stephen R. Reinhardt: Thank you.

Chief Justice Earl Warren: -- Mr. Reinhardt.

Mr. Stephen R. Reinhardt: May it please the Court.

This case is here on writ of certiorari to the US cir-- US Court of Appeals for the Ninth Circuit.

It involves a criminal conviction of the petitioner.

The conviction was upheld by the Court of Appeals.

The facts are as follows.

On June 16, 1958, the petitioner was arraigned before Judge Thurmond Clark.

The petitioner, at that time, being indigent, did not have counsel.

A counsel from the Indigent Defendant Panel was appointed at that time.

Thereupon, Judge Clark suggested that, in view of the fact that there was a co-defendant in the case who is pleading guilty at the same time, that petitioner plead guilty as to all five counts of the indictment.

The petitioner then pleaded guilty.

Following that plea and arraignment, court-appointed counsel --

Chief Justice Earl Warren: Was that a-- he pleaded guilty, you say?

Mr. Stephen R. Reinhardt: Pleaded not guilty.

I'm sorry, Your Honor.

Chief Justice Earl Warren: Not guilty, yes, I thought so.

Mr. Stephen R. Reinhardt: Petitioner pleaded not guilty to all five counts.

Following that plea and arraignment, court-appointed counsel, and I was the court-appointed counsel, consulted with petitioner to determine the nature of the offense and what petitioner's wishes were.

Following consultation with petitioner, following an investigation of the facts, it was determined that petitioner would plead guilty, petitioner acknowledging that he did commit the offense.

Thereupon, consulted with the Assistant United States Attorney and inquired as to the disposition which would be acceptable to the United States Attorney's Office.

The United States Attorney's Office advised that, as a matter of course in proceedings of this nature, pleas would be accepted to a lesser number of counts and that the acceptable number in this case would be two.

Thereupon, it was agreed between the United States Attorney and petitioner's counsel that a plea of guilty would be entered on two counts.

Justice John M. Harlan: Where does that appear in the record?

This is the conference of the United States Attorney, is it not?

Mr. Stephen R. Reinhardt: Well, Your Honor, I think they appear in – at -- on page 27, I believe, there's a statement which I made to the court at that time.

Yes Your Honor, page 27 of the record where I advised the district court of this fact.

This was before Judge Hall.

Now, I should state further, in this connection that on June 16th when the arraignment proceedings were held and when petitioner pleaded not guilty, the case was set on the trial calendar for July 15, which was a time at which Judge Peirson Hall would have taken over the trial calendar.

In the district, the judges serve successive terms, and therefore, the case was placed on the calendar at a time after which Judge Hall would have taken over.

Now, prior to the time that Judge Hall would have taken over or did take over the trial calendar, following the conference with the United States Attorney, I requested the United States Attorney to place the matter back on the calendar for a change in plea.

The United States Attorney did this at my request and placed it on the calendar of the tri-- of the judge who was then presiding over the criminal calendar, who was Judge Thurmond Clark.

When this took place on June 26th, at which time, I appeared with petitioner before Judge Clark and moved for a change of plea.

The plea was changed on counts 1 and 2 and petitioner at that time stated that he wished to plead guilty to counts 1 and 2.

I, then, requested Judge Clark to impose an immediate sentence.

Justice Charles E. Whittaker: (Inaudible) was that plea accepted by Judge Clark?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

The plea was accepted on ent -- on counts 1 and 2.

I believe that this will appear on either 15 or 16 of the record -- on page 15 and 16, and I believe it will appear also in the minute orders, although I'm not sure what page of the record.

In any event, following the acceptance of the plea by Judge Clark, I asked -- requested immediate sentence on the grounds that the petitioner would get no credit for any time that he served while awaiting sentence because there was a mandatory minimum sentence of five years with no possibility of probation and/or parole.

So, I asked for an immediate sentence.

Judge Clark, then, responded and said that he would be willing to impose or would impose a sentence of five years to run concurrently on each count and it -- that it would take effect immediately.

Justice William J. Brennan: Mr. Reinhardt --

Mr. Stephen R. Reinhardt: He had--

Justice William J. Brennan: -- Reinhardt, explain that again.

What was the reason you wanted an immediate sentence?

Mr. Stephen R. Reinhardt: Well, Your Honor, the first reason was that I did not want petitioner to stay in jail, serving time for which he would receive no credit.

Justice William J. Brennan: In other words, he was not sentenced until months later and, meanwhile, was in jail, he would not get credit for the time then being served?

Mr. Stephen R. Reinhardt: He would not get credit because there was a mandatory minimum of five years and that if --

Justice William J. Brennan: And that they had a date from the actual date of sentence, is that it?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Justice William J. Brennan: Is that the fact that's here?

Is that as so interpreted?

That--

Mr. Stephen R. Reinhardt: Well, that was where I understood the practice to be, that the -- that the sentence would be four to five years and that it would be effective as of the date of sentence.

Now, it is possible that the court might, under some circumstances, I don't know, be able to enter a retroactive sentence.

But, the reason I gave at that time, and this was the reason that I had, was that I felt that he should not serve dead time and that, ordinarily, credit is not given for dead time.

So, I -- in that -- upon my request for an immediate sentence, the court, as I indicated, announced that the sentence would be five years, concurrent on each count.

At that point, the Assistant US States Attorney objected.

His objection, as he stated, was not as to the length of the sentence, but as he said, policy-wise, he objected to the imposition of the sentence on a man when there was a co-defendant who had not yet been tried.

Judge Clark explained his objection by stating that the Government was afraid that if the petitioner was sentenced, then he would be free at the trial of the co-defendant to take the stand and testify for the co-defendant and, the Government wanted to avoid this.

I replied to Judge Clark that I felt that this was not a valid reason to delay the sentence.

That, in the event that petitioner perjured himself at a subsequent trial, that the solution to that was to try him for perjury, but that it was not a proper practice to keep a man in jail awaiting sentence in order to ensure his testimony at a subsequent trial.

That, in fact, this was inconsistent with the administration of justice because it did not encourage truthful testimony, but it kept a club hanging over the head of a man who was awaiting sentence, and that sentence should not be delayed for this purpose.

In response to my argument, Judge Clark said “well, you don't have to worry about your defendant because I have given you my word, and I give you my word now, he will be returned here after the trial of the co-defendant and he will be sentenced to five years.

I give you my word on that.”

The next event that took place and this does not appear in the record, but it is my way of explanation, is that I received a telephone call from the clerk that the -- that Judge Hall had taken jurisdiction over the petitioner.

Now, the record shows that, on July 9th, the co-defendant, Palomino, who was set for trial before Judge Hall moved for a continuance.

Judge Hall granted the continuance of the trial until July 29th, a delay of two weeks, and that the record shows that this was ex parte.

It was an ex parte hearing that the petitioner was not there, petitioner's counsel was not there, and it is unclear, although I do not believe, the United States Attorney was there either.

At this proceeding concerned with Palomino alone, Judge Hall ordered petitioner transferred before him for sentencing.

As the record later reveals, the reason that Judge Hall --

Chief Justice Earl Warren: Was that at the time that he granted the continuance of two weeks to Palomino?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Chief Justice Earl Warren: And that was without the presence of any of the parties to your case?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

As I stated, I was advised of this by phone and, prior to the date at which petitioner's next hearing was scheduled, which was July 21st, the date that he would ord -- that he was set for sentencing, I spoke to Judge Hall with the Assistant United States Attorney and was advised that it would be unnecessary to appear until July 29th in view of the continuance.

Now, the record is somewhat unclear as to this, except that the United -- Assistant United States Attorney's statement is set forth at pages 19-20 of the record, I believe, yes, Your Honors, it's at page -- pages 19-20 where the United States Attorney explains this.

In any event, the proceedings were held by Judge Hall with respect to -- on July 21st and 22nd, but petitioner's counsel was not there because Judge Hall had stated that he would not sentence until July 29th since he had continued the trial.

Now, on July 29th was the next time that petitioner's counsel appeared in court, and this was before Judge Hall pursuant to the advice I had received that the case had been transferred to him.

On July 29th, the court was advised that Palomino had skipped bail.

Now, as I've indicated, the explanation that Judge Hall had given as to why he transferred petitioner was that he didn't want to take a half of a case.

He believed that if he were going to try one defendant, he should also sentence the co-defendant.

Now, Palomino, having disappeared, there was no trial pending for him and all that was left before Judge Hall now was the petitioner.

When the clerk announced that petitioner was here and was here for sentencing, Judge Hall said “well, I'm not going to sentence him now.”

At that point, I stated to Judge Hall, began to explain the circumstances of the case and how petitioner had appeared before him, and began to make a motion to transfer the case back to Judge Clark.

Judge Hall, before I completed my entire explanation, came to the conclusion that this apparently smacks too much of having the appearance of a burden.

That if petitioner would plead guilty, he would get five years.

Now, this conclusion is wholly without support in the record or in fact.

This is a conclusion of Judge Hall's, for which there may be explanations with relation to the problems that may exist in the District Court in Southern California, but as to which petitioner was wholly innocent.

There was nothing that would justify the smacking of the appearance of a deal in Judge Hall's court and Judge Hall's words, and he made no inquiry or no attempt to find out any facts or to explore any facts which might support this conclusion of his.

Rather, he said that, because it might have the appearance of a deal, he would vacate the pleas and order the defendant to trial.

Despite petitioner's objections, Judge Hall did, in fact, vacate the pleas of guilty and set the entire case for trial approximately 10 days later.

Now, on August --

Justice Charles E. Whittaker: Pardon the interruption.

Mr. Stephen R. Reinhardt: Yes.

Justice Charles E. Whittaker: But, had there been any order at all with respect to the three counts, 3, 4, and 5?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

I'm glad you asked that.

I should have mentioned counts 3, 4, and 5 at the time I described the change of plea.

At the time of the change of plea, when the guilty pleas were accepted on counts 1 and 2, the clerk of the court said “we have counts 3, 4, and 5.”

The Assistant United States Attorney then said “hold those,” and the court said “yes, hold those.”

Now, there is no doubt in the record that the intention of all of the parties in -- the court, the United States Attorney, and the petitioner was that these counts would not, thereafter, be subject to trial.

Justice Charles E. Whittaker: Had there been agreement of that kind?

Is that what Judge Hall was referring to when he said this looked like a deal?

Mr. Stephen R. Reinhardt: No Your Honor, I don't believe.

If that's what he was referring to, I think it's an appropriate in the proper deal.

I don't think that's what he meant because he said “a deal that if he would plead guilty, he would get five years” and, this sort of a deal there never was.

There was no discussion with the United States Attorney about this, never any suggestion that there would be -- no mention of sentence at all until Judge Clark, in open court, announced the sentence.

However, the status of 3, 4, and 5 was discussed with the Assistant United States Attorney and it was agreed that the acceptance of a plea to 2 would be a disposition of the entire case, and I think that the record shows that the -- there can't be any question that this was the intent of everybody.

One illustration, I believe, is the fact that the Assistant United States Attorney wanted counts 1 and 2, the sentences on those counts, held in order to ensure the testimony.

And --

Justice Charles E. Whittaker: When you say everybody, do you include the judge --

Mr. Stephen R. Reinhardt: I --

Justice Charles E. Whittaker: -- would you?

Mr. Stephen R. Reinhardt: Yes, Your Honor, I include Judge Clark.

The pact that's in the district court has been, and I know it is a pact that's in the District Court in Washington, has been that pleas -- when a guilty plea is entered to a lesser number of counts that, at the time of sentence, the remaining pleas are dismissed.

Now, had the plea been accepted on one day in sentencing schedule for several weeks later, they would have been dismissed there.

However, the important fact here is that sentence was about to be imposed on this very day when the guilty pleas were entered and on this very day, those pleas would have been dismissed under ordinary circumstances, but for the objection of the Government that they wanted this Defendant held and not sentenced until after the trial of a co-defendant.

Justice Felix Frankfurter: When you say the practice is to dismiss after pleading guilty to part of the multiple-count indictment, is it equally a common place for defendants to plead guilty to some count and go to trial on others?

Mr. Stephen R. Reinhardt: No, Your Honor.

I can only answer in the basis --

Justice Felix Frankfurter: Do you mean this is a rule of -- some kind of a rule of practice that if you've got five counts and they're ready to plead to count 1 or 2, but want contest the other counts?

That's automatically a dismissal?

Mr. Stephen R. Reinhardt: No--

Justice Felix Frankfurter: Are you contesting that?

Mr. Stephen R. Reinhardt: No Your Honor, I'm not suggesting automatically.

I'm suggesting that, as a general practice, when a petitioner pleads to a lesser number of counts that this is the usual arrangement and this is the usual purpose of the plea, that there are cases in which a petitioner pleads because he does not want to face trial on those counts.

Justice Felix Frankfurter: Well, it all depends.

Of course, if the five counts are variants of the same offense, that would be true.

If there are five counts or four counts or whatever the multiple may be and the district attorney has a non-committing because he can't commit himself to talk with defendant's counsel.

I can understand that, but I'm a little jolted when you say the practice is that if you have five counts and if you plead guilty to some, you thereby, normally dismiss the others.

I'm just a little jolted.

It may be so, but it strikes me as odd.

Mr. Stephen R. Reinhardt: Well, Your Honor, I would say that --

Justice Felix Frankfurter: I don't mean to say it doesn't often take place.

I've given the indic-- the instances or the formats under which it takes place.

But, if you've got one count for one thing and another count for an unrelated offense, triable at the same time, I should think if one dug out the cases, you'd find as many non-practices as the practice you gave.

Mr. Stephen R. Reinhardt: Well, may I suggest, Your Honor, that the counts in this case show that this case falls within the type where you suggest this is the purpose, namely that there was a conspiracy count and one substantive count of sale and the remaining counts were to be dismissed with three further acts of sale.

They were all sales to the same government agent in -- under the same conspiracy.

Justice Felix Frankfurter: Which were pled to, the substantive?

Mr. Stephen R. Reinhardt: One conspiracy and one of the th-- one of the four substantive.

Justice Felix Frankfurter: It may be some kind of a substantive over different periods or --

Mr. Stephen R. Reinhardt: No, Your --

Justice Felix Frankfurter: I'm not saying this is it.

I'm just bothered by your general statement.

Mr. Stephen R. Reinhardt: In any event, I think there was no doubt that this -- that under the facts of this case, the purpose of the plea in the understanding of all the parties was that there would be a dismissal of the remaining three counts and that there was never any intention to have a trial on the other three.

And, there are numerous indications in the record, such as the fact that he was scheduled for sentencing before Judge Hall, not for trial, that at several points in the record, it says that the purpose was for sentencing, that Judge Hall transferred for that purpose.

That when Judge Hall asked what the purpose of having the petitioner there for, the response given by the clerk or by the US Attorney was “he is here for his sentencing.”

That, as I started to explain before, that the United States Attorney felt that it was necessary to delay sentence because he wanted to hold these two counts in abeyance, the sentence on these counts in order to ensure the testimony at the trial that had there been any intent to continue the trial with 3, 4, and 5, holding those counts would have been sufficient.

But, he felt it was necessary to delay the sentence because those were the only two counts on which the Government ever had any intention of continuing the prosecution and that in the arrangement which was sanctioned by Judge Clark when he accepted the pleas, that this was a disposition of this entire crime and was always intended to be a disposition and I don't think that the Government now denies that that was intended to be a disposition.

Justice Charles E. Whittaker: May I ask you, do you contend that (Inaudible) pleas are not going to (Inaudible) not the judge's contention and that you could not be asked to describe on counts 1 and 2--

Mr. Stephen R. Reinhardt: Well, Your Honor, I contend --

Justice Charles E. Whittaker: Other than to say “he couldn't be tried (Inaudible) on any count”?

Mr. Stephen R. Reinhardt: Yes Your Honor, this -- the acceptance of the plea on counts 1 and 2 amounts to a conviction.

A plea of guilty accepted by the court is a conviction just like a verdict of the jury.

The -- there are -- the Kercheval case of this Court says that a conviction by the -- that the plea is the conviction.

This is, in all respects, like a jury verdict.

The man is convicted.

There is nothing left for the court to do but to sentence him.

Justice John M. Harlan: Supposing --

Justice Charles E. Whittaker: If that's it, that it would be inadmissible (Inaudible)

Mr. Stephen R. Reinhardt: Very well, Your Honor.

There -- we have different problems with count 3, 4, and 5.

Now, with respect to --

Justice John M. Harlan: May I ask you a question?

Mr. Stephen R. Reinhardt: Yes, sir.

Justice John M. Harlan: Mr. Tener remained throughout before Judge Clark and, there, you have the single appearance presented to the judge sentencing further requesting, “I think I will not undertake it.”

Does he have that power?

Mr. Stephen R. Reinhardt: Would he have that power to vacate the plea on counts 1 and 2?

Justice John M. Harlan: Sua sponte.

Mr. Stephen R. Reinhardt: Yes.

We do not believe that he would have had the power to vacate the pleas sua sponte.

In the first place, we think that this is a conviction which cannot be vacated except upon motion of the Defendant.

Now, the --

Justice John M. Harlan: Does he have any power (Inaudible)

Mr. Stephen R. Reinhardt: Well, Your Honor, in the case of Smith versus the United States which is cited in the Government's brief and in our reply briefs, this Court said, with respect to a question whether a trial court could vacate a trial, could -- in other words, could sua sponte grant a motion for a new trial after the time at which the defendant could have moved for a new trial?

This Court said that it would not reach the question whether the court's power extended beyond the defendant's power because to do so would raise a serious question with respect to double jeopardy and that this question should be avoided.

And, they said that the reason that the question of double jeopardy exists is because what avoids double jeopardy is the fact of the defendant's motion, that -- and we feel that this same principle is applicable here.

Now, the -- historically, we feel there has never been any power to vacate pleas of guilty.

We've seen those citations and no authority in which this power exists.

Justice Charles E. Whittaker: But, if that's the rule, assuming that's true, could not the clerk have, as Justice Harlan's question, that in all (Inaudible) counts 3, 4, and 5 and (Inaudible)?

Mr. Stephen R. Reinhardt: Well, we feel that, in the first place, there are several things involved here.

Perhaps the place to start is where the Government starts.

The Government suggests in its brief, at page 31, that even if all the legal issues were decided in their favor, there is a question whether, under the supervisory power of this Court, this Court should enforce the word of the district court in order to uphold the principles of administration of the court.

There's a case in the circuit court, the Franco case cited in our briefs, where a judge announced an intention to dispo -- to give a particular sentence and the circuit court said even to the most venial of its subjects, the word of the court must be kept.

Now, the word of the court here includes not only counts 1 and 2, but counts 3, 4, and 5.

The question is vacating an entire disposition.

The counts -- the guilty pleas on 1 and 2 cannot be separated from the dismissals on 3, 4, and 5.

This is one integrated settlement of a case and, if you decide or if this Court decides that 1 and 2 can be vacated properly, then there's no problem with 3, 4, and 5, but you cannot separate 3, 4, and 5 from 1 and 2.

This was a solution, a disposition, and a judicially approved agreement of an entire matter.

And, as the Government also suggests, it would be unfair to try this man on counts 3, 4, and 5 while keeping his guilty pleas on count 1 and 2.

Justice John M. Harlan: Well, you can stand (Inaudible) never did at your --

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Now, to return to Justice Whittaker's question about -- what about 3, 4, and 5, as I've started to answer, we, first, believe that, in any event under the supervisory power of this Court, 3, 4, and 5 should not, under any circumstances, be tried because it repudiates the good faith and good word of the district court.

Secondly, we think that the failure to dismiss in -- on a written form that this is a technical objection to which the answer is that it was tantamount to a dismissal, that there was everything done by the formal entry of the dismissal.

Thirdly, we say that this, again, raises the question of double jeopardy on counts 3, 4, and 5.

Now, here, I would like to explain in per -- possibly partly in view of some of the previous opinions we've heard today.

What our point here is -- relates to breaking the prosecution into two separate parts.

We do not contend that petitioner could not have been tried on all five counts at one proceeding.

Justice Felix Frankfurter: Could you -- would you mind to put parenthetically what sentences could have been imposed, provided he'd been tried on all five and a general verdict had been brought in or if you plead that the wri -- a particularized guilty on each of the five counts?

Mr. Stephen R. Reinhardt: Well, if a guilty --

Justice Felix Frankfurter: I'm not suggesting the question has anything to do with your argument.

Mr. Stephen R. Reinhardt: No.

Justice Felix Frankfurter: I'd just like to know.

Mr. Stephen R. Reinhardt: If a guilty verdict had been brought in on all five counts, he could have received separate consecutive sentences in 20 years and he --

Justice Felix Frankfurter: Accumulated?

Mr. Stephen R. Reinhardt: Yes, consecutive sentences--

Justice Felix Frankfurter: On all the counts?

Mr. Stephen R. Reinhardt: On each count.

Justice William J. Brennan: You mean 100 years total?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Justice William J. Brennan: Is it 20 years (Inaudible)

Mr. Stephen R. Reinhardt: Yes, Your Honor.

This is part of the same statute, the --

Justice Charles E. Whittaker: Has he testified on all five counts (Inaudible)

Mr. Stephen R. Reinhardt: On all five counts, yes, sir.

Justice Charles E. Whittaker: What was the verdict?

Mr. Stephen R. Reinhardt: The --

Justice Charles E. Whittaker: He was acquitted on count 1, was he not?

Mr. Stephen R. Reinhardt: He was acquitted on count 1 because the Government failed to prove the conspiracy because the co-defendant had fled to Mexico.

Justice Charles E. Whittaker: But he was convicted on count 2.

Mr. Stephen R. Reinhardt: He was convicted on count 2.

Justice Charles E. Whittaker: But that sentence was made to run concurrently with the sentence on count 3, wasn't it?

Mr. Stephen R. Reinhardt: That's correct.

Justice Charles E. Whittaker: Now, then how were you hurt?

Mr. Stephen R. Reinhardt: Well, Your Honor, we were hurt by the fact that there was a trial at all.

We feel that there was a disposition of this case by plea.

This was a disposition under which a man was convicted and a conviction which cannot just be vacated just as the Government or the court could not vacate a conviction after trial merely because it might be better to try the man over again under a different theory or where there could be a greater penalty imposed.

Once a man is convicted, he is convicted whether by plea or by verdict, and we feel we were prejudiced by being subjected to a second trial following the conviction.

When I say second trial, I mean a trial following a conviction.

Justice Felix Frankfurter: Do you say that what you said earlier applies to whatever may be the generality?

Are you saying that the tendering of the plea of guilty and its acceptance by the judge was an implied dismissal for all practical purposes of the other three counts?

Are you saying that?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

I'm saying that it was a dismissal in -- that this was the intent of the parties and that --

Justice Felix Frankfurter: I'm not -- but, legally, the legal result, the legal proposition you're tendering is in the context of what --

Mr. Stephen R. Reinhardt: Is an impo --

Justice Felix Frankfurter: In the context of what took place the acceptance of the plea on 1 and 2 was a dismissal of 3, 4, and 5.

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Justice Felix Frankfurter: That's your position.

Mr. Stephen R. Reinhardt: Now, beyond that point, beyond that point, we say that, in fairness, it must be treated as such and, furthermore, that if it is not treated as such, it raises serious questions with respect to separation of the trial and the fairness.

The Government concedes it would be unfair to try him separately on 3, 4, and 5 after having accepted the convictions on 1 and 2.

The Government, in its brief, says that it's necessary to vacate 1 and 2 out of fairness to the defendant because he would have been prejudiced on his trial on 3, 4, and 5.

Now --

Justice Felix Frankfurter: I don't follow that but that as the Solicitor General explained it.

Mr. Stephen R. Reinhardt: Well, I -- furthermore, we rely here on the concept that not only in the single indictment must these offenses be tried, but that they must be tried at a single time that an indictment cannot be brought forth charging a number of offenses, some tried separately and some tried by plea and then some by trial, unless this is the express understanding at the time of the entrance of the pleas.

That here, in effect, there were two prosecutions.

There was a prosecution by plea of guilty and then, further, there was a separate prosecution by trial.

That, the rule here that should be applied is the rule set forth in the Model Penal Code and the rule that suggested, in effect, in the separate opinion in the Abertay case in which it was suggested that, although separate offenses may be tried and separate punishments may be imposed for separate offenses at one trial, that these separate -- that these offenses may not be separated for a trial, that this subjects the defendant to the harassment of successive trials under the Green case.

That it's not the fact that all of these things couldn't be tried in one indictment, but that they could not be separated by the Government which would take pleas on one and then try them on the others.

Justice William J. Brennan: Whether -- what sentences were finally imposed?

Mr. Stephen R. Reinhardt: The sentences which were finally imposed cumulated 20 years.

It, in effect, was -- there was 10 years on count 5, 5 on 4, 5 on 3, and 5 concurrent on 2.

And --

Justice William J. Brennan: Was there originally a 5 -- was the original sentence on 2, that is after the trial, was that concurrent to --

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Justice William J. Brennan: -- sentence on the other counts?

Mr. Stephen R. Reinhardt: Yes.

Justice William J. Brennan: Wasn't there a correction here of some kind?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

The court originally tried to put him on probation on 2 and that was corrected due to our -- the intervention suggesting that it should be corrected.

But, in effect, the petitioner was, in this case, subjected to a quadruple sentence over that which had been announced by the court originally over that and with which he had left the courtroom, spent a month in jail being held in jail, again, without credit.

And, in answer to the earlier question, we concede that in this case, when he was eventually sentenced to 20 years, he was given no credit.

There was no retroactive sentence.

So, he was – he left the courtroom, spent a month in jail under the impression that he was -- had been promised and that it had been announced to five-year sentence, then because of the delay requested by the Government to ensure what his testimony would be at another trial, he was subsequently transferred sua sponte by Judge Hall and then submitted -- subjected to a trial and convicted for a period of 20 years.

And, we believe with the Government that, aside from the legal issues involved in this case, a serious question arises under the ad -- supervisory power of the court and not just, as the Government suggests, is that the fact of a quadruple sentence that requires the exercise of this power, but it's the fact of a quadruple sentence resulting from, one, the postponement for an improper purpose, two, the vacation of a plea that had been adopted and accepted by the court and the subjection of a man to trial for absolutely no reason.

There was no justification for the trial at all.

That, in view of all of these factors that, certainly, this Court under its supervisory power, should try to extricate this man from the quadruple sentence imposed because one judge suspected the actions and motives of another United States District Judge.

Justice William J. Brennan: Well, what do you want us to do?

Mr. Stephen R. Reinhardt: Well, Your Honor, the-- our first suggestion with respect to both the sentencing questions and the double jeopardy questions is that the man is entitled to complete release.

Under the sentencing section, we believe that there was an unreasonable delay in sentencing.

I have not had an opportunity to discuss this, but I think our briefs do adequately.

The -- we believe there was an improper delay in sentencing.

This comes under Rule 32 and the Sixth Amendment.

And, that due to the improper delay and the deprivation of a speedy trial because of the purpose here, and this is what makes it improper, the purpose of the delay that he cannot be tried at all and he should be released, barring that, however, our next suggestion is that he should at least be relieved of all prejudice resulting from this unlawful delay in sentencing.

In other words, he should be returned to where he would have been had this delay not occurred.

Justice Felix Frankfurter: Which means five years?

Mr. Stephen R. Reinhardt: Which means five years, yes Your Honor.

Justice Felix Frankfurter: Since you invoked the supervisory power of this Court and as does the Solicitor General, I'd like to ask you, and I hope you may care to make comment, this question.

That means -- the supervisory power means we should tell lower courts what is right and seemly, that's the essence of it, isn't it?

Mr. Stephen R. Reinhardt: No Your Honor, I don't think so.

Justice Felix Frankfurter: Well, isn't -- it isn't -- if it's super -- if it's supervisory merely, it isn't compelled by the constitution by a statute.

Mr. Stephen R. Reinhardt: Well, as I --

Justice Felix Frankfurter: It's in this room, the space that is left, in which this Court, as the apex of a court of lower courts, has therefore has some playground, some direction over them thereby -- that's what I meant by right and seemly or --

Mr. Stephen R. Reinhardt: Yes.

Justice Felix Frankfurter: Fair, whatever you call it.

Mr. Stephen R. Reinhardt: Yes, fair.

It is less than a constitutional requirement.

Justice Felix Frankfurter: It's the constitution.

It's not a statute.

If -- in fact, you don't have to do anything.

You just accept the written word.

Mr. Stephen R. Reinhardt: That is --

Justice Felix Frankfurter: Now, that's the fact.

Mr. Stephen R. Reinhardt: Yes, Your Honor.

Justice Felix Frankfurter: Now, since you -- both of you appeal to that, I'd like to ask you this question.

What do you say, not that I expect you for a word from the Solicitor General, what do you say to the propriety, I use the word “propriety,” the propriety of a trial judge announcing before he announces sentence what he plans to do?

What do you think of that?

Mr. Stephen R. Reinhardt: Well, Your Honor, I believe this was, in effect, the tom --

Justice Felix Frankfurter: I'm not talking about this case.

I'm just--

Mr. Stephen R. Reinhardt: No.

Justice Felix Frankfurter: Just to get light.

If you're going to -- if we're going to be generally overseeing it at the lower courts, for me, that is a problem.

Mr. Stephen R. Reinhardt: Well, I -- the reason I hesitate to answer this is because if you are distinguishing this case in which the announcement came at the moment of the sentence, it was merely a couple of words before, he was about to impose sentence.

Justice Felix Frankfurter: Well if it's part of the sentence then I don't have no fight with it.

Mr. Stephen R. Reinhardt: Then, there is no problem.

Justice Felix Frankfurter: But --

Mr. Stephen R. Reinhardt: But, the problem --

Justice Felix Frankfurter: If it was unders -- if it was understood, and he -- well, assume the facts would warrant my question.

Your --

Mr. Stephen R. Reinhardt: Well, it's --

Justice Felix Frankfurter: What will you say?

Mr. Stephen R. Reinhardt: I would say that und -- in a case -- in an ordinary case, there is no reason or no justification for a court announcing sentence --

Justice Felix Frankfurter: My question was propriety.

Mr. Stephen R. Reinhardt: Well, I would perhaps --

Justice Felix Frankfurter: This is not an idle question on my part.

This --

Mr. Stephen R. Reinhardt: There's a --

Justice Felix Frankfurter: This is a good reality.

Mr. Stephen R. Reinhardt: Yes.

Well, I am somewhat at a loss to answer because I don't know what circumstances Your Honor really has in mind.

I would say, as a gener --

Justice Felix Frankfurter: If ever a trial judge should announce “I'm going to give five years or two years or if it -- he ought ever to announce, considering the fact that a trial judge has to get a parole report -- has to get a report from his social agencies, how does he know --

Mr. Stephen R. Reinhardt: Well, Your Honor --

Justice Felix Frankfurter: What it did?

Mr. Stephen R. Reinhardt: Let me say this.

If a trial judge intends to get a parole report, he should not announce his sentence in advance --

Justice Felix Frankfurter: Was it va -- isn't that -- shouldn't that be the normal course?

Mr. Stephen R. Reinhardt: No, Your Honor, that is not required.

That is only permissive under the rules.

Justice Felix Frankfurter: As I understand the two, but I'm talking -- we're not in the realm of supervisory power, namely, how a trial judge should conduct himself.

Mr. Stephen R. Reinhardt: Well --

Justice Felix Frankfurter: I should think that most trial judges should -- I should think if this Court had a chance to indicate in an appropriate case, it should indicate that we've got that system so that they should inform themselves.

Mr. Stephen R. Reinhardt: Well, perhaps the solution might be that the requirement should be mandatory that trial judges should be required to get these reports.

Justice William J. Brennan: Well, what was the waiver?

There was a waiver or something like a waiver of evasion --

Mr. Stephen R. Reinhardt: Well, the courts in -- this is really up to the court.

The court indicated it did not want one and the waiver was just agreement with it.

I said that we had no objection.

Justice William J. Brennan: Well, am I correct?

Was the word “waiver” used?

Mr. Stephen R. Reinhardt: Yes, the word “waiver” was used, but this was not actually the act that avoided the report.

The act was the trial judge saying we don't need it.

And, the reason that, again is obvious is the severity of the sentences here.

He knew he had a mandatory minimum of five years and he was satisfied that a mandatory minimum of five years is a substantial sentence and he saw no reason to get a probation report.

Justice Charles E. Whittaker: (Inaudible)

Mr. Stephen R. Reinhardt: No, Your Honor, there is no such rule.

Justice Charles E. Whittaker: (Inaudible)

Mr. Stephen R. Reinhardt: No, Your Honor.

The word “wavier” was just an affirmation of agreement with the court's action and not requiring a probation report.

The word “waiver” is really not --

Justice Felix Frankfurter: Did you make that point?

Mr. Stephen R. Reinhardt: Not the correct word.

The word “waiver” appears in the record.

When the judge said that he would not get a probation report, I just said “fine, we'll waive any such report,” meaning, that if there were any kind of requirement, which there isn't --

Justice Charles E. Whittaker: The requirement (Inaudible)

Mr. Stephen R. Reinhardt: Yes, Your Honor.

I have my co-counsel here who will continue with the trial errors.

Thank you.

Chief Justice Earl Warren: Mr. Bernhard.

Argument of Herbert A. Bernhard

Mr. Herbert A. Bernhard: Mr. Chief Justice and may it please the Court.

As Mr. Reinhardt has announced, I will discuss the trial errors.

Our basic proposition here is that if you're going to force a man into a trial which he has tried to avoid, which he never wanted, which he's been fighting several years to avoid the effects of, that the very least that can be done is that he'd be entitled to a full and a fair and a proper trial.

And, we contend that petitioner did not get such a full and fair and proper trial in this case in at least three major areas.

The first is with reference to the fifth count of the indictment.

The fifth count of the indictment as did the prior three, charged sale.

The first count was a conspiracy count.

The other four were sales.

This is a particular importance to petitioner here because any error in this count was certainly prejudicial.

His sentence on that count was 10 years consecutive to the other counts.

Now, the error which we allege with respect to the fifth count is very simply that our timely motions for judgment of acquittal should have been granted on this count.

In essence, our contention is that the corpus delicti of the crime was not proven.

The facts are very simply these.

In the first three sales, the arrangements had been made to transfer the narcotics.

The petitioner brought the narcotics to his buyer, unbeknownst to him, a Government Agent Licuanan.

He handed the narcotics to Licuanan.

Licuanan, in the first two cases, examined the narcotics, smelled it to see that it seemed to be narcotic, and then paid over the money.

When we get to the fourth sale, the fifth count, we have a somewhat different circumstance and we say that this is decisive.

What happened here was that, at the instance that petitioner got -- first got possession of these drugs, the government agent came over, and this is all based on the testimony of the government agents and there is no dispute as to this testimony, the government agent came over while petitioner still had the narcotics in his hands and pulls his gun and placed petitioner under arrest.

At that point, the petitioner threw the bag at the narcotics agent and ran away, obviously trying to escape.

He didn't make it.

Other agents captured him and that's how we stand.

Now petitioner contends that this was perhaps, a contract of sale, perhaps it was an attempt to sell, but it was no sale because no sale ever took place.

Justice Potter Stewart: You mean no delivery was made.

Mr. Herbert A. Bernhard: No delivery but, of course, the statute on the indictment refer to sale.

We say that, without delivery at the very least, perhaps even the transfer of the money was necessary, but without delivery, there certainly was no accomplished sale.

Chief Justice Earl Warren: There had been no transfer of the money.

Mr. Herbert A. Bernhard: There had been no transfer of the money, Your Honor, and the course of conduct showed that the money was always transferred after the actual delivery of the narcotics.

And, I must say, the Government, on page 37 of its brief where it's talking about the conspiracy aspect of this case, concedes that deliveries are elements of sale and it concedes it with reference to these deliveries and these sales.

Now, there is just no doubt that there was no delivery in this case.

I -- the sale is something which is not a continuing course of conduct.

It either takes place or it doesn't.

And, if you're going to have a seller, you must, at the same time, determine that you had a buyer.

You have got to find some instant at -- of time at which this sale took place.

Now, there is no basis that we can see for saying that the mere making of a contract was the conduct which was proscribed by Congress when it forbad the making of sales.

This is, as was pointed out in answer to questions, is a very serious statute containing very serious penalties.

It runs from 5 to 20 years as an absolute minimum without possibility of parole.

The cannons of construction for construing criminal statutes recognizing that you are depriving a man of fundamental rights here, and his right to life and liberty.

It has always been the rule of this Court that these statutes are to be narrowly construed.

The gaps are not filled in by the judiciary.

The gaps have to be filled in by the Congress, if there are any.

And, I may point out that this statute has been in existence for over 50 years in this particular and that, notwithstanding all the steps that the Congress has taken to change the law, to make greater penalties, or to proscribe other conduct, they have never indicated that a mere executory contract of sale would be a sale.

It is not under ordinary sales law.

It is not, even if you add the fact of appropriation which the Government mentions in its brief, it simply does not constitute a sale either under ordinary sales law or under the policy which we contend this Court should announce.

I think the Court should consider that this is not ordinary property in the ordinary sense.

This is something where there really is no title interest.

You can't give a bill of sale for narcotics and have it enforced in the courts.

The only real interest that you have in a narcotic is the possessory interest and until you transfer this possessory interest, you've transferred nothing.

And, I think that this is the way it should be as a matter of construction of this law because if you were to take the Government's position that a mere executory contract of sale is enough, then you have characterized not only a seller, but a buyer at a point where they merely have the intent, perhaps, to go ahead and subsequently transfer narcotics and you have then said that both of these people can be tried and sentenced to a minimum of five years without possibility of parole.

We simply say that, on the facts here, there was no delivery and without delivery in this case, there was not the crime comprehended by the (Inaudible).

Justice John M. Harlan: What exactly is your theory as to count 5 of the request?

Mr. Herbert A. Bernhard: There was no specific request with respect to count 5, Your Honor -- there -- with respect to the sale aspect.

Justice John M. Harlan: A request --

Mr. Herbert A. Bernhard: For a specific instruction.

I might add that the lower federal courts, in the case of Affronti versus United States which is cited in our brief, has held that a defendant was not entitled to an instruction on the sale point, that this was obviously used in narcotic statutes in the ordinary and popular meaning.

I should clear the record, the Affronti case did not deal with this particular statute.

It dealt with a different Narcotics Act, but our point here is that, under the evidence which was submitted to the jury, there was another --

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert A. Bernhard: It would be immaterial what instructions we were requesting or not.

This simply was not the corpus delicti.

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert A. Bernhard: Yes, Your Honor.

There were two, one at the close of the Government's evidence and one at the close of the Government's -- of the entire case, yes, Your Honor.

Justice Hugo L. Black: (Inaudible) both counts separately?

Mr. Herbert A. Bernhard: I'm sorry, sir?

Justice Hugo L. Black: Was the request directed to that particular count?

Mr. Herbert A. Bernhard: Yes, the second one specifically said, and I believe you will find that on page 114 of the record, 113, the motion starts and then Mr. Reinhardt says “that is correct, Your Honor,” meaning, that's his motion particularly as to count 5 where the evidence does not show there was a sale.

That's 114 of the record, Your Honor, in the supplementary record which was printed.

Turning to the other areas of error, one major area is the treatment with respect to the informer in this case, Mr. Singh.

Now, to back somewhat on the facts, this was a typical entrapment situation.

I don't mean by that that entrapment was proven but what I mean is that the inducement was there.

Mr. Singh, who was the informer, Mr. Licuanan who was the agent in the case approached petitioner.

They bore a note from petitioner's cousin who was in jail who asked-- the note was addressed to petitioner and had asked petitioner to help these two people to get some money from narcotics so that they might use part of this money in order to help the cousin get bail and get out of jail.

The entrapment, if there was any, arises out of this initial conversation between the agent, the informer, and the petitioner.

In the case for the United States, the United States simply put on the agent but it did not call the informer.

At first, when Mr. Reinhardt tried to find out the name of the informer, this was refused to him.

When he cited the Rivero case of this Court, the United States changed its position and gave him the name and they promised that, the following morning, the man would be in court.

Of course, this was in a trial situation and he had to -- when Singh appeared in court, Mr. Reinhardt was conducting the trial.

There was some discussion between the court and Mr. Reinhardt as to what sort of instruction would be given because of the Government's failure to call Mr. Singh as a witness, and the court said “I will not instruct that this man was a material witness to the Government and that his testimony should be presumed to be adverse to the Government.

The court then went on to say, when Mr. Reinhardt said “well, we're raising the issue of entrapment,” the court then went on to say “well, if he's material to your case, I'll give an instruction against you if the Government requests it.”

So, at this point, petitioner is faced with the fact that he is irrevocably bound to this Government informer, a man who is acknowledged to be a special employee of the government who, it later turns out, is under – has -- is an admitted narcotics user and has not been prosecuted for that.

So, the Government has this over his head and, yet, all of the sudden, he becomes our man, sort of.

Mr. Reinhardt, during lunch time, tries to talk to Mr. Singh and finds that he has been frustrated in that.

The United States Attorney has advised Mr. Singh that he doesn't have to talk to Mr. Reinhardt.

So, Mr. Reinhardt knows nothing now.

He gets no information from Mr. Singh.

This is in the face of the Rivero case of this Court where this Court has said the question of determining whether or not the informer should be interrogated, whether his story should be put on the stand is for the accused, not the Government, to decide.

And then, when Mr. Singh is finally put on the stand, the court refuses to allow Mr. Reinhardt to treat him as a witness hostile ab initio.

And, I point out to the Court that this was the only other witness to the entrapment conversations and this was a man who was bound to the Government not only because of the US advising him that he didn't have to talk to Mr. Reinhardt, but just because of the circumstances that the United States had even indicated that if they gave his name, his life might be in jeopardy.

And, that was of -- the implication was only from petitioner and, yet, all throughout here, we are not allowed to treat him as a witness adverse to us.

We are bound by his testimony if we call him and, if we don't call him, then we're going to get an instruction that his testimony would have been adverse to us.

And, we say, if you look at the questions that were asked, some of them were valid, whether he's a hostile witness or not.

We questioned, “Are you an employee of the United States Government?”

There's certainly nothing wrong with that question.

In the Sherman case and as well as in Sorrow, this Court has recognized that you are allowed to get into the question of the conduct of the government agents.

The same thing with the other questions, they were proper and they were particularly proper in this circumstance and, in effect, here was an entire frustration of an attempt to interrogate and bring before the court this essential witness.

Justice Charles E. Whittaker: What was, if I may ask you --

Mr. Herbert A. Bernhard: Yes, sir.

Justice Charles E. Whittaker: -- what your theory or entrapment that was supported by your client and which if you only could cross-examine this witness about, what would you claim is constant in the entrapment?

Mr. Herbert A. Bernhard: The entrapment was that our client had no predisposition to engage in any course of narcotic activities, that there was no intent on his part that he is sitting in his own home, he is approached by two people, one is a government informer and the other is a government agent.

They come up with a very compelling story that the cousin is in jail and that he can do something for his cousin, and the -- excuse me.

They, in effect, asked him for help.

Now, there is a lot of conflict in the record as to -- there's no dispute as to what help was requested but as to why he gave help.

But, our theory of entrapment is that there was no prior disposition on his part except, of course, if you believe some of the statements which Mr. Licuanan made in his testimony and which could have been rebutted by the informer.

The case really went, Mr. Licuanan said that petitioner had boasted that he sold narcotics the day before.

This would go to his predisposition.

Petitioner denied this.

This was supposed to have taken place in a conversation which Mr. Singh was present and it is this sort of thing that we tried to get from Mr. Singh.

I believe we would like to save some time for rebuttal --

Chief Justice Earl Warren: You may --

Mr. Herbert A. Bernhard: -- if it may please the Court.

Chief Justice Earl Warren: You may do so.

Mr. Solicitor General.

Argument of Archibald Cox

Mr. Archibald Cox: Mr. Chief Justice and may it please the Court.

This is a case which has given me very grave concern.

I find it a difficult and troublesome case because it seems to turn on a delicate question of judicial administration, including two district judges, one, the chief judge of his district, on questions which certainly affect confidence in the fairness and rationality of the administration of criminal justice.

We think, I would like to say at the start, that the case may well call for some modification of the judgment below under -- in an exercise of the supervisory power of this Court.

But, at the same time, our view of the case is quite different from that expressed on behalf of the petitioner.

I can summarize the Government's position best in three propositions.

First, it seems to us that each of the rulings in the district court viewed by itself whether before a trial, during the trial, or upon sentencing was well within the power of the court.

And that, indeed, none of the rulings inv -- looked at by themselves involved any error of law and I will tell in a few instances, the questions may be closer.

We also think that there was no abuse of discretion involved in any single ruling.

Our trouble comes, second, when we look at the case as a whole.

It seems to me -- it seems to us that there was much more doubt about the net effect of all the rulings and if viewed as a whole, beginning with Judge Clark's promise of a 5-year-sentence and ending with Judge Hall's imposition of a 20-year-sentence, the proceeding may not meet those standards of fairness and rationality which ought to characterize the administration of criminal justice.

Third, we point out that the difficulties arose from differences in sentencing practice and in the administration of the criminal calendar in the District Court for the Southern District of California, a matter, which I will point out later, has now been corrected.

They are not mistakes, if they were mistakes, which resulted from the Government's position or, indeed, later when they urged upon the Court by it.

Under these circumstances, we think that our function is discharged when we disclose the problem fairly to the Court and address ourselves to the considerations on either side because we do think that there are considerations on either side.

Now, in the course of my argument, I want, first, to talk -- address myself to the general cha -- question whether the character of the proceeding was consistent with fairness and rationality, and I postpone for the moment the specific questions of law and the specific questions of the power of the judge's to make these individual rulings.

I will deal with them at the close of the argument.

We can best approach the general question by taking a bird's eye view of the stream of events even though this does involve some repetition of what's already been said.

There were two defendants, Palomino and Saldana, the petitioner here, who were indicted for narcotics violations in five counts.

The first was a conspiracy count and the other four dealt with sales of narcotics, each coming about a week after the other.

On June 16, both defendants were arraigned before Judge Clark.

At that time, we get the first intimation of one of the causes of the difficulty in this case.

At page 14 of the record, you will find that Palomino's lawyer was very anxious to keep the case from being transferred to Judge Hall's calendar.

At that time, Judge Clark was in-charge of the criminal calendar in the Southern District.

His period was about to run out on June 30 and Judge Hall would come in as the criminal judge beginning jud -- July 1 and Mr. Tener, representing Palomino, says “Your Honor, may I also be heard briefly as to whether this matter of necessity must be transferred to Judge Hall.”

I think it's fair to say that the bar in that area, rightly or wrongly, regards Judge Clark as lenient in narcotics cases and Judge Hall as being a good deal more severe.

About 12 days later, on June 26, it was now getting close to June 30, petitioner came in with his counsel before Judge Clark and pleaded guilty on two counts.

I think counsel is -- speaks fairly when he says that it was anticipated that if the plea of guilty were accepted on the two counts that, then, the remaining counts would be dismissed.

The two counts might cover a sentence of 40 years and if there was a plea of guilty to those two counts, there was really no need from anybody's point of view of going to trial on the remaining counts so far as the severity of the sentence might be concerned.

The defendant came in and then asked for immediate sentence.

As one reads the record, as it appears on page 16 and 17, it's quite clear that the Defendant must have carried away two impressions, one that he would be sentenced before Judge Clark and, second, that Judge Clark would give him the minimum sentence of five years to run concurrently on each of the first two counts.

I think it might also be said now, although it becomes important later, that it is fairly plain that everyone had forgotten about counts 3, 4, and 5.

If you'll note, on page 17 of the record, they've been talking about counts 1 and 2.

Then, the court said that he didn't want a probation report because he was going to give the minimum anyway, then, there was -- counsel said “we will waive the probation report.”

The court, “alright,” a short intermission.

Then, the --

Justice Felix Frankfurter: Forgive me for interrupting you, Mr. Solicitor.

Is the probation report merely for purpose of deciding whether there should be probation?

Mr. Archibald Cox: Well, I would suppose that it was for a broader purpose that dealt with what sentence should be imposed and not simply whether there should be probation.

Justice Felix Frankfurter: I ask in order -- because I had assumed that that was so.

Mr. Archibald Cox: I had always understood that to be so, Your Honor.

Justice Potter Stewart: It's a presentence investigation, rather than a probation report.

Mr. Archibald Cox: In effect, what happened here was that Judge Clark promised the minimum sentence without finding out about the trial, without taking into account, I think, the very large quantity of narcotics involved, especially in the final sale, and without looking into Saldana's background.

Justice Potter Stewart: Well, as explained by counsel, he knew that he could not impose any sentence less than five years.

Mr. Archibald Cox: Yes.

Justice Potter Stewart: And he apparently thought that he did not want to impose any greater sentence, so under those circumstances, assuming the validity of his judgment, there would be no --

Mr. Archibald Cox: There would be no --

Justice Potter Stewart: -- not much to consider.

Mr. Archibald Cox: -- there would be no sense to it if he had made up his mind to impose the minimum sentence.

Justice Potter Stewart: Yes.

Mr. Archibald Cox: Well, I was simply speaking the point that this promise was made without a very, shall I say, deep investigation of the circumstances.

Justice Felix Frankfurter: And on the ground on which he put it was easy, but it's useful only for purposes of probation.

As Justice Stewart said, it's a presentence aid, isn't it?

Mr. Archibald Cox: Yes.

The par--

Justice Charles E. Whittaker: On a point of view of technical about it, I suppose, there's a distinction between a presentence report and the probation report that actually affects it I suppose.

What the court has asked you is not a probation report.

He said no because he couldn't have probation anyway.

Mr. Archibald Cox: The rule, of course, doesn't speak of a probation report.

It speaks strictly of a presentence investigation and making a report to court.

So that this is a colloquialism in either event and I think you're quite right that Judge Clark was thinking of it as showing whether this man deserved probation.

The point I was seeking to make was to call attention to the fact that so far as counts 3, 4, and 5 were concerned, I think it's fair to say that the expectation was that they would be dismissed.

The fact is that apparently the district judge was not aware of them.

It was the clerk who said, as counsel were about to leave the room, “just a minute Mr. Sheraton, Mr. Saldana is charged with counts 3, 4, and 5.”

That was the first time they were mentioned and, the disposition was hold those.

There was clearly no ruling about that.

Now, at this point, it's necessary for me to leave the facts of this case for a moment and explain the practice in handling criminal cases in the Southern District of California.

As it existed at the time of this case, I'll explain the changes later, it's important to understand what it was at the time of this case now, if a defendant was indicted as the single defendant and came in, before he was arraigned, before the judge who had the criminal documents, and if he pleaded guilty, that judge would then pass sentence upon him.

If he pleaded not guilty, the case might be tried by the judge who was handling the criminal document or it might be sent out to another judge.

If there were two defendants and one pleaded guilty and the other was to be tried, then the practice of some of the judges in the Southern District of California was to have sentence imposed by the judge who conducted the trial of the defendant who pleaded not guilty.

This has obvious fairness and sense in it.

It enables the man who passed sentence to have heard something about the trial.

It's a way of not breaking off two men who joined together in defense and bringing them before different judges, one of whom would almost surely pass sentence without regard to what might be done by the other.

Now, District Judge Hall, the Chief Judge I am informed, uniformly followed this practice that when the case was sent out to a judge to try it, then any co-defendant who pleaded guilty went out with the judge and, of course, that's reflected in what happened later.

That was not, however, the practice of all the district judges in the Southern District of California at this time and I infer that it was not Judge Clark's practice, although I have no specific knowledge upon that point.

The practice was reflected when, somewhat later, on July 9, we find a minute entry transferring Saldana's case from Judge Clark's docket before Judge Hall who was to try Palomino, the co-defendant.

It was done when Palomino's counsel came in and asked for a continuance.

Judge Hall apparently noticed that it was a co-defendant and said “have him transferred here.

When I take a case, I take the whole case” and notify his counsel accordingly and that was done.

Then, the case came on, after continuances, before Judge Hall on July 29.

This quite clearly defeated Saldana's expectation that he would be sentenced before Judge Clark.

It also, when Judge Hall vacated the guilty pleas to the first count -- first two counts, of course set in train a series of events that defeated his expectations on the first two counts.

These rulings were reaffirmed on August 1st and the case against Saldana, Palomino having jumped bail, came on for trial at that time.

I think it's worth noting the grounds that Judge Hall gave for his action, as I discern them from pages 24 and 25 and then again 28 and 29 of the record at first -- I'll take those up after the recess.

Chief Justice Earl Warren: Oh!

Yes, yes.

Print this transcript Transcript: 

Argument of Cox

Chief Justice Earl Warren: -- you may continue.

Mr. Cox: Mr. Chief Justice, may it please the Court.

Just before the recess, I had called attention to the two sessions before Judge Peirson Hall at which he vacated the plea of guilty, rejected a further offer to plead guilty to the first two counts, denied a motion to return the case to Judge Clark, and then put the petitioner on trial.

Justice Felix Frankfurter: I hope I'm not interrupting you, Mr. Solicitor, when I refer to, what I shall refer to earlier, about the understanding of the assumption that 3, 4 and 5 would be dismissed.

I certainly wouldn't draw that inference from what took place after the clerk called the Court's attention to it on page 17.

The clerk, “Just a minute, don't go, Mr. Sheraton.

Mr. Sheraton, we hold thee.”

The court, “We're going to hold thee.

Mr. Sheraton, hold those."

And this would hold the disposition without any word from counsel for defendant.But that doesn't read to me.

I don't -- I'm not suggesting -- I don't know what -- if any significance it has but, certainly, one cannot attribute into the significance of an assumed dismissal of the other counts after the plea of guilty to 1 and 2.

(Voice Overlap) --

Mr. Cox: I -- I would quite agree with that.

I think that it's -- while it is fair to say that the petitioner and his attorney is left with the expectation that the other counts would be dismissed.

Justice Felix Frankfurter: But you'd have to draw that out of the air, not from --

Mr. Cox: They -- well, I think --

Justice Felix Frankfurter: -- not from the page of the record.

Mr. Cox: It is -- I was going on to say that, by no stretch of the imagination, did Judge Clark -- there was no motion to dismiss them.

Justice Felix Frankfurter: No, there was the lawyer --

Mr. Cox: A fortiori, Judge Clark did not grant a motion to dismiss them.

Justice Felix Frankfurter: None was made.

Mr. Cox: The --

Justice Felix Frankfurter: None was made.

Mr. Cox: Right.

Both points.

Justice Felix Frankfurter: Yes.

Mr. Cox: I agree.

There was no motion and certainly, there was no order entered which could, in any sense, be said to be a granting of the motion to dismiss.

Justice Felix Frankfurter: It would lead the opposite, if anything.

I'm not --

Mr. Cox: Well --

Justice Felix Frankfurter: -- I'm not suggesting what the meaning of it is, but it were not the difficulty of sitting here in judgment on what took place to human voices.

Chief Justice Earl Warren: Well, Mr. Solicitor General, I'm just wondering though, in the -- in the light of everything that happened there and the fact that the judge had the indictment before him with the -- with the five counts and the District Attorney accepted the plea to two counts, and the judge said, “I'm -- I'm going to give you five years.”

I wonder if it isn't a fair interest from everything that was said there that the judge had in mind that all he was to suffer as a result of -- of that proceeding was five years for his crime.

Mr. Cox: I -- I would -- I'm going to answer your question directly, but --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- I think, to give the --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- meaningful answer that I must --

Chief Justice Earl Warren: Yes --

Mr. Cox: -- come at it a little --

Chief Justice Earl Warren: -- in your own way.

Yes.

Mr. Cox: My -- my interpretation is this.

As long as we are talking about the expectations that were generated in the defendant's mind and the representations, the impressions created by Judge Clark, then the only conclusion that I can fairly come to is that the defendant went away expecting that on July 21, he would be brought before Judge Clark and would be sentenced to five years and that these counts would be dismissed.

I --

Justice William J. Brennan: Mr. Cox, suppose (Inaudible)

Mr. Cox: No, I think that was undoubtedly the impression of the United States Attorney.

On the other hand --

Justice Felix Frankfurter: I don't know how we can guess that when we've got the word of the -- of the U.S. Attorney that these counts subsist and continued.

Mr. Cox: I would --

Justice John M. Harlan: (Voice Overlap) some confirmation of it on page 27, isn't there, where the attorney for the defendant says that he had arraigned with the United States Attorney, which at least in his mind, then counsel's mind, assumed that the -- led him to understand this disposes the whole case and the District Attorney made no objection to that representation.

Mr. Cox: I think that's some confirmation.

The point at which I would agree with Mr. Justice Frankfurter and possibly, disagree with the implication of what Chief Justice said would be this.

A court, as Justice Frankfurter implies, acts through orders and decrees.

When it's passing sentence, the judge passes sentence.

But as soon as we begin talking about what the Court did here and not about impressions people could go away with, then, it seems to me plain that there was no motion and that the Court clearly did not enter an order dismissing these counts and that nothing the Court said could reasonably be interpreted as an order dismissing this count.

Now, this goes to the essential difference, I think, between my approach to the case and the position which has been argued by the petitioners and in the briefs filed by the Civil Liberties Union.

Justice Felix Frankfurter: And I think you should add counsel of -- it was a short intermission.

I don't know what that intermission was about.

I don't know what it is about.

If I'm to go and sail on the wide, wide ocean of speculation, I could do all sorts of things.

I think myself, the sentence -- the whole statute scheme for narcotics is, for me, a form of (Inaudible)

I think the sentences are outrageous.

I think they are self-defeating.

All of which has nothing to do with the spirit in which I must read the record.

Mr. Cox: When -- when we come to the orders, as I was saying, I think it's clear that no order was passed dismissing these counts.

I think a misimpression was created.

Now, here is where I part company with counsel for the petitioner.

Their contention, as I understand it, is that, as a matter of law, the promise -- and perhaps as a matter of constitutional law, the promise made by Judge Clark is binding and must have been honored no matter what other circumstances existed.

I reject that.

I think that's attempting to read into the Constitution.

What may be the appeal of a particular and rather extraordinary case, I think, as I shall argue later, that there are no such rules as he relies it.

On the other hand, when I first came to this case, it seemed to me that there was a situation here which certainly must have left a deep resentment in the petitioner and which another detached, fair-minded person could say, “This is bad for the administration of justice.”

This, in the words Justice Frankfurter used this morning, is unseemly and if this happened very often, it would destroy confidence in the fairness and rationality of justice in our courts.

Now, I think that involves an overall view of what happened and particularly, a view of what happened in terms of the final sentence imposed.

Furthermore, I don't think that the question is all one-sided.

Let me state first, the points which bother me about the trial taken as a whole and then the points on the other side because I think there are some on the other side.

The points that bother me are, first, that in any instance, wide divergence in sentences tends to undermine confidence by making the administration of the criminal law appear on part to depend on the whim or caprice of the individual judge.

And that danger is certainly much greater when you get a wide divergence in sentencing, the same man on the same indictment by two different judges.

It makes it look as if it all depended on who you came before and this is not good for the courts.

And third, here, that even though I feel that this representation ought not to have been made, I say that with some diffidence about the District Judge but I do not think it was consistent with good practice, the representation that he would, someday, impose a light sentence.

Still, it was made and there is, as with all of us, if the court -- the law does not keep its promises, this, too, tends to throw some doubt upon the integrity of the whole proceeding.

Now, if that were all, I'm not sure that I would be here.

If Judge Clark -- if Judge Hall, on having the case come before him, had said to the defendant, “I do not feel bound by this promise made by Judge Clark, the courts don't make promises, the courts act through orders.

And I feel that this was an unwise expression of opinion made without study of your record, made without learning about the crime, made without an investigation in the sentence.

I will give you -- I'm not going to be bound by it.

Now, in view of the fact that I'm not going to be bound by it, I will give you an opportunity to withdraw your plea.

You can stand on your plea if you wish.

If you do, you do it with full awareness that I am going to pass sentence here after an investigation of the facts.

If you wish to withdraw your plea, I'll permit you to withdraw it and give you leave to stand trial.”

In that case, I say, I'm not sure that I would be taking the position I do.

The thing that bothers me the most about this case is that the sequence of events in which it took place makes the whole thing look like an elaborate ritual for going behind the representations made by Judge Clark.

And I think that that does a great threat, a greater amount of erosion of confidence in the proceeding.

Then, if the judge had simply squarely said, “This shouldn't have happened.

I'm not going to be bound by it,” but instead, he forced the defendant to trial without much of any explanation and then, after trying him, imposed the 20-year sentence, four times that originally imposed.

And it is the feeling I get that, I can't think of any better way to put it and yet, I'm not happy with the way I phrased it, that it became sort of a mock proceeding for the preordained purpose of quadrupling the sentence without any square acknowledgment of the problem.

That troubles me most deeply.

Now, even as I say that, I do feel obliged to say that there is a good deal that can be said here in defense of Judge Hall's action once we acknowledge that he was, perhaps, a little abrupt.

In the first place, as has been pointed out already, the representations about the five-year sentence were made, apparently, without any real investigation of the case or of the man's previous record.

Actually, this involves a very large quantity of heroin.

The fifth count alleged in the evidence later shown that there were 10 ounces.

10 ounces, allowing for an average addict, would keep 50 addicts satisfied or happy for a month.

That's quite a lot of heroin.

And a -- the minimum sentence for that quantity of heroin is getting off lighter than the average sentence, which sentence is being imposed rightly or wrongly in the Southern District of California.

In addition, this was an instance where Saldana received the lighter sentence by virtue of rushing in to plead before Judge Clark who, I'm informed, does have the reputation of being lenient.

Again, surely, there's much to be said in defense of Judge Hall's position that the whole case should be handled by a single judge, and he was insisting on following that practice.

Justice Potter Stewart: At the time of the first hearing before Judge Hall, Mr. Solicitor General, it was already clear that the co-defendant had flown the coop, wasn't it?

Mr. Cox: Not at the time of the first hearing, no.

The -- Palomino's counsel had gone in Judge -- before Judge Hall on a motion for a continuance and at that, it was to suit his convenience and neither Judge Hall nor anyone else knew whether Palomino had flown the coop or not.

So, I suppose, in saying that he hadn't, I'm not quite accurate.

But in any event, not everybody knew it.

And it came out only later on the day that he was -- the next hearing before Judge Hall.

Justice Potter Stewart: But is it -- is it then, accurate to say that at the time Judge Hall, on his own motion, set aside these guilty pleas and refused to accept guilty pleas, that -- that he thought that both defendants were -- that -- that both defendants were going to be tried by him?

Mr. Cox: At the time he ordered the case transferred to him, he thought that one defendant was going to be tried before him and that the other, Saldana, should be brought before him for sentencing.

At the time he vacated the pleas of guilty, it was known that Palomino had flown the coop.

How soon they would catch him was not known, but the qualification Your Honor states should be added to my sentence.

I -- but in a sense, Judge Hall was asserting the practice here that when one case had been transferred to him --

Justice Felix Frankfurter: Since --

Mr. Cox: -- all of them should.

Justice Felix Frankfurter: -- since there's a break in your argument, may I intervene for a minute to ask you to explain an aspect that you think is in favor of what Judge Hall did, if I understood you, that he's a believer, as I think rightly, that one judge should dispose of a case.

That would rather indicate that Judge Clark should have pleaded all that.

He began this.

The case originated before him.

Mr. Cox: But there was never any question of the case being tried before him.

Justice Felix Frankfurter: No, but the -- the general principle, no, but the -- I shouldn't -- I don't think it's very good practice, speaking with my limited experience, to have pleas of guilty -- pleas on some counts before judge 1 and trial of the other counts before judge 2.

That certainly is not, as I --

Mr. Cox: That's true.

Perhaps this would be a good moment at which to explain the practice as it now exists in the Southern District of California because whatever the court may say in the way of opinion, I take it will deal with the general question and that the current practice which went into effect in rules promulgated this January and which only came to my attention yesterday, I'm sorry to say, now lay down that the court will find that the rules were promulgated early in January.

The present practice is to have one district judge in the Southern District of California in the Central Division, which is Los Angeles, hold the criminal sessions for a year.

So this eliminates the -- which judge choose -- much opportunity to choose the judge before you come into.

He handles the docket.

If there is a single defendant, and that defendant pleads guilty, then the judge, in the criminal sessions, pass a sentence.

That's very easy.

If there are two defendants and two plead guilty, the same way.

If there are two defendants and the first offers to plead guilty, the court does not accept the plea but then, as how the co-defendant pleas.

If the co-defendant pleads not guilty, then the case must be sent out for trial, and I'll come back to what happened to the plea that's in limbo here.

The case is sent out for -- all cases are sent out for trial.

The judge who is in charge of the criminal session does not try any contested cases.

Justice Felix Frankfurter: He just takes pleas?

Mr. Cox: He just takes the pleas, handles preliminary motions, arraignments and such.

Justice Felix Frankfurter: And not -- and -- and --

Mr. Cox: As I understand it, he does not try any of the case.

Justice Felix Frankfurter: -- and routes to petitioner's trials.

Mr. Cox: Well, then, there is a mechanism, which I don't know because no counsel knows exactly what it is, by which the cases are assigned to criminal judges, the other judges in the district by, sometimes, with a system of drawing cards out of an envelope, and no one can tell exactly what judge will get the next case.

It's by lot with, I take it, some method of seeing that there is an equitable division.

Now, when the case is sent out to another judge where we have one defendant who has offered to plead guilty and one who has pleaded not guilty, the judge to whom the case was sent, not only tries the defendant who pleaded not guilty, but decides whether to accept the plea which was offered of guilty or to -- it could be withdrawn and both defendants put on trial.

So, this would mean that from the time the case was sent out, one judge would deal with it entirely.

And up to this point, it seems to me that the difficulty that gave rise to this case has now been corrected.

There is one little wrinkle that I should add.

Sometimes, a situation develops where one defendant offers to plead guilty and the co-defendant is not arraigned at the same time.

In that event, the practice is to enter the plea of guilty.

But if the co-defendant is brought in a week or two weeks later and pleads not guilty, then the plea of guilty is automatically vacated.

This, of course, would not be possible under counsel's contention.

The plea of guilty is automatically vacated and the one judge handles the entire case.

This is implicit in the rules.

The rule does not spell it out exactly as I have.

I'm relying on what was represented to me by the United States Attorney that I have every confidence that it's an accurate statement of the present arrangements in the district.

Justice Felix Frankfurter: Enlighten me.

Why -- why in such a situation, one defendant wants to plead guilty and the other want to contest it?

Why shouldn't there be a severance?

I'm asking to be enlightened.

Mr. Cox: Well, I can -- I can only speculate.

If they are severed, one would have two -- there would be two disadvantages.

One would be, he would create the risk that there would be a divergence in the sentences because they went two different places and judges do have their individual practices in sentencing.

Another disadvantage would be that, after all, the judge who does hear the trial will know something more about the crime than one ordinarily knows on a plea of guilty.

Justice Felix Frankfurter: The sentencing of the -- of the plead of guilt would be the -- what I call the docket judge and that would be cleaned up in the trial (Inaudible) he might have his own view.

Mr. Cox: Their views might be different.

You might get -- well, not the full trouble we have here, [Laughs] but something like the inconsistencies that we have.

Chief Justice Earl Warren: Mr. Solicitor General, I'm just wondering, when -- when it goes -- goes to that trial judge and he vacates the plea, does he arraign him again and ask him what his plea is?

Mr. Cox: Yes.

Chief Justice Earl Warren: And suppose he says -- he says “I plead guilty again” and the other -- the other defendant says “I plead not guilty.”

What happens then?

Mr. Cox: I believe that the -- that the -- I'm -- I'm drawing an inference.

I wasn't told [Laughs] directly, but I understand.

I -- I draw the inference that --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- the defendant who chose to stand trial would be tried.

That at the end of the trial, both of them would be sentenced.

Chief Justice Earl Warren: So -- so a man would be deprived sometimes and not -- not too seldom either for a period of maybe some months before he'd be permitted to plead guilty and get a second trial.

Mr. Cox: So, the plea would have been taken but the --

Chief Justice Earl Warren: I beg your pardon?

Mr. Cox: -- the plea would have been taken but the sentence wouldn't have been passed.

Chief Justice Earl Warren: But his judgment -- but the sentence wouldn't be passed and I -- I suppose, if his counsel suggested, in the case like -- like this, his time wouldn't start to run until he was sentenced.

Mr. Cox: That is not -- that was true at the time of this trial.

It is not true any longer.

There was enacted in 1960, in the fall, a statute that deals with this problem which provides that in the case of a defendant who is unable to make bail, that when he comes to be sentenced, in passing the minimum sentence, the judge may take into account the time spent in jail --

Chief Justice Earl Warren: I see.

Mr. Cox: -- so that the problem you must give five years or one year or whatever the mandatory minimum sentence for a particular crime, the problem that created no longer exists because the present statute makes it possible to give him the credit if he couldn't make that for the time he spent in jail.

Justice Hugo L. Black: Has this Court ever passed on the question of whether a district judge has power to compel a man to withdraw his plea of guilty?

Mr. Cox: This Court has never had the question to the best of my knowledge.

Indeed, there are very few cases that we've been able to discover in the federal courts at all discussing that question.

There are -- there is at least one, I think one or two instances, of where a plea of guilty was vacated by a district judge over the objection of the defendant.

It's a case cited in our brief, Bielski or something similar to that.

Chief Justice Earl Warren: That's not in this Court, is it?

Mr. Cox: That's not in this -- no, it's a district court opinion.

Justice John M. Harlan: Perhaps I'm anticipating, but it's implicit in your argument that you think the Court ought to do something about this from the supervisory standpoint.

My question is, if you care to answer, what you think we ought to do?

Mr. Cox: Well, but I -- before answering that, I revert to one further consideration that I think should enter into this Court's judgment.

I think it's important to bear it in mind in evaluating these two appraisals of what happened that Judge Hall was there on the spot, that he was the Chief Ju -- is and was the Chief Judge in the Southern District of California, that he's an experienced trial judge and was far more familiar than we, at this distance, can ever be with the problems in the administration of the criminal docket there in the passing of sentence.

Now, the ultimate resolution --

Chief Justice Earl Warren: Could we --

Mr. Cox: -- of the case --

Chief Justice Earl Warren: -- could we say that he's more familiar than Judge Clark?

They're both been there for a number of years.

Mr. Cox: No, I -- I wasn't seeking to draw any comparison between the two in that respect.

Chief Justice Earl Warren: Yes.

Mr. Cox: The ultimate resolution of the case obvious --

Justice Felix Frankfurter: As Chief -- as Chief Judge here, he has more official responsibility for oversight of the district and the other judge can be --

Mr. Cox: Certainly for the administrative --

Justice Felix Frankfurter: Yes.

Mr. Cox: -- matters within the district, yes.

Justice Felix Frankfurter: Could he --

Mr. Cox: And I presume that would include the transfer of cases among the several judges.

Chief Justice Earl Warren: But not for -- not for the length of sentences.

Mr. Cox: Each would have an individual --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Cox: Each would have an individual responsibility --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- with respect to the length of sentences.

I suppose it could be said further on this point that Judge Hall presumably would know, and I'm sure I do not, whether the sentences which he considered proper in narcotics cases were the deviation from the norm or whether Judge Clark's sentence was the deviation from the norm.

I have no knowledge.

I --

Justice Hugo L. Black: Does the record show whether this was a first offense?

Mr. Cox: The record shows, during the trial -- during the trial, it was brought out that Saldana had been in trouble with the narcotics laws of California sometime previously.

To the best of my recollection, there is nothing to show that he was ever previously convicted in the federal court.

Justice Hugo L. Black: Well, did it show he had been convicted in the state courts?

Mr. Cox: I think it showed a conviction, Your Honor.

It -- well, I'm sorry.

I'll -- I don't want to take the Court's time to --

Justice Hugo L. Black: Alright.

Mr. Cox: -- look it up, and I've forgotten.

It came out in examination of the -- of the federal agent.

And my recollection was that it showed arrests, but I don't specifically recall a conviction in the state court.

Justice William J. Brennan: Well, I think it -- maybe what you're referring to is at page 56.

I can't recall offhand but I believe he had been involved a conviction of narcotics for possession of heroin in Los Angeles.

Mr. Cox: That's right.

And then, later, but we don't have it printed here, later, a document was put in the record showing just what his present record was.

It was used to refresh Licuanan's recollection.

Justice William J. Brennan: That's at 57, Exhibit Number 5, for identification.

Mr. Cox: Unhappily, we don't have that exhibit.

I -- I was saying a moment ago that here, what the Court must ultimately do is to determine which is the -- of the two competing appraisals I've tried to indicate is the more accurate and fairer description of what occurred.

Now, to answer you directly, Justice Harlan, I am not urging the Court to take either course.

I don't want to entirely equivocate.

I do feel that this is a matter which the Government did not bring about, that the Government's position was not responsible for its arising and that it does concern the judicial administration rather than the conduct of a trial.

On the other hand, while I don't urge either course, therefore, if I had the responsibility for a decision, my decision would be to vacate the judgment below and to remand the case to the District Court for further sentencing by still another judge in the light of Judge Clark's representations and whatever other comments this Court might make or I might make, having the power of decision in my --

Justice William O. Douglas: I don't --

Mr. Cox: -- opinion.

Justice William O. Douglas: -- I don't understand that because of your position in the brief that you tell.

One was dismissed properly --

Unknown Speaker: Acquitted.

Justice William O. Douglas: -- or he was -- was he acquitted under count 1?

Mr. Cox: He was acquitted under count 1.

Justice William O. Douglas: Count 2, he got a sentence that runs concurrently with 3, 4 and 5 --

Unknown Speaker: Or 3.

Justice William O. Douglas: -- or with one of the -- one of the counts.

So, if you're right on 3, 4, and 5, he -- there's no prejudice under 2.

Mr. Cox: Well, I --

Justice William O. Douglas: I don't understand what you're saying now in light of what you say in your brief.

Mr. Cox: Well, I'm trying to -- I'm -- my point, I think, turns on the distinction that I make between my impression as to what is proper, seemly, would strike the observer as fair in the way that justice ought to be administered.

And I think that so far as that goes, that, as I see it, even though there was no order dismissing 3, 4 and 5 that, while the case was before Judge Clark, the expectation was that however the mechanics were worked out, the maximum sentence would be five years.

And I think this is a fact to which more weight should have been given in the subsequent proceedings.

Justice Charles E. Whittaker: Can we view in about that though, isn't that entirely for the trial judge sentence to be imposed?

Mr. Cox: I take it, it is but it would -- and I take it that this Court -- and, therefore, I did not include the suggestion that this Court should set the amount of sentence because, except in contempt cases, to the best of my knowledge, this Court has never undertaken to indicate just what sentence should be imposed.

Justice William J. Brennan: But upon what convictions, Mr. Solicitor General, is he to be resentenced?

Mr. Cox: Well, I suppose he was resentenced on count 2.

He both pleaded guilty to it and was convicted on it.

Surely, he would have no complaint about that.

Justice William J. Brennan: Well, the point is, the rule -- if we are to follow this suggestion, we have to make some selection of the convictions upon which he is to be resentenced, in light of this record?

We can't merely send it back for resentence on 2, 3, 4 and 5, can we?

Mr. Cox: Well, I would suggest count 2.

Justice Charles E. Whittaker: Well, he got five-year sentence on count 2.

Does that exceed anything he had a right to expect under his talks with Judge Clark?

Mr. Cox: No, Your Honor.

No.

Justice Charles E. Whittaker: It was just exactly what he had a right to expect of that conversation, wasn't it?

Mr. Cox: Which suggests that the court might, perhaps, simply set aside the sentences under 3, 4 and 5 and let the rest of it stand without the necessity of remanding it.

Justice Felix Frankfurter: Is there implicit in your suggestion that the expectation of a five-year sentence was communicated to the defendant through counsel and in reliance thereon, they took action, which otherwise they would not have taken?

Mr. Cox: I don't think that it could be said there was any action which they took in reliance on the promise.

Justice Felix Frankfurter: Well, then, what -- what's the basis of -- what's the basis of fairness?

Disappointed hopes which all of us (Voice Overlap) --

Mr. Cox: Well -- well, it's -- it's more than that.

It's -- I -- I think it's --

Justice Felix Frankfurter: Well, I'd like to know.

Mr. Cox: Yes.

Justice Felix Frankfurter: I'd like to --

Mr. Cox: Well, I'd --

Justice Felix Frankfurter: If it isn't reliance -- if it isn't reliance, what is it?

Mr. Cox: Well, I think --

Justice Felix Frankfurter: There is one judge --

Mr. Cox: -- that we're a --

Justice Felix Frankfurter: -- one judge having said something and it has -- it was not made good on by the outcome, is that it?

Mr. Cox: I think --

Justice Felix Frankfurter: That's if it gets down here.

Mr. Cox: No, I think it goes beyond that, Your Honor, because it -- I think it involves additional elements.

Not only was one judge said something but was not made good on by the other but in addition, there was -- there was enacted --

Justice Felix Frankfurter: There was what?

Mr. Cox: There was enacted a series of events, transfer of the cause, the vacation of the pleas, the trial and then the sentence.

All of which, I think, the eye -- to the eyes of the petitioner and to my eyes, creates a very grave danger that somebody looking at this would say this was just an elaborate ritual for getting rid of what Judge Clark did.

Justice Felix Frankfurter: Well, what --

Mr. Cox: And I think that it has -- if I might just add one more sentence.

I think to have a serious risk that that is to create the impression of the kind of the -- the way justice was administered in this case is a greater danger on the whole and a greater risk on the whole than the risk of setting aside a trial which corrected Judge Clark's mistake.

I suppose, in the end, perhaps it comes down to the fact that I would rather err on the side of the too light sentence than err on the side of too much severity.

It's -- it's because I have doubt about that and because it perhaps, in the end, comes down to such a very personal judgment that while I felt an obligation to come here and expose the case, I did not want to make -- urge either position on the Court.

But as I said to Justice Harlan, if I had the power of disposition, I would send it back for reconsideration in the light of everything that's happened.

Justice Felix Frankfurter: Well, now, may I analyze your answer.

I start out by saying I'm a great disbeliever in severe sentences in any way.

I don't believe much in the reformative quality or power or heavy sentences.

And I don't think, either, they are necessary for the protection of society.

Putting that to one side, I am with you.

I -- you can't be too fastidious for me in the comic of a criminal trial by the Government, but we are sitting here as a reviewing court.

We've got to review something.

Somebody must have done something he shouldn't have done, either because the Constitution or the law or a statute or the exercise of his discretion was improper or unseemly, call it what you will.

I don't see that outside of that, we have any power.

We can't say it'd be nicer if the criminal -- if criminal administration is full of things that are offensive to me, and I can't say that the exercise of the individual power, I, as a voter on this Court, will say it should be done differently.

So, I would like to have pointed out to me someone specific reprehensible conduct, someone specific misuse of power, someone specific utterance by a court relied upon to the disadvantage of a defendant, someone specific choices open to a judge when he should have, in mercy, taken some other choice, and I don't mean if he has filed the 20 years that I can say he should have given him only 18 years or pursued only 5 years.

But something else than the operation of the -- of the machinery or the processes of the standards of law not directed toward against this individual, but in the sum total operating in a way that I don't think is good administration.

Am I asking for too much?

Mr. Cox: The -- I'd -- I will like to argue in a minute that you are.

But let me address myself in two ways to the question.

First, if Your Honor does feel obliged to focus on two -- on a specific item, the two that seem to me to be the best candidates are, first, Judge Hall's denial of the motion to transfer the case back to Judge Clark, which motion was denied after it had appeared that Palomino had left.

And at that stage, the element of the same man handling both defendants would not have been in the case.

And while I feel surely he had the power to grant or deny that motion, conceivably under all these circumstances, his action could have been said to be an abuse of discretion.

Justice Felix Frankfurter: Was Judge Clark in the holding of criminal calendar?

Mr. Cox: Whether he was available for the assignment of criminal cases, I don't know.

Justice Felix Frankfurter: But that's why it's necessary for -- it should be taken into account --

Mr. Cox: I take it, he could've --

Justice Felix Frankfurter: -- of your answer.

Mr. Cox: I take it, he could've made himself available or had been made available.

I take it, also, that the defendant probably would have been glad to wait until he was available.

The second candidate, if one must pinpoint a particular error, comes to a more troublesome question, and that is the problem of sentencing because, normally, this Court does not review, in a criminal case, any exercise of discretion of any public defenders.

Under these unusual circumstances, it would seem to me that the Court certainly should consider whether it was not a reviewable abuse of discretion for Judge Hall to impose a sentence of 20 years, quite clearly taking no account of the promise that Judge Clark had made.

Now, Judge Hall didn't state that he took no account.

I must acknowledge that that's an inference.

But in view of what he said at the earlier parts of the record, it seems to me that it is a quite plain inference.

Now, the reason I said, Justice Frankfurter, a moment ago that I thought it wasn't necessary to point to any particular ruling, my analysis of that is this.

That there can be occasions where each ruling goes to the limit, but is within the limit taken by itself but cumulatively, when you get a whole sequence of them, you just feel this has gone too far that looking at anyone, yes, it was within the judge's power.

No, we can't fairly say that was an abuse of discretion.

But when you get a sequence of them, all going to the limit in the same direction, then it would seem to me that it was permissible for the Court to say, “We just think this adds up to something that we can't let stand.”

Justice Felix Frankfurter: But your -- the gravamen of your difficulties, God knows I am sympathetic with it, I've said earlier that I regard these narcotic sentences as outrageous, but the gravamen of your objection goes to the imposition of the sentence judgment.

The fact that he was promised 5 by a holding, he got 20 (Voice Overlap) --

Mr. Cox: Without that, I would have no difficulty.

Justice Felix Frankfurter: Alright.

Now, your argument would be perfect, perfect before the English Court of Criminal Appeals with its statutory power to bury the sentence, but this Court has no such power unless there's some abuse somewhere along the line.

Mr. Cox: Well, if -- if the Court can't let the whole proceeding and --

Justice Felix Frankfurter: Well, but --

Mr. Cox: -- if the two things I point out won't do, then the --

Justice Felix Frankfurter: Well --

Mr. Cox: -- judgments, so far as this goes, must be affirmed.

Justice Felix Frankfurter: Of course, if those two do, then they do.

Then, you've -- you've answered -- then, you've taken care of my --

Mr. Cox: Well, those are the two best candidates, I think, Your Honor.

Justice Felix Frankfurter: If those will do, then you've taken care of it.

If there's been an abuse of discretion, then -- then I have no difficulty.

Mr. Cox: My difficulty --

Justice Felix Frankfurter: Then, if you have no abuse of this question anywhere, if you have no misconduct, no non-allowable choice to the judge you had the responsibility and what weighs with you is the excessive sentence, then I put it to you, I submit with all respect, what you're doing is asking this Court to bury sentences.

Mr. Cox: The difference --

Chief Justice Earl Warren: Mr. Solicitor General, may I -- may I suggest this, and -- and it's in keeping with what you have said, but doesn't it fair on this -- on -- on your answer to Justice Frankfurter that before these people went into court, the counsel for the defendant spoke to the United States Attorney, and the -- the United States Attorney, recognizing that he was willing to plead guilty to some phase of this indictment, said to him or indicated to him that in accordance with the practice in that kind of cases, if he pled guilty to -- to two counts of -- of an indictment, of a number of more counts, that that was the end of the situation and that pursuant to that agreement, apparently, both of them went into court and this man pled guilty to -- to two counts of the indictment and the judge, only after he had pled guilty and with the intention of -- of sentencing him at that time, said that the sentence should be five years.

Is – isn't that about what happened or is that wrong?

If that is wrong --

Mr. Cox: I would -- I would disagree with that, Your Honor.

Chief Justice Earl Warren: Oh, well --

Mr. Cox: I do not think it could be said either that Judge Clark passed sentence --

Chief Justice Earl Warren: No, I --

Mr. Cox: -- or that Judge Clark dismissed counts 3, 4 or 5 of the indictment.

Chief Justice Earl Warren: There is no such --

Mr. Cox: I --

Chief Justice Earl Warren: -- implication in what I said.

Mr. Cox: Perhaps I misunderstood you.

Chief Justice Earl Warren: No, I -- I said, so far as the -- the fairness of that is concerned to -- to this -- this man, isn't it a fact that he went first to the United States Attorney and -- and -- the counsel did and told him that his client was willing, under certain circumstances, to -- to plead guilty to -- to this indictment and he was given to understand by the United States Attorney that in -- in accordance with the usual practice in this kind of case, that a plea to two counts of the indictment would take care of the entire indictment and the -- the rest would -- would be disposed of.

And there was an agreement on 1 and 2.

They went into the court.

He pleaded guilty to 1 and 2.

And the Court, intending to sentence him, let's say, just on -- on 1 -- 1 and 2, said -- said to him, “I -- I propose to give you five years.

That's about as good as you could expect.”

And -- and the man pled guilty under those -- under those conditions and of course, he expected to -- to get the others dismissed.

I don't say the judge said anything, did anything or paid any order or anything of -- of that kind, but is -- is that an unfair way to -- to present the -- the appearance of the defendant for this Court for sentencing?

Mr. Cox: I think that's a fair description of --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- what took place before Judge Clark.

Chief Justice Earl Warren: Well, that's all I wanted to know.

Justice Felix Frankfurter: Are you -- are you --

Mr. Cox: If I am --

Justice Felix Frankfurter: -- suggesting to us that there's an agreement between the U.S. Attorney and the judge which was not -- which was then frustrated?

Are you suggesting that to us?

Mr. Cox: No, I didn't -- I didn't mean --

Justice Felix Frankfurter: This Court has held again and again such an agreement is -- is improper and it has refused to enforce it.

Mr. Cox: I thought the Chief Justice -- I was listening for agreement because of the rule that Your Honor mentions, but I thought the Chief Justice, if he mentioned any agreement, it only had to do with the District Attorney saying that if there was a plea of guilty to the first two counts, he would not press the others.

Chief Justice Earl Warren: That's right.

Mr. Cox: And I take it that that is not the kind of agreement which binds the judge or purports to bind the judge, nor is it the kind of agreement which has always been regarded as invalid.

Justice Felix Frankfurter: Well -- but -- but if then this is an agreement between counsels for the defendant, I'm being almost the devil's advocate but I think we've got such a thing as orderly administration of appellate reviews, and I want to know what it is I'm doing when I'm simply asking us to do something out of the goodness of my heart when I'm asked to do a legal act.

They are very different for me.

The agreement between counsel and the U.S. Attorney doesn't enter into this thing at all, does it?

Not at all.

If then you -- then you are driven back to saying it doesn't enter it except in his own expectations.

And I can -- I don't know how many cases they are in which those expectations are constantly frustrated on the face.

Mr. Cox: There are certainly many instances where they're frustrated.

I think that it must be rare for them to be frustrated where they depend in considerable measure on the representations of the trial judge.

Justice Felix Frankfurter: Now, so that it's the trial judge's conduct that is decided here, isn't it?

Mr. Cox: Well --

Justice Felix Frankfurter: And -- and if you tell me -- if you tell me that you can argue solidly that there was an abuse of discretion not to honor that, later on by Judge Hall, or to frustrate it by having him put on trial, I understand that, but you can tie up the agreement between the U.S. Attorney and counsel for this defendant with the fact that the judge, thereafter, acted on it of his own spontaneity, except you can't tie those together and get some extra advantage or -- or element of unfairness out of it.

Mr. Cox: I --

Chief Justice Earl Warren: Yes -- is -- please, proceed Mr. Solicitor.

Mr. Cox: I think that the basic difference, Mr. Justice Frankfurter, between your analysis and the source of my closing judgment as to the right result goes to what seems to me to be the final element of, I'll call it unfairness, unseemliness in this case.

I said earlier in the argument, if Judge Hall had squarely said to the defendant, “I am not going to be bound by any agreements.

Counts 3, 4 and 5 haven't been dismissed.

There was a very large quantity of heroin.

You can withdraw your plea to counts 1 and 2 if you wish and stand trial on all of them or you may leave it in effect if you wish.

It's up to you.”

That I would come down on the other side of the fence.

The thing that has troubled me from the beginning, the most, would be a difficult case anyway.

The thing that has troubled me from the beginning is that taking into account the final element of sentence, then when I go back and survey the whole thing, it makes a judicial trial in the federal court.

They looked to some people and they did to me, after a good deal of laboring over it as if it had been a bit of mumbo jumbo to get rid of what Judge Clark had done.

Now, if you take away the sentence, that impression isn't created.

But I submit to you that it is an impression of the whole thing and that there are times, not just here but Your Honor will think of many more instances than I, where one judges the quality of what occurred by how it ended up.

And there are problems of causation in those effaceable difficulties there, but I think that's what I've been saying to Your Honor.

It may be wrong, but that's the --

Justice Felix Frankfurter: You said it very well, but I should say the ultimate reason is that there wasn't enforced a rule of court such as there is now.

That's the real reason.

Mr. Cox: That was the original source of the difficulty here.

Justice Charles E. Whittaker: Mr. Solicitor, I shall like to ask you, if you're concerned about the appearance of this one case in the sentence, is it not open to you under the challenge made on count 5 to cut it in half?

Mr. Cox: I think that count -- if I may take a minute of --

Chief Justice Earl Warren: Yes, you --

Mr. Cox: -- the Court's time.

Chief Justice Earl Warren: -- you may -- you may take this opportunity.

Mr. Cox: I think that count 5, that the conviction was proper.

Justice Charles E. Whittaker: Oh, do you?

Mr. Cox: Yes.

It seems to me that there was evidence from which a jury could find to sail here even on the most strict common law standards.

But certainly, that -- this is going to take perhaps more time than I'm entitled to --

Chief Justice Earl Warren: Alright, take it.

Mr. Cox: -- Your Honor.

Chief Justice Earl Warren: Take your time.

Mr. Cox: There was certainly a contract to sell between the federal agent and Saldana resulting, first, from a telephone conversation and later, from a face-to-face conversation where the agent said, “I want 10 pieces,” meaning 10 ounces of heroin.

And Saldana said, “Okay, I'll get,” or something like that.

At that stage, there was clearly a contract to sell.

Now, the question comes was there -- was there evidence from which it could be found that that was transformed into a sale and by a sale, I have in mind the strict common law definition involving a transfer of the property in the goods.

Now, the two things that were required to transfo -- that are required to transform a contract to sell into a sale are, first, an appropriation of specific goods to the contract made by either the buyer or the seller, in this case it would be made by the seller, with the ascent of the buyer.

That's an ascent which may be either expressed or implied, and it's an ascent which may be given either before or after the appropriation is made.

I won't take time to read it now but if Your Honor will look in Rule 4 of the Uniform Sales Act, you will find that these points are very clearly laid down.

It's discussed at more length in Professor Willison's book on sales at Sections 263 and following.

Now, let's look at the evidence here.

Justice Charles E. Whittaker: I wonder if we don't, as a matter of -- if everybody doesn't know and therefore, judges shouldn't know that sales of narcotics are probably not handled as commercial transactions are normally are.

Mr. Cox: Well, it would seem to me, it's -- they are handled in a different way, but I take it that the same requirements were transfer of property would be properly looked to, that is the way the lower courts have generally approached this.

And most specifically, to accomplish a sale in the normal course, neither payment nor delivery, as Your Honor knows, is a prerequisite, provided that the property is transferred.

Well, now, here - here plainly, the petitioner did appropriate a specific 10 ounces of heroin to this contract.

He got up from his place on the sidewalk, where he had been with the narcotics agent, went over to this 1958 Ford that came up and got a bag contending 10 oun -- containing 10 ounces of heroin out of it and started back to the federal agent.

And the federal agent said, “Is that the stuff?”

And the Petitioner said, “Yes.”

It's plain evidence that he had appropriated the goods to the contract.

Now, is there evidence that the federal agent gave his ascent from which the jury could find this?

Because there were no specific instructions on this, none requested, it wasn't really an issue.

If Your Honor reads the arguments to the jury, there was no argument about it.

Petitioner said, “I made it for sale.”

His counsel said to the jury, “There were for sale.”

And everybody went on to argue the entrapment point.

I would say that the jury could infer the agent's ascent to this appropriation in --

Justice Hugo L. Black: To have it thrown at him?

Mr. Cox: Huh?

Justice Hugo L. Black: You mean that he ascended to have it thrown at him?

Mr. Cox: No, I'm not relying on that much, Your Honor.

I agree with you.

[Laughs] I didn't -- no, we put no reliance on that.

[Laughter]

I think that he ascended in advance.

The first two transactions, he made a cursory inspection of the heroin.

The second transaction -- the third transaction, he may not.

He simply accepted what petitioner handed to him.

And then, this one, he said, “Have you the stuff?”

He -- I think that a jury could find from this that he was willing to have the petitioner make the selection of the goods to appropriate to the contract.

Let me put just one example to indicate why I feel sure that neither sale -- neither delivery nor payment should be required.

Suppose that I were to telephone the local druggist and were to say “I'm in desperate need of some morphine.

Have you got a prescription?”

“No, I haven't, but my wife broke her leg.

She dislocated her knee and she's in terrible pain and I just must have some morphine to get her through the night.”

And he then said, “Well, I'm going out.

It will be just the boy here.

I've got to hurry off,” and I said, “Well, put up the prescription and I'll be down and get it in a couple of hours.”

And he put up the prescription, marked it “Professor Cox” and put it on the shelf and then the narcotics agent came after him for a search.

I haven't the slightest doubt that under those circumstances, when neither delivery nor payment, that there were -- you would agree that there had been an appropriation of the goods to the contract and that the sale was made.

And indeed, as a matter of commonsense, it should be held to be made.

Now, this one, if one were arguing it to the jury, certainly there are very sound arguments that could be made against my position, but I think that the evidence does permit a finding that there was the necessary ascent by the agent to the petitioner's prior appropriation and that this made out the necessary elements of the sale.

Justice Hugo L. Black: Would you mind, Mr. Cox, just stating what are the facts, as briefly as you can, in which the Government says that the jury had to find those facts existing with reference to this sale?

Mr. Cox: The jury would have had to find that --

Justice Hugo L. Black: I mean, what -- what could they find from the evidence that they had to find?

Mr. Cox: You mean conclusions?

Justice Hugo L. Black: I want to know -- I want to know just what it was that was done under the evidence as you see it --

Mr. Cox: Well, under --

Justice Hugo L. Black: -- that brought about the sale.

Justice Felix Frankfurter: From this (Voice Overlap) --

Mr. Cox: I think that the petitioner earmarked heroin for the performance of this contract, that's one element, with --

Justice Hugo L. Black: You mean for the performance of the executory contract --

Mr. Cox: Yes.

Justice Hugo L. Black: -- that he made.

Mr. Cox: With the implied ascent of the agent, and that's the only other element that is necessary.

Justice Hugo L. Black: What did he do?

What did each one do?

Mr. Cox: The petitioner took 10 ounces of heroin, put it in the packages, put it in the paper bag and then came up closer to petitioner, as I read the record, than you are now and said, “This is the stuff.”

Justice Hugo L. Black: Then what happened?

Mr. Cox: Then the agent drew his gun.

Justice Hugo L. Black: Drew his gun?

Mr. Cox: Yes.

Justice Hugo L. Black: He had this sack in his hand.

The agent drew his gun on him.

Had the agent paid anything yet?

Mr. Cox: No.

Justice Hugo L. Black: These -- these (Voice Overlap) --

Mr. Cox: No.

We contended --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Cox: And I think it's quite true, as matter of --

Justice Hugo L. Black: By the time they could find it, it was on credit up to that point there.

Mr. Cox: That it was on -- that -- well, on credit with the vendor asleep.

[Laughs]

Justice Charles E. Whittaker: Well, isn't that somewhat different, too, than leaving the package at the drugstores when you pick up your wine where then, after the agent used the gun, he -- petitioner threw the package, as I understand it?

Mr. Cox: The petitioner threw it and the Ninth Circuit said that perhaps he threw is with the intention of making delivery.

[Laughter] I'm not --

Justice Hugo L. Black: Suppose --

Mr. Cox: -- I'm not suggesting that, Your Honor.

Justice Hugo L. Black: Suppose the officer had said --

Mr. Cox: I --

Justice Hugo L. Black: Go ahead.

Mr. Cox: I was just going to say to Justice Whittaker that let's suppose that the druggist, go back to my telephone conversation, had said, “Well, alright, I'll set it aside for you, but unless you leave $50, the boy can't give it to you.

No credit because I don't want this on my book.”

I would say there still would have been a sale because he had appropriated the morphine, in my example, to the contract.

It's my morphine.

Justice Charles E. Whittaker: And that's a completed sale?

Mr. Cox: In the ordinary law of sales, yes.

The property and the goods have passed.

The passage of property is not prevented by the retention of a vendor's lien or the retention of possession or the failure to get paid.

Justice Charles E. Whittaker: And you expressed -- expressly conditioned your hypothesis, however, upon payment, no prejudice involved and yet payment was never made (Voice Overlap) --

Mr. Cox: The sale -- the sale is completed before the payment even though delivery is conditioned upon payment.

Justice Hugo L. Black: Suppose this, instead of being an officer, had been a robber?

Mr. Cox: This is not a doctrine I'm inventing for the criminal case.

It's a little difficult, as Justice Black, I guess, said or perhaps you said, Justice Whittaker, to apply it to a criminal case.

But what I am saying, certainly in general, is, as I'm sure Your Honor recognize, familiar law of sales.

Justice Hugo L. Black: Suppose this officer, instead of being an officer, had been a robber, and he saw his chance now to get this heroin without paying for it and he just held up his gun and said, “Give it to me.”

Would that have been a completed sale?

Mr. Cox: I don't think that anything that happened after the petitioner appropriated some heroin out of a general mass to the performance of this particular contract with the ascent implied here of the buyer has anything to do with whether there was a sale.

Once that was done, there was a sale.

Justice Hugo L. Black: In other words, if the merchant picks out something and says “This is it” and puts it over one side, would that be a completed sale?

Mr. Cox: I -- Well, I -- an example along that line occurred to me when I was thinking about the case.

Suppose that we were dealing not with heroin but a -- the sale of infected meat under a statute that makes the sale of it a crime.

Suppose I go into the butcher's store and say “I want a dozen lamb chops” and the butcher says “Alright, a dollar and a quarter per pound.”

And he goes and starts cutting off the lamb chops and shows them to me.

“This is a cash and carry,” the butcher told.

He says that -- and I just nod, and then he puts them in the inner wrapping as they do.

He puts them on his scales and at that point, the neighbor's dog come and runs off with their chop -- with the chops.

They're my chops that he's gone off with, not the butcher's.

Justice Hugo L. Black: You mean if I go down --

Chief Justice Earl Warren: It wouldn't be mine.

Justice Hugo L. Black: If I go down --

[Laughter]

Chief Justice Earl Warren: Because I wouldn't buy them.

Mr. Cox: Not unless the dog made delivery, Your Honor.

Justice Hugo L. Black: You mean if I go down and order some steaks and I leave to go home and they cut them and they put them aside there, I'm already -- those steaks are already sold --

Mr. Cox: If you are willing --

Justice Hugo L. Black: -- and I got the paper.

Mr. Cox: If you have indicated in advance either that you accept these steaks as allocated to the contract or that you are willing to have the butcher set the steaks aside as your steak, then a sale has been made.

Justice Hugo L. Black: Suppose I haven't seen them.

Mr. Cox: If you --

Justice Hugo L. Black: Maybe I wouldn't like them when I see them.

Mr. Cox: If you indicated -- but by hypothesis, I stated that you have indicated that you trust this butcher to set them aside.

Justice Hugo L. Black: But this -- this man though hadn't seen this error.

Mr. Cox: But we -- but we know from --

Justice Hugo L. Black: He just pulled a sack.

Mr. Cox: But we know from one of the prior transactions that he was willing to take that man's word for it because in one of the prior transactions, he did not inspect the heroin before he accepted it as under the contract.

Well, that's, I think, an interpretation the jury could have made on the facts.

And I submit, Your Honor, that this really is a familiar law Professor Willison, and there's many examples like this, has treated.

Chief Justice Earl Warren: Thank you, Mr. Solicitor General.

Mr. Reinhardt.

Argument of Stephen R. Reinhardt

Mr. Stephen R. Reinhardt: May it please the Court.

There is very little I can see to improve on the Solicitor General's arguments.

And in a large measure, we agree with -- with many of them.

If the Court does not find that the sentence of petitioner is totally barred by the circumstances of delay in trial and by the double jeopardy arguments and the other issues raised in our brief, we agree that the five-year sentence imposed on count 2 should be affirmed so long as the sentences on counts 3, 4 and 5 are dismissed and that this would be an orderly method for disposing of this.

This is --

Justice Charles E. Whittaker: All three?

You have to say something.

We can't just set them aside.

Well, what did you -- what's the basis?

Mr. Stephen R. Reinhardt: Well, Your Honor, the basis -- I'm not suggesting that you just do it without an opinion.

I think that our briefs and arguments suggest numerous basis, including the supervisory power, as well as double jeopardy which may well be applied if it's necessary to reach that question, as well as an abusive discretion on the lack of power.

Now, as far as a vacation of the pleas on 1 and 2 and ordering the defendant to trial, I think that when Mr. Justice Frankfurter asks what is the abusive discretion in this case, that is clearly where we found it.

When Judge Hall --

Justice Felix Frankfurter: Was clearly where you what?

I didn't get the other word.

That's clearly where you --

Mr. Stephen R. Reinhardt: That's clearly where we -- where we find that abusive discretion.

I -- I agree with the Solicitor General that it is found in other places.

But I think in this instance, it is clear.

The judge did -- Judge Hall did not just say “Well, we'll proceed on the trial with counts 3, 4 and 5.”

What he did was vacate an entire disposition.

He said, “Let's vacate the pleas on count 1 and 2 and send you to trial.”

This, he considered necessary to the trial, not just a trial which could take place, but he felt it necessary to vacate the previous disposition which he believed Judge Clark to have made, and he vacated that entire disposition.

We don't believe there's any such power.

If there is a power, we urge this is certainly an abuse of discretion.

The grounds he gave for this do not justify any such vacation that --

Justice Felix Frankfurter: May I ask you this.

Suppose it's the other way around.

Suppose -- suppose Clark had been Hall and Hall had been Clark, and suppose Clark had given 20 years and then, when it came before Hall, mild Hall not real Hall, mild Hall and he, out of a sense of leniency or sympathy with and disapproval of the heavy offense and said, “Well, if -- if we go to trial, we let it go to trial on the whole.”

I don't think you'd be here today, would you?

So, when you talk about power.

Mr. Stephen R. Reinhardt: Well, Your Honor, we do not feel that there is any power to vacate a conviction.

Justice Felix Frankfurter: And you think there wouldn't be power -- there wouldn't be power to vacate --

Mr. Stephen R. Reinhardt: If we consent --

Justice Felix Frankfurter: Pardon me?

Mr. Stephen R. Reinhardt: -- certainly.

Justice Felix Frankfurter: Alright.

But there wouldn't be power if a judge, out of his sense of fairness, he calls on a plea of guilty misunderstood or misconceived by the defendant as dismissing the others, gave a sentence that he thought was raw and therefore, he wanted to have us the whole disposition before his more compassionate heart --

Mr. Stephen R. Reinhardt: If it were --

Justice Felix Frankfurter: -- if the judge has no such power.

Mr. Stephen R. Reinhardt: Your Honor, if it were in the interest of the defendant, he would not have the problem of having to do it over the objection of the defendant.

This -- this --

Justice Felix Frankfurter: You mean a defendant can play one game or the other, depending how -- what the sentence of the prior judge is.

Mr. Stephen R. Reinhardt: No, Your Honor.

When a man is convicted, he may remove the prejudice of -- of being submitted to trial again if it's in his interest by waiving any -- any right to that conviction.

Justice Felix Frankfurter: But your argument implied that if you did -- had not consenting, there would be no such power, although the motive, so far as it's going to motive, of the mild Judge Hall would have been the opposite of the severe Judge Hall.

Mr. Stephen R. Reinhardt: Your Honor, I -- we are suggesting that there is no power but -- but clearly, it is an abusive discretion.

The grounds given in this case accusing the other judge of having entered into a deal or the appearance of a deal, certainly, there was no basis for the accusation of a deal.

As to the appearance of a deal, we do not believe there's any -- this is a circumstance which warrants a vacation to the prejudice of a defendant.

And let -- and let me just make clear that Judge Hall was not the Chief Judge of the District at the time.

Mr. Cox inadvertently suggested that he was and that this might have given him some inference in the sentence.

It was Judge Yankwich at the time.

But the -- the purpose is -- the purpose was to -- to permit the increase in sentence.

This was the reason for the vacation.

This was the reason that he want -- sent him to trial on all five counts.

It was in order to increase this sentence and for that reason, we do feel that this be -- the sentence becomes a part of this problem.

Now, as to the question of why there was no motion to dismiss, Your Honor pointed out that on counts 3, 4 and 5, all that was said was “hold those”.

Chief Justice Earl Warren: You may -- you may continue.

Mr. Stephen R. Reinhardt: Thank you.

It -- it is true that there was no motion made.

And that -- that the question involves interpretation of the word -- words “hold those.”

As Your Honor suggested, under the circumstances of this case, those words could not have meant anything other than that those were to be dismissed at the time of trial.

They -- I -- I --

Justice Felix Frankfurter: You make it difficult for me to understand that.

Mr. Stephen R. Reinhardt: Well, I -- I don't --

Justice Felix Frankfurter: You could have -- you could have made that clear by just a few words.

Mr. Stephen R. Reinhardt: I agree --

Justice Felix Frankfurter: It --

Mr. Stephen R. Reinhardt: -- I agree with Your Honor.

It could have been made clear if there was a necessity, and perhaps there was.

Perhaps it should have been made clear that those were held for a dismissal.

But in the District Courts, to my understanding, that is what -- what happens when counsel held for dismissal at the time of sentencing.

If they were to be tried, they would have been set for trial.

There was no -- nobody ever thought they were set for trial.

Justice Felix Frankfurter: You mean -- you mean it is a practice?

You talk about rituals.

You mean to say that the practice when pleas of guilty are tendered and accepted to counts 1 and 2 and 3, 4 and 5 are to be dismissed.

It's the practice to make another proceeding of that at some other time?

Mr. Stephen R. Reinhardt: No, Your Honor, not another proceeding.

Justice Felix Frankfurter: That's a little too much for me.

Mr. Stephen R. Reinhardt: No, Your Honor.

Let me explain this.

If they are -- there's not a separate proceeding.

They are dismissed when sentence is imposed.

The judge says “Count 1, 5 years, count 2, 5 years, count 3, 4, and 5, dismissed.”

It is the sentencing proceedings at which formal dismissal takes place.

And that's why they say “hold those.”

They don't dismiss part of the judgment apart from the sentence.

They are all dismissed as part of one judgment, so that it was the formal dismissal which was delayed by the words “hold those”.

It was necessary to do that until the time of sentence when one judgment would be entered.

Justice Charles E. Whittaker: Then is this your conclusion?

Is it your argument that the Court's acceptance of petitioner's plea of guilty on counts 1 and 2 constituted a judgment covering the whole case, including counts 3, 4 and 5?

Mr. Stephen R. Reinhardt: The word “judgment”, I -- I cannot say that it constituted a judgment.

I can say it constituted a disposition of the case.

It constituted a court-approved settlement that the guilty plea situation and -- somewhere over 80% of the cases in the trial court are disposed of by guilty pleas.

Justice Charles E. Whittaker: But unless it was a judgment, it wasn't the action of the Court nor binding on anyone, was it?

Mr. Stephen R. Reinhardt: Yes, Your Honor.

It is binding and it is the action of the Court, just as a jury verdict is binding without a judgment.

The -- the defendant has been convicted upon acceptance of his plea of guilty.

He cannot withdraw, except with permission of the Court.

The Court can and should impose sentence upon that -- upon that plea and that he's -- he's removed his discretion.

He -- he is subject to imprisonment upon that plea and he -- he cannot just change his plea when he wishes.

Justice Charles E. Whittaker: Then that plea, however, related only to counts 1 and 2.

That's why I asked you then if it was your contention that his plea of guilty on counts 1 and 2 actually amounts to a judgment covering the whole case.

Mr. Stephen R. Reinhardt: And Your Honor, I don't -- I'm not trying to evade that it's only the use of the word “judgment” that bothers me.

I don't want to mislead you by suggesting that we consider this a judgment.

Justice Charles E. Whittaker: Well, if it's not a judgment, then I don't know what it is --

Mr. Stephen R. Reinhardt: Well --

Justice Charles E. Whittaker: -- that would have any effect as of a binding thing.

Justice John M. Harlan: It's a disposition that has the effect to the judgment.

Mr. Stephen R. Reinhardt: Yes, Your Honor, it is a disp --

Unknown Speaker: (Inaudible)

Mr. Stephen R. Reinhardt: Thank you very much.

[Laughter]

Justice Felix Frankfurter: Mr. Reinhardt --

Mr. Stephen R. Reinhardt: Yes, sir?

Justice Felix Frankfurter: -- would you forgive me -- would you forgive me if I point out, if you just used the phrase that rather supports Judge Hall's saying there was an appearance.

You mean the phrase "court-approved settlement", that's just what Judge Hall thought of your court-approved settlement.

Mr. Stephen R. Reinhardt: No, Your Honor.

The -- the court-approved settlement means on the number of counts.

This is the way --

Justice Felix Frankfurter: Well --

Mr. Stephen R. Reinhardt: -- this is the way guilty pleas are entered --

Justice Felix Frankfurter: The court-approved -- a court-approved settlement is, to me, something different from a court's own disposition.

Mr. Stephen R. Reinhardt: Well, the court approves the settlement of two counts in lieu of a trial on all five.

The court -- that is the court approval of the disposition.

The court --

Justice Felix Frankfurter: Settlement implies an -- never mind.

But all I'm saying is that there's some basis which Judge Hall is thinking so.

Mr. Stephen R. Reinhardt: No, Your Honor.

Let me just -- just say that there was -- I want -- in case there's any doubt in the -- in Your Honor's mind --

Justice Felix Frankfurter: There is the -- there's the -- the eternal difference in life between appearance and reality.

You may have been a -- a thing may have been as innocent as could be, but the appearance was that there was a -- a court, a harmony, the opposite of dissonance between counsel and the court.

Mr. Stephen R. Reinhardt: The -- the appearance, we would suggest, only does -- if there is such an appearance, which I wish we had time to -- there is -- there is no such appearance.

I'm sorry to differ with Your Honor.

But we don't believe there is.

But furthermore, that would not justify --

Justice Felix Frankfurter: That's the difference (Voice Overlap) --

Mr. Stephen R. Reinhardt: -- vacating a conviction and we've considered this was a conviction.

Justice Felix Frankfurter: Believe me, I followed your argument, and I think that I understand you.

Justice Hugo L. Black: Is it -- is it extra --

Mr. Stephen R. Reinhardt: Thank you very much.

Justice Hugo L. Black: -- is it extraordinary?

I'm -- I'm not (Inaudible) this information, the prosecuting attorney and the defendant lawyers get together, go to the judge, and say “Now, we are willing to satisfy -- settle this case on the basis of a plea of guilty with a sentence that's so light."

Mr. Stephen R. Reinhardt: Yes, Your -- Your Honor, I --

Justice Hugo L. Black: Is that ever done?

Mr. Stephen R. Reinhardt: -- I would think that that would be improper.

Justice Hugo L. Black: You think it's improper.

Mr. Stephen R. Reinhardt: I would think so.

I -- I don't know of any such practice.

And I -- it seems to me that the proper practice is for the defendant and the United States Attorney, the two attorneys, to agree on the number of counts which is satisfactory and then an open court, to go in and --

Justice Hugo L. Black: Well, I'm not talking -- I'm talking about an open court.

Mr. Stephen R. Reinhardt: To -- well, I think it would be improper because the court is not bound by the U.S. Attorney's view as to sentence and --

Justice Hugo L. Black: You wouldn't be bound by the agreement.

Mr. Stephen R. Reinhardt: No, no, but if -- if --

Justice Hugo L. Black: You wouldn't be bound by the agreement.

Mr. Stephen R. Reinhardt: But Your Honor, if the plea were based on any promises to sentence, I would think that it -- that it would be improper because you would then go -- into court and the judge might change the sentence.

Justice Hugo L. Black: Well, a lot of impropriety is committed in this country.

Justice Felix Frankfurter: There is.

Mr. Stephen R. Reinhardt: Well --

Justice Felix Frankfurter: There is, but it's rebuked constantly from the bench, and this Court has rebuked it from time to time.

Mr. Stephen R. Reinhardt: Well, in that --

Justice Felix Frankfurter: I don't think the fact, as I asked you about this --

Mr. Stephen R. Reinhardt: Yes.

I just -- I just want to add one fact, Your Honor, to -- to refute any implication there might be of impropriety here, as far as the two judges, that this case was put back on the calendar before Judge Clark by the United States Attorney.

This was no effort by the defendant to -- to do that.

Justice Felix Frankfurter: I was remotely suggesting impropriety.

Mr. Stephen R. Reinhardt: Yes.

Justice Felix Frankfurter: Appearance is not impropriety.

Mr. Stephen R. Reinhardt: Thank you very much.

Chief Justice Earl Warren: Mr. Reinhardt, on -- on behalf of the Court, I would like to express our appreciation to you --

Mr. Stephen R. Reinhardt: Yes.

Chief Justice Earl Warren: -- and -- and to your associate, Mr. --

Mr. Stephen R. Reinhardt: Bernhard.

Bernhard.

Chief Justice Earl Warren: Yes, Mr. Bernhard.

I get the name is so alike.

I -- I get to be confused.

We always feel comforted when -- when lawyers will undertake these -- the defense of indigent defendants, such as you have and particularly when they carry them through with the diligence that -- that you have.

And we express our deep appreciation to -- to both of you.

And may I say also, Mr. Solicitor General, that -- that we're deeply comforted also by the very frank, very fair and very generous manner in which -- which you have conducted this -- in this case.

And I'm sure that the cause of justice will -- will never suffer when men will undertake the cause of indigent defendants such as you have here and the Solicitor General will be as fair as he has in this case, so we thank you both.

Mr. Stephen R. Reinhardt: Thank you very much.