LOTT v. UNITED STATES

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Argument of C. W. Wellen

Chief Justice Earl Warren: Number 238, H. A. Lott et al., Appellants, versus United States.

Mr. Wellen.

Mr. C. W. Wellen: May it please the Court.

Now, this case here is here, as a result of certiorari to the Court of Appeals for the Fifth Circuit.

This is an income tax evasion case.

As a result of which, the petitioners were illegally sentenced to the penitentiary.

It involves the tax returns of the Farnsworth & Chambers Corporation, for that corporation's taxable years, 1951 through 1954.

The Farnsworth & Chambers Corporation was one of the largest construction companies in the United States.

It had several hundred employees and during the period in question, it did several $100 millions worth of business involving tens of thousands of separate transactions.

The corporation was owned and controlled by Richard A. Farnsworth and Dunbar N. Chambers.

Together, they controlled and owned 74% of the stock of the corporation and through a stockholders' agreement, controlled the balance of the stock which was owned by certain employees.

The petitioners in this case among them, owned 7% of the stock at the corporation, which was subject to the stockholders' agreement and therefore, under the control of Richard Farnsworth and Dunbar Chambers.

The petitioners in this case along with Richard Farnsworth were indicted in the spring of 1958 for aiding the corporation in evading its taxes.

Dunbar and Chambers, the other substantial stockholder, would undoubtedly have been indicted with this group, had it not been for the fact that he was killed in a hunting accident some months earlier.

After the indictment was returned, the petitioners each pleaded not guilty.

They then filed motions to dismiss the indictment on the grounds that it was insufficient and void.

They also filed motions for bills of particular and they filed a motion to sever their case from that of Mr. Farnsworth on the ground that it was alleged that Mr. Farnsworth had diverted assets and income from the corporation to himself, whereas the petitioners have never been charged with profiting from the alleged wrongdoing, nor have they've been charged with personal income tax evasion.

It's purely the affair of the corporation.

The Government supplied the petitioners with a token bill of particulars.

It was vague and meaningless.

And the petitioners properly requested a supplemental bill of particulars, which was denied.

Justice Potter Stewart: What do you mean a token bill of particulars?

That's a new --

Mr. C. W. Wellen: It is a --

Justice Potter Stewart: (Voice Overlap)

Mr. C. W. Wellen: -- in the record, Your Honor.

It -- it's watchfully --

Justice Potter Stewart: Is there anything in the suit --

Mr. C. W. Wellen: -- reiterated the provisions of the indictment.

Justice Potter Stewart: That's just your characterization in developing --

Mr. C. W. Wellen: That's my characterization.

Justice Potter Stewart: I see.

Mr. C. W. Wellen: Yes, Your Honor.

Justice Potter Stewart: I see.

Mr. C. W. Wellen: That's my characterization.

Justice Charles E. Whittaker: The bill of particulars, it doesn't particularize, is that it?

Mr. C. W. Wellen: Yes, sir.

That's exactly right, Your Honor.

Thereupon, the District Court for the Southern District of Texas denied all of petitioner's pretrial motions.

After denial of all of their pretrial motions and after the death of their leading counsel, Mr. Malcolm Mccorquodale, the petitioners elected to seek re-arraignment for the purpose of entering pleas of nolo contendere.

This was vigorously opposed for the Government, but despite the opposition of the Government, the Court received the pleas of nolo contendere.

Thereupon, instead of sentencing the petitioners, the Court, the same judge presiding, proceeded with the trial of the Farnsworths, Mr. Richard Farnsworth and his son Alan.

Justice Charles E. Whittaker: After the Court has sentenced him on the plea of nolo?

Mr. C. W. Wellen: As his customary, Your Honor, after a plea of nolo is entered it, then the -- the Court has an investigation, an independent investigation, hears character witnesses and then will enter sentence accordingly.

It's most unusual --

Justice Charles E. Whittaker: Does the Government (Inaudible) in the plea of nolo?

Mr. C. W. Wellen: Your Honor, as I understand it, the mere plea itself, confesses the facts such as they are in the indictment.

Justice Charles E. Whittaker: (Inaudible) I did not confess.

Mr. C. W. Wellen: That's is exactly right, Your Honor.

Justice Charles E. Whittaker: (Inaudible) judgment?

Mr. C. W. Wellen: Yes, sir.

It does, Your Honor, according to the decisions of this Court.

Justice William J. Brennan: I thought it was for the Supreme Court.

Mr. C. W. Wellen: Yes, Your Honor.

The Farnsworth trial lasted between 10 and 11 weeks.

Since the petitioners were named as conspirators in the indictment, an unlimited amount of testimony was permitted by both Government counsel and the Farnsworth counsel against petitioners during this trial.

Since petitioners were not part of this, for this proceeding, they had no opportunity to confront the witnesses against them.

They had no opportunity of cross-examination.

They had no opportunity to -- to present rebuttal or explanatory testimony.

The Farnsworth trial ended in the acquittal of Alan Farnsworth, the son, and the jury was unable to agree on a verdict with respect to Mr. Farnsworth, the dominant stockholder in this organization.

Needless to say, this was a bitter and frustrating defeat for the U.S. Attorney.

And it was in this atmosphere at the conclusion of the Farnsworth trial that petitioners were summoned before the court, the same judge presiding for sentencing.

In this atmosphere, the petitioners were sentenced to penitentiary terms and were each fined $20,000.

Motions for reduction or suspension of sentence were denied.

Thereupon, petitioners each filed a motion, denominated a motion in arrest of judgment, again attacking the validity of the indictment.

Justice Potter Stewart: Just so I don't understand the facts.

I -- I -- one of the Farnsworths was acquitted and as to the other, there was a hung jury?

Mr. C. W. Wellen: Yes, Your Honor.

The jury divided eight to four in favor of conviction of Mr. Farnsworth's father, the dominant stockholder.

Justice Potter Stewart: Did he get a public result in the jury vote?

Mr. C. W. Wellen: It was -- there was information later that that was the result.

Justice Potter Stewart: Was there -- was there a retrial of the --

Mr. C. W. Wellen: That -- there has not been -- no, Your Honor.

Justice John M. Harlan: How many convictions were there (Inaudible)

Mr. C. W. Wellen: None.

Those were the only two that went to trial.

The petitioners did not participate in the trial.

Justice William J. Brennan: You said the other principal had died or they killed him?

Mr. C. W. Wellen: Yes, sir.

The other principal had been killed in a hunting accident.

The motion in arrest of judgment was denied by the Court, same judge presiding, on July 13th, 1959.

Within four days after the denial of this motion, the petitioners each filed a notice of appeal for the Court of Appeals for the Fifth Circuit.

Some months later, the U.S. Attorney for the first time, raised the point of timeliness of the appeal and filed a motion to dismiss the appeal on the ground that it had not been timely presented.

The Court of Appeals for the Fifth Circuit, by a divided court, dismissed the appeal saying that notice of appeal had not been timely filed.

Thereupon, certiorari was sought from this Court and was granted.

While much likely said, concerning the fine reputation and character of the petitioners before us today or much might be said about their high standing in the community and while much might be said about the reasons which prompted petitioners to enter their nolo contendere pleas and the disappointments resulting therefrom, it is believed that these points are not germane to the issues before us so I won't develop.

The issues before us are, one, whether the appeal was timely.

Two, whether the indictment was sufficient, three, whether by in affect trying petitioners in absentia, the judgment was illegal and four, whether the judgment, the written judgment purported to find the petitioner's guilty of a misdemeanor offense, filing false and fraudulent returns and conspiring to do so, but then they imposed felony terms upon.

Justice Charles E. Whittaker: I understand -- do I understand correctly that the Fifth Circuit held the appeal was not timely and did not go further or reach the merits?

Mr. C. W. Wellen: That is correct, Your Honor.

Justice Charles E. Whittaker: And if they are wrong about that, then wouldn't that end our inquiry here?

Can we just send it back to them and to decide the case on the merits?

Mr. C. W. Wellen: I think not, Your Honor.

We applied for certiorari on all points and the writ was not limited.

We have briefed all points and we're prepared to argue all points.

The record is fully developed.

It presents only questions of law.

Justice Charles E. Whittaker: Well, but if they fail to hear an appeal, they should've heard.

Should they not now hear that appeal?

Mr. C. W. Wellen: It would seem that since it is before this Honorable Court and since it involves questions of extreme concern not only to these petitioners, but to the country as a whole and see -- since these are questions which undoubtedly will come to this Court, this Court should pass upon them while it's before it.

I'll turn to the timeliness of the appeal, this essentially involves Rule 37.

In taking the case to the Court of Appeals, the petitioners meticulously followed Rule 37.

The motion, denominated motion in arrest of judgment was filed within four days after the judgment.

And within four days after the Court denied the motion in arrest of judgment, the notice of appeal was filed.

In each instance, Rule 37 permits 10 days.

Permits 10 days to file a motion in arrest of judgment and permits 10 days to file a notice of appeal after a motion is denied.

In each instance, the time taken by petitioners was much less.

However, it is the argument of the Government that under Rule 34, this motion in arrest of judgment was not timely.

Therefore, it was void and was of no effect under Rule 37.

But the answer to this is, one, Rule 37 merely states that if a motion in arrest of judgment is filed within 10 days after the judgment, then after -- you have 10 days after such motion is overruled to file a notice of appeal.

It is not said in Rule 37.

The only rule which purports to be applicable to appeals that a motion of -- an arrest of judgment filed pursuant to its terms, must be timely under Rule 34, there's no reference to Rule 34.

Nor does Rule 37 say that such a notice or such a motion of arrest of judgment must have any other quality.

Justice John M. Harlan: What's wrong with your argument placed beyond the argument of Rule 34?

Mr. C. W. Wellen: None, Your Honor, none, in this situation on appeal.

Justice John M. Harlan: Or perhaps in reference to the (Inaudible) 37 and 34 (Inaudible)

Mr. C. W. Wellen: Now, that -- that's first of my argument and which has been adopted by the --

Justice John M. Harlan: -- (Voice Overlap) you apply -- you apply the fact to the timeliness (Inaudible)

Mr. C. W. Wellen: Yes, sir.

The second portion of my argument would be this.

That even if Rule 34 applies, even if the motion in arrest of judgment described in Rule 37 must be timely under Rule 34.

The second part of our argument is that this motion was timely under Rule 34.

Rule 34 provides that a motion in arrest of judgment to be timely under its provisions must be filed within five days after “determination of guilt.”

The Government would say that when the nolo contendere plea was filed here, that was a determination of guilt.

And they say the Third, Fifth and Ninth Circuits supports that view, but these decisions do not support that view.

Each of those cases concerned verdicts of guilt.

None of them concern nolo contendere pleas.

The only prior decision, the only prior decision that we have been able to find that concerned a nolo contendere plea is a decision by this Honorable Court in the Sullivan case.

In the Sullivan case, we have facts very much analogous to the facts of the case before us today, with a nolo contendere plea and then a judgment following the judgment, a motion in arrest of judgment and then appeal to the Tenth Circuit and then certiorari to the Supreme Court.

The facts were very similar to the facts of this case.

And this Honorable Court took jurisdiction of the Sullivan case.

It exercised jurisdiction and decided the case on the merits.

Justice John M. Harlan: But there has been a (Inaudible)

Mr. C. W. Wellen: I would not -- if -- either agree or disagree, I -- I don't recall any case that has passed upon that point.

Justice John M. Harlan: Well, I was just wondering whether your position on (Inaudible) to your argument.

It's been (Inaudible)

Mr. C. W. Wellen: The nearest precedent to the point I know of is the Sullivan case which involved the nolo contendere plea and it apparently did not start the five-day period because this Court exercised jurisdiction and decided the case on the merits.

And I'm certain you inquired into your jurisdiction before it.

Justice John M. Harlan: (Inaudible) said on the subject.

Mr. C. W. Wellen: There was nothing said on the subject.

No, Your Honor.

If it's overlooked, then the Government says that reference should be made to Rule 34.

They say it is applicable.

If this Honorable Court overlooked it, then this Court did the same thing we're supposed to have done in this case.

Justice Charles E. Whittaker: On what --

Mr. C. W. Wellen: And that -- pardon me, Your Honor.

Justice Charles E. Whittaker: What on March 7 (Inaudible) and the pleas of the nolo or (Inaudible) was there any who have left?

Mr. C. W. Wellen: I know of nothing that there was and to arraign.

Justice Charles E. Whittaker: (Inaudible) judgment?

Mr. C. W. Wellen: There was no judgment.

No, Your Honor.

And we say there should have been no motion at that time.

Chief Justice Earl Warren: We'll recess.

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Argument of C. W. Wellen

Mr. C. W. Wellen: It is the contention of the Government that Rule 34 obviously applies here to prevent the timeliness of this appeal.

However, this is not so.

It was not obviously applicable to us and apparently, in the Sullivan case, Rule 34 was not obviously applicable to this Honorable Court.

If the Government's contention is adopted, it would create a track for those who follow us to fall into.

Their construction of these rules is a strained and torturous construction.

It is contrary to the plain mandate of Rule 2 that the rules be construed in a simple and logical manner to promote justice.

Further, if the appeal in this case is not timely under Rule 34 and Rule 37, then we submit that it was timely under Rule 12 (b), which permits a court to notice the invalidity of an indictment at any stage of the proceeding.

And also, timely, under Section 2255 of the judicial code which permits a court to vacate any judgment where the indictment is insufficient.

I turn now to the sufficiency of the indictment.

This is an extremely important problem.

It is grey -- a grave problem not only for these petitioners but for the country as a whole.

Last year alone, 15,000 tax evasion cases either actual or threatened were handled by the Treasury Department and there is reason to believe that this number will increase as time goes on.

All it takes to make a tax evasion or a fraud cage is a determination by the revenue service that a tax deficiency exists and that such deficiency was due to willfulness.

Justice Felix Frankfurter: Mr. Wellen, curious why you're so confident against the non-deterrent effect of prosecutions? You've just said they're bound to include?

Mr. C. W. Wellen: Yes, Sir.

I -- I say that, Sir --

Justice Felix Frankfurter: Because that to me means that the more rigorous the law is, the legislature has the confidence to do it.

Mr. C. W. Wellen: Well, I think Sir that the law is being rigorously enforced now and will continue to be but --

Justice Felix Frankfurter: There -- and I should --

Mr. C. W. Wellen: There --

Justice Felix Frankfurter: -- that was to say you expressed the view about deterrent effect of the question.

Mr. C. W. Wellen: Yes, Sir.

It is a deterrent effect but there are many millions more taxpayers to be considered and thousands more of revenue agents.

I think that alone will cause the increase.

We hired 2000 more revenue agents just the other day.

Justice Felix Frankfurter: You make no allowance or people to tell you what they meant on just how we do it.

(Inaudible) I don't meant to take your time, proceed.

Mr. C. W. Wellen: Well that -- that's the problem (Voice Overlap).

An agent determines the deficiency, says, it's due to willfulness and then we have a tax evasion case.

At that point, records and information are withheld from the taxpayers as was done here.

When it was determined that this was a potential tax evasion case, the corporate records were seized, virtually, all the corporate records were taken to the courthouse.

And when we sought a bill of particulars, the assistant US attorney in charge of this proceeding referring to the literally thousands of papers in this room, said, “Here's your bill of particulars.

Our case will be made from these documents.”

For this reason, it is essential.

Your Honors, it is essential that this Court lay down reasonable rules for the conduct of these proceedings.

Since there will be so many indictments, the rules must be made clear.

Coming to the heart of the Government's argument on the indictment, the Government contends that an indictment in the mere wording of the statute is adequate.

However, this statute merely provides that any person who knowingly attempts to evade or decrees any tax is guilty of a felony.

That's all the statute says.

It's about as vague as a statute can be.

However, a number of lower courts have upheld indictments in the language of the statute.

This is on the theory that when an individual is indicted for evading his own tax, that individual is presumed to have a greater knowledge of his affairs than anybody else.

He has presumed or known what he did wrong and can conduct his defense accordingly.

That observation could not be applicable here.

Here, we have a huge corporation and we have employees of that huge corporation accused of aiding the corporation to evade its tax.

Two of these petitioners were job superintendents, they were outside men.

I doubt if they ever saw the books and records or the tax returns of this company and if they had seen them, they wouldn't understand what they meant.

It would be a mystery to them.

Therefore, when an indictment in the mere language of the statute is returned against these men, it is meaningless to them.

The Sixth Amendment of the Constitution provides that an accused shall be informed of the cause and nature of the charge against him.

This was not done here.

When measured by the Sixth Amendment, this indictment was absolutely insufficient.

These men do not know with what they were charged.

They didn't know then and they still don't know.

In addition to the vagueness and insufficiency of this indictment, two essentials elements of the purported crime were missing.

The indictment did not allege that there was a tax deficiency in the income taxes of the Farnsworth & Chambers Company for the years in question, nor did the indictment allege that the individuals had knowledge of any such tax deficiency.

The indictment did not say that all of the taxes, owed by this corporation were not paid when such taxes were due.

Indeed, the indictment did not even say that there was an underpayment of taxes during the years in question.

Justice Hugo L. Black: Which count was that you're talking about?

Mr. C. W. Wellen: The first four counts, sir.

All it says is that a return was filed showing income of so much and taxes so much, whereas a return should've been filed showing tax of -- or income of a greater amount and a tax of a greater amount.

There's no reference anywhere in there to the amount of payment or the amount of any payment, underpayment that may have existed.

Chief Justice Earl Warren: Did they challenge the sufficiency of the indictment before their plea?

Mr. C. W. Wellen: Yes, sir.

The -- the indictment was challenged immediately when the -- after the indictment was returned on the grounds of insufficiency and that it was utterly void and meaningless.

Then again after judgment, the indictment was again challenged and it's been challenged at each stage of the proceedings.

Justice Hugo L. Black: Well, the indictment has -- at looking at the formats it seems likely to be adequate charge that they paid -- the owed $399,000 and knew it.

Knowing that they owed it, they told the Government they only paid a -- they only owed a $194,000 and --

Mr. C. W. Wellen: What page, Your -- Your Honor?

Justice Hugo L. Black: That's --

Mr. C. W. Wellen: I believe if the indict --

Justice Hugo L. Black: -- page 2.

Mr. C. W. Wellen: Yes, sir.

If the indictment is studied closely, I think it will say that they -- a return was filed showing a tax of so much and the Government says that a tax should've been – that a return should've been filed showing a greater amount of tax --

Justice Hugo L. Black: They said that --

Mr. C. W. Wellen: -- which they well knew.

Justice Hugo L. Black: -- they -- they then and there well knew that the net income of the corporation was a sum of $763,000 and reported it very less.

Why wouldn't that be enough to --

Mr. C. W. Wellen: It says whereas --

Justice Hugo L. Black: And that this cost --

Mr. C. W. Wellen: -- because they then and there well knew the net income of the corporation for the said calendar year was a sum of $763,000 and a total tax of $482,000.

It is not enough, sir because it nowhere states that they didn't pay that amount or that there was an underpayment or that an amended return was not filed showing that --

Justice Hugo L. Black: Well, that -- do you think the rules -- rules that require that strictness when you can get bill of particulars?

Mr. C. W. Wellen: Well, I think the rules require a statement that there was a tax deficiency for the year and that the tax had not been paid, yes Your Honor.

Justice Hugo L. Black: And you don't think it shows a deficiency when they say that -- they say they knew they owed a $100,000 and deliberately owed -- reported as $50,000?

Why wouldn't that show it?

I'm not talking about in detail.

Of course, it wouldn't -- it wouldn't go to the detail but why was that --

Mr. C. W. Wellen: As I understand it, an indictment must be a direct, an unequivocal charge of the essential elements to the offense and this – at most it could only be by inference that the tax had not been paid.

I think when this is read and reread you cannot reach any other conclusion, but the one which I have submitted.

Justice Tom C. Clark: (Inaudible)

Mr. C. W. Wellen: Your Honor, the bill in particulars will not help a (Inaudible) indictment in any form.

If the indictment is insufficient, then it cannot be cured by any subsequent paper.

Only the grand jury can return the indictment to be sufficient.

I see that my time is nearly gone.

I have other vile items I think in this petition.

If I -- time cannot be extended, I can't do anything but I'll be content to rest on our briefs.

I would like to save just a few minutes for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Terris?

Argument of Bruce J. Terris

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

I would like to reply initially to a couple of statements which were made by petitioners' counsel even though they really don't go to the legal merits of the case.

First, the Government doesn't intend to retry Mr. Farnsworth Sr.

but that the retrial date has been delayed by the District Court until the disposition of this case.

And secondly, the reason it --

Chief Justice Earl Warren: Why is that -- why is that important if you know?

Mr. Bruce J. Terris: Well, if -- if this Court agrees with petitioners that the indictment was invalid, then -- then I take it the District Court does not want to go through another lengthy trial.

The first trial was about twos month trial and -- and I -- I assume, although I don't know that that is -- that he doesn't want to duplicate that for a way -- what may turn out to be no reason.

Justice Hugo L. Black: Is the Government asking, joining in the request that we consider the other point?

Mr. Bruce J. Terris: Well, Your Honor, we believe that the only substantial issue which is before the Court is the jurisdictional issue.

We think that if we are wrong in the jurisdictional issue that petitioners' other contentions are so entirely frivolous on their face that this Court should affirm the judgment below.

If they -- this Court finds that these issues are of greater difficulty, we think then of course the case should be sent back as the normal practice to the Court of Appeals for its determination.

Justice Charles E. Whittaker: Mr. Terris, do I have the table correctly in mind?

I gather from Mr. Wellen's argument that the judgment was entered, the determination of guilt or judgment was presented on June 22 -- on --

Mr. Bruce J. Terris: That -- that -- that's the written judgment.

That's right.

Justice Charles E. Whittaker: On next day, June 23, motion in arrest was filed.

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

Justice Charles E. Whittaker: On July 13, the motion in arrest was denied.

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

Justice Charles E. Whittaker: On July 15 and 17 respectively, notices of appeal were lost.

Is that right?

Mr. Bruce J. Terris: That's -- that's entirely correct, Your Honor.

Justice Charles E. Whittaker: Then why didn't that properly perfect the appeal timely?

Mr. Bruce J. Terris: Well, our contention is based -- it has two halves, both of which petitioners contest.

First of all, we claim that the motions in arrest of judgment were totally invalid that -- since they were out of time, that the District Court did not even have power to consider those motions under the holdings of this Court.

Justice Charles E. Whittaker: Why were they out of time?

They were filed the next day after the entry of judgment?

Mr. Bruce J. Terris: Because Rule 34 which is the governing rule states the motions in arrest of judgment must be made within five days after determination of guilt.

Justice Charles E. Whittaker: When was the determination of guilt?

Mr. Bruce J. Terris: The determination of guilt, Your Honor, in our view and we think this is clearly sustained by the decisions of this Court is at the time the petitioners pleaded nolo contendere and that the District Court explicitly accepted these pleas.

Justice Charles E. Whittaker: Would that be more of a determination than the returning of the verdict by a jury of guilty?

Mr. Bruce J. Terris: It would not be more if it would be the same in our view.

Justice Charles E. Whittaker: Alright, then doesn't there have to be a judgment on the verdict before there's a determination?

Mr. Bruce J. Terris: Not if -- no, Your Honor.

Determination of guilt is at the time of verdict.

The Courts of Appeals which have dealt with this issue, the meaning of Rule 34, and they have not dealt with it in the terms of a -- a plea of nolo contendere.

They dealt with it in -- after a judgment by a jury or after a plea of guilty.

In those instances, they -- they have clearly stated that the time under Rule 34 runs from the determination of guilt as the -- as the verdict or as the plea of guilty.

They interpret that to be the meaning of Rule 34 and there's no -- I don't think there's any -- any Court which has held to the contrary.

Justice Charles E. Whittaker: I don't think that's implying on it here.

The practice on what's right upon what (Inaudible)

Mr. Bruce J. Terris: Yes, sir.

Justice Charles E. Whittaker: What do you arrest?

Mr. Bruce J. Terris: You arrest the judgment which is yet to be entered.

That is historically -- historically what a motion in arrest of judgment is.

In fact, this is so much so that in -- that --

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: Well, now we're talking about a -- a nolo plea.

Yes, it's within his discretion just as if it would be within his discretion to grant a motion for a new trial.

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: Because as I say, historically, motions in arrest of judgment have been motions to arrest the judgment that's -- which is yet to be entered.

Justice Hugo L. Black: (Inaudible)

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

That -- that is correct.

It's not historically been to set aside a judgment.

Now, the rules -- obviously, Rule 34 does not -- does not confine motions in arrest of judgment just before judgment.

There maybe times when the time -- five-day period runs until after judgment.

But the main purpose of rules in arrest of motion, there -- the arrest of judgment, the usual motion in arrest of judgment will be before judgment.

As I -- as petitioners' counsel has indicated, his -- his jurisdictional contentions have -- have two -- really two separate bases.

First of all, he claims that his notices of appeal were timely filed.

And second of all, he claims that even if they weren't timely filed, that his motions in arrest of judgment should be considered as if they were motions, either under Rule 12 (b) or under 28 U.S.C. Section 2255.

And that their appeals which were in fact taken from the judgments in the criminal case should be treated as if they were taken from the denial of the motions either under Rule 12 (b) or Section 2255.

Now, Rule 37 provides two separate periods for filing notices of appeal.

First of all, it states that “The notices of appeal maybe filed within 10 days of judgment.”

Concededly, petitioners did not file their notices of appeal within 10 days of judgment, but Rule 37 alternatively states that notices of appeal maybe filed within 10 days of denial of a motion in arrest of judgment or a motion for a new trial when such a motion has been made within 10 days of judgment and petitioners claim that they come within this tolling provision.

Petitioners say and that this is conceded that they filed their motions in arrest of judgment within 10 days of judgment and within 10 days of the denial of their motions in arrest of judgment, they filed their notices of appeal.

Therefore, they say that their notices of appeal were timely filed whether or not their motions in arrest of judgment were timely filed.

And then in addition, they claim that their motions in arrest of judgment were timely filed within the meaning of Rule 34.

That is within five days after determination of guilt.

Now, we -- we disagree with both halves of this -- of petitioners' contention.

We believe that petitioners' motions in arrest of judgment were not timely that they were not within five days after determination of guilt.

The determination of guilt in this case occurred on March 17 and 20th, 1959 for it was on those dates that the District Court accepted petitioners' pleas of nolo and the motions in arrest of judgment were not filed until over three months later.

Justice Charles E. Whittaker: (Inaudible)

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

But we -- we -- but our difference with petitioners is what the five days runs -- runs from.

There's no doubt that it was within five days that it runs from judgment.

Justice Hugo L. Black: What date was (Inaudible)

Mr. Bruce J. Terris: The judgment -- the written judgment was on the 22nd of June and the oral sentence was on the 19th of June but that -- that distinction doesn't matter because -- in any case it was within five days if that was the -- if the judgment is the crucial date for Rule 34.

Now, we rest our contention in this matter, largely on this Court's decision in the Hudson and Norris cases.

The Hudson case in 272 U.S. and the Norris case in 281 U.S.

In those cases, this Court held that a plea of nolo contendere is as conclusive in the particular case before the Court as a plea of guilty.

In the Norris case, this Court said that after a plea of nolo contendere, the Court is no longer concerned with the question of guilt but only with the character and extent of the punishment.

We think this is as clear as -- as anything can be that determination of guilt is at the time of the plea and its acceptance.

Justice Felix Frankfurter: But the Norris case has some sentence about -- leaving only a sentence to be imposed, boesn't it?

Mr. Bruce J. Terris: Yes -- yes, the sentence I just -- leaving the -- yes, that's right, Your Honor leaving the -- the punishment yet to be imposed.

Justice Felix Frankfurter: (Inaudible)

Mr. Bruce J. Terris: We -- we have -- we agree entirely, Your Honor.

There is something left to be done.

The punishment is left to be done.

And in fact, the rules of -- of this -- the criminal rules in Rule 32 state that -- that a judgment shall include and then the -- the plea, the verdict or findings which we say is the determination of guilt that is conviction and -- and the sentence.

But we think there's a very definite distinction in the rules and in the Norris case too between judgment and when guilt has been determined.

And in fact, this --

Justice Felix Frankfurter: (Inaudible) one of the questions before us, “Does it satisfy, if it agree with you that guilt was determined by the tender of the plea of nolo contendere?

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

Justice Felix Frankfurter: It's a question that was (Voice Overlap) --

Mr. Bruce J. Terris: No, there's a -- there's an additional question which is if that -- if the motions are in timely, whether that means that are so void that the 10-day tolling provision of Rule 37 does not run from their denial but runs in fact in the -- from the judgment.

In fact, the holding in the Norris case as to the -- as to the conclusiveness of a plea of nolo is made even more clear by the fact that in that case, a stipulation was entered by both parties that -- as to facts which would go only to sentencing.

And this stipulation showed that the defendant in that case was not guilty of defense which he had pleaded nolo.

Justice Felix Frankfurter: Well, everything you say about the effect of nolo certainly would advise you a plea of guilty.

Mr. Bruce J. Terris: Well, that -- that's a -- I -- I -- my argument here is only to equate the two.

Justice Felix Frankfurter: Well, now, what about this question that relates this plea of guilty?

What do the authorities say about that?

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

Justice Felix Frankfurter: The 10 day and five days run from the -- from the plea of guilty?

Mr. Bruce J. Terris: I think there are only two Court of Appeals cases, Your Honor, which are cited in our brief and they say the formal plea of guilty that is the determination of guilt for the running of the five-day provision in Rule 34.

That's right, there -- I don't believe there is any contrary authority.

Justice Felix Frankfurter: Although -- although the sentence maybe imposed as is sometimes done, this is my point of view, it's not very widely just to find out about what sentence to impose, but then that it -- it postponed or sometimes (Inaudible), although -- isn't that true?

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

But I can't get the --

Justice Felix Frankfurter: Whereas -- but the -- but the procedural requirements about appealing about appeal concerning a charge all begin to run from the plea.

Mr. Bruce J. Terris: Oh, no, no -- no, Your Honor.

I've -- I‘ve misled you.

They -- the time for appeal still runs from sentence.

Justice Felix Frankfurter: (Inaudible) appeal runs from the -- the 10 days or five days.

Mr. Bruce J. Terris: That's -- well, the five days.

The 10 days is the -- is what runs from --

Justice Felix Frankfurter: From the sentence.

Mr. Bruce J. Terris: -- from sentence.

The five days --

Justice Felix Frankfurter: (Inaudible) run from the -- from the plea.

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

Justice Felix Frankfurter: The definitive plea.

Mr. Bruce J. Terris: That's right and we think that the purpose of the rule was that to require the motions in arrest of judgment and motions for a new trial be promptly filed so that --

Justice Felix Frankfurter: (Inaudible)

Mr. Bruce J. Terris: That's right, as it --

Justice Felix Frankfurter: And that's your argument.

Mr. Bruce J. Terris: That -- that's precise --

Justice Felix Frankfurter: As a matter of practice, those things to be (Inaudible) but then I've got out of the way --

Mr. Bruce J. Terris: That was --

Justice Felix Frankfurter: -- before the judgment be concerned with the difficult task of whether it doesn't (Inaudible) or is -- isn't it?

Mr. Bruce J. Terris: Precisely, Your Honors and particularly because both motions for a new trial and in arrest of judgment did not attack the sentence.

They attacked -- they attacked the conviction.

They attacked things that have already occurred at the time of the determination of guilt.

Justice Charles E. Whittaker: What was the attack made on the completion that that was heard (Inaudible)

Mr. Bruce J. Terris: I'm not sure, I understand Your Honor.

They --

Justice Charles E. Whittaker: (Inaudible) the day after it? Or I would think that the determination of guilty renew the past guarantee of the judgment(Inaudible) of the acceptance of the plea of nolo and that version was the arrest that's not done (Inaudible) is your contention as to acceptance of the plea of nolo was “a determination of guilt.”

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

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: And that -- well, they have an additional -- convey of a number of additional contentions, but if we're wrong in that and the Court of Appeals had jurisdiction.

Justice Felix Frankfurter: They has to have it, the provisional contentions because ther's no doubt about -- I should think there's no doubt (Inaudible) and to give into a legal determination that you -- in fact, to the plea of guilty here.

Mr. Bruce J. Terris: Well, that -- that our argument is that the two were the same and that certainly, a plea of guilty just as much as a jury verdict is a determination of guilt.

Justice Felix Frankfurter: Rather would have to have other arguments (Inaudible)

Mr. Bruce J. Terris: It will.

He -- petitioners do have other arguments.

Chief Justice Earl Warren: Well, this nolo contendere really a plea to the indictment?

Mr. Bruce J. Terris: Well, Your Honor, the decisions of this Court, the Norris and Hudson case made clear that it's a -- it's a plea to the indictment for the purposes of this case.

Now, various decisions and petitioners in their brief have -- have exerted the crucial language in -- in seriatum that -- at one point in their brief.

They've -- It's -- it's referred to in different ways by -- by Court.

Sometimes they say they're just throwing themselves at the mercy of the Court.

Sometimes they say they're pleading guilty for the purposes of this case, but in any event, for the particular case, the person is considered is guilty at that point, as soon as it's accepted by the Court and that's under the decisions of -- of the Norris and the Hudson cases.

Chief Justice Earl Warren: Now, while we're on that background, a little while ago, you -- you said that historically, a -- a motion in arrest of judgment was to be made before a judgment, do you treat of that in your -- in your briefs?

Mr. Bruce J. Terris: No, no, we don't, Your Honor.

I've -- I -- the best place well --

Chief Justice Earl Warren: Well, how -- how are we to know that --

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

Chief Justice Earl Warren: -- historically, et cetera.

Mr. Bruce J. Terris: I -- I -- the best reference I think is in the article by Orfield which is cited in our brief on arrest of judgment in the federal -- in federal criminal procedure and he deals with British practice and -- and what has been traditional in this country.

In fact, he goes so far as to say that he wonders even under the -- under the federal rules whether there's power to -- whether you can make motions in arrest of judgment after judgment even if they're within the literal terms of -- of the rules.

I don't -- I don't suggest that history should be -- should countermand what seems to me the clear mandate of the rules.

Chief Justice Earl Warren: But I would think that -- that'd be rather conclusive, very important and forceful enough not to argue in your briefs if you rely on it.

That historically, it is a motion that is to be made before judgment.

Mr. Bruce J. Terris: Well, Your Honor, we thought that the -- that the Norris and Hudson cases since they virtually talk in terms of determination of guilt would be conclusive that I think we should have dealt down with the history of -- of these motions as well.

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: Well, after determination of guilt but we don't think in the normal case, they contemplate being filed after judgment.

Normally, judgment is separated from determination of guilt by more than five days.

Now, there are instances when that is not true, although I take it, the better practice is to make that kind of separation, so that there's time for a pre-sentence report.

But normally, there will be a separation and normally then, motions for a new trial and in arrest of judgment will be considered prior to the sentence.

They will be gotten to -- out of the way before the sentence.

I might say that this --

Justice Potter Stewart: But they can under the rules, clearly be made within 10 days after the judgment, can they, a motion in arrest of judgment.

Mr. Bruce J. Terris: No -- no, Your Honors.

Justice Potter Stewart: Then what is --

Justice William J. Brennan: So what's this mean, an appeal by a defendant maybe taken within 10 days of (Inaudible) the motion in arrest of judgment and (Inaudible)

Mr. Bruce J. Terris: No.

That's the second half.

That -- that is the second half of -- of petitioners' contention.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: That's -- that's our view.

They claim that even if the motions in arrest of judgment are untimely and if they're untimely, it's quite clear that the District Court has no power to even consider them.

This is --

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: Rule 37, as petitioners themselves emphasize, is a rule for -- for filing notices of appeal.

It is not a rule which -- which determines when motions in arrest of judgment maybe filed.

That rule -- that -- that time period is in Rule 34.

Justice Charles E. Whittaker: Aren't -- are they?

Mr. Bruce J. Terris: That's right, five days of determination of guilt.

Justice Charles E. Whittaker: But -- but this one was filed in one day.

Mr. Bruce J. Terris: Well -- now, we're back to the first half of the petitioners [Attempt to Laughter] -- I was -- I'm -- At this point, I am assuming that the -- that the Government is correct that determination of guilt in this case was that at the time of plea of nolo contendere, at the time it was accepted.

Now petitioners go beyond that and they rely on this wording in Rule 37.

And they say even if it was out of time under Rule 34, even so, that the tolling provision of Rule 37 means that they have 10 days from the denial of these motions.

Now we say that this makes a -- a perfectly ridiculous situation.

It means -- first of all, the District Court can't consider these motions.

In fact, in the reply brief, petitioners say that the only purpose of Rule 37 is for purposes of appeal.

It doesn't mean -- it doesn't -- it doesn't go even to the question of what the District Court can consider.

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: No, no, within five days thereafter, in five days thereafter.

The safe -- and we think that motion in arrest of judgment Rule 34 is -- means the same as Rule 33, although the wording is slightly different.

In Rule 33, the wording is verdict for a finding of guilty.

Here it's determination of guilt, but we think there's no -- there's no difference between that so as to both Rule of 33 and 34, there is a five-day time limit.

Then he has 10 days -- if that's denied before sentence, he has 10 days after judgment in which to appeal.

If it is not denied before judgment then he has 10 days from whenever it is denied.

But we -- and this is of course the majority -- the holding of the majority Courts of Appeals.

It's the holding of the Third, Fifth and Ninth Circuits.

The Tenth Circuit is the only Circuit which agrees with petitioners.

And even that circuit indicates that petitioners' argue -- they'd say that the Government -- the Tenth Circuit says in holding in amount -- what amounts the petitioners' argument that the Government's view tends to harmonize the two rules, they are 33 and 37.

And the petitioners' argument creates an anomalous situation.

Well, of course it does because it means that Rule 34, the time limit and it is virtually read of the rules.

It means that instead of five days after arrest of -- after determination of guilt, it means that in addition, you get 10 days after judgment.

There could be no possible usefulness remaining for Rule 34 except for the -- you don't get a tolling, you don't get -- you may not get a tolling with the same tolling effect, but there -- in -- in our view, the -- what -- what petitioners are in -- in essence arguing is that Rule of 37 supersedes Rule 34.

There's nothing left of Rule 34 except for -- I take it, you can't make a motion in arrest of judgment from the time that the five days have elapsed to judgment.

That time you can't make a motion in arrest of judgment.

You can make it before and you can make that after.

Justice Potter Stewart: Now, I'm perhaps being a little obtuse and maybe I'm asking you to repeat but what do you say that that part of Rule 7 -- 37 which subsumes a motion in arrest of judgment in the 10-day period after judgment.

What does that mean?

Mr. Bruce J. Terris: It means that the -- that they -- that their valid motions in arrest of judgment.

Justice Potter Stewart: Made when?

Mr. Bruce J. Terris: Within the -- within the provision of Rule 34.

Justice Potter Stewart: But possibly after judgment, is that it?

Mr. Bruce J. Terris: They could be -- that's right.

That's what -- that the on -- there are three situations we think where the tolling provision operates.

And this is how we harmonize --

Justice Potter Stewart: Alright, now could you --

Mr. Bruce J. Terris: the two rules.

There --

Justice Potter Stewart: What are the three?

Mr. Bruce J. Terris: Now, the first situation, this is the one we think will be most likely and that is if sentence and judgment come at this -- the sentencing conviction come at the same time.

Justice William J. Brennan: That's the day that he plead nolo in the sentence.

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

Now, that doesn't -- that is probably not the best practice but it does occur.

Justice Potter Stewart: It does happen.

Mr. Bruce J. Terris: And -- or at least -- or at least sentence comes within the five-day period for filing motions.

Justice Potter Stewart: Alright, then -- then --

Mr. Bruce J. Terris: That's the first --

Justice Potter Stewart: Now what -- how much time does he have to file a motion in arrest of judgment?

Mr. Bruce J. Terris: He has five days.

Justice Potter Stewart: After, five.

Mr. Bruce J. Terris: After the time he pleas nolo.

Justice Potter Stewart: After the plea.

Mr. Bruce J. Terris: It's the same day than it's --

Justice Potter Stewart: Absolutely.

Mr. Bruce J. Terris: It makes no difference of what you say to.

Justice Charles E. Whittaker: (Inaudible)

Justice Potter Stewart: Yes.

Mr. Bruce J. Terris: And accept it.

Justice Potter Stewart: Alright.

Now, what's number two?

Mr. Bruce J. Terris: Well that is -- that's the major one.

Justice Potter Stewart: Alright.

Mr. Bruce J. Terris: The -- the second one is if the District Court withholds decision on a plea on a motion in arrest of judgment which is timely filed --

Justice Potter Stewart: We're assuming -- we're assuming now that you're correct that a nolo plea and a guilty plea and a --

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

Justice Potter Stewart: -- guilty verdict are all the same equivalence.

Mr. Bruce J. Terris: Precisely.

Justice Potter Stewart: I'll assume that for now.

Mr. Bruce J. Terris: Now, if a -- if a defendant makes a motion in arrest of judgment within five days of his nolo plea and then the District Court withholds decision on it until after sentence then again, the 10-day period runs from the -- from the time the decision on the motion in arrest of judgment and third -- the third possibility is if a District Court grants an application which is timely made within the five-day period of Rule 33 or 34 to extend the time for filing motions under 33 or 34, then sentence is imposed before the extended period is elapsed and then the motions are made within the 10 days of judgment.

Now that presumably wouldn't have to carry --

Justice William J. Brennan: What the -- suppose -- suppose it's simplified?

[Laughter]

Justice Potter Stewart: But you would on it -- on its face, Rule 37 would seem to imply that a person after judgment has 10 days within which to file a motion in arrest of judgment.

Would -- you would concede on its face superficially looking at it and there would seem to be that implication --

Mr. Bruce J. Terris: Well --

Justice Potter Stewart: -- would there not?

Mr. Bruce J. Terris: But on the other hand, Rule 34 on its face indicates you have five days from determination of guilt.

Justice Potter Stewart: After determination of guilt.

Mr. Bruce J. Terris: So you got to harmonize --

Justice Potter Stewart: Well, this is --

Mr. Bruce J. Terris: There's no way to look at one alone.

Justice Potter Stewart: This may suggest the determination of guilt doesn't mean that you tell us.

That's just a possibility (Inaudible)

Justice John M. Harlan: Would it happen before it's appealed (Inaudible)

Mr. Bruce J. Terris: Well, no -- no Court of Appeals --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: No Court of Appeals though has -- has decided the determination of guilt means entry of judgment.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: No.

That will -- that but --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: The other phase of the argument, there are three circuits which agree with the Government's position and the Tenth Circuit agrees with petitioners' position.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Who -- John, yes, and Smith they're both -- And Smith -- Smith admits that -- that the -- the holding of the Tenth Circuit --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Third, Fifth and Ninth.

The Smith case of the Tenth Circuit indicates that its view although it -- it believes it's -- it's required by the literal language of Rule 37 completely fails to harmonize Rules 34 and 37.

In the little time I have left, I'd like to turn briefly to petitioners' alternative argument that if his direct appeals weren't timely, that his motions in arrest of judgment should be considered as if they were motions under Rule 12 (b) or under Section 2255.

And that their appeal should be considered as if they were taken from the denial of these motions.

The petitioners' motions in arrest of judgment which were filed by able counsel were -- were denominated, were named to be motions in arrest of judgment and the District Court denied them on this basis.

Petitioners can't now ask to the Court of Appeals, initially in this Court to then search out other -- any other remedy which maybe -- maybe possible and to reverse the District Court on a ground which the District Court didn't even have before it.

And then petitioners own notices of appeal were not -- did not specify the appeal was to be taken from the denial of their motions, rather it was from the -- it was from the judgment in the criminal case.

And beyond this, even if petitioners were correct, the only grounds which would be retained in the case were those which were in the motion in arrest of judgment.

And the only -- the only one of the three substantive contentions which was included in their motions in arrest of judgment were those which attacked the indictment.

The other two grounds were not included.

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: We -- we think it would be, Your Honor if it -- if it comes following -- following the judgment in the -- in the main case.

But -- see, their -- their argument is it isn't part of the main case at all.

That the District Court and this Court should consider it as if it were -- if its out of time, then it has nothing to do with the -- at least their Section 2255 argument that its just like another motion to vacate and their Rule 12 (b) claim I take it is that you can make it anytime during the proceeding.

Now, the short answer to their Section 2255 argument is that there weren't in custody, either -- either then when they made their motions or are their in custody today.

Now they argue that some sort of constructive custodies involved since that their direct appeals were untimely, then they should've been -- been bail was improper and therefore, they should've been in jail but it seems clear that the Heflin case holds that 2255 is available only when a person is in custody and is entitled to be released from custody.

And as to Rule 12 (b), we think that the history of that rule shows that the phrase “at anytime during dependency of the proceeding” does not include the period after determination of guilt.”

For that rule was promulgated under the Act of June 29th, 1940 which provides only for the promulgation of rules with respect to proceedings before verdict, plea of guilty or finding of guilty.

And Rule 34 on the other hand was promulgated under the earlier Criminal Appeals Rules Act of 1933 which provides for rules after verdict, plea of guilty or finding of guilty.

Justice Charles E. Whittaker: Mr. Terris, suppose that these two rules, 37 and 34, are not reconciled then would it not be true that in the interest of allowing an appeal, the ambiguity ought to be construed in favor of the appellant?

Mr. Bruce J. Terris: Well, first of all, we think they're very easily reconciled but the Government's position under -- in both the view with the Tenth Circuit which agrees with petitioners and in a view with the three circuits with -- which agreed but the Government all think that the Government's view reconciles the two rules.

But beyond that, we think that the Robinson case made clear that there isn't a -- that this was not an area in which reasonable excuses came into play.

Petitioners' claim they were trapped that their --

Justice Charles E. Whittaker: The Robinson case was not --

Mr. Bruce J. Terris: Well, Your Honor, it was -- the Robinson case was decided under Rule 45 and Rule 45 says the time may not be enlarged under Rule 33, 34 and 35 as well as the time for filing notices of appeal.

We think that the Robinson case applies now I quite agree.

The factual -- the justification given in the Robinson case would not be the same here.

Here, they claim that they were entrapped by the language.

I think however that -- that excuse is certainly no better than the one that was suggested to this Court in the Robinson case.

Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Wellen?

Rebuttal of C. W. Wellen

Mr. C. W. Wellen: I think the very complexity of the Government's argument conclusively demonstrates that their position violates Rule 2, that these rules should be simple of application for the interest of justice.

The Rule 37, Mr. Justice Brennan, I think is exactly as you say, yet on its face says that if a motion in arrest of judgment be filed within 10 days after judgment, then that prolongs the time for appeal.

There is no reference in there to Rule 34 nor is there any requirement there that the motion in arrest of judgment have any other quality.

And that's the only rule, when you read the rules, that's the only one applicable here that's over under the Section denominated appeal.

Rule 34 is not there.

It was only --

Justice Potter Stewart: But the fact -- the fact is Mr. Wellen that this is a very peculiar case.

It's a white crow, isn't it, because normally, what these rules are addressed to is a -- is a trial and a -- and a verdict of guilty --

Mr. C. W. Wellen: Yes, sir.

Justice Potter Stewart: -- either by a judge without a jury or by a jury and then generally within five days thereafter, the defendant's counsel files a motion in arrest of judgment.

That's a normal procedure.

Mr. C. W. Wellen: Yes sir and the three cases mentioned, the third, fifth and ninth circuit as I recall all involved verdicts of guilty.

I don't recall a case involving a plea of guilty.

Justice Potter Stewart: Generally, when you have a plea of guilty or a plea of nolo contendere, you're not going to turn around and file a motion in arrest of judgment because you -- you --

Mr. C. W. Wellen: You -- you would be (Inaudible) hardly to do that, I agree --

Justice Potter Stewart: You made a -- you made a decision on behalf of your client to -- to make that plea.

Mr. C. W. Wellen: Yes sir.

Justice Potter Stewart: And if you change your mind, you're going to make a motion to change the plea, rather withdraw the plea.

Mr. C. W. Wellen: The judge would withdraw it for you if -- I feel sure, if you filed he motion in arrest of judgment within five days.

Unknown Speaker: Before he is (Inaudible)

Mr. C. W. Wellen: Yes, sir, before he's entered judgment.

Now, there's one other very important point here too.

In the -- under the peculiar facts of this case, we think judgment here was not addressed to the nolo contendere plea, but was based upon what this judge heard during the ten-week trial of the Farnsworth case.

We think it was the evidence adduced there that was the basis for this judgment.

Therefore, even if the nolo contendere plea be considered a determination of guilt, which we don't see how it could be.

We think guilt here was determined from the facts heard in this case where we had no opportunity of cross examination or to put on rebuttal testimony.

So we would feel here that judgment was a determination of guilt.

Even if under other circumstances, a nolo contendere plea might be so considered.

Justice John M. Harlan: You -- you mean their argument is that he took into account the facts involving sentence --

Mr. C. W. Wellen: Yes, sir.

Justice John M. Harlan: -- he took into account the facts that he heard at the trial?

Mr. C. W. Wellen: Yes sir and contrary to the Tucker case and the Norris case, he did so.

Under those decisions when a judge does that then he loses jurisdiction to impose sentence under the nolo contendere plea and that's one of the points in our brief that here since we were in effect tried in absentia by facts heard during this trial, then the judgment itself is illegal and cannot stand.

Justice John M. Harlan: How does that differ from probation before a pre-sentence report?

Mr. C. W. Wellen: There, you're represented or on the pre-sentence report, you don't have advocates presenting an unlimited amount of testimony against you with no opportunity to rebut it.

You have an impartial investigator who was investigating facts.

Here both the Farnsworth counsel and Government counsel were trying to layoff as much of this case as possible on our petitioners in order to divert the case from the Fransworths.

It was not an impartial proceeding such as the sentence investigation, wouldn't it?

Chief Justice Earl Warren: Well, and have you gone into the history of motions in arrest of judgment --

Mr. C. W. Wellen: Yes, Sir.

Chief Justice Earl Warren: -- to -- to see whether his counsel stated historically they ought to be made before judgment?

Mr. C. W. Wellen: Yes, Sir.

We have gone into that and that was a historical function of the motion in arrest of judgment and it was not until Rule 37 and its predecessor that it had a function of coming in after judgment.

I think in our brief, we have developed the historical sequence of the rule and show that the motion in arrest of judgment is now used in practice is not applied in the same manner as it had been historically.

Justice Felix Frankfurter: Did the rules committee make exquisite or greater change of historical -- of many historical institutions?

Mr. C. W. Wellen: There are no --

Justice Felix Frankfurter: Did they say anything about it?

Mr. C. W. Wellen: There are no official minutes showing why this was done, Your Honor.

Justice Felix Frankfurter: But what (Inaudible)

Mr. C. W. Wellen: Yes sir there are none here.

Justice William J. Brennan: But these rules --

Justice Felix Frankfurter: But what you're saying is -- what you're -- I'm not saying your wrong, I have no doubt.

What you're saying is that a rule turn against the whole course of this thing without saying a word about -- without saying, that is it or why.

Is that right?

Mr. C. W. Wellen: Well, I don't --

Justice Felix Frankfurter: That's really (Inaudible), doesn't it?

Mr. C. W. Wellen: The -- the rules --

Justice Felix Frankfurter: There were some historians -- there were illegal historians on that committee.

Mr. C. W. Wellen: Yes, Sir.

As a matter of fact, Your Honor, I can -- I contacted as many members of the committee as I could find who were living --

Justice Felix Frankfurter: I wouldn't care about it.(Voice Overlap)

Mr. C. W. Wellen: -- and -- and they have -- no, no.

They have no -- no (Inaudible)

Justice Felix Frankfurter: No, but they're in the notes.

There are good many notes on many of the -- of their rules.

Mr. C. W. Wellen: Yes sir.

Justice Felix Frankfurter: Extended notes.

Difference that would be -- and--

Mr. C. W. Wellen: Yes sir.

Justice Felix Frankfurter: And I'd like to infer by your answer to the Chief Justice from this -- this reversal history was made without any exquisite, either that is -- was a reversal (Inaudible) That's right, isn't it?

Mr. C. W. Wellen: Yes, sir.

I -- I recall nothing in there.

However, and they're very clearly permit a motion in arrest of judgment after a judge.

Justice Felix Frankfurter: I'm not questioning your argument.

I just want to know historic facts.

Mr. C. W. Wellen: I think we have traced the historical development in our brief.

Thank you very much.