COREY v. UNITED STATES

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Argument of Russell Morton Brown

Chief Justice Earl Warren: Number 31, Benjamin W. Corey, Petitioner, versus United States.

Mr. Brown you may proceed with your argument.

Mr. Russell Morton Brown: Thank you Mr. Chief Justice, members of the Court.

This case involves an application for the Court to exercise it supervisory jurisdiction really over the actions of the Districts Courts in applying a fairly new statute which has been referred to as the Federal Sentencing Act of 1958.

This particular case involves the right of one individual to appeal and the decision of this Court will determine whether he will have an opportunity to appeal or not, there are other cases that will certainly be governed by this Court's ruling and we have asked the Court to pass upon the single question of what constitutes a final judgment in a criminal proceeding where the Court invokes the authority, given by the new statute, to secure further information as a basis for determining the sentence to be imposed.

Of course the usual practice is to permit the defendant to continue at the liberty under the bail, or if he is not under bail and remains in custody, but to pass no final sentence until a probation officer can submit a report for the Court's guidance.

At this point the -- there is no sentence whatsoever imposed.

In the case at bar, I should tell the Court the defendant on trial is a member of the Massachusetts bar, an individual with an outstanding record of service in both World War II and in the Korean conflict and man who experienced some psychiatric difficulty and was at the time this case took place considered to have some psychiatric disability connected with his military service.

He had practiced law and had returned from a Korean war and had gotten into a business of selling scientific instruments to some of the Massachusetts scientific establishments like MIT University and Harvard and some of the government establishments up there.

It developed that the purchasing agent at one of the government installations the Watertown Massachusetts arsenal was being investigated for shortages in the inventory of materials and parts that he was supposed to have on hand and he involved a large number of purchase merchants said that he had never received this merchandise but had simply agreed with these merchants of whom the defendant and petitioner here was one, to submit invoices which he would approve as being correct and he would see that they were paid and then divide the proceeds with these merchants.

This petitioner pleaded not guilty along with all the others, I beg you pardon.

Unknown Speaker: (Inaudible)

Mr. Russell Morton Brown: I would say approximately $5000 over a period of some time and involving 75 invoices, so there were 75 counts involved.

Unknown Speaker: (Inaudible)

Mr. Russell Morton Brown: I believe that's correct, it was a relatively small amount and the very smallness of the amount is one of the points that would be raised on appeal if we were able to appeal, because evidence was rejected which showed that there would have been no profit at all to this defendant under the circumstances of the small amount.

However, in the course of the trial I should tell the Court that this petitioner was the first and only one to be tried under these indictments, there were a number of indictments, because these are all pleaded guilty after he was convicted, he went to trial, pleaded not guilty took the stand in his own defense.

There are matters of law that we feel and I personally will represent to the Court that the questions sought to be raised on appeal are of substance and are not frivolous by any means.

They involve for one thing an instruction of the Court to the jury as to the conclusion I might draw from a reported conversation between an FBI agent and this petitioner.

We feel that the Court erroneously instructed the jury as to the deduction I might draw from that.

Second there is some serious question about the propriety of submitting the case to the jury on the uncorroborated testimony of an accomplice, particularly in the circumstances of this case.

Now I am not unaware of our Federal rule that a conviction may stand on that basis, but we seek to raise for the Court's consideration, that is the Court of Appeals' consideration plus we eventually hear the propriety of a conviction which rests upon the particular peculiar circumstances of this case where there was possibly evidence of an exculpatory nature in the possession of the prosecution and so on.

Justice Tom C. Clark: (Inaudible)

Mr. Russell Morton Brown: No, your Honor, they are not, Mr. Justice Clark.

I simply mention so the Court will feel and realize that there are matters of substance which we seek to raise on the appeal and which we haven't been permitted to present at all.

Justice John M. Harlan: (Inaudible)

Mr. Russell Morton Brown: Not at all, not at all but if the questions that we sought to rise were of privilege nature.

I wouldn't, yes thank you Your Honor.

Now the point that I must invite the Court's attention to here is particularly the fact that after the jury had concluded that the defendant was guilty and matter came on for a sentencing, the Court said I have no complete probation report and I don't know what to do.

At that point we can tell this in the brief they have set forth verbatim.

The defense counsel, a very able and distinguished Boston lawyer presented a physician of the Veterans Administration testify to the psychiatric condition of this defendant to testify that he had been in the Veterans Administration hospital under care and discussed the desirability of continuing treatment without incarceration.

At this point the Court, Judge Floyd, a very distinguished Boston District judge, said he was uncertain as to what to do that he had decided that after some enquiry and this was at a second hearing on sentencing that he would, like to know more about this defendant than he had known up to that time and he was aware that this Federal Sentencing Act authorized him to consult with or secure advise and recommendations from the Director of the Bureau of Prisons here in Washington.

Accordingly he said, he proposed to sentence the defendant under Section 4208(b) of Title 18.

Now this statute says if the Court desires more information before determining the sentence to be imposed it may commit the defendant to the custody of the attorney general for a period not to exceed 90 days unless he extends it for another 90 days and at that point the Bureau of Federal Prisons shall report and make its recommendations.

He said I think they have the specialists to help me and I'd like to have their advice.

It's very important I think in the context of this case to notice that he addressed himself to the defense counsel at that point and said are you with 4208(b) and the lawyer said, I have just read it, Your Honor, I consider it a commitment for treatment for 90 days.

The Court said yes.

United States attorney didn't say anything although he was present and it was he who initiated the discussion of 4208(b).

In other words, what we deduce from this is, no one consider this a disposition of the case, but just a reference to the Bureau of Prisons to get the benefit of the psychiatric studies and evaluations.

Now --

Justice William J. Brennan: Mr. Brown was the physician of defense counsel was in the light of the commitment there could be no appeal until after the procedures have been completed required by that statute.

Mr. Russell Morton Brown: Mr. Justice Brennan at that time I believe the defense counsel was very happy to have this psychiatric study made, because he realized that it would show the condition of the defendant would enable Court to take that in --

Justice William J. Brennan: Well I am just wondering whether there is anything in that colloquy with the Judge from which it appears that he had the view that whether he welcomed it or not, but if he went along with it that he could not appeal until after the procedure had been completed.

Mr. Russell Morton Brown: Mr. Justice Brennan, there was no discussion of appeal at that point at all.

Apparently no consideration was given to it.

Justice William J. Brennan: So you suggest that you had a very good ground of appeal I suppose you might have a case where it's an open shut case for reversal, why would defense counsel want his client to be incarcerated for six months if he's got an open shut down on which the conviction would be reversed and his client could go free?

Mr. Russell Morton Brown: Well that's a very pertinent question and I am --

Justice Tom C. Clark: Which you can't be sure?

Mr. Russell Morton Brown: Well, not only that Mr. Justice Clark, but it isn't six months, it's nine, it's 90 days, unless the Court extends it.

Justice Potter Stewart: You know, even 90 days.

Justice Byron R. White: (Inaudible)

Mr. Russell Morton Brown: Yes I agree, I agree thoroughly and I am glad to address myself to that point, because it's pertinent.

Now take the position as Mr. Justice Clark says, you never know for sure, but getting a reversal, I mean you may, sometimes we have, we cut off the (Inaudible) to quite a degree that, but we take it from this standpoint.

Let's assume that rather than risk the sentence which might be very severe.

As in this case it was 375 years under the statute that he was sentenced to, that is as the matter of law.

Justice William J. Brennan: But that was rather formal way.

Mr. Russell Morton Brown: Yes pro-forma certainly, but the point is that with 90 days in Federal custody the Court might welcome to the conclusion that they should be released for hospitalization and treatment and that's exactly what happened in this case.

The Court admitted him to probation I'd have --

Justice Byron R. White: What would have to you -- to loose, you would still have the benefit of the procedure, what would you have to loose if you appeal immediately.

Mr. Russell Morton Brown: Well, I would say that you would have this to loose Mr. Justice White the Court will assume, would say you're committed to the custody of Attorney General, you don't appeal.

Now --

Justice Byron R. White: The evidences certainly do appeal.

Mr. Russell Morton Brown: Or you take your appeal --

Justice Byron R. White: I'm asking, what you have got to loose by appealing immediately?

The Judge ordered this procedure and assume you have choice between appealing immediately or appealing after the final imposition of settling after the examination is over the judge take some absolutely final action.

What if you have the choice?

Why wouldn't you in the normal situation accused to appeal immediately?

Mr. Russell Morton Brown: Well, I think you have to take cognizance Mr. Justice White of the fact that appeals are expensive.

They require a tremendous amount of work.

Many defendants do not have the funds to finance this sort of thing.

Justice Byron R. White: Through no matter whether the -- that just a matter of whether you're going appeal it or not, not when --

Mr. Russell Morton Brown: Well it comes to a case of balancing the conveniences in that sort of situation I suppose.

Man who sentenced to five years might say I'm going to appeal and he'll go to extremes and his family will maybe to get the money for an appeal.

On the other hand a fellow who is going to do 90 days and come out on probation, they don't want to spend the money, I suppose.

Justice Tom C. Clark: Really intend to go to appeal when the judge probates them I would suspend the imposition.

Mr. Russell Morton Brown: That's only in the very unusual case Mr. Justice Clark.

We have an unusual case here.

We're -- we have a lawyer who is the member of the Massachusetts bar as professional standing as at stake.

His family feels very strongly about his standing and the reflection on them as the record will show one of his brothers who was in touch with Judge Ford, there is physician and (Inaudible) thought of people and they would like to indicate his reputation, they feel that he really was improperly convicted.

But in most of these cases, I think or in many cases it's economical to take a short sentence and let it go at that.

Now Mr. Justice White you asked me a question and I mean to answer directly, if you were to appeal directly and I can only try to put myself in a position of counsel back at that time.

If you were to say we'll give notice of appeal right here.

It's our position that the notice of appeal transfers the entire case of Court of Appeals under the rule.

Justice Byron R. White: Which would have to be the rule that --

Mr. Russell Morton Brown: Oh I beg your pardon.

Justice Byron R. White: That wouldn't have to be the rule.

Mr. Russell Morton Brown: Well that is the rule of criminal procedure.

That's the wrong talk about it.

Justice Byron R. White: And it doesn't happen to be implied.

Mr. Russell Morton Brown: Oh you may it could be changed.

Is that what Your Honor has in mind?

Justice John M. Harlan: There is, are there not where (Inaudible) this Section even thought the appeal --

Mr. Russell Morton Brown: I believe that maybe true, but I think Your Honor that that's opened a very serious question and questionable propriety, and if you --

Justice Byron R. White: (Inaudible) it gives to you.

You would also decide that Congress intended that the 4208 procedure go along at the same time as you did, (Inaudible)

Mr. Russell Morton Brown: Well I believe that's not possible if Your Honor please because under the rules the entire case is transferred to the Court of Appeal and we've referring to a Smith case in our brief here.

Justice Byron R. White: I've said Congress been change the rule again.

Mr. Russell Morton Brown: Oh certainly, certainly.

Justice Byron R. White: Well I didn't suggest --

Mr. Russell Morton Brown: Within constitution limits.

Justice Byron R. White: I just suggested that did by under 4208.

Mr. Russell Morton Brown: Well no I would say an answer to that Mr. Justice White that if Congress intended to change the rules regarding the time for appeal and time for giving notice of appeal they would have done so and so many words and not left it to --

Justice William J. Brennan: By the way Mr. Brown I got your argument to us, there was no final judgment which is appealable until this procedure had been completed and therefore he had to appeal from the judgment of conviction in face to the commitment you do had a premature appeal, is that it?

Mr. Russell Morton Brown: Might well have had that Your Honor and in the Berman case which we decided.

Justice William J. Brennan: We got to decide whether -- when is the final judgment from which you had to take an appeal.

Mr. Russell Morton Brown: That's correct.

Justice Tom C. Clark: (Inaudible)

Mr. Russell Morton Brown: I beg Your Honor pardon.

Justice Tom C. Clark: Was an order of --

Mr. Russell Morton Brown: No, no Your Honor there was not.

In that connection I think the Court you know that the District Court simply said I order him committed to the custody of Attorney General, that's all under 4208 (b).

Justice Potter Stewart: But under the statute of this meant, under of the statute of this meant the maximum sentence to this correct.

Mr. Russell Morton Brown: The statute says this shall be within the commitment for the maximum term.

Justice Potter Stewart: And this was drag to that way so as to avoid support constitutional --

Mr. Russell Morton Brown: I think that's correct, Your Honor.

Justice Potter Stewart: (Inaudible)

Mr. Russell Morton Brown: Yes sir.

In other words like Court couldn't later come back and impose a more severe sentence, so they leave open the entire range of punitive authority.

Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Russell Morton Brown: Well I think that's a very important consideration Your Honor.

It sort highlights the matter that man who is admitted to probation frequently accepts the probation regardless of his feelings about guilt or innocence and he tries to adapt himself to the new circumstance whereas if he was sentenced say the 10 years or let alone some extravagant period, he may appeal.

Justice Arthur J. Goldberg: (Inaudible)

Justice John M. Harlan: I can't conceive that Court of Appeals is that being a serious (Inaudible) whether the judge himself exercises his power in an effort to get more light of what the actual punishment.

Mr. Russell Morton Brown: Yeah.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Russell Morton Brown: Well, I simply would say this and let me offer this thought to Mr. Justice White.

In the event that a defendant did not want to go along with this procedure and I think this defendant did, if a defendant didn't want to do so, he would simply through this counsel say to the Court if you want to please we would like to take an immediate appeal and we'll ask you wanted to impose a definite sentence, I'm sure the Court would so, and I'm sure that this Court and this is an important factor I would like to ask.

This Court in the exercise of the supervisory authority and in the decision of this case should might get clear that District Courts and administering this statute should impose a final and appealable sentence if they should deicide that this one is not appealable which I believe it is not.

In other words, they can always come back and resort to the 4208 procedure as Mr. Justice Brennan and Mr. Justice White suggests in the even the conviction is affirmed then the Judge's decision has to be made as to what sentences is imposed.

Justice Byron R. White: (Inaudible) with words like finality you had the choice of the appeal, won't appeal, you (Inaudible) or later.

Mr. Russell Morton Brown: Well, that's exactly right, but in this case we're dealing with the jurisdictional problem it is no matter as Mr. Justice Brennan suggests that Vermont case might be met with the argument that you will appeal to some.

And I think that would be true and the reason I say that is that in the Vermont case Chief Justice Hughes, laid down a rule that we've always followed in civil and in criminal litigation that finality occurs only when the sentence or the judgment leaves nothing to be done by the Court except to carry the execution, what has been decided, that had been achieved, that status had not been achieved in this case until our reports came back from the Bureau of Prisons and a court performed a statutory obligation to consider those reports and to apply them to the situation existing.

Justice Byron R. White: Are you suggesting that to make this more valid or constitutionally that the defendant must consent to the 4208 procedure.

Mr. Russell Morton Brown: No I'm not suggesting that Your Honor.

I'm simply saying that we have Rule 46 of the Rules of Criminal Procedure which entitle them to at liberty under bond until the conviction in the Trial Court is settled.

Then you have 46 (a) (2), rule 46 (a) (2) which then says that he's been entitled be in liberty Your Honor, when during the appeal and (Inaudible) So he's entitled to be a liberty under bond let's say until the final decision of the case in this Court and it comes back to the District Court and under Rule 35 that District Court may at that time not apply the sentence and of course at that time, I suppose the District Court could resort to 4208.

Chief Justice Earl Warren: We will recess now.

Mr. Russell Morton Brown: Thank you Your Honors.

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Argument of Russell Morton Brown

Mr. Russell Morton Brown: Thank you Mr. Chief Justice, unless some members of Court have a question for me I would like to reserve the balance of my time Your Honor.

Chief Justice Earl Warren: You may.

Mr. Russell Morton Brown: Thank you Your Honor.

Chief Justice Earl Warren: Mr. Claiborne.

Argument of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice may it please the Court.

I think at the outset I should mention to the Court as I think Chief Justice probably knows as the Chairman of the Judicial Conference, there are presently two bills pending before the Congress, identical bills, one in the Senate, one in the house, which would resolve both the problem in this case, the question of when the appeal time begins to run and also the question in the following case, in Behrens case, whether the defendants reappearance at the modification of sentence is required.

We have no assurance that these bills will be --

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: The -- it would resolve the question as the government urges its present law. Nothing in the provisions of this subsection shall preclude the defendant from being admitted to bail pending appeal of certiorari and the right to appeal shall run from the date the original sentence was imposed under subsection (b) of this section.

Chief Justice Earl Warren: Have those progressed at all?

Mr. Louis F. Claiborne: Hearings, I understand had been heard -- have been held on the house side.

Chief Justice Earl Warren: On the House side?

Mr. Louis F. Claiborne: The Director of the Bureau of Prisons has testified favorably.

The Department of Justice has recommended to the Senate committee to have such bills.

The Judicial Conference of the United States has approved the bill, that's still notified both committees as I understand.

However--

Chief Justice Earl Warren: Mr. Claiborne it was originally passed to the conference of the other rule, isn't it?

Mr. Louis F. Claiborne: I think not Mr. Chief Justice.

The --

Chief Justice Earl Warren: I thought the report they made to the -- the Congress was, it wouldn't be primal until he, until the final sentence.

I may be mistaken --.

I see Mr. Brown shaking his head so --

Rebuttal of Russell Morton Brown

Mr. Russell Morton Brown: If Your Honor please, the record of the legislative history to which we have referred in the brief does actually show that the judicial conference considered attentive disposition and that final judgment was to be rendered after the reports came back.

We've spelled that out and Your Honor's recollection is --.

Unknown Speaker: (Inaudible)

Mr. Russell Morton Brown: Yes, Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Russell Morton Brown: Well I think if the bill has passed --

Unknown Speaker: (Inaudible)

Mr. Russell Morton Brown: Yes apparently Your Honor fine, I don't mean to intrude.

Chief Justice Earl Warren: Are you going to take that up with you on your record?

Mr. Russell Morton Brown: Probably there was recognition that something wasn't clear in the bill.

Chief Justice Earl Warren: Excuse me Mr. Claiborne, you go right ahead.

Rebuttal of Louis F. Claiborne

Mr. Louis F. Claiborne: I should say that while the judicial conference's proposal use the word tentative unless one reads that as an indication there was no other statement in the judicial conference proposal or in their recommendation to the Congress which would indicate that they viewed the appeal as running from the final rather than the tentative sentence as they put it.

They may have used the word tentative which in some respects is quite accurate as characterizing the initial commitment.

Justice Potter Stewart: Mr. Claiborne wouldn't the basic purpose of this provision be frustrated if the defendant were released on bail pending appeal, if the appeal were taken from the original conviction?

In other words, doesn't if the -- isn't it contemplated by this provision that the defendant be incarcerated or at least in the custody of somebody so that he can be observed and interviewed and studied (Inaudible).

Mr. Louis F. Claiborne: It certainly is necessary we think for the defendant to be in incarcerated in order for the study to be completed.

There is no reason however why that cannot occur after the appeal is completed if the defendant chooses to exercise his right to bail pending appeal.

On the other hand if the defendant prefers to begin serving his sentence and goes to the penitentiary, we see no reason why the study cannot go forward.

And while there is a problem with reference to the Judges imposing the final sentence while the appeal is pending, we accept the suggestion which Mr. Justice White has made that Section 4208 (b) amends that rule, the extent that that rule was still a viable rule by impliedly permitting the Judge to re-sentence even though the appeal is proceeding on the ground --

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: We do.

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: The study would be postponed.

In fact we think one of the reasons why the appeal must be from the initial judgment is that the right to bail would otherwise be in jeopardy.

Justice William J. Brennan: (Inaudible)

Mr. Louis F. Claiborne: All I would say is, with reference to the present law that this amendment is labeled a clarified amendment.

We view it is not changing the law in any way, simply as being more explicit.

I might say here that --

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: He might -- there are really two questions Mr. Justice White, one whether he chooses to exercise his right to be enlarged on bail and the second is --

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: Then he is in custody correct.

Justice Byron R. White: He hasn't (Inaudible)

Mr. Louis F. Claiborne: His right to bail would be denied, that is we say is one of the reasons why we think the appeal must come first, because we -- for most defendants, this defendant being an exception and he apparently was willing to submit to custody for three to six months without exercising his right of appeal, most defendants we think would want or at least would have a right to choose to exercise their right to be enlarged on bail and to defer actual punishment until merits of the appeal were determined.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: It is true Mr. Justice Goldberg that the decision whether or not to appeal does in fact sometimes depend on the sentence actually imposed.

We don't view there is any difficult on the appeal because the Court of Appeal will know that the sentence originally imposed here, the 375 years, is nearly tentative and they will defer consideration of any cruel and unusual punishment argument to the re-sentencing at which time the question will remain open under a 2255 motion or a motion to vacate an illegal sentence under the first part of Rule 35.

You don't contemplate that there will be any necessity for second appeal because of course the Judge is not going to affirm the 375 year sentence.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: Well it is only in the rarest case that the severity of the sentence is subject to inquiry upon appeal in the first place.

If sometimes the sentence is so outrageous that it does amount to so disproportionate to the offence it does amount to cruel and unusual punishment.

That rare case, we suggest, can be adequately handled by subsequent collateral proceeding or a Rule 35 proceeding if the Judge should adhere to the outrageous sentence which of course did not in this case.

Here the 375 years sentence was reduced to probation.

Now, I think Your Honor was also suggesting that some defendant for fear of what they ultimate sentence will be may appeal while if they knew that they were ultimately going to be placed on probation they would forgo the appeal, that is -- and it's probably true.

We do suggest that most defendants appeal not with reference to the extent of sentence imposed, but as they should in order to assert their innocence or to assert that they were only convicted and this consideration is not affected by the sentence actually imposed.

I think this case is a particular illustration of that.

The defendant here was in fact placed on probation and nevertheless appeals or he makes the argument if Your Honor suggests --

Justice Potter Stewart: But this is a very unusual case and that this defendant was the member of bar of Massachusetts and obviously a criminal conviction or I assume a criminal conviction would result in dismemberment and arrest, this fellow is not a typical Federal criminal defendant.

Mr. Louis F. Claiborne: But they are alarmed, many defendants who do appeal in order to clear their name if words of this particular (Inaudible) and who want to remove the stigma of the conviction.

If we must choose between the man who claims his absolute innocence and wants to appeal regardless of sentence and he had in fact been wrongly convicted and question was referenced to him of whether he should be made to go to the penitentiary first to wait three to six months before wrong and (Inaudible) and then to spend that time serving punishment which is what happens if he were to await, he is allowed to be put in to operation.

If we must balance concerns for that man against the man whose appeal depends on whether the thing it worthwhile in view of the sentence we think we have to prefer the first man.

Justice Potter Stewart: Well, I don't understand the first man because it's not function of a Court of Appeal to decide whether a person is completely innocent or guilty.

It's only -- it's function to decide whether or not there was trial and error.

Mr. Louis F. Claiborne: That of course is correct Your Honor, but the defendant when appealing asserts perhaps the evidence isn't sufficient to convict him, he puts it in that legal framework but surely what he is saying is that I was innocent.

All right then if he says I am not innocent, but I was wrongly convicted.

Justice Potter Stewart: (Inaudible) say anything whether he is innocent or guilty, he talks about the errors committed at the trial?

Mr. Louis F. Claiborne: Whether he said so or not Mr. Justice Stewart I suggest that he maybe innocent or he may have been wrongly convicted.

In either case he is entitled to a process reversal.

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: A step in order to attain restitution if that's appropriate.

He must actually prove his innocence under relatively new provision of the Court of Claims act --

Chief Justice Earl Warren: It's clearer and another practical factor and the same too.

There are several Judges I have known number of them myself who will not consider the probation or clemency on their part unless they believe that a man is (Inaudible) and if he pleads not guilty and stands a jury trial and particularly if he pursues it on appeal, they are of the opinion that he hasn't the first qualification for probation and they just won't consider.

Now, if you are up against the Judge of that kind a man would be very worried about the taking an appeal at that stage of the proceeding in a number of years he was going to be in prison depended upon on what that Judge thought of him after he made this survey.

I wonder if that wouldn't deter a lot of men who might have good ground for appeal from, from appealing for -- of the affect it would have on the Judge's action.

Mr. Louis F. Claiborne: Mr. Chief Justice I hope that there are rare instances in which the Judge will hold it against the defendant that he has appealed.

Chief Justice Earl Warren: Well, you might hope that but it isn't the fact I have experienced it many times through the years.

Mr. Louis F. Claiborne: I would point out that the same problem is raised by this Court's holding in Korematsu.

There the imposition of sentence was differed and then was placed on probation.

This Court held that he might nevertheless appeal.

On a revocation of probation the Judge might if he was so he can't hold it against him that he had pursued the matter further by appeal and yet he is perfectly free for the first time to impose any sentence which would be illegal for the original sentence, not a sentence for the violation of probation but a sentence of the original offence.

I suggest that the weight or consideration is the notion of our law that a man should not be made to wait to test his conviction, rightness of this conviction by review at least he should not be made to begin serving actual punishment until he has fully exercised his right to review on appeal and that is impossible to avoid if the appeal must wait until reconsideration and re-sentencing.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Louis F. Claiborne: That might be very desirable result Mr. Justice Goldberg.

Off hand I can see no objection to it because then the man's serving a portion of his sentence would be voluntary at his own option.

However, as the law stands I hear no suggestions from the petitioner.

I see no possibility in the statutes to call a judgment final at the option of the appellant.

I am afraid it must be final or not and while the Congress I should think would be perfectly free to adopt that suggestion if it had not felt so and even the present legislation did not pose that solution.

Chief Justice Earl Warren: Mr. Claiborne how do you dispose this the first sentence of Section that we're concerned with, 4208 (b), where it says if the Court desires more detailed information as a basis for determining the sentence to be imposed, the Court may commit the defendant.

Now doesn't that -- doesn't that indicate that the sentence is not final.

If the Court desires more detailed information as a basis for determining the sentence to be imposed, the Court may commit the defendant and so forth.

Mr. Louis F. Claiborne: I grant Your Honor that Congress should have been more cautious and should have included the word ultimately to be imposed.

Later on, however, in the same section we have indication to go the other way.

This is the alternative the Judge has affirmed the sentence of imprisonment originally imposed, clearly talking about a sentence already imposed.

I do think it's clear from the legislative history of this provision that Congress had in mind that this second sentencing, this reconsideration which I emphasize can only be a reduction was to be treated in the light of Rule 35.

It was a modification of an original sentence already imposed.

I would add, however, that from the point of view of finality of judgment and appealability the Korematsu case I should think resolves this problem fully.

There no sentence whatever was imposed and yet because discipline was imposed the Court held that the time for appeal that appeal was allowed from the order granting probation.

I distinguish between the suspension of execution of sentence and the suspension of imposition of sentence.

They are very clearly, I think I'm correct in saying Mr. Justice Black was the author of opinion, it was unanimous.

The Court found the difficulty because no sentence whatever in the strict sense had been imposed the statute expressively saying, execution of sentence, imposition of sentence had been suspended and yet an appealable judgment, judgment being the termination of guilt and the immediate commitment of the prisoner to, in this case the penitentiary there to the discipline of probation was sufficient to support an appeal.

Finally, I would like to draw the Court's attention to one of the progenitors of this statute, which had explicitly provided that the appeal should run from the initial sentence.

This was a proposal on the judicial conference.

It's shown on page 19 and 20 of our brief in the following case.

This is little awkward, but I will, since it isn't a brief in this case, I will read that proposal, certain portion of the proposal, this is in 1943 --

Unknown Speaker: What pages?

Mr. Louis F. Claiborne: Pages 19 and 20 of the brief in Behrens Your Honor.

Unknown Speaker: Not this case.

Mr. Louis F. Claiborne: Not this case, the Behrens case.

When an offender has appealed from a judgment of conviction and elects to enter upon the service of his original sentence, the definite sentence maybe fixed notwithstanding the pendency of the appeal.

Unfortunately between 1943 and 1958, this problem was apparently overlooked and this provision was not carried forward.

It would have solved both the question that Mr. Justice White mentioned at the opening of the argument, the possibility for the Court to impose the final sentence notwithstanding the pendency of an appeal at the same time making a perfectly clear that the appeal read from the original judgment and not from the subsequent judgment.

In conclusion, I want to emphasize again that if this is a question of balancing interests of defendants, I think we must prefer, we must be more concerned for the right of the defendant who asserts perhaps not his innocence, but the wrongness of his conviction and claims a right to have that matter tested promptly and without the imposition of punishment in the meantime you must prefer his claim over that of the man who says I prefer to wait and see what my sentence is before I appeal.

On those grounds --

Justice Potter Stewart: This would concededly add to the burden of the Courts of Appeals and add to the expense of those defendants who felt compelled to appeal, because they didn't know what their sentence is going to be and add to the expense and burden of the government, the rule that you propose would it not, because it would undoubtedly produce an increased number of appeals.

Mr. Louis F. Claiborne: I'm afraid that is true though I would think if the -- it would be a limited additional burden and perhaps the solution to it is that Justice Goldberg though I suggest that solution is one that's addressed to the Congress to provide an election.

Chief Justice Earl Warren: Mr. Claiborne, have you any idea how much this section is used and how much it is progressing in use if that is the fact.

Mr. Louis F. Claiborne: Our information Mr. Chief Justice is that since 1958 when this statute first came into operation, the use of it increased quite markedly through last year at which time it was invoked in something over 3% of the cases in which – it is still very small figure.

We had told that during the last fiscal year the use of it did not diminish, but did not increase.

One of the reasons for that it was a doubt as to the two questions presented here, the question of when the appeal begins to run, the question of whether the defendant had to be returned and that is one of the reasons why these matters were suggested to be clarified in the pending legislation.

It might be also interesting to note that our figures reflect that the recommendation of the prison authorities is followed by the Judge in something over 80% of the cases that a reduction in sentence from the original sentence occurs in approximately 85% of the cases or perhaps somewhat more and that in --

Justice Potter Stewart: For any change would have to be a reduction would it not?

Mr. Louis F. Claiborne: Well that is -- that is great, but the Act, the cases in which the original sentence is affirmed only amount to about 13% and most of those are direct cases in which the maximum sentence is relatively light, five years.

Probation is granted on the basis of the most recent year available in something like 21% of the cases on the ultimate disposition over that.

Justice Potter Stewart: How much is the Section 4208 (a) used?

Mr. Louis F. Claiborne: I think the percentage is considerably high, I'm sorry I don't have any accurate figures.

Justice Potter Stewart: High it was enacted at the same time.

Mr. Louis F. Claiborne: No I think that includes (a) (1) and (a) (2); (a) (1) commits the Judge to set the date the eligibility for that rule and anytime less than one third; (a) (2) which I think is more often used allows the Board of Parole to release the man at anytime.

Justice Potter Stewart: Without limitation.

Mr. Louis F. Claiborne: Without limitation.

For these reasons we submit the judgment of the Court should be affirmed.

Justice Byron R. White: Do you have any idea (Inaudible)

Mr. Louis F. Claiborne: We know of only three cases in which the appeal was not taken from the original commitment.

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: Where appeal is taken that we cite two cases in which pending appeal, the sentence had been modified, we cite those cases in our brief in Behrens.

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: No certainly not, not on the basis of the actual expense.

Chief Justice Earl Warren: Mr. Brown.

Rebuttal of Russell Morton Brown

Mr. Russell Morton Brown: Thank you Your Honor.

I'd like to thank the Solicitor General for providing us with various information as this matter moved on to hearing date.

In response particularly to Mr. Justice Goldberg's enquiry as to an election, I think that the type of construction we're asking here is in fact an election procedure.

For example if the Judge invokes 4208 (b) and says I've proposed a sentence here, this defendant under 4208 (b) that a defendant has an election, he may voluntarily go ahead as our petition did here and receive the benefit of psychiatric studies and that sort of thing or he may say to the Courts through his counsel of course Your Honor please we feel that the trial was not properly conducted and we'd like to appeal and we ask Your Honor to impose a final definite number of years sentence even if you impose the maximum 375 years then we can appeal.

Justice William J. Brennan: (Inaudible)

Mr. Russell Morton Brown: Well, it is.

Justice William J. Brennan: (Inaudible)

Mr. Russell Morton Brown: My thought Mr. Justice Brennan is that if he does go along with the 4208 (b) proceeding, he excessively incarceration in the custody of the Attorney General.

Justice William J. Brennan: And he says no I would counter appeal.

Mr. Russell Morton Brown: I think he says I want to -- yes that he says I want to appeal, the Court, as particularly if this Court would indicate that was a proper procedure in the course of this Court's supervising authority, would say, the Court would then be properly moved to sentenced to a definite term of years, no matter how great, he can appeal.

Justice William J. Brennan: But he can insist on it that I would suppose this contemplates that the Court could insist that he shall undergo this procedure.

Mr. Russell Morton Brown: Well I certainly wouldn't have any right to insist, I would say that, but this Court in the course of its supervisory authority over the conduct in Lower Courts in the country, if this Court would say that it would be proper for the Court in that kind of case, to impose a definite term of years, that said (Inaudible).

Now in this very --

Justice Potter Stewart: Well that's what, that's what 4208 (b) itself provides within a definite terms of years be imposed, the maximum.

Mr. Russell Morton Brown: Well no, I beg Your Honor's pardon.

In this case for example Mr. Justice Harlan, the Court said, I commit you to the custody of the Attorney General under 4208 (b).

Now by construction of law it's deemed to be the maximum.

Justice Potter Stewart: That's correct.

Mr. Russell Morton Brown: Now in the Behrens case the very case which is here in number 86 into which the Solicitor General has referred, there was in that case --

Justice Potter Stewart: Trial Court made an explicit --

Mr. Russell Morton Brown: Well yes the Court said, I sentence you to 20 years --

Justice Potter Stewart: Yes.

Mr. Russell Morton Brown: -- which was the maximum.

Now later he sought to appeal and it's not before the Court here, but it's related to (Inaudible), he sought to appeal in forma pauperis.

The Court said that there was nothing before the Court after it had imposed that 20 year sentence and at that time for giving that 10-day notice had elapsed and he couldn't appeal.

And so he lost his right of appeal in that regard and so far as I am aware he has not carried it forward as we have to raise the propriety of the ruling.

But I would say that in that case it's on different basis Mr. Justice Harlan, because the Court did impose that definite term of 20 years.

It left nothing further to be done except that he said I would like to have a report under 4208 (c).

Now it wasn't b -- it was 4208 (c) which authorizes the Court to get this psychiatric study and advisory report from the Bureau of Prisons and then utilize it in acting say under 35 or what, one very important effect of this 4208 (b) is that it extends from 90 days from 60 to 90 days, the period of the Court's control over the sentence and then for an additional three months if the Court sees fit.

And this is designed to be a judicial tool to be used in favor of the defendant and for that reason I would say that it would be appropriate for him to make the election, will he accept the benefits here, or does he want to appeal.

Now many times a party will say I am innocent, but I can't take the time and I can't take the expense or I haven't got the facilities for appeal or maybe he doesn't even have the evidence to vindicate himself as a jury verdict that has established his guilt and he has to learn to live with it.

However, I think the election procedure is available if this Court prescribes it.

Justice Byron R. White: (Inaudible) I don't want 4208 (b) I want to appeal and please impose a definite term of year.

Mr. Russell Morton Brown: Very much so Your Honor, very much so I have seen it many times.

Justice Byron R. White: The Judge has probably imposed --

Mr. Russell Morton Brown: Yes I agree but then when we have --

Justice Byron R. White: Then you are supposed to refer.

Mr. Russell Morton Brown: Well no, we come back and he may use the 4208 (b) procedure at that time.

Justice Byron R. White: Well arguably further down (Inaudible)

Mr. Russell Morton Brown: Well I would like to appeal that the Courts try to administer the rules, you know, on the basis of the law rather than on personalities or get mad if you could Mr. Chief Justice Warren has just suggested that some Judges want a person to (Inaudible).

Now in this case, I think the Court will be interested that Judge Boyd and I notice in the Solicitor General's brief he said, I wanted to know that I consider a perjured defense was offered in support of this defendant here.

Now I really think that if I had been counsel at that point and if we were permitted to appeal, I would have raised that as prejudicial in the formulation essence, he is entailed to be sentenced for the offense he committed, not for the unspecified perjury that the Judge personally made up his mind to charging with and find him guilty because I don't really believe Mr. Justice White that there was a perjured defense in this case.

Now I don't know a great deal about I wasn't present at the trial, but I have talked with the defendant I've reviewed the record.

I really doubt that there was a perjured defense.

I think we have a, there maybe a very confused defendant, he's got a 30% psychiatric disability in the Veterans Administration as a result of war time service.

Now I don't know really, you know, I have to be perfectly frank, but I don't think he committed perjury and the Judge says I am, wanting to know that imposing this sentence, I am taking into consideration that a perjured defense resort.

That's citied in a foot note, to the Solicitor General's brief.

If I would have made that the subject of appeal myself.

I would have said that that was an improper sentence.

He is not at liberty to take that into consideration.

Now I must move along but in formulating an appeal severity of sentence is always the gauge.

If that's going to be suspension of sentence or maybe some very light nominal sentence maybe its best to forgo the appeal.

As I say, not everybody can afford these appeals and all that sort of thing.

Now --

Justice Tom C. Clark: (Inaudible)

Mr. Russell Morton Brown: Well it's my opinion Mr. Justice Clark that under Rule 46 he is entailed to bail as long as its in the District Court, and until the District Court disposes under 46 (a) (1), he is entailed to bail and he is entailed a bail under 46 (a) (2) except in capital cases and this is certainly not that kind of case.

Now if he is entitled to bail this puts of to study.

Justice Tom C. Clark: Well let's put it up in (Inaudible)

Mr. Russell Morton Brown: Well they believe and I am inclined to agree that if he is not being in the custody of the Attorney General, he must be in custody at some regularly established place, with such custody --

Chief Justice Earl Warren: These studies are made by the prison authorities.

Mr. Russell Morton Brown: Yes, Your Honor they are.

Chief Justice Earl Warren: They couldn't very well be made at some (Inaudible) custody.

Mr. Russell Morton Brown: No, exactly if we have a very wonderful superintendent of Federal prisons, James V. Benet and he is going to perfectly marvelous job and he has record of system that has really brought into a play, the very finest kind of enlightened study facilities.

This man, the petitioner here was very much benefited by his 90 days in Lewisburg Federal Penitentiary and I think if he were asked whether he was where he went I think he would say he was.

Justice Byron R. White: So that be, if there is 4208 (a), 4208 (a) order entered the defendant then nevertheless could go on bail if he wanted to.

Mr. Russell Morton Brown: I believe so Your Honor, yes Your Honor.

Justice Byron R. White: In which event the 4208 (a), certainly the 4208 proceeding then vitiated this.

Mr. Russell Morton Brown: At least let's differ.

Justice Byron R. White: Differ until when?

Mr. Russell Morton Brown: Conclusion of the litigation.

Justice Byron R. White: You mean you had, what you're really saying is that if he goes on bail he should appeal?

Mr. Russell Morton Brown: He has too.

Justice Byron R. White: (Inaudible) 4208 order is entered.

The prisoner, the defendant then is either going to go be studied in one of Mr. Benet's institutions or he's going to go on bail.

Mr. Russell Morton Brown: He can't go on bail unless he's going to appeal.

Justice Byron R. White: But you are suggesting is that he can't appeal.

Mr. Russell Morton Brown: Well, I think I receive your point Your Honor and I apologize, (Inaudible) under 4208 (b), at that time he decides either that he wants to appeal or he's going to find out what the results of the 4208 (b) proceedings will be.

So he says, I'll accept my sentence and I'll go to the prison and subject myself to the psychiatric study.

At that time he comes back into Court and the sentence is pronounced.

Under my analysis he then will make up his mind whether he wants to appeal or not.

On the other hand if he did not want to go at all to the penitentiary until he had litigated this course, he would say to the Court if Your Honor please I would like to appeal, I would like Your Honor to impose a sentence of definite number of years and he makes the bail, he goes on.

Justice Byron R. White: But unless -- as long as the 4208 orders outstanding though he has in your view no right to bail, until the study is --

Mr. Russell Morton Brown: I view it, but it is not a conclusion of this litigation.

In the Furman case, Chief Justice Hughes laid down a rule which Mr. Justice Black speaking for the Court (Inaudible) case follows, that finality is that state of affairs that occurs when there is nothing left to be done but enforcement.

Now, I think it certainly was the probation, but this was a complete disposition of a case, there was nothing left to be done.

In the case at bar that Court must receive the reports from the bureau of prisons, consider them and then take the action contemplated by the statute.

Justice Hugo L. Black: Suppose you are wrong in thinking that he has the right to appeal at the first time to the first (Inaudible) and he cannot get bail what is his remedy, what is his situation?

Mr. Russell Morton Brown: If he has no right to appeal --

Justice Hugo L. Black: From the first.

Mr. Russell Morton Brown: From the first if it's not final and he can't get bail, presumably he would have been in bail all through the proceeding Your Honor unless the Court had increased the bail he could meet the increased bail after the conviction, but he would have to be in custody during that period, but not in the Federal penitentiary presumably in the local.

Justice Hugo L. Black: Well is that, what is the result of holding if you cannot appeal from the first and insofar as the Attorney General's right to hold him in custody for 75 days (Inaudible)

Mr. Russell Morton Brown: 90 days Your Honor.

Justice Hugo L. Black: How many?

Mr. Russell Morton Brown: 90 days.

Justice Hugo L. Black: 90 days.

Mr. Russell Morton Brown: Yes Your Honor.

Justice Hugo L. Black: What is the situation if he cannot appeal from the first, that the government can do that because the Court have to grant him, comply with his request under this statute to give him a definite, more definite sentence.

Mr. Russell Morton Brown: I would say the Court is under no obligation to do so unless this Court should announce in the exercise of supervisory authority that that would be a proper administration of the statute.

We welcome the clarification offered by these new bills and hope they will be enacted.

Our chief criticism is Your Honor, that in this case at least this petitioner's right to appeal was lost for not understanding that the Right to Appeal was affected by these by 4208 (b) without any mention of the Right of Appeal.

If it had been said as was in the legislative history referred to in number 86 the very much earlier legislative history, they proposed to say that the final judgment would be such and such and the Court may act even though appeal is pending.

In the Smith case which we have cited in our brief, this Court rules that the District Court had no authority to grant a new trial while an appeal was pending and they issued orders mandamus and probation to grant an interference with the appellate procedure.

In other words the District Court was forbidden to act while an appeal was pending and I think that's a proper administration of the law.

When an appeal was taken it moves into the Court of Appeals, District Court loses its authority on that.

It couldn't possibly minimize the sentence lawfully while the case is on appeal and probably wouldn't itself.

And if they did so a fellow might say well I've been in the penitentiary six months and the Court has reduced my sentence to the time served I'll abandon my appeal.

Now why should we congest the Appellate Courts with appeals that we know may never be taken and why should we even following that congest this Court with needless petitions for certiorari that may never be brought.

In other words, let's wind up the litigation in the District Court.

Mr. Justice Goldberg says we have an election that this Court can sort of prescribe by saying that it would be proper for the District Judge to impose a definite appealable sentence on request.

Now actually all we say is this.

Counsel and defendants has no rights to complaint about administration of law except that the law should be clear enough so that a lawyer below would know when his ten days begins to run or when he should take his appeal.

Is there any further questions?

Chief Justice Earl Warren: No.

Mr. Russell Morton Brown: Thank you Your Honor.