FRANK v. UNITED STATES

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Argument of John B. Ogden

Chief Justice Earl Warren: Number 200, Frank -- Ben H. Frank, petitioner, versus, United States.

Mr. John B. Ogden: We're ready, Mr. Chief Justice and member of the Court.

I think this case should take a very brief time because of the fact that the petitioner was charged with contempt of Court, convicted without a jury after a written demand and oral demand, and that really is about all there is to this case.

He, likewise, as -- was unable, financially, to get this case or file a petitioned in this Court, and I -- if it’s not improper, I want to just thank the Court for being so generous to this man.

It kind of makes you feel awfully good to see a man without a dime in the world to be able to appear before the highest Court in the country and have his rights determined, and I just say that very sincere and I’m doing what I did for nothing, too.

So, I really don't have anything financially gained or lose.

If I win or lose the case, it doesn't make any difference, but I just felt like it should be presented.

Now, if the Court please, in this case, in 1952 in Oklahoma City, there was a default judgment rendered against Mr. Frank, enjoining him from, in effect, violating the Securities and Exchange Act.

He is a man that, to get out and try to drill all wild terrain.

He never made anything at it, but that -- in other words, it wasn't one of these cases where somebody go out and make a lot of money, leaving everybody sitting there.

I don't think his -- I don't think he ever owned a car that's paid for, and I know he didn't own a home.

He's just one of those kinds of people.

Couldn't do much with him, I guess, so they just filed a suit against him instead of prosecuting him under the Securities and Exchange Act, and he didn't appear.

They served a summons.

They used a judgment against him.

So then, after that, he just kept on.

He didn't pay much attention to it, and so they filed and got an indictment against him.

Then, I went up there and defended him in the Federal Court for three to four days.

I don't know how long.

The jury stayed out an hour -- I mean, almost over a day, but they convicted him and got 18 months on appeal at the Court of Appeals in Denver for the Tenth Circuit, and it was reversed.

Then, after it was reversed, it came back.

Why, Judge Volt, whose son at that time was my law partner, Judge Volt was a very kind person, an awfully nice person.

He suggested this case face him.

Almost cried.

Just to let him enter a plea of no contention and get some kind of little sentence and that saved the government and everybody else a lot of time, and he finally did that case and disposed over that matter.

Then, this case came along and I wasn't employed in it.

Mr. Frank had moved to Tulsa, and that's where the acts actually occurred and, I presume, the person who wanted to be detective, that would've made him cry and Tulsa would've tried him in Oklahoma City.

So, he had another law firm, I mean, a law firm.

I'm just a one-man lawyer.

But, he had a law firm represent him and they demanded and did an excellent job but, jury in, wrote it in writing and orally and every other way.

And, when they presented it, the District Attorney said it was entitled to a jury and he was relying upon a Section of the statute which he read to the Court and, from this, Judge Bohanem, of the fact that he was entitled to a jury, just try him for this offense without a jury.

The judge, however was not too much satisfied on that because he made a remark and it's -- if I might read it, I don't know if it'll make any difference, what remark he made but he did make a remark that he wasn't too satisfied about the question of whether he was entitled to a jury trial.

And so, the judge said “Well, I'm quite concerned about the defendant's right for a jury trial.”

Then, the District Attorney read Title 18, Section 3691 USCA, and from that, the first part of it -- of that section, would just -- there couldn't be any question about it, but the last part confused the judge apparently because the first part of that section, the Code says “Whenever a contempt charge shall consist the willful disobedience of the unlawful writ, process, or order, process or to rule a decree or command of any District Court of the United States by doing or omitting.

Omitting any act or thing violation thereof and the act of thing having done were omitted also constitutes, I think this is important, this argument, if the Court please.

Also constitutes a criminal offense under any act of current risk or the laws of any state in which the act was done or omitted the accused upon demand, therefore, shall be entitled to a trial by jury.

Now, that's USCA.

That's the code and that's the Section there.

Now, then if we could just stop there, then nobody would've been confused and this case wouldn't have been here.

But, the District Attorney argued and he claimed that, by virtue of this last part of that same section, that -- well, he wasn't entitled to a jury.

Now, frankly, I don't know what that last part means, but I just would like to read for the reason that that is the reason of the trial judge, I think, denied him of a jury trial.

This Section shall not apply to contempts committed in the presence of the Court.

Well, of course, everybody knows that anyways.

If you get open Court, you just go and use a language, something the judge wouldn't have to call the jury to try it when it's committed in his presence.

Or so near thereto as to obstruct the administration of justice.

Now, here's the part “nor contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of or on behalf of the United States.”

Now, that last part there is what caused the trial judge and cause this man to be denied trial by jury.

So well-said that this was an act originally where the Securities and Exchange Commission sued Mr. Frank and got that judgment.

That's what this charged with violating.

Since he was charged with violating that Act, the trial judge thought that that was an order of the United States, which I guess it was because that is, of course, part of the United States Government, the Exchange Commission, and so -- but, regards to that, it's my contention and thought, I don't think it had application whatever to that, but it's my contention and thought that there wouldn't be any way to start out with if Congress would pass a law today and say “Well, you can try this man, give him as much as five years, but you -- he don't -- he's not entitled to the jury trial.”

In other words, Congress couldn't take away a man's constitutional rights to a jury trial.

If it tried to, I don't think that action does, but I can't find any construction of it and I can't tell you what it meant but -- I mean, what it's been construed to mean.

But, in any rate and regards for all that, we all know that at least I do, that the Congress couldn't pass a law and say “Well, you're -- because, under the Sixth Amendment, it says “In all criminal offenses,.”

Well, this is a criminal offense.

And, if you'd pardon me for being personal, in 1937, I use to be State District Judge for 12 years in Ardmore and I held a man for contempt to Court that's cited in this opinion here by the Court of Appeals.

I mean, I say it's cited just referred to but, in that case, the Court said that contempt was a criminal offense.

Then, our Court, the Court of Criminal Appeals of Oklahoma City, we don't appeal by regular Supreme Court.

It's just how one Court for Criminal Appeals, one for Civil.

Call the Court of Criminal Appeals.

Well, the Oklahoma Court of Criminal Appeals, ever since statehood has held consistently and every time that a man is entitled to a jury in any case where he's charged with violating any order of any Court, and then the Constitution of Oklahoma so provides, and then the Constitution of the United States, it would seem to me that the Constitution of the United States is just as clear in the Sixth Amendment been “in all,” it don't say “part of them.”

Then, if you-- how do you classify this?

Well, they want to classify it apparently, I say they and I mean the Solicitor General, they want to classify it as a petty offense.

They will have to sp -- if you got three years, well, a petty offense is defined by the statute and it's Title 18, Article I, and it's defined and it says a petty offense cannot be more than $500 or six months in jail.

Now, that's set out in my brief.

It -- that's defined by the statute itself as a petty -- this can't be a petty offense.

Then, that same Section also defines a felony, and it says that “any offense,” now this is that same Section that I just referred to defining a petty offense, also says that “now, we'll see what a felony is.”

If a man can get that or if he can get more than one year, it's a felony under the Act of Congress.

That's the same Section.

Justice Byron R. White: Do you think that, act of Congress, a judge is permitted to, not to sentence but just to put on probation, may suspend sentencing and just put a fellow on probation?

Mr. John B. Ogden: Well, if Your Honor please, I'm awfully sorry.

I don't know.

I can't see any indifference then and I'll show you why I can't.

I thought about that a lot.

Suppose, now --

Justice Byron R. White: It does say -- it does distinguish between suspending the imposition it's in and the execution.

Mr. John B. Ogden: Yes, sir, but -- now, just let me call this --

Justice Byron R. White: So, there's really no difference between these?

Mr. John B. Ogden: There's none whatever for this reason, if Your Honor please, I'll show you why.

Now, this man is a good example.

He's over at Tulsa now.

Every Monday morning, he has to go up there and report to a probation officer, every week, and tell him what he did the week before.

If he changes jobs, he's got to go report to him.

If he stops an officer, he has to report to him.

He can't leave the judicial district without going and getting permission from the judge.

In other words, he's imprisoned but outside.

When you read those restrictions the judge put on there, well, you would see that this man, now, he could go right ahead here until the line of state.

Three years he could go two years and 11 months, and 29 days and still, three years hadn't run out.

And, on the last day, he could go out here and violate one of those and they go make him serve the entire three years and there's nothing he could do about it.

He said “Well, I know, but I didn't have a jury trial.”

“It don't make any difference.

I put you on probation.

We didn't have to give you a jury trial, but you're going to serve three years in the penitentiary.”

All lawyers stated out “You see, that wouldn't be logic.”

Now, here's one other thing, and I think, if Your Honor please --

Justice Byron R. White: Are you familiar with Mensa v. Ray?

Mr. John B. Ogden: Now, if Your Honor please, I don't -- I'm not, I'm sure.

I don't practice criminal law actually, and I just once in a while get into one accidentally.

I'd s --

Justice Byron R. White: I thought that, there, the District Court recognized that the constitution requires a judge might, in conclusion of a criminal case, have to suspend the imposition of sentence, that is, postponing sentencing to put the man on probation.

And, that if he then violated the probation and he had another proceeding to effect the imposed sentence, that's actually the sentencing then.

What happens then?

Mr. John B. Ogden: Well, if Your Honor please, may I just say this in Court on that regard, the way I look at it.

I think, just logically now, you can see if because you put him on probation, he wasn't entitled to jury trial and got three years, but he's one entitled to jury trial.

Justice Byron R. White: Three years on probation?

Mr. John B. Ogden: Yes, three years on probation.

Justice Byron R. White: Didn't the ju -- you did not know how long this in turn will be if he violates -- this gentleman violates these probations, and then the judge comes in and he comes back before the judge, do you?

Mr. John B. Ogden: Well, I would just assume, if Your Honor please, I don't have any way of knowing, of course, but I would say --

Justice Byron R. White: You did not say --

Mr. John B. Ogden: Three years, that bound to be some reason to put the three years.

Justice Byron R. White: Yes, but just as a prior judge, do you think that if you've never sent one to jail where he's going to be and the man violates his probation and he comes back to Court, you'll want to throw him out of Court for his probation violation.

You then have to make up your mind how much of the jail time you're going to invoke.

Mr. John B. Ogden: Now, if Your Honor please, that, I've always considered if you put somebody on probation for three years or five years, that any time during that period of time, if they violated the probation, they just had to go serve the three years.

Now, that's my conception of it but I might be wrong, but I want to call this to your attention then I'm through.

In this case, just look how foolish it would be if you put a constitutional provision in here that a man is entitled to a jury trial in a criminal case.

Well, is this a criminal case?

No, that's the way it looks to me, but say whether put him on probation so you can't complain about that it's a wait "just a minute".

Under the Solicitor General's brief and his opinion, I mean, I guess it's the way I construe it at least, his opinion simply is that you're -- say, you're a Federal District Judge and you come up here and a man is going to be tried and say “Well, now, just a minute."

You want a jury trial but I can't tell whether I'd give you a jury trial or not until I try your case and see whether I put you on probation, I may decide to put you on probation.

So, if I do, you wouldn't be entitled to a jury trial.

So, I'll have to try you first to see whether I'm going to give you probation.

Then if I decide I couldn't give you probation, then we'll have to call a jury.”

That was what that actually means in a case like that.

Now, this man, to start out with, it's a lot more serious, I guess.

I never had been tried, but -- in a criminal case, but I do believe, or any other kind, but I do believe this, that a man either has the right to a jury trial in this kind of a case or he doesn't have it.

I don't know whether he does not.

He's charged with criminal contempt.

The punishment might have been three years and he'll have to serve up to five.

I don't -- it could go up to five, I think.

But, anyway, he either -- when he walked up there and said “judge, I want a jury trial.”

Now, I don't think,” of course I won't tell you this.

Frankly, of course, I wouldn't have a way.

I wouldn't even claim I had any knowledge whatever on what a jury would or wouldn't do because no one does.

But, at the same time, I really think the jury would turn him loose, but they might not.

But, regards to that, he had that right and he had a right to say “I won't plan in here to say, by unanimous verdict, that I'm guilty of a crime or I'm not guilty of a crime.”

Here's a man, of course, that doesn't make any difference.

That poor man is, I guess, 80 somewhat years old, I don't know, but I know one thing, that there wouldn't be a man in this Courtroom anymore sincere that what he did that he thought he was doing right.

I just actually believe that in my head.

But, whether he did or didn't, he was entitled to jury trial and, in my opinion, should have.

Now, there's one other thing.

Now, that is a case cited here in that opinion, but the Court of Appeals believed it, Joiner -- C.M. Joiner.

Well, this man here is just like that.

There are some of the old people getting baptized that believed him that they can find all some kind of a doodle bug or something and you could -- you'd have to kill them to make them not believe that.

They actually believed.

And this old man Joiner lived near me in Ardmore and he couldn't even pass Grossville.

He went on here in Texas, discovered the Texas Oil Field, the biggest field in the world, the first one.

That Joiner, C.M. Joiner.

Well, he is one of these doodle bug people too, and that's what this is.

Well, his oil people don't like the doodle bug people, and I don't either.

I don't think it really amount to a hell of meaning, but you couldn't make him believe this.

So, that's all there is to it.

And, he went out this time and he didn't think he's violating the law.

I had nothing to with it.

Didn't know what he had done, but he just goes out and borrowed money, you see, and give people a note for 10 years, then claimed when he hit oil, he'll pay them back.

Of course, it might have been there for getting remedy, but whether it was or wasn't, why, that's why I did math.

I thank the Court for listening to my argument.

Chief Justice Earl Warren: Mr. Strauss.

Argument of Peter L. Strauss

Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.

I think, at the outset, there are perhaps a couple of factual matters that I should mention.

The indictment, which was brought against petitioner in 1953 or 1954 and on which he was originally convicted, specified as a period of the offenses for which he was convicted -- the fraud offenses for which he was convicted, the same period on which the injunction, in which this contempt violation is based.

And so, as far as we know at least, there's not a question of his having continued after 1952, when this injunction was entered, to violate the Act leading at that point then to a conviction.

There is some indication in the record at page 231, I believe, it's not reproduced in the appendix, that in the 37 months proceeding the contempt violation or the adjudication of contempt in this case, the petitioner was able to earn or obtain something in the order of $37,000 from various people from whom he had solicited funds.

He did that principally through advertisements in the Tulsa, Oklahoma Daily World.

These advertisements profit -- excuse me, promised a high level or earnings in a rather short period of time.

It's true that the transaction was couched in terms of a note, but the Trial Court found, and there is no contest to that here, of course, that this was really a thin disguise.

The petitioner had no intention of repaying the note he gave and that, consequently, the transaction should be viewed as, in effect, a violation of the injunction which the SCC had obtained against him in 1952.

And, I will only -- I'd be on that, that while the injunction was obtained by default, there is no question that petitioner was not, in the first place, served, of course, before the injunction proceedings and, in the second place, personally served with a copy of the injunction after the injunction was entered.

I should also say, what should be quite clear, that petitioner is not and never has been subject either to a three year jail term or to the threat of such a term.

The judgment of the District Court used the following words.

“It is a judge that imposition of sentence be suspended, and the defendant is hereby placed on probation for a period of three years from this date.”

That's in the appendix at page 24, and you can find language to the same effect in the Court order at pages 25 and 27 of the appendix.

The Court's reference to impos -- suspension of the imposition of sentence indicates that it was acting according to Section 3651 of Title 18 and, therefore, that it had imposed no sentence.

The government's view of this case, particularly since it arose after this Court's decision in Cheff versus Schnackenberg, this Court's decision came down on June 6, the order to show cause was issued on June 16, 1966, the hearing on the jury demand was held in July 22, and the final order of sentence came on September 1.

So that, the government's position is that once that case had been decided, in effect, any time a jury demand was refused by a Federal Court in a contempt case, the Court was thereby ruling that it would try the case as a petty offense.

So that, from the moment the jury demand was refused, we take the position and we have conceded all along the possible penalties which could be put -- imposed in this case were limited to those which could be imposed under this Court's decision in Cheff, that is to say, any punishment which would be possible under -- for a petty offense under the United States Code and the Constitution.

So that, the government's position can be stated very briefly, under this Court's cases, there do exists a class of petty offenses which do not require a jury trial, although they may be criminal in nature.

While in general, the Court has investigated the nature of the offense as well as the penalty provided for it in determining whether to classify any particular offense as petty in this constitutional sentence.

It determined in Cheff that the nature of criminal contempt was not such as to require a jury trial in all cases.

Criminal contempt may be, in some cases, a petty offense, but the penalty range for criminal contempt is not set by statute and, therefore, the Court said as recently as last year in Bloom, that it would treat criminal contempt as a petty offense unless the punishment imposed makes it a serious offense.

And, we assume that this frames the issue in this case, whether three years of probation is such a serious punishment as to have required a trial by jury, a punishment which could not be authorized for a petty offense.

And, our position is that the punishment is both a statutory punishment for petty offenses and a constitutional punishment for petty offenses and, therefore, that no jury trial was required.

Justice Hugo L. Black: What you said --

Mr. Peter L. Strauss: Excuse me, sir?

Justice Hugo L. Black: Petty offense?

Mr. Peter L. Strauss: Yes, that's right.

Justice Hugo L. Black: Why did you say that?

Mr. Peter L. Strauss: I did say that.

Justice Hugo L. Black: I said, why?

Mr. Peter L. Strauss: Why do I say?

Justice Hugo L. Black: Yes.

Mr. Peter L. Strauss: Well, in the statutory sense first, the federal probation statute, which is Section 3651 of Title 18, states without any qualification that any offense which is not punishable by life imprisonment or the death penalty may, instead, be treated by a sentence of probation.

And then, states that that term of probation shall not exceed five years.

It states this without qualification and, of course, a petty offense, since that is defined as an offense by Section 1 of Title 18 --

Chief Justice Earl Warren: That's five years.

Mr. Peter L. Strauss: The statute does authorize the imposition of a term of probation of five years in petty offenses.

That's correct.

That's our position.

Chief Justice Earl Warren: You would still say -- suppose it wasn't on probation.

What would you say then?

Mr. Peter L. Strauss: If he were in jail?

Chief Justice Earl Warren: Yes.

Mr. Peter L. Strauss: Quite plainly, it would be improper.

There is no statutory authorization --

Chief Justice Earl Warren: No, that's the distinction --

Mr. Peter L. Strauss: For five years.

Chief Justice Earl Warren: Between a probation and a real -- a sentence that has to be served.

Mr. Peter L. Strauss: We draw that distinction but, more importantly, we believe Congress has drawn that distinction.

Chief Justice Earl Warren: Not to take it from what we have several years ago, I haven't looked it up.

The question of an appeal from a probation -- sentence on probation where we rejected the very argument you've made about the right to appeal.

Mr. Peter L. Strauss: Well, I think you're referring to Jones versus Cunningham.

And, the issue there was whether there was any constraint or not, such as --

Chief Justice Earl Warren: What did we hold?

Mr. Peter L. Strauss: You held that there was constraint.

Chief Justice Earl Warren: There was constraint.

Mr. Peter L. Strauss: And, we do not deny that there is constraint in this case.

However, Your Honor, the Court, last term, indicated that it would view not only, it seems to me, the fact of constraint itself, but the seriousness of the constraint.

Justice Hugo L. Black: Well, that's pretty serious, isn't it, to be under constraint for three years?

Mr. Peter L. Strauss: Well all I think one has to take into account the sort of constraints which are involved.

I think most --

Justice Hugo L. Black: What about one -- what about reporting every Monday and have to tell everything you do be subjected to the call by the judge any time if he thinks you violate it?

Mr. Peter L. Strauss: Well, I think most of us would prefer that to having to report every morning at 6:45 inside a cellblock.

Justice Hugo L. Black: Yes, it might be a little less.

Mr. Peter L. Strauss: Well, I agree that that is the question in this case.

How much less is it?

And, it's our position that it is sufficiently less, that this three year term of probation --

Justice Hugo L. Black: Oh, it was 10 years --

Mr. Peter L. Strauss: Is awfully --

Justice Hugo L. Black: He's on probation for 10 years.

Mr. Peter L. Strauss: We don't have to argue that case, thankfully.

Justice Hugo L. Black: What?

Mr. Peter L. Strauss: Thankfully, we don't have to argue that case.

Justice Hugo L. Black: Well, it's kind of a logical descendant of this, isn't it?

Mr. Peter L. Strauss: Well, no, Your Honor, it's not, and for this reason.

In the Bloom case last term, the majority opinion which you joined indicated that the Court's first reference in cases such as this would be the practice of the nation as a whole would be an objective reference, and this really is quite consistent with what has been historically its approach as far back as District of Columbia versus Clawans.

The Court said that in judging the question of seriousness of a penalty, this is page 628, “doubts must be resolved not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community, taken as a gauge of its social and ethical judgments.”

Well, if we look at Section 2401 of the United States Code, for example, we find that it's quite clear that Congress has made that the -- has made the provisions of the Federal Probation Act applicable to petty offenses.

And, if we look at the --

Justice Hugo L. Black: And to others.

Mr. Peter L. Strauss: And to others as well, but to petty offenses in particular which is the question here.

That is, I take it, the question is whether this is too serious a punishment.

Justice Hugo L. Black: What was the punishment at any time?

It's over three years, according to the Court's past ruling.

Would that be considered serious?

Mr. Peter L. Strauss: I'm not sure I understand the question.

Justice Hugo L. Black: Well, you say they have a five year sentence.

Mr. Peter L. Strauss: To probation or to jail?

Justice Hugo L. Black: I'm not talking about probation, a five year sentence.

Mr. Peter L. Strauss: Any sentence to jail in excess of six months in a contempt case, under this Court's ruling in Cheff --

Justice Hugo L. Black: Well, I'm not -- not any other --

Mr. Peter L. Strauss: Would be improper.

I don't believe I --

Justice Hugo L. Black: Well it's petty or not.

Mr. Peter L. Strauss: Excuse me?

Justice Hugo L. Black: Petty or not, don't you judge by what they're sentencing?

Mr. Peter L. Strauss: Yes, but I believe that -- Your Honor, that that question -- well, let me put it another way, if I may.

Let us suppose that Mr. Frank, in this case, had been sentenced not to three years on probation but had been sentenced to six months of hard labor on the rock pile of maximum security prison with solitary confinement and a diet of a disciplinary standard.

I don't suppose that we would be in a very good position coming in here to argue to this Court that, while that sentence fit within the six month standard which this Court had announced in Cheff, because it's not only the duration of a sentence which may indicate what its seriousness is, but, again, I think the main point is that this Court has indicated, and quite properly so, that it will make up its mind on these issues by referring to national practice rather than to its own feelings about the issue.

And, national practice in the first instance, the Federal Probation Act in the second instance, the survey of state laws which we had made in our brief, that seems to us, indicate that a three year term of probation for a minor offense is not at all out of the ordinary.

Yes?

Justice William J. Brennan: What's your view in an offense of carrying who might be a sentenced to jail --

Mr. Peter L. Strauss: If -- if it might be a sentence of three years in jail.

Justice Byron R. White: And, suppose the judge had sentenced three years by suspension?

Mr. Peter L. Strauss: I think there's no question but that, under this Court's holdings last term, that would be an improper judgment.

That is, in part, why I said at the beginning of the argument --

Justice Byron R. White: No, I ask you that personally.

Well, I take it, under this sentence of probation, suppose he bartered in a way that the sentencing judge has taken the analogy that that was the sentence.

How long would he sentence him?

Mr. Peter L. Strauss: Six months.

Our position is that once Cheff was decided, the effect of that decision was to impose a maximum limitation on federal judges sitting in contempt cases where there's denying of jury trial.

Justice Byron R. White: I understand that if -- that, until the judge actually sentences, imposes the jail sentence, you don't know how serious he considered the offense to be.

Mr. Peter L. Strauss: Well, I know I wouldn't take that position, Mr. Justice White.

Justice Byron R. White: And, if he had imposed for cont -- a cont -- a sentence for contempt of two years in jail and then suspended it, you would say that, under Cheff, that's improper.

Mr. Peter L. Strauss: I would say, under Cheff, that's improper, but I also say, under Cheff, that once a judge has denied jury trial, if he then at least --

Justice Byron R. White: I agree.

Mr. Peter L. Strauss: Goes on without giving indication that he is -- does not understand that opinion, once he has denied a jury trial, he has limit himself to six months.

Justice William J. Brennan: And --

Justice Thurgood Marshall: I had worked--

Justice William J. Brennan: Indeed, a copy of this I gather, and denial him of jury trial, as I understand your argument, means necessarily that he's regarded the alleged contempt, isn't it?

Mr. Peter L. Strauss: That's right.

Justice William J. Brennan: Yes.

Justice Thurgood Marshall: Well, what about -- the trouble I have is two years later, he violates his parole and the judge gives him six months.

Mr. Peter L. Strauss: That is a possibility, Your Honor.

Justice Thurgood Marshall: Well, isn't that a violation of the Cheff, because I understand Cheff to say you can't give anything more than six months?

So, here, you're given six months plus two years of probation.

Mr. Peter L. Strauss: Well, I'm not sure that --

Justice Thurgood Marshall: That's a problem that I have.

Mr. Peter L. Strauss: I agree that that's a problem.

I'm not sure that the Court's -- I'm not sure that the Court's opinion resolved that problem.

I did have the chance to look at some statistics on that question and, in the same -- which may be relevant, in the same report of the Administrative Office of US Courts regarding persons under supervision in the federal probation system, which we cite with respect to commission or practice, it gives some indication of the incidence of removals from probation, and it shows that, generally speaking, only one out of every seven probationers is ever removed.

So that --

Justice Thurgood Marshall: Further, the judge wouldn't have to give six months.

Mr. Peter L. Strauss: And, he wouldn't have to give six months.

Justice Thurgood Marshall: He could give less.

Mr. Peter L. Strauss: He could give less.

So that, while we agree that that possibility is something which ought to be taken into account in assessing the seriousness, I don't think it should be made conclusive.

We would, in effect, be --

Justice Abe Fortas: Mr. Strauss --

Mr. Peter L. Strauss: Yes?

Justice Abe Fortas: I beg your pardon.

Mr. Strauss, is there explicit authority for suspending the imposition of sentence?

Explicit authority, I know it's done.

Mr. Peter L. Strauss: Yes, I believe there is.

I believe it's found in the Federal Probation Act in Section 3651 of that Act.

Justice Abe Fortas: For suspending the imposition of sentence?

The imposition of sentence, I should've --

Mr. Peter L. Strauss: Yes, upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, and it continues, any Court having jurisdiction to try offenses against the United States, of course that includes petty offenses, may suspend the imposition or execution of sentence.

And, I think this case, for exam -- this Court, for example, in the case of Roberts versus United States, which I believe is in 342 US --

Justice Abe Fortas: Right-- right

Mr. Peter L. Strauss: Drew that distinction.

Justice Abe Fortas: Now, let us suppose that this petitioner violated probation.

Then, I suppose he could come in and one of two things could happen, couldn't they?

Either the sentenced could be imposed at that time under the reserved power or he could be punished for violation of probation.

Is that right?

Mr. Peter L. Strauss: I'm not sure I follow, Your Honor.

He could be --

Justice Abe Fortas: Well, what could've -- suppose the petitioner violated the probation?

He just didn't report when he was supposed to report or he went out and robbed a bank.

Mr. Peter L. Strauss: Right.

Justice Abe Fortas: By -- in violation of the terms of his probation.

He is brought in before the judge.

Now, what can the judge do?

Mr. Peter L. Strauss: The judge in this particular circumstance may revoke probation, although he's not required to do so.

Justice Abe Fortas: Now, what happened?

What is the consequence of revoking probation?

Mr. Peter L. Strauss: Where, in this --

Justice Abe Fortas: Here, right here under this --

Mr. Peter L. Strauss: He then proceeds to sentence which he has previously suspended.

Justice Abe Fortas: Well, he hadn't susp -- he suspended the --

Mr. Peter L. Strauss: He had suspended the imposition of the sentence.

Justice Abe Fortas: Imposition of the sentence.

Now, can he also punish him for violating the probation?

Mr. Peter L. Strauss: No, I take it, that would require -- if it were a penal offense, that would require a criminal trial in itself.

Justice Abe Fortas: So the only thing that he can do at that time is to impose sentence for the initial offense?

Mr. Peter L. Strauss: That's right.

Justice Abe Fortas: And, it's your theory then that the most he could impose then would be six months in jail?

Mr. Peter L. Strauss: That's right.

Justice Abe Fortas: I suppose that, I think Mr. Justice asked you this and -- but if he used a different form of sentence and imposed -- judgment and imposed the sentence of three years and then suspended it, you say the consequences would be different and that, then, he was -- he would have to retry it.

Mr. Peter L. Strauss: We think that would affirmatively show that he had misunderstood this Court's ruling in Cheff.

Justice Abe Fortas: Or that he had --

Mr. Peter L. Strauss: Or that he had determined --

Justice Abe Fortas: Had decided that it was -- this was more than a petty offense is more punishment than six months?

Mr. Peter L. Strauss: Well, I take it, Your Honor, that if that should ever occur to a judge in the course of a trial of a contempt he had thought would be petty, what he would probably do would be to declare a mistrial at that point.

Justice Abe Fortas: And then convene a jury.

Mr. Peter L. Strauss: And convene a jury.

Chief Justice Earl Warren: What was that Section you read us about suspending judgments?

Mr. Peter L. Strauss: That's Section 3651 of Title 18.

Chief Justice Earl Warren: 3651, thank you.

We'll recess now Mr. Strauss.

Chief Justice Earl Warren: Mr. Strauss.

Mr. Peter L. Strauss: May it please the Court.

I should, perhaps for a minute, discuss Section 3691 of Title 18 since counsel raised the question.

This was one of the principle grounds for argument in the Court below, although it was not raised in the certiorari petition.

And, basically, the question there, as I think counsel recognized, is whether this was an action brought by or on behalf of the United States or not.

If it was not brought on behalf of the United States, a jury trial was required under that Section.

If it was brought on behalf of the United States, a jury was not required.

In fact, the civil action was brought in the name of the Securities and Exchange Commission, an independent agency of the United States Government, so that, the argument would be that an action brought by that agency was not one brought on behalf of the United States.

Very briefly, I think, the legislative history of the provision, which has been before the Court before, makes it plain that none of the sponsors thought they were distinguishing between actions involving the United States and actions involving one of its agencies.

The principal concern of the statute was with the use of injunctions and labor cases between private parties to press one side of the dispute, and remarks were made to the effect that the enactment left all powers that exist in the government at present, undisturbed by its passage.

There is no extensive case along the subject principally because I think all Courts to which the question has been presented have treated it summarily, as did the Tenth Circuit below, simply stating that, of course, an action brought by an agency of the United States was one brought on behalf of the United States.

Justice Hugo L. Black: Who asked if it could be brought on behalf?

Mr. Peter L. Strauss: No one asked, but I thought I should make that clear.

Justice Potter Stewart: The caption here is “Frank against the United States.”

How did the caption get changed?

Mr. Peter L. Strauss: The contempt action was brought by the -- an attorney for the Securities and Exchange Commission and the United States attorney acting together and, as it was a criminal action, I suppose it would be under the caption “United States versus Frank,” but the original con -- the original injunction which is what would be relevant to 3691 was brought in the name of the Securities and Exchange Commission.

Well, as I was saying before lunch hour, we feel that the basic mode of decision as to the comparative seriousness of the probation in this case was set out by this Court last term in Bloom and earlier than that in Clawans, that is, the consultation of the laws and practices of the nation to see what comparisons have been drawn.

In general and as we set out in our brief, we did attempt such a study.

It was a study complicated by the substantial variants which this Court noted last term in state practice regarding the affording of jury trials with the sorts of offenses that concerns us here.

Chief Justice Earl Warren: Does that mean that, in every one of these cases that are similar on its facts to this that we must examine the record to see what the severity of the probation commissions are?

Mr. Peter L. Strauss: No, Your Honor, I don't think so.

Our point is that the question of equivalency is primarily a legislative judgment and that if we can show that the judgment made by one legislature, in this case, the Congress, it is within the general scope of the laws and practices of the nation as a whole, then, that is sufficient to defend the judgment.

In fact, it seems to me that it might be the converse if you asked about the particular probation imposed in a particular case.

You might get into just the problem which concerns you.

Chief Justice Earl Warren: Well, I understood you to answer Justice Black to the effect that these particular conditions were not honorous and that it might be different if they had been.

Mr. Peter L. Strauss: No, I think I was trying to make a slightly different point.

Chief Justice Earl Warren: I see, alright.

Mr. Peter L. Strauss: Well, from this perspective, looking at the national scheme as a whole, we think the results are quiet striking.

There are only 12 jurisdictions which limit the probation term to the same extent as penal terms.

On the other hand, 15 provide, as does the federal statute, for a maximum period of probation of 5 years without regard to the offense committed.

There are nine -- nine jurisdictions in which the question is left to the Court's discretion and the remainder provided for maximum between one and three years with the great majority in the upper half of that reign.

While we were able to supply the Court with figures regarding the practice of United States Commissioners in probation cases, which indicates that they regularly imposed probation sentences or probation terms, I should say, in excess of six months, of course is the limit of their authority under -- as far as jail sentences are concerned under the Code.

We have been unable to obtain such figures for the nation as a whole, but --

Justice Abe Fortas: Do I understand you, Mr. Strauss, to say in response to a question by Mr. Justice Black, that if the probation period here had been five years, it might -- you might regard it differently?

Mr. Peter L. Strauss: No, I'm still --

Justice Abe Fortas: So i as I mistaken in that?

Mr. Peter L. Strauss: I believe his question was whether I would regard it differently if the probation period was 10 years.

Justice Abe Fortas: Well, would you?

Mr. Peter L. Strauss: Yes.

Justice Abe Fortas: If there were --

Mr. Peter L. Strauss: There's no statutory authorization that I'm aware of for such a term.

Justice Abe Fortas: No, but -- forget that.

Let's suppose that there were not limitation whatever on the length of time of the probation.

Would you regard 10 years as --

Mr. Peter L. Strauss: Yes.

Justice Abe Fortas: And as a different in --

Mr. Peter L. Strauss: Yes, I would.

Justice Abe Fortas: The purposes of our problem.

How about five years?

Mr. Peter L. Strauss: No, I do not regard five years is --

Justice Abe Fortas: How about eight years.

Mr. Peter L. Strauss: I would regard eight years is different.

Justice Abe Fortas: Six?

Mr. Peter L. Strauss: I regard six years as different.

Justice Abe Fortas: Well, then, I don't get you.

Mr. Peter L. Strauss: The point is, as this Court admonished last term in the Bloom case, that we are to look to the nation's law and practices.

Looking to the nation's law in -- nation's law and practices, we find irregular legislative practice of authorizing probation terms up to five years --

Justice Abe Fortas: But the question is --

Mr. Peter L. Strauss: For education.

Justice Abe Fortas: That doesn't answer the question.

The question here is whether the -- a three year probation period should be assimilated to the six month petty offense concept in Cheff against Schnackenberg.

Would you agree that that's the question?

Mr. Peter L. Strauss: Yes.

Justice Abe Fortas: Before us?

Mr. Peter L. Strauss: But, I think that question --

Justice Abe Fortas: And then now you, if I correctly understand you, you said you would assimilate five years to it.

For whatever reason, you would assimilate five years to it but you would not assimilate six years to it.

Mr. Peter L. Strauss: Well, I think the reason is important, Your Honor.

What I've been trying to do is to apply those tests which the Court set out last term.

Justice Abe Fortas: Well, I know, but those are not tests of what is and what's not a -- to be regarded as a petty offense for purposes of contempt.

What you're calling our attention to is nothing more than the maximum period for a probation order.

Now, that assumes what I -- what may be a question that we have to decide, whether a probation order, provided it's for a permissible period, is to be regarded as a -- in effect, a sentence that is no more deserving of jury consideration than a petty offense.

Mr. Peter L. Strauss: Well --

Justice Abe Fortas: And, I -- it seems to me, that comparison, that reference to the maximum permitted time for -- upon which a person may be placed on probation does not provide us with a guide for this purpose, which is, shall the six months -- shall the three year probation here be assimilated to the six months sentence, six months imprisonment, in called petty offense for purposes of Cheff against Schnackenberg.

Mr. Peter L. Strauss: Well, it's true, Your Honor, that I have assumed that the constitutional questions which were decided last term in Bloom and Duncan were the questions which, principally, would be decided in connection with what I agree is, strictly speaking, a question of Cheff versus Schnackenberg which was not, as stated, a constitutional decision.

And, what I have been trying to do is to present the case in terms of the criteria that the Court stated it would look to in deciding the constitutional question and those criteria were, in the words of the Court, objective criteria, chiefly, the existing laws and practices of the state.

Justice Abe Fortas: Well, your ad -- I know, but your adversary points out that this man, during the period of his probation, is required to report every Monday, he's required to notify the authorities when he changes jobs, he -- if he's -- I suppose, if he's arrested for whatever offense, then his whole probation is in danger.

Got to be careful not to spit on the sidewalk or things of that sort.

Isn't that right?

Mr. Peter L. Strauss: Yes, that's right.

Justice Abe Fortas: And the question is whether that is or is not to be regarded as in the same light as a petty offense as defined in Cheff against Schnakenberg and in the statute for purposes of a jury trial in a contempt case.

Mr. Peter L. Strauss: Well --

Justice Abe Fortas: And the referee -- even if the states all permitted probation without limit, I don't think that would settle it, just as if it wouldn't settle it in my mind if the state said that “Two years is a maximum amount.”

Mr. Peter L. Strauss: Alright, there may be -- there are perhaps several ways in which I can answer that.

One is, there is a basic statutory authorization involved here, Section 3401 of Title 18, which, as we have indicated, is an authorization which is frequently used by United States Commissioners.

Justice Abe Fortas: For petty offenses.

Mr. Peter L. Strauss: For petty offenses, necessarily.

Over 50% of the petty offense probation terms are in excess of six months, over 25% are in excess of one year.

So that, in fact and in practice, there is statutory and practical authorization for this practice.

The second argument, it's a policy argument, if that makes any difference, has to do with the nature of probation itself.

While it is backed up by the threat of punishment, to be sure, a probation is not a punitive device and I do not believe that anyone subjected to probation views it as such.

That is, if he has his choice, he takes the probation and, in effect, as I'm sure the Court appreciates, any defendant preferring to go to jail for six months would be able to do so.

Even if the law didn't authorize him to refuse the conditions of probation, he could simply announce to the Court “well, I'm going out and first thing I'm going to do is to disobey them.”

So that, in practical terms, if one is talking about an alternative which is somewhat within the defendant's control.

As this Court has recognized in the past, probation is a rehabilitative device and is -- it's designed -- really, the decision is to how long it should be is made on the basis of rehabilitative considerations.

Justice Abe Fortas: That's a theory about prison, too.

It may be kind of whimsical, but it is a theory as to reason why we put people in jail, isn't it?

It's a deterrent to them and to others, and as a -- what is called a rehabili -- for purposes of rehabilitation.

Mr. Peter L. Strauss: If I may respond to that, Your Honor, I see my time is up.

That is a theory, but it's only a part of the theory as to imprisonment and legislatures, frankly, vary the amount of imprisonment they provide for crimes in direct relationship to their view of the seriousness of the of crime involved, and that's not done in general with respect to probation.

So that, we submit, that probation in this case was authorized by statute.

It meets the tests which the Court set out last terms in Duncan and Bloom.

It was an appropriate disposition for this case and, consequently, the judgment below should be affirmed.

Justice Byron R. White: Mr. Strauss.

Mr. Peter L. Strauss: Yes?

Justice Byron R. White: If you're going to count probation as equivalent to sentence or as a prison term, I suppose that if you suspended imposition of sentence, you could -- and was going to put a man on probation, you could only put him on probation for six months, if you were going to count probation as equivalent to prison terms?

Mr. Peter L. Strauss: I suppose it would have to be less than that, Your Honor.

Justice Byron R. White: Well, it would have to be less than that, either that or, if at the end of five months he violated his probation and he came in for his sentence, he'd only be sentenced for a month.

Mr. Peter L. Strauss: You'd have a sort of declining --

Justice Byron R. White: That's right and if you --

Mr. Peter L. Strauss: Enforcement demise.

Justice Byron R. White: If you actually sentenced him to six months, imposed the six months sentence, and then if you wanted to suspend execution --

Mr. Peter L. Strauss: You couldn't do that.

Justice Byron R. White: You said you couldn't do that.

Mr. Peter L. Strauss: No, you couldn't.

Justice Byron R. White: Yes, thank you.

Rebuttal of John B. Ogden

Mr. John B. Ogden: Your Honor, if the Court please, I'll just say this and I'll be very brief because I said all I think that I care to say or should say in connection with this matter, but, now, here's a man.

Just take this for example.

He's already been on a probation, I'm just going to say roughly two years.

Now then, suppose he had violated that, they bring him back over to Oklahoma City and say “Well, you violated your probation.

I want to sentence you to six months.

” Well, that would be six months plus two years on probation.

Now, whether probation, what effect it has or not, if Your Honor please, I'm just going to call this to your attention.

I think, and of course I said that just the thought which actually means nothing, but it's just my opinion that when a person put on probation for three years, that if he makes a good citizen, doesn't violate any of the terms until three years, 11 months, and 29 days, then they can take him and make him serve three years, but I think a lot of times, maybe, that I get off of the actual point involved, as I view it, on that question but because all there is to it, as I see it and it probably isn't that simple, here's a man charged of a crime and you say “Why was he charged of the crime?”

Well, because the statute makes it a crime and that's what the Court said here that they found him guilty of a crime.

So, the Court said that “I convict you,” and I will read right here from this appendix and then I think I'm through on that part of it, but it is the judge, this is the Court speaking, “that the defendant is guilty as charged and convicted.”

That's what the judge said.

Now, he was convicted.

Now, when you try a man and convict him of a crime and if you'll notice everything in here, the complaint, the charge, everything, and the case criminal, so and so, the number of the case of the United States District Court was criminal so, in number so and so, criminal.

And, the charge -- criminal charge, the whole thing had been fitted, of course it is a crime, and there's no any question about that.

Now then, I want to call then to the Court's attention another time for emphasis sake and I hope it isn't burdensome view but the statute itself should take care of this case and I -- the reason I say it should is because Title 18 Article I US, offenses classified, any offense.

Don't make it what offense.

Any offense punishable by death or imprisonment for a term exceeding one year is a felony.

So now, you try the man for a felony.

Say, why do you say that?

Because the punishment exceeds a year, and when it exceeds a year, “and death or punishment exceeding a year,” then it is a felony under the statute.

So, you tried a man whose been tried in here for a felony.

Now, the next -- very next Section says “Any other offense besides that is a misdemeanor.”

Now, I don't -- now, the last one, here's the one that I especially want to call the Court's attention about this petty offense business

This is statutory, “any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months,” if you could imprison a man for six months and one day, it's not a petty offense, “and/or a fine not to exceed $500,” if you could find him $501, it wouldn't be a petty -- “or both is a petty offense.”

That's what the law says of petty offenses.

Then, the constitution says that in all criminal prosecutions, the accused shall enjoy the right to a trial by impartial jury.

Now then, the question, is this a criminal prosecution?

It certainly is not a civil action.

Now, may I read what the judge said to this man here, what's on this, “it is a judge that had found guilty.”

Now, that -- I want to call your attention to one other thing and that is that, on this -- it's in the brief of the Solicitor General and it's in the appendix, and here it is just here.

He sets out in here the conditions under which Mr. Frank had to serve for these three years.

Now, I won't read them all, “but you shall refrain from a violation of any law, federal, state, or local.

You shall get in touch immediately with your probation officer if arrested or questioned by law enforcement officers.

You shall associate only with law abiding persons and maintain reasonable hours.

You shall work regularly at your occupation and support your legal dependents if they're into the best of your ability.

When out of work, you shall notify your probation officer at once and you shall consult him prior to change in jobs.

” You can't even change jobs without him.

“You shall not leave the judicial district without permission of the probation officer.

” Oklahoma is divided into three districts: northern, and the western, and the -- let's see, the northern, the western, and the eastern districts.

It's safe through that in those three districts.

Well, he is in the eastern district, up there at Tulsa.

He can't even leave that district without permission and say, while it didn't matter much, I'd hate to have to get to where he couldn't leave.

I think it's a restraint.

“You shall follow the probation officer's instruction.

You shall report to the probation officer as directed.

” And then, “you have to report in Oklahoma City on the first day of each month beginning August 1966, for a period of three years and fill out one of the blank reports and mail, in addition to all this, or bring the same to the probation officer in Oklahoma City, Oklahoma.”

Now then, “your failure to comply with the instructions of the Court as outlined herein will be cause for revocation of your probation.”

That's the Solicitor's record.

Now, if the Court please, that's actually all that I care to say.

It just seems to me like, that to apply the constitution to this case, that it was a criminal case and all over the United States, I guess, every place I've been, I didn't know in any cities, if they can fine a man over $20, they have to give him a jury trial.

They believe, at least, and that's the way they do because of the constitutional position.

But, here's a man whose put on probation for three years and ordered with all these restrictions upon him and, now then, he demanded in writing and orally a trial by jury, and it was denied to him.

So, I feel like, under the law, as in this case, and under the decision, it doesn't seem to me, honestly like, when I read it, that when this Court said well, we feel like we should these other -- these judges orally contra when the jury trial is demanded and you set it all out there, I thought of just as plain as it could be, and that's on the case.

I exercise my brief because I couldn't see any citing of it.

And, of course, if I may again, thank Your Honors for permitting to be appear, it's been a great pleasure.