MCCARTHY v. UNITED STATES
Legal provision: Federal Rules of Criminal Procedure (or relevant rules of a circuit court)
Argument of Maurice J. Mccarthy
Chief Justice Earl Warren: Mr. McCarthy.
Mr. Maurice J. Mccarthy: May it please the Court.
Maurice J. McCarthy appearing on behalf of the petitioner, William J. McCarthy.
I'm sure that the question has occurred to the Court as well, cleared up initially the petitioner and I are not related, the fact that we have the same last name is purely coincidence.
The facts in this case are not complicated.
On April 1, 1966, a three-count indictment was returned against the petitioner charging income tax evasion under Section 7201 of the Internal Revenue Code and alleging that there were deficiencies and taxes of approximately $900.00 for the year 1959, $5,000.00 for the year 1960, and $1,200.00 for the year 1961.
On April 14, 1966, the petitioner appeared in the District Court with retained counsel and at that time counsel waived the reading of the indictment and entered a plea of not guilty to each of the three counts.
The court set the trial for the 13th of June 1966, thereafter, which the record does not disclose the trial was reset for June 30, 1966.
On June 29, 1966, Government counsel appearing ex parte informed the court that the petitioner's illness made it impossible to try the case and asked for a continuance.
The district judge reset the case to the 15th of July.
On the 15th of July the petitioner, again occurring with retained counsel appeared for the trial of the case at that time counsel for the petitioner informed the court that he would like to withdraw the plea of not guilty to count 2 of the indictment and to offer a plea of guilty to that count which was the allegation of approximately $500.00 in unpaid taxes for the year 1960.
The court interrogated counsel for the Government who indicated that upon the plea of guilty, the acceptance of the plea of guilty rather, the Government counsel would move to dismiss counts 1 and 3.
The circuit -- the district judge at that time questioned the defendant personally as to two matters.
First of all, he asked the defendant in the trial level, if he was aware that by pleading guilty, he waived his right to a jury trial the defendant responded in the affirmative.
He then asked concerning the statutory penalties of five years imprisonment and a maximum five-year imprisonment and a maximum $10,000 fine.
Upon receiving affirmative responses, the district judge entered a finding of guilty.
At this point, the Government counsel asked the district judge to inquire of the defendant whether any threats or premises had been made.
The district judge did inquire and received negative responses that no threats had been made and no promises had been given.
No further questioning was had either of the defendant or of retained counsel and the case was set for a sentencing hearing in September 1966 on September 14.
At that time, the petitioner again appeared with retained counsel and the district judge in the elocution procedure as the defendant personally if he had anything to say.
The defendant response was that if it were not for his health and the things that he had gone through, that had never would have happen and that it was not deliberate.
No further questions were asked of the defendant.
The petitioner's counsel at that time was present and the District Court directed its attention to him.
He was asked if he had a statement and he made a brief statement.
The court then indicated that in view of the size of the amount involved that the debtor in effect of the sentence was necessary and entered a sentence of one year imprisonment and a fine of a $2,500.00.
Counsel for the petitioner on the District Court level then asked to be heard.
He addressed the district judge and informed the district judge of the facts concerning the character of the defendant himself.
He indicated to the court that the defendant was at that time of the proceedings, 65 years old that he had never been familiar with any federal offense of any sort that he had a fine family.
He further informed the court that the defendant had just recently approximately two months prior to the sentencing hearing which was at approximately the same time as the tender of the plea of guilty that the petitioner had become a member of Alcoholics Anonymous because he had been an acute alcoholic for some time.
He further informed the court that at the time that the crime was allegedly committed, that being the time of the filing of the Income Tax Return that the petitioner had been involved in what counsel called a protracted drinking situation from which he was hospitalized.
No questions concerning this matter were asked of the counsel for the defendant in the District Court.
Counsel then spoke of the nature of the crime and of the evidence that was present or inherently present on the district court level.
His exposition of the crime consisted in saying that the books of the defendant had been negligently kept and that this negligence amounted to one, it became gross amounted to criminal intent.
The -- there was not questioning concerning the exposition of the crime.
The probation officer then informed the court that the Alcoholic Anonymous sponsor of the defendant was present in open court and available to testify concerning those matters.
The District Court did no take any testimony or confer with the sponsor from Alcoholics Anonymous.
The District Court then refused to vacate or suspend sentence and entered a state of execution for approximately 15 days.
The argument of the petitioner presents three questions.
First of these questions concerns Federal Rule 11 of the Rules of Criminal Procedure which was amended effective July 1, 1966 since this plea was tendered on July 15, 1966, it is governed by the rule as amended.
That amendment and the notes of the Advisory Committee to this Court concerning the addition of the ordering in the rule which constitute the amendment is critical in this case.
The amendment required that the District Court addressed the defendant personally rather than what had been practiced in the past of allowing the Court to addressed counsel for the defendant.
In this case, there was no questioning of the petitioner other than on the merits which I have stated and in the exposition of facts.
Our contention is that Amended Rule 11 directs and demands that the district judge inquire personally of the defendant as to his understanding of the nature of the charge.
This was never done.
We therefore contend that at the time of the acceptance of the plea of guilty on July 15, 1966, error was committed.
We contend that this error was compounded at the sentencing hearing which occurred in September 1966 in that certain facts were brought to the attention of the District Court which required inquiry.
We have cited in our brief to this Court the universal opinion of the lower courts, the circuit courts that Rule 11 imposes on the district judge a duty of inquiry.
We feel that in view of the facts presented to the district judge, this duty of inquiry was very right and yet no inquiry was had of the defendant personally or even of his counsel for that matter or the other persons who were available to give information.
Justice Abe Fortas: What is the provision in Rule 11 on which you rely for that last argument?
Mr. Maurice J. Mccarthy: The -- there is no provision in Rule 11 concerning a duty of inquiry but the provision in Rule 11 is that the district judge must address the defendant personally and determine.
I draw from this the conclusion.
Justice Abe Fortas: In determining that the plea is made voluntarily?
Mr. Maurice J. Mccarthy: Voluntarily with understanding of the nature of the charge and the consequences of the plea.
I draw from this the conclusion and I support it with case law in briefs that there is a duty of inquiry on the district judge both at the time that the plea is accepted and later when sentence is rendered against the defendant to inquire in the event that any fact is presented to the judge concerning the nature of the crime or the character of the defendant.
In this case, there was no questioning whatever.
Not one question of the petitioner himself as to what he understood to be the nature of the accusation nor of the petitioner's counsel.
Both of these persons were present and available to testify and much of the confusion in the record could have been cleared of had the district judge address questions to them.
Justice Abe Fortas: Well, may I -- I hope this won't disturb the order of your argument.
I'd like to call your attention of the last sentence of Rule 11 as amended.
I take it from reading your brief that you, although you referred of that last sentence, you don't really rely on it.
You recall of the last sentence says that, “The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”
Now, what was the date of the entry of judgment upon the plea?
Mr. Maurice J. Mccarthy: Judgment was entered on September 14, 1966.
Justice Abe Fortas: And at that time, I think the record shows that the judge had before him and had consulted the pre-sentence report.
Mr. Maurice J. Mccarthy: Yes, he did Your Honor but this I --
Justice Abe Fortas: And at that time, did he try correctly recall that he referred to the certain bookkeeping difficulties revealed by the presentence report?
Mr. Maurice J. Mccarthy: Yes, he did.
Justice Abe Fortas: Now, do you argue that there was no explicit finding however by the court in September of that it is satisfied that there is a factual basis for the plea?
Was there such finding?
Mr. Maurice J. Mccarthy: No, there was no finding.
Justice Abe Fortas: Now, you do not argue that the Court has to make such an explicit finding, do you?
I don't read that in your brief.
Mr. Maurice J. Mccarthy: I don't argue that there must be an explicit finding.
Justice Abe Fortas: Why not?
Mr. Maurice J. Mccarthy: The rule, the wording of the rule itself does not require an explicit finding.
It says that the judge --
Justice Abe Fortas: You read -- you read unless it is satisfied as referring to a mental state which a judge does not have to make explicit?
Mr. Maurice J. Mccarthy: Well, the one thing I see in there is explicit, is that the judge must make a determination.
That the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.
Justice Abe Fortas: I understand that, that is the first part of your --
Mr. Maurice J. Mccarthy: The latter part of the rule, I read to require the judge to be satisfied in the circumstances that a factual basis exists for the plea.
Now, it does not say for the charge.
It does not say that the acts which constitute the charge that he is satisfied that those acts occurred.
Justice Abe Fortas: Well, what do you think that last sentence means and you think that how can it be satisfied if the plea is justified without being having some basis for believing that the defendant did the act?
Mr. Maurice J. Mccarthy: Well, I think that this is the argument which we have made Your Honor and our brief is that there are two elements to the crime.
Since this is a specific intent crime, there are the acts and there is the intent.
Justice Abe Fortas: Yes, but you don't tie them as I remember perhaps I'm wrong.
You don't tie that argument into this last sentence, do you?
Mr. Maurice J. Mccarthy: Perhaps not as artistically as I should have but this is --
Justice Abe Fortas: No, I don't say that critical, I'm trying to find out your theory after all, I believe I'm correct in saying that this is the first time that the amendments of Rule 11 has been before us.
Mr. Maurice J. Mccarthy: As far as I understand that that's correct.
Justice Abe Fortas: And I've try and I confess with a little surprise that the sort of lack of reliance on that last sentence what I've take it now from which you have said that you regarded as referring only to a mental state in the court which did not have to be reflected in any finding or any statement by the court and I suppose that at the time of the entry of judgment, the court had before it a presentence report which did not however make any reference whatever to the particular crime.
I suppose that's possible, I'd seen precedence reports like that.
Now and there's nothing before the court whatever, whatever except the indictment, the plea of guilty and the presentence, the investigation report that makes no reference to the particular crime.
Now and the court asked no questions about the particular crime.
Now, either the defendant or his counsel in your opinion is that, would that satisfy the last sentence here?
Mr. Maurice J. Mccarthy: No, I don't think it would Your Honor.
I think there must be.
Justice Abe Fortas: Well, what, what -- I missed in your brief any discussion of question as to whether this last sentence was or was not satisfied in your case.
Mr. Maurice J. Mccarthy: My argument is this.
That error occurred at the time of acceptance of the plea.
Had that error not occurred, there would have been no presentence report.
And I therefore do not consider the presentence report as controlling in any way.
I feel thereafter that the matters occurring in open court and the information supplied to the district judge in open court served to compound the error by indicating to the district judge that there was no factual basis for the plea.
Justice Abe Fortas: Free -- that's where I read your brief and so it means that if we don't agree with you about the first part of Rule 11 that there are the court so far as your argument is concerned.
If we don't agree with you about the application of the phrase in Rule 11 in this case that is that the court must first address the defendant personally and determine that pea is made voluntarily, etcetera.
Mr. Maurice J. Mccarthy: Well, I have --
Justice Abe Fortas: I don't agree with you about that and your argument falls because you treat the last sentence as a mere appendage then you get some support from that I agree from the reporters note, the advisory note but that is -- am I correct about your argument?
Mr. Maurice J. Mccarthy: I have not argued with that last part of the rule is mandatory because of the language of the rule itself.
It says the District Court must be satisfied.
This is a word which leaves some room for argument.
My position and the position of the petitioner is that in view of the matters occurring in open court, any decision which the District Court came to was not founded upon a reasonable basis that the court was informed of matters which required further inquiry, was informed of the age and inexperience with criminal matters of the defendant was informed of his past alcoholic condition both at the time of the plea was tendered and at the time that crime was alleged to have been committed and was informed that counsel for the petitioner had made an exposition of the crime which was incorrect.
The counsel had said that negligence could constitute a crime.
The last decision of this Court on the defining tax evasion, the Sansone case cited in our brief, indicates that willfulness is the characteristic element that specific intent is the characteristic element of the crime when an inconsistent statement occurs certainly there is a duty of inquiry.
The statement of the defendant himself at the trial level was inconsistent.
Justice Abe Fortas: Why do you think -- why do you think the Committee put that sentence in the rules?
Mr. Maurice J. Mccarthy: Concerning the factual basis of the plea?
I'm quite sure that the -- well, as the notes of the Committee indicate the reason for that particular sentence was to ensure that a defendant whose -- who may have understood the charge was made was certain that the acts which he admitted constituted the crime.
I think the reverse of that is also true.
An individual who admitted the acts necessary to cons --
Justice Abe Fortas: Why is that the judge can satisfy the last sentence says that the judge.
Mr. Maurice J. Mccarthy: I'm sure that this imposes --
Justice Abe Fortas: Must have been satisfied with one -- than that appeared just for the language of that sentence.
The idea was to see that the court before sentencing a man was satisfied that he wasn't pleading guilty because of desperation or whatever it may be, wanting to put an end on uncertain situation or whatever, or pressure or whatnot that the judge has to be satisfied that there's a factual basis for the plea.
Mr. Maurice J. Mccarthy: This is a second part of our argument Your Honor that there is an abuse of discretion in this case.
I don't think that --
Justice Potter Stewart: I understand that your brief on pages from 24 to pages 29 some 5 or 6 with bold printed pages, the thrust of your argument is almost precisely what Mr. Justice Fortas' questions have suggested, i.e. that there was not compliance in this case with the final sentence in newly amended Rule 11.
Is that right?
Mr. Maurice J. Mccarthy: Exactly, Your Honor but I frame it in terms of an abuse of discretion in the part of the District Court because I don't find that language to be sufficiently specific.
The language is that the Court must be satisfied.
Justice Potter Stewart: Satisfied.
Mr. Maurice J. Mccarthy: And that's why I (Inaudible) the argument in terms of the discretion and an abuse thereof.
The attorney, the counsel for the respondent argues that the rule leaves some discretion in the District Court although he would apply it also to the first part of rule of it concerning the taking and accepting of the plea of guilty.
However, the respondent does not address himself to the facts in this case which we argue required inquiry by the district judge.
Our third argument, --
Justice Thurgood Marshall: Mr. McCarthy, do you split any responsibility on retained counsel?
Mr. Maurice J. Mccarthy: Of course there is responsibility on retained counsel, Your Honor.
Justice Thurgood Marshall: Well, is your position that the fact that they didn't call the Alcoholic Anonymous man was enough?
Mr. Maurice J. Mccarthy: No, my position --
Justice Thurgood Marshall: Or what should the Court do, go out and subpoena witnesses?
Mr. Maurice J. Mccarthy: The Court is required under Rule 11 to address the defendant personally and determine that he, the defendant understand the nature of the charge and the consequences of the plea?
Justice Thurgood Marshall: Well, don't you think the judge is right in taking consideration that this man might have been fit Alcoholics Anonymous but that wasn't sufficient?
Mr. Maurice J. Mccarthy: Well, I'm quite sure that being a member of Alcoholics Anonymous --
Justice Thurgood Marshall: What else did the court have other the lawyer statement that this mans was a fit subject of Alcoholics Anonymous?
What else did the judge have?
Mr. Maurice J. Mccarthy: The judge had the age of the defendant.
The defendant was 65 years of age.
He had --
Justice Thurgood Marshall: That's discretionary, isn't it?
Mr. Maurice J. Mccarthy: Certainly, it is discretionary.
Justice Thurgood Marshall: That's why he put a 65-year-old man in jail?
Mr. Maurice J. Mccarthy: Certainly it's --
Justice Thurgood Marshall: That's discretionary.
Mr. Maurice J. Mccarthy: Well, the question isn't whether or nor to put a 65-year-old man in jail.
The question is whether or not a 65-year-old man sufficiently understands the nature of the charge.
This is the question, whether he has been informed and understands the meaning of the accusation.
Justice Thurgood Marshall: Would your argument be the same if he was 45?
Mr. Maurice J. Mccarthy: I think a man more in the prime of his life would be less likely to be confused --
Justice Thurgood Marshall: Where would you draw the line?
Mr. Maurice J. Mccarthy: This is perhaps in the discretion of the Court but this is precisely my argument that the discretion of the court was not properly exercised.
Justice Thurgood Marshall: Why?
Mr. Maurice J. Mccarthy: Some men of advanced years are extremely -- have extreme acumen some do not.
Justice Thurgood Marshall: Well, what should the judge do at that stage?
Put him on the stand?
Mr. Maurice J. Mccarthy: Rule 32 requires at the sentencing hearing that the district judge address the defendant personally of this again --
Justice Thurgood Marshall: Well, indeed it's original hearing?
Mr. Maurice J. Mccarthy: He did inquire of the defendant at the sentencing hearing and the defendant said the following -- He said, if it were not for my health and the things that I have gone through, it would not have happen and it is not deliberate.
A statement such as it is not deliberate is a point blank denial of the characteristic element of the crime under 7201.
Justice Thurgood Marshall: Well, what should the Court have done then?
Mr. Maurice J. Mccarthy: The court should have inquired as to what he meant by “It is not deliberate.”
Did he mean --
Justice Thurgood Marshall: And suppose he had done that, would it be alright?
That would be enough?
Mr. Maurice J. Mccarthy: Oh!
There would have been what the military calls providence on the record.
Justice Thurgood Marshall: The military calls?
Mr. Maurice J. Mccarthy: Well, I cited to this Court cases from the --
Justice Thurgood Marshall: Yes, I know.
Mr. Maurice J. Mccarthy: -- United States Court of Military Appeals.
Justice Thurgood Marshall: I'm still wondering.
Mr. Maurice J. Mccarthy: I just used the phraseology which they used.
What I mean is there would have in the record evidence to have establish that in open court, the defendant have been informed of the charge and had knowingly pleaded to that charge.
Justice Thurgood Marshall: Well, couldn't the defendant with or without the advice of a retained counsel have volunteered what was good for him?
Mr. Maurice J. Mccarthy: I'm afraid I don't.
Justice Thurgood Marshall: Or do you think the Court is obliged to inquire into all of the materials?
Mr. Maurice J. Mccarthy: Yes, I think.
Justice Thurgood Marshall: I come back to my original question.
Don't you think we're taking counsel as some responsibility?
Mr. Maurice J. Mccarthy: Yes, of course you're retained counsel does.
My last argument is on the constitutional question involved here and I think it's pointed out well by the alternative suggested by counsel for the respondent.
Counsel for the respondent says that this is the first case which has come up on a direct appeal from the acceptance of the plea of guilty which was not preceded by a motion to vacant or by a motion to withdraw.
I note in my reply brief, that the authority say that by the respondent for this position that they accept in usual methods are motion to withdraw or a motion to vacate, leave the defendant below with unconstitutional alternatives.
If he moves to withdraw the plea, he must accept the burden of proving innocence.
If he doest that, it seems to me that Fifth Amendment guarantee of due process and the presumption of innocence are reversed.
If he should move to vacate the sentence that motion under 2255 can only be made when the defendant is in custody.
So the alternatives left open to the defendant in a situation such as this are to either go into custody and move to vacate, or accept a burden of proving innocence.
We feel that this constitutional question has not been answered by the respondent.
We therefore respectfully submit that the judgment should be reversed and the cause remanded for trial.
Chief Justice Earl Warren: Mr. Springer.
Argument of James Van R. Springer
Mr. James Van R. Springer: Mr. Chief Justice and may it please the Court.
The Court is handicapped we feel in this case because it is Your Honor direct appeal as the petitioner points out.
Although he -- as I understand it still makes two claims, one, that there was not sufficient objective factual basis for the entry of the judgment on his plea and two, that before accepting the plea, the trial judge did not make an adequate determination as to his subjective understanding of the nature of the charges.
Although the petitioner's case is based upon these two contentions, we in fact have no testimony by the defendant as to whether or not he did understand the charges and not even in a factual allegation that he did not understand the charges.
And also we have little if any direct evidence relating to the charges themselves upon which we can determine whether or not there was in fact an objective basis.
However, the record does indicate a number of the circumstances surrounding this plea and the entry of judgment upon it and we feel that's it's important to bear some of this in mind.
First of all, the nature of the charge itself, the indictment which related to tax deficiencies in one year of 1960 is simple and straight forward.
It charged that the defendant willfully and knowingly attempted to evade his taxes for that year by willfully and knowingly filing a tax return understating his income by some $13,000.00 which was somewhat more than 40% of the total alleged income for that year.
Chief Justice Earl Warren: Is that what he was convicted of?
Mr. James Van R. Springer: Yes.
Yes, Mr. Justice.
Chief Justice Earl Warren: $15,000.00
Mr. James Van R. Springer: Yes, well of course, there was no specific finding.
He pleaded guilty to a deficiency of approximately $13,000.00.
Chief Justice Earl Warren: Oh!
I thought he pled guilty to one of the three counts?
Mr. James Van R. Springer: Yes.
Chief Justice Earl Warren: But the other two are dismissed?
Mr. James Van R. Springer: Yes, I'm sorry.
In that one year of 1960, there was an alleged deficiency of $13,000.00 that was somewhat smaller deficiencies alleged in the years 1959 and 1961.
And those accounts were dismissed.
I might point out however they were dismissed upon an understanding expressed by Government counsel to which petitioner's counsel agree that the taxes for all three years would be paid.
From this, I think it's fair to infer that there was never any dispute as to the actual existence of a tax deficiency.
Accordingly, the only fact issue in the case was the issue of the defendant's intent whether he willfully filed a false tax return.
So there was no, we submit possibility of any confusion as to lesser included offenses or anything.
It was a simple factual question of willfulness.
Chief Justice Earl Warren: If it had not been willful, if it had been neglected, it would have been an included offense, would it not?
Mr. James Van R. Springer: Mr. Chief Justice I believe, it would not.
This Court held in Sansone that all of the criminal tax provisions coalesce as it were in the case where the charge is the filing of a return that falsely stated income.
Accordingly, if the court --
Chief Justice Earl Warren: If a defendant had misunderstood that word willful and it had been a matter of neglect as far as he was concerned it would have been a minor offense, wouldn't it?
Mr. James Van R. Springer: In fact, I believe it would have been no offense at all.
None of the criminal provisions would apply.
Chief Justice Earl Warren: Whether any --
Mr. James Van R. Springer: -- each of the three basic ones --
Chief Justice Earl Warren: Well, --
Mr. James Van R. Springer: --each requires will --
Chief Justice Earl Warren: -- let's put it this was, were there any included offenses?
Are there any included offenses in a charge of this kind?
Mr. James Van R. Springer: No, in fact that is I believe what this Court held in the Sansone case.
There are none as to which instructions are required to be given.
It's either all or nothing.
Chief Justice Earl Warren: But the district attorney does have a right to charge it either as a misdemeanor or as a felony is he not?
Mr. James Van R. Springer: Yes, he does but when the charge is made, it is a single question and there is the one question of willfulness.
Before he pleaded, the defendant had as the record shows had retained counsel for a period of at least three months.
There was an indication some two weeks before he finally pleaded guilty that petitioner's counsel had led that the Governor's counsel to believe that there would not be a trial case.
From this, we think it's reasonable to infer that there were substantial discussions about the charges between the defendant and his counsel and we're trying it hard to believe that those charges, that those discussions would not have explored fully the single fact issue in the case.
Justice Abe Fortas: Well, apart from what the merits may be, I suppose the Government's position is that the petitioner having pleaded guilty, it was his responsibility upon being personally addressed by the court to come forward with some sort of showing that would indicate that would give a basis for a claim at that time or subsequently that can be done that he did not plead guilty unknowingly, isn't that right?
Mr. James Van R. Springer: Yes, in fact it's our position that if in fact the defendant now has available to him some factual indication that the plea was not knowing or for that matter that there was not an adequate factual basis for the plea, he can raised this collaterally.
Justice Abe Fortas: Well, the question is whether it have to be a showing made at the time, some showing made at the time that the prisoner is addressed by the judge and if so what form that has to take?
Mr. James Van R. Springer: Yes, but as I say --
Justice Abe Fortas: Is it or is it not the Government's position whether raised collaterally or on direct appeal that that is the time when a showing has to be made under Rule 11?
Mr. James Van R. Springer: No, we would not stand on the proposition that that is the only time it could be --
Justice Abe Fortas: Do you believe it can be made collateral?
Mr. James Van R. Springer: Yes, and in fact we would submit that there's no substance to the petitioner's contentions that he is in any way barred from raising this matter either under Rule 32 (b) or under Rule 2255.
Justice Abe Fortas: But what you're saying to us then comes down to the proposition as I understand it that there is no evidence or nothing from which we can rely in this record to show that the plea was not voluntarily and knowingly made, is that right?
Mr. James Van R. Springer: Yes, yes.
Justice Abe Fortas: Or is it --
Mr. James Van R. Springer: In fact, --
Justice Abe Fortas: -- and also that nothing before us to show that the necessary element of the crime that is to say the knowing evasion of taxes was not present.
Mr. James Van R. Springer: Yes, in fact to the first point, we would submit that there is enough in this record to show that there was ample basis for the inference which the prior judge evidently made that the defendant understood the nature of the charges.
Justice Byron R. White: Wouldn't you think that to comply with Rule 11, the judge himself must as you just suggested at least go through to the process in his own mind of determining like Rule 11 requires that the defendant understood the consequences of his plea of the nature of the charge.
Mr. James Van R. Springer: Yes, Mr. Justice we do not believe however that there's anything in the world that requires a specific identifiable finding in the record.
Justice Byron R. White: I know but it is not enough for you to win your case just to say that there's no evidence in the record to indicate that he didn't know.
Mr. James Van R. Springer: No, no we are prepared to argue to the contrary though there is enough evidence in the record to support such an inference.
Justice Byron R. White: Don't you have to?
Mr. James Van R. Springer: Yes, yes we certainly do.
Justice Byron R. White: And you're willing to decide this case on the basis of Rule 11?
Mr. James Van R. Springer: Well on the basis of the compliance by the Court with the real substance of Rule 11 which we feel is that a determination at least within the judges on mind be made and that there be an adequate basis for that determination.
We concede of course that it would have been better if the judge had specifically addressed the defendant as to his understanding of the charges.
Justice Byron R. White: As far as there being a factual basis for the charge or for the plea, I gather that the only issue in the case was knowing or not.
Didn't the judge himself at the time of sentencing make his own finding as to that --
Mr. James Van R. Springer: In effect he did that based on his --
Justice Byron R. White: He said in my opinion, the matter which the books were kept was not inadvertent.
That's pretty close.
Mr. James Van R. Springer: I would think so and that plus some other related discussions plus in fact what the defendant's counsel said at the sentencing indicates that the judge of course familiar with the presentence report.
Justice Byron R. White: But this is a different matter wholly of -- this is a different matter from satisfying himself as the defendant himself understood the nature of the charge and understood what he was pleading guilty to.
Mr. James Van R. Springer: Yes, this is really the objective question and the other is the subjective question as to voluntariness and so forth.
Chief Justice Earl Warren: I understand you to say that there's enough in the record to support an inference by us that the court did satisfy this rule.
Does that, do you go farther and do you say that there was a clear compliance with Rule 11 by the judge?
Mr. James Van R. Springer: I -- Mr. Chief Justice, I would suggest that that perhaps becomes a semantic question of course we cannot contend that he --
Chief Justice Earl Warren: No, it isn't semantic at all.
It's one thing to say that there's enough in the record for us to infer that perhaps he did know enough about the case and properly sentence him and it's another thing to answer whether he actually followed Rule 11 or not which is the question before us.
Mr. James Van R. Springer: Well, of course I have to say that the Rule 11 did direct him to address the defendant and he did not do that.
Chief Justice Earl Warren: That he did not?
Mr. James Van R. Springer: In that sense.
Chief Justice Earl Warren: Do you think it is too much for this Court to insist that Rule 11 be followed by district judge before he sends a man away the prison for a term of years when the defendant has plead guilty is safe to state the trial.
He's before him.
Therefore anything the judge wants to do up to the maximum of punishment that the statute allowed.
Do you think it's too much for a judge to clearly and distinctly and accurately follow Rule 11?
Mr. James Van R. Springer: Certainly not, Mr. Chief Justice.
Chief Justice Earl Warren: Then why do you support this?
Mr. James Van R. Springer: Because I think that the fact that judge did not fully comply with Rule 11 is not dispositive of this case.
Because the question is --
Chief Justice Earl Warren: That we ought to give a benefit to the -- of doubt to the judge rather than to the defendant?
Mr. James Van R. Springer: Well, first we would say there was an effect to determination.
If however, --
Chief Justice Earl Warren: Now, --
Mr. James Van R. Springer: -- this Court does not --
Chief Justice Earl Warren: In effect, you qualify everything you say.
You say in effect and you answered me a moment ago that he did not follow the rule.
Mr. James Van R. Springer: As I say Mr. Chief Justice, that we have to concede.
However, the fundamental question here at least on the subject of issue is whether in fact the defendant did understand the charge.
If there is a question on this record as to whether or not he did, we submit that it would not be prejudicial to the defendant to have a hearing on that issue.
Chief Justice Earl Warren: His counsel told the court, this man because of his drinking was negligent in doing these things and it was negligence that brought this around rather than deliberation and that did not prompt the court to go any farther at all.
Mr. James Van R. Springer: Well, I think that there's -- those I believe are counsel's inferences from the record which I believe on its --
Chief Justice Earl Warren: You get back to inferences again.
He said that to the court.
It isn't an inference.
He said that to the court.
Mr. James Van R. Springer: If the reference is to statements by the defendant's counsel at the sentencing hearing Mr. Chief Justice, I would suggest that reading those statements as a whole does not to my mind at least disclose any inconsistency with either the existence of the factual basis for the charges or the defendant's understanding.
I think that --
Chief Justice Earl Warren: Now, I think we are getting into semantics when you refer it that way and his violation but reading it, the effect of it is that it didn't injure the defendant at all.
That is semantics.
Mr. James Van R. Springer: If it be so, I have to concede that our case does to that extent depend upon that.
We do insist however that the Government should be allowed at least to meet the burden which we prepared to accept of proving on a hearing that the defendant did plead with an understanding of the charges against him.
Justice Hugo L. Black: Does the appendix of page 20 and 21 and 22 correctly set out the conversation that took place between the judge and the prisoner?
Mr. James Van R. Springer: Yes, Mr. Justice Black, that in fact is a quotation by the Court of Appeals confirm the plead record which is set forth completely at pages 6 through 8.
Justice Hugo L. Black: That's what happened?
Did I understand you to say a while ago that the judge did not directly address the defendant?
Mr. James Van R. Springer: He did not directly.
Justice Hugo L. Black: To say what?
Did I understand you to say he did not directly address the defendant?
Mr. James Van R. Springer: No, Mr. Justice Black.
He did of course directly address him and questioned him at some length on other questions.
Justice Hugo L. Black: But they had the conversation which was shown?
Mr. James Van R. Springer: Yes.
Justice Hugo L. Black: I misunderstood you.
Mr. James Van R. Springer: Yes.
What -- the subject on which he did not directly address the defendant at which he is raise here is that the question of the defendant's understanding of the --
Justice Hugo L. Black: Well, --
Mr. James Van R. Springer: -- charges.
Justice Hugo L. Black: -- he asked him about several things that he understood, didn't he?
Mr. James Van R. Springer: Yes, he asked him whether he understood the -- that he would be depriving himself to a jury trial by pleading guilty whether he understood that he would be subjecting himself to a long sentence --
Justice Hugo L. Black: Why?
Mr. James Van R. Springer: -- whether he was pleading voluntarily, whether any promises had been made to him, or whether any threats had been made to induce the plea.
We do have to conceive, in other words the one further question which the judge preferably would have asked or perhaps --
Justice Hugo L. Black: How was he --
Mr. James Van R. Springer: -- a series of questions about the understanding --
Justice Hugo L. Black: -- exactly how did he ask that under the rule?
In your judgment?
Mr. James Van R. Springer: I think it would not be enough simply to say, do you understand the charge?
Justice Hugo L. Black: What it would not be enough?
In your judgment, did he fail to ask?
He should have asked.
Mr. James Van R. Springer: I think in this case because of the simplicity of the case, it could have been --
Justice Hugo L. Black: Because of what?
Mr. James Van R. Springer: Because of the simplicity of the charge it could have been a simple question.
Justice Hugo L. Black: What is it you say that had didn't ask that the rule requires him that?
Mr. James Van R. Springer: He did not ask, do you understand that in order to be convicted of this charge, you must have willfully filed a false tax return understating your income?
That on the subject of question is the single issue in this case whether or not the defendant did understand that requirement.
As I have said, we believe that the record does indicate that first that the judge so determined and second, that he had a basis for doing so if --
Justice Hugo L. Black: Does the rule say that he should ask him if he willfully did it?
Committed a crime?
Mr. James Van R. Springer: Well, Mr. Justice Black the rule does say that he shall personally address the defendant --
Justice Hugo L. Black: Which he did --
Mr. James Van R. Springer: -- and determining.
Justice Hugo L. Black: -- and determined?
Mr. James Van R. Springer: That the plea is made voluntarily and with the understanding of the nature of the charges.
Justice Hugo L. Black: And he did that which is voluntarily, didn't he?
Mr. James Van R. Springer: Yes, he did.
He did not however ask him if it was made with the understanding of the nature of the charges.
Justice Hugo L. Black: But he asked about three or four understanding but he didn't sweep in the whole thing he says.
Mr. James Van R. Springer: Yes, and that --
Justice Hugo L. Black: That may be right, I'm just asking.
Mr. James Van R. Springer: Yes and what we have to concede that that is something that the rule directed him to do that he did not.
However we do submit that it was hard --
Justice Hugo L. Black: I'm not joining issue with you rather I'd see just exactly what was?
Mr. James Van R. Springer: As to the basis for the inference which we feel the district judge properly drew characterize it as you will, the defendant was a mature man.
He was a business man.
He had counsel for some months.
Just before he was called upon --
Justice Hugo L. Black: What about his business?
Mr. James Van R. Springer: It appears that he was some kind of printing jobber at the end of the sentencing proceeding was a reference to a request for a stay of execution of the sentence because he was handling the printing of some ballots for the county at that time.
That's the only indication that --
Justice Hugo L. Black: You say they could raise this collaterally in one or two ways.
What's the use of presenting it to us?
Mr. James Van R. Springer: On direct appeal?
Justice Hugo L. Black: Yes.
Why should you contest to it if you say it can be raised collaterally?
Mr. James Van R. Springer: I submit that --
Justice Hugo L. Black: You told me you decide against it?
I understood you to say he could raise it collaterally.
Mr. James Van R. Springer: Yes, Mr. Justice.
In fact that is --
Justice Hugo L. Black: So then what you want is just to show what happen or why go over all that fight just accept a retain a plea of guilty?
Mr. James Van R. Springer: I'm sorry.
Why should he --
Justice Hugo L. Black: Why go over all that fight just to retain a plea of guilty when you could just try him again?
Mr. James Van R. Springer: Why?
The problem here I think is that when a defendant has pleaded guilty, the system is set up in such a way that he should not and will be able to withdraw his plea after he determines what his sentence will be.
Justice Hugo L. Black: That's right, not his will but what if it's shown that there are mistakes.
The judge left something else.
Why shouldn't he just have it tried to try though he'd never made this false step on the plea of guilty?
Mr. James Van R. Springer: I would simply urged that the kind of the outburst of that that having pleaded guilty he should not have the option of undoing what we believe the record shows was a thoroughly considered intelligent act on his part.
Justice Hugo L. Black: The courts have been very liberal and haven't been admonished to be liberal in connection with letting people withdraw their pleas of guilty.
When they have pleaded guilty and they cannot then make a -- what seems to be bona fide claim and it was not right.
Mr. James Van R. Springer: Of course the Rule 32 relating to that does draw a distinction between a withdrawal of the plea before a sentencing which can be done quite freely and the withdrawal of the plea after sentencing which can be only done only upon a showing of manifest into justice.
Justice Hugo L. Black: Of course the Government wouldn't want to keep a conviction and demand rarely had not violated along way?
Mr. James Van R. Springer: No, certainly not Mr. Justice and we would urge that that is a -- if this record is not sufficient to support the acceptance of the plea and the entry of judgment upon it that those facts should be explored in a hearing so that we will know whether or not there was a factual cases --
Justice Hugo L. Black: And a collateral proceeding or just a remand for what?
Mr. James Van R. Springer: We would suggest that it would be more orderly if it were done collaterally.
Alternatively, we would suggest that at the very least, this case should be disposed off by a remand for a hearing rather than by a vacation of the judgment with the option then in the defendant to plead again.
Justice Hugo L. Black: As I understand that you concede that they raised the question in connection with the judge which if it was correct he wouldn't have been justified for pleading guilty.
Mr. James Van R. Springer: It is raised only on appeal however.
It was never raised before the jury.
Justice Hugo L. Black: I thought that his lawyer was raising it and saying that he had been drinking and that he didn't know.
Was that right?
Mr. James Van R. Springer: No, I think the discussion towards the references had been made or a discussion in elaboration of the defendants statement in allocution that the lawyer was not arguing that the plea was improper and that he --
Justice Hugo L. Black: But what did he say about it?
What did he say about it?
Mr. James Van R. Springer: About the plea, he said --
Justice Hugo L. Black: About the defendant's knowledge.
Mr. James Van R. Springer: He said nothing directly about the defendant's --
Justice Hugo L. Black: And did he say from which something could be inferred about his drinking?
Mr. James Van R. Springer: It's a rather elaborate statement.
The part that starts off --
Justice Hugo L. Black: Just that part of it.
Mr. James Van R. Springer: It appears in a number of places in trial counsel statement on seeking to mitigate the sentence that refers to problems that relate to drinking in this case.
This man has experienced a kind of punishment self-inflicted which is almost a categorical listing of how he flees.
It's a somewhat a disjointed --
Justice Hugo L. Black: Was it in that --
Mr. James Van R. Springer: -- statement.
Justice Hugo L. Black: I believe the impression with the judge?
That the man had been drinking to such extent that he could not have willfully committed a crime?
Mr. James Van R. Springer: I think not speaking very honestly upon a whole in reading of the entire record.
In fact counsel's principal point was that the concealment's and dubious acts which resulted in this tax evasion were carried out for the purpose of secreting funds so that as I interpret it so that the defendant could purchase liquor and so forth without his families knowing about it.
That was the thrust of counsel's argument rather than any what I considered to be suggestion that in fact the defendant was not responsible.
Chief Justice Earl Warren: Well, didn't counsel say specifically to the court that the (Inaudible) report this was a matter of negligence on the part of the defendant and not intentional but he realized that if some circumstances, negligence could be equated to that?
Mr. James Van R. Springer: The word he used Mr. Chief Justice in fact was neglect.
I'm not sure that there's a distinction.
Chief Justice Earl Warren: Neglect, yes.
Mr. James Van R. Springer: But he --
Chief Justice Earl Warren: Instead of negligent consent?
Mr. James Van R. Springer: I would suggest that what he seems to me to have been meaning by neglect was the failure to do something, --
Chief Justice Earl Warren: Yes.
Mr. James Van R. Springer: -- the failure to record income accurately.
Chief Justice Earl Warren: Yes.
Mr. James Van R. Springer: However this man was an experienced lawyer.
The Court of Appeals pointed out that he was a former assistant of the --
Chief Justice Earl Warren: You mean --
Mr. James Van R. Springer: -- United States Attorney.
Chief Justice Earl Warren: -- counsel, yes.
Mr. James Van R. Springer: Yes.
As I would suggest that the record does not support an inference that counsel was confused as to the nature of charges.
And I think it is important to bear in mind what counsel's purpose in making the statement was.
This was at the sentencing hearing.
Chief Justice Earl Warren: I tell you frankly what concerns me in this case.
Here, we have Rule 11 that is designed by this Court and by the Congress to eliminate the possibility of an innocent man pleading guilty and being sentence to the penitentiary because he does know what he is pleading guilty to.
And you say to us that remedial statute has not been followed by the Court in this case.
Yet you asked us by reason of the totality of the circumstances to excuse the judge from having done this simple act and ask us to keep the man in the penitentiary where a trial of this simple case could have cleared the matter up entirely.
Now, if are we going to be subjective to that kind of cases coming in here?
Time after time and this be a president for saying well the judge doesn't have to follow Section 11 in its entirety if we can judge them a totality of the facts that the defendant probably knew what he was doing then the defendant must stay in the penitentiary.
Now, really this case to me has more significance than justice, than just this defendant.
There's a question of whether we're going to have to say to the District Judges that they need not follow specifically Rule 11 which is of no great burden to them but which is a great burden to a defendant when it comes to determining the number of years he is going to spend in the penitentiary.
Mr. James Van R. Springer: Mr. Chief Justice, I would only say that in this case, because of the failure to make that simple inquiry at the plead receiving, the Government has imposed upon it what may be the subversive substantial burden of going through a collateral proceeding having to prove that in fact there was an understanding of the nature of the charges.
Justice Abe Fortas: Well, Mr. Springer that's -- you surprise me.
Could I ask you to bear with me and let me see if we can try and get this straight in my own mind.
There are two phases here chronologically.
There are two faces under Rule 11.
One, that man pleads guilty in this case.
Then under Rule 11, before the judge at that time which in this case was July 15, 1966.
At that time, the judge may not accept the plea of guilty without first addressing the defendant or without determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.
Alright now, are you with me?
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: Alright, on July 15, the judge did address this defendant directly.
Mr. James Van R. Springer: Yes, Mr. Justice.
Justice Abe Fortas: He did ask him about his understanding of the consequences of the plea.
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: Those were the words added strangely enough by the July, by the amendment effective July 1, 1966.
You have stated to us however, that he did not address the defendant directly with respect to the defendant's understanding of the nature of the charge.
In so far as the judge did not ask the defendant what he understood that the income tax evasion had to be done knowingly in order to constitute the offense charge.
Am I right?
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: You agree with what I've said?
Mr. James Van R. Springer: He did fail.
He did fail to inquire about that.
Justice Abe Fortas: And you assert that that question can be raised on the collateral attack.
Mr. James Van R. Springer: Yes, yes, yes, we do Mr. Justice.
Justice Abe Fortas: Is there any authority to that effect?
Now remember, we're not talking about whether the prisoner can collaterally attack that his conviction because he did not commit the crime knowingly.
We're talking only about whether the prisoner can collaterally attack his conviction because the judge did not determine by direct questioning whether the prisoner understood the nature of the charge.
Mr. James Van R. Springer: Well, perhaps I should --
Justice Abe Fortas: Is there any authority to the effect that that question, that narrow question of what happens after plea of guilty and on acceptance of the plea of guilty under Rule 11?
Is there any authority to the effect that that can be attack collaterally?
Mr. James Van R. Springer: Yes, there are several Court of Appeals cases.Perhaps, I –- just to be absolutely thorough I should rephrase that point.
The question that we say could be raised on collateral attack is the question whether in fact the defendant understood that nature of the charge at the time of the plea not what transpired on the record between the judge and the --
Justice Abe Fortas: Alright.
Mr. James Van R. Springer: -- and the defendant.
It's this question of actual understanding.
Justice Abe Fortas: Let's leave that confusion where it is and let's go to the next phase.
Alright, that's what happens before the judge or should happen under Rule 11 before the judge accepts a plea of guilty under Rule 11 and those were the events imperfect or whatever they may have been that occurred here on July 15, 1966.
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: Alright.
Then you come to the next phase, which is after -- which is the sentencing.
And that is the time at which the last sentence of Rule 11 applies, is it not?
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: -- when judgment is entered.
And that was September of 1966 and Rule 11 as amended effective July 1st states that the court shall not enter a judgment upon a plea of guilty unless it is sentence by it that there is a factual basis for the plea.
Now, do you want to tell this Court, won't make any comment to this court as to whether that sentence was satisfied in this case, remembering it does not have to be satisfied on July 15 if what I have said is correct.
But it does have to be satisfied by the time the judgment is entered which in this case was September.
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: In the hearing, in the colloquy in September, according to this record the judge did refer to the what he referred to as more or less deliberately confused bookkeeping of the defendant as disclosed by the presentence report.
Is that right?
Mr. James Van R. Springer: Yes.
Justice Abe Fortas: So that there is some indication here that the judge did have before him some information going to what actually happened here.
Going to the factual basis for the plea, is that right?
Mr. James Van R. Springer: Yes, and that information as --
Justice Abe Fortas: Now, --
Mr. James Van R. Springer: -- far as the record shows.
Justice Abe Fortas: -- is it the Government's position at all its -- that is essential that it is essential to comply with that last sentence, there be some indication of some sort on the record that the Court did look into and was satisfied that there is a factual basis for the plea.
Or do you say that that last sentence doesn't mean anything of the sort?
Mr. James Van R. Springer: I think there should be some indication in the record.
I think it was sufficient here without even some of the colloquy.
Justice Abe Fortas: Do you think there should be some indication but that the indication here is enough?
Mr. James Van R. Springer: The crucial point being that it is indicated that the judge considered a presentence report.
Justice Abe Fortas: Alright and you say that the Court doesn't have to enter anything on the record to the effect that it is satisfied that there was a factual basis for the plea.
Mr. James Van R. Springer: No, we would suggest that sufficiently implicit in the entry of judgment and I think --
Justice Abe Fortas: There was no such -- nothing on the record to in this case to that effect.
Mr. James Van R. Springer: No, the judge did not say I am satisfied or would we suggest that the language in the last sentence of rule 11 was chosen advisably.
It contemplates an informal determination by the use of the words satisfy and that requirement is fulfilled here.
Chief Justice Earl Warren: Was a presentence report available to the defendant in this counsel?
Mr. James Van R. Springer: Under a contemporaneous amendment as the court knows of Rule 32 (a), the trial judge has told that he may make the presentence report available as I have requested.
Chief Justice Earl Warren: In this case?
Mr. James Van R. Springer: No, here was not made available to the defendant.
Chief Justice Earl Warren: How do we know what the judge said that he actually got that even from a presentence report which is not available to the defendant?
Might he got it from discussing that with the district attorney or with somebody else?
Mr. James Van R. Springer: That certainly is, it's not precluded.
Chief Justice Earl Warren: Certainly doesn't show that he got it from any illegal way, does it?
What he said?
Mr. James Van R. Springer: No.
We would suggest however that it is not -- it should not be required to satisfy the last sentence of Rule 11 that the record support with appropriate evidence the determination of satisfaction that the trial judge makes.
Chief Justice Earl Warren: What is there in this record to support the statement that the judge is satisfied with the fact that he didn't properly keep his books but kept them intentionally wrong?
What is their in the record that we can review to support that conviction on the part of the judge?
Mr. James Van R. Springer: There is very little, we have to --
Chief Justice Earl Warren: There is nothing, isn't that correct?
Mr. James Van R. Springer: There is nothing in the ordinary sense of evidence, yes.
Chief Justice Earl Warren: Alright.
Rebuttal of Maurice J. Mccarthy
Mr. Maurice J. Mccarthy: If I might make two brief points Your Honor.
Counsel for the respondent has brought up one thing which we argued in our brief and which counsel for respondent has never answered.
He said that in accord of sorts was reached that Government counsel indicated to the judge when he appeared ex parte because of the defendant silliness that the matter would not go to trial according to counsel for the defendant.
Later on, the District Court was informed that there was an understanding that tax and penalties would be paid.
If this is true and we have argued, if this is true, is this not another urgency or inquiry that a man who has to the knowledge of the District Court been hospitalized for alcoholism who could not stand trial two weeks before he entered his plea of guilty because of illness.
Is it not significant that the Government now argues that there might have been some accord?
I think that this is another point indicating that there was a need for the District Court to inquire in this matter and that this should not have been left unnoticed.
Lastly, I would like to point out that the finding which the court has made in this case at page 8 of the appendix is not that there is any determination on the defendant's understanding.
The finding that the court makes is that the defendant was advised of the consequences are clearly in the record is no finding at all that there was any informing of the defendant as to the nature of the charge, there's nothing in the record to indicate whether or not the defendant actually did understand the charge and the statements in the record which give some evidence on this matter are inconsistent with an understanding plea of guilty to a charge of a crime which requires specific intent for its fruition.
We therefore urge this Court --
Justice John M. Harlan: Do you think --
Mr. Maurice J. Mccarthy: -- excuse me.
Justice John M. Harlan: -- that the district judge in the absence of any requests by counsel specifically complement the counsel?
For further allocution, do you think that he is entitled to say though Rule 11 in so far as the defendant is concerned?
Mr. Maurice J. Mccarthy: Well, I think if the allocution that the matters, that the very first matter that came to the judge in the allocution was the defendant's statement if it were not for my health and the things that I have gone through it never would have happened and it was not deliberate and I am sorry, that is almost verbatim what he said.
I think when you have a specific intent crime, a statement such as, it is not deliberate, a vague, and amorphous statement of that nature requires inquiry.
I think that at that point --
Justice John M. Harlan: It's not vague that you read that as a request for leniency?
Mr. Maurice J. Mccarthy: If it is what counsel for the respondent called an active contrition, it certainly is not an admission of guilt.
At no point in this record is there an admission of guilt, an admission of understanding, and an admission that the mental state necessary to the crime was ever present.
Now, counsel wants us to go back to the district court and to go through one of the procedures which you suggests, one of which would require that the defendant be in custody.
The other procedure would require that the defendant bear the burden of proving his innocence.
We feel that the constitutional issue in this has never answered and that counsel has made no attempt to answer it.
We therefore respectfully --
Justice Hugo L. Black: Mr. McCarthy --
Mr. Maurice J. Mccarthy: Yes, Your Honor.
Justice Hugo L. Black: I noticed on the last sentence of your brief, you asked that the case be reversed and of course remand it, but further proceedings can (Inaudible) alone.
Mr. Maurice J. Mccarthy: A trial Your Honor.
Justice Hugo L. Black: What?
Mr. Maurice J. Mccarthy: A trial on the merits Your Honor.
Justice Hugo L. Black: A trial on the merits?
Mr. Maurice J. Mccarthy: Yes, Your Honor.
Justice Hugo L. Black: That's what you mean by present procedure?
Mr. Maurice J. Mccarthy: Yes, Your Honor.
Justice William J. Brennan: You mean you foreclose the possibility of another colloquy?
Mr. Maurice J. Mccarthy: I don't believe that --
Justice William J. Brennan: Well, he may not but I take it if you want it to that you don't foreclose that possibility?
Mr. Maurice J. Mccarthy: I certainly would not foreclose the possibility of entering a guilty plea because that's a verge I haven't come to yet.
But it seems to me that with the evidence in the record, that a plea of guilty would not be made.
Chief Justice Earl Warren: But you do not ask for anything more than to give the man the trial?
Mr. Maurice J. Mccarthy: Yes, Your Honor that's right.
Chief Justice Earl Warren: Very well.
Mr. Maurice J. Mccarthy: Thank you Your Honor.