WALLER v. FLORIDA
Legal provision: Double Jeopardy
Argument of Leslie H. Levinson
Chief Justice Warren E. Burger: Number 24, Waller against the State of Florida.
Mr. Levinson, you may proceed whenever you're ready.
Mr. Leslie H. Levinson: Thank you Mr. Chief Justice and may it please the Court.
This case is on writ of certiorari to the Florida District Court of Appeal which affirmed a grand larceny conviction of the petitioner Joseph Waller, Jr. whom I represent.
This Court ordered the case to be argued immediately after the case of Ashe versus Swenson which we have just heard.
Two issues of great importance in the administration of criminal justice in the states are presented by this case, and each issue in our view independently will provide grounds for reversing the judgment below.
One issue is a double jeopardy issue, that is to say whether the double jeopardy rule as applied to the states through the Due Process Clause of the Fourteenth Amendment is violated where there are successive municipal and state prosecutions of the same defendant arising out of the same conduct.
The second issue in this case, is whether the Due Process Clause of the Fourteenth Amendment is violated where the trial judge imposes the sentence of imprisonment after reading a pre-sentence investigation report which he refuses to make available either to the defendant or to the appellate court.
The facts of the case are not in material dispute and never have been.
On the City Hall of Saint Petersburg, Florida, there was a mural, a piece of canvas attached to the wall by glue or other adhesive.
One day in 1966, in broad daylight and during business hours in the presence of a substantial crowd which include the police officers and other public officials, a group of people entered the City Hall, tore this mural off the wall, brought it downstairs into the street and starting walking through the streets of the city carrying this mural.
The people engaged in this demonstration alleged that the mural portrayed the Negro race in an insulting caricature, and the people were expressing their displeasure by this form of demonstration.
It is undisputed that the petitioner, Joseph Waller, Jr. was a member of the group, and that he personally participated in the removal of the mural from the wall and in carrying it through the streets of town.
A very short while after and as part of the same continuous happening or course of conduct, the police confronted Waller and the other individuals, recovered the mural after a scuffle, by then the mural was in a slightly damaged condition.
Perhaps the only conflict in the testimony of the case is just when the damage occurred, but at any rate, the mural was recovered by the police and Waller was immediately apprehended.
First, Waller was prosecuted in the City Court on the charge that he had violated two city ordinances during that course of conduct.
One ordinance concerns destruction of city property, the other ordinance disorderly breech of the peace.
He plead not guilty to both charges.
A trial was held in the municipal court.
Waller was found guilty on both charges and was sentenced to the maximum of 90 days on each charge.
The sentence is to be served consecutively.
While he was serving, his total of 180 days on the city ordinance violations, an information was charged alleging the felony of grand larceny and this grand larceny prosecution is what turns out to be the subject matter of the present case.
It is undisputed that the events alleged in the information for grand larceny concern the identical defendant, that is the present petitioner, and concern the identical course of conduct, the same day, the same time, the same mural and the same general series of transactions.
And this fact has been conceded by counsel for the State of Florida, is also established by an affidavit, executed by the petitioner and included in our appendix, page 15.
The District Court of Appeal also found as an undisputed fact that the same defendant and the same course of conduct were involved both in the city and in the information for grand larceny filed by the State of Florida.
Justice Potter Stewart: I understand Mr. Levinson that there is no dispute about the fact that it's the same defendant, and that it was the same general course of conduct.
I don't quite understand how it could be actually the same action that could be disorderly conduct and what was it, a malicious destruction of property or destruction of government property?
Mr. Leslie H. Levinson: Destruction of city property.
Justice Potter Stewart: City property, that was the subject to the first trial under the city ordinances and then the subject to the second trial under the state law was for larceny?
Mr. Leslie H. Levinson: Well Mr. Justice, in both trials --
Justice Potter Stewart: Larceny generally, doesn't -- I mean, the typical congressional larceny case doesn't generally embrace what we think of is disorderly conduct?
Mr. Leslie H. Levinson: Well Mr. Justice, in the felony trial in the Circuit Court, that's the trial for grand larceny, the point was raised by the defendant, that larceny generally consists under Florida law as elsewhere in the stealing of the property.
However, the District Court of Appeal affirmed the Circuit Court on the theory amongst others that larceny in Florida may also consists of the destruction of the property rather than the stealing of it, or even creating an unreasonable risk of destruction under Florida law, sufficient to constitute larceny.
The record contains a charge to the jury to that effect which we do not include in the appendix, but the Court may wish to refer to it.
And the opinion of the District Court of Appeal which is briefed in the appendix actually mentions the matter which was an issue on appeal.
And if I am refer to the Court, the Court to the opinion of the District Court of Appeal back on page 55 of our appendix, the District Court of Appeal coped with the problem, can there be a larceny by destruction under Florida law and they say yes, there can be, and there was.
To some extent, this represents a stretching of pre-existing Florida law on grand larceny.
It illustrates perhaps that the state was straining pretty far in order to try to pin a grand larceny label upon what actually happened.
The District Court of Appeal did affirm the trial court upon the theory amongst others that larceny can exist on the basis of destruction of the property rather than clipping it and concealing it as we would normally think of larceny.
Justice Potter Stewart: I was suggesting by my question that it was that it might be possible in a case, for example, let's assume there was a federal statute that makes it an offense to steal Government property and another statute that makes it an offense to destroy it, federal Government property.
I suppose it's conceivable that a person might steal portrait of George Washington from the White House and then a couple of weeks and be guilty of stealing it and then a couple of weeks later, in fear that he is going to be discovered, destroy it and that you wouldn't contend those were necessary one offense?
Mr. Leslie H. Levinson: Well certainly not Mr. Justice.
They would take place under your circumstances at different times for one thing, and they would offend different policies of the state.
What I suggest here is that the -- a single incident happened continuously within the very few minutes was the sole evidence introduced both in the city court and in the Circuit Court, and the state strayed rather far in order to label it grand larceny presumably wanting to, if I may use that expression, “throw the book” at this defendant.
Justice Byron R. White: Well, what was the -- what property was destroyed?
What was it claimed in the first trial that was destroyed?
Mr. Leslie H. Levinson: Mr. Justice, there's no record of the trial in the city court and I was not there personally.
I have to rely on the affidavit of the petitioner who was present and his affidavit which is not been controverted, states that the same facts were introduced an evidence in the city court as in the felony court.
That is the fact the he entered the City Hall, tore the mural off the wall, carried it out on the streets and it was recovered in a damaged condition.
Justice Byron R. White: Well, I suppose that it is possible that the on that state of facts, it wasn't the painting that was destroyed, but the wall?
Mr. Leslie H. Levinson: Yes, indeed, it is possible.
Justice Byron R. White: And that the -- within that the -- what was stolen was painting and what was destroyed is the wall?
Mr. Leslie H. Levinson: This is possible and we concede that it is possible that a single course of conduct may indeed offend a number of statutes at the same time.
Justice Byron R. White: And even maybe different separate acts?
Mr. Leslie H. Levinson: Maybe.
We believe that the -- our rule of compulsory joinder would require that as many complaints of the state may have against the defendant by reason of this course of conduct, they should join them into one trial, try it once on the multiple count indictment if this proper, but not to keep on trying him a number of different times so that to use Mr. Clifford's term, he shall not have to run the gauntlets of the criminal process.
Justice Byron R. White: Oh, you would say that if in the last case, on the robbery case, robbing several people at the same time that if a defendant goes up to one person and lifts his wallet out of his pocket and goes up to the other person and lifts the wallet out of his pocket but sticks a knife in him at the same time.
That's a state may not try the person for murder at a different time then they try him for robbery.
Mr. Leslie H. Levinson: I think that if all the facts are known to the state --
Justice Byron R. White: Those are all the facts there are, excuse me.
Mr. Leslie H. Levinson: I believe that the state under the arguments which we have submitted in our brief and which I wish to elaborate on a little while, the state should join together all the charges in a single trial which may contain numerous counts alleging the various criminal statutes which has been violated.
Justice Byron R. White: Though, that's critical to your case here, isn't it?
Mr. Leslie H. Levinson: This is certainly important.
We have an alternative theory, that is for theory of lesser included offense.
We believe that either the compulsory joinder or the lesser included offense theory will be sufficient to require reversal of the double jeopardy aspect of this case.
If I may resume, if it please the Court, after the felony information was filed alleging the crime of grand larceny, three more informations were filed by the county prosecutor alleging the three misdemeanors of one; unlawful assembly; two, malicious destruction of public property; and three, resisting arrest without violence.
Counsel was able to persuade the county prosecutor that double jeopardy had indeed been reached by the filing of these three misdemeanor charges and so the county prosecutor withdrew the three misdemeanors and they never came on for trial.
But the state's attorney persisted in bringing these grand larceny charges at trial to trial and ultimately, the trial resulted in a judgment in the verdict against the defendant.
Before the matter came on for trial, appropriate motions to quash were filed as the appropriate Florida means of challenging the double jeopardy aspect of a case, and when they were denied, a suggestion for a writ of prohibition was filed in the Florida Supreme Court as an additional means of attention -- to get the Florida courts to decide that double jeopardy had been violated.
These attempts were unsuccessful.
The case came on for trial.
The same evidence was introduced at this trial according to the petitioner's affidavit as had been introduced at the city court, the same mural was identified by the same witnesses as the record shows and eventually, the petitioner was found guilty and was given a sentence of from six months to five years which is the statutory maximum under Florida law for double jeopardy.
I might briefly mention the facts or the proceedings as they arose concerning the pre-sentence report and then I would like to return to a discussion of the double jeopardy issue.
After verdict and before sentencing, petitioner moved the court for discovery of the pre-sentence investigation report which had been prepared by a probation officer.
Now, the court denied this motion.
The call to refer to the pre-sentence report.
The court pronounced the sentence.
After sentence again, petitioner renewed his request to see report asserting he should have an opportunity to rebut any errors or to parry any unfavorable contents of the report.
This request was denied.
When the case was being appealed to the Florida District Court of Appeal, petitioner asked the clerk of the trail court to include the pre-sentence report in the record, this was denied.
Appropriate motions were filed in both courts to try to get the pre-sentence report in the record.
All motions were denied and to this very day, this very Court has no access to the pre-sentence report which is still secreted in the desk of a trial judge in Saint Petersburg, Florida.
The conviction was appealed to the Florida District Court of Appeal for the Second District which affirmed that opinion which is contained in the appendix and if I may return now to the double jeopardy issue, the Florida District Court of Appeal stated and I quote from page 53 of the appendix.
“Assuming but not holding, that violations of the municipal ordinances were included offenses of the crime of grand larceny, nevertheless there is no violation of the double jeopardy rule because said the Florida Court of Appeal, even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar for the prosecution of such person in the proper state court.
This has been the law of a state since 1894.”
And the Florida District Court of Appeals cited the case of Theisen versus McDavid which as it happens mentioned that proposition by way of dictum, but since then the proposition has indeed been absorbed as a principle of Florida law, that is that the same -- the identical offense could be prosecuted both by the municipality and the state without violating the double jeopardy rule of the State of Florida.
First by way of argument upon the double jeopardy matter, the case of Benton versus Maryland decided by this Court on the last day of last term clearly holds that the Due Process Clause of the Fourteenth Amendment makes the double jeopardy rule applicable to the states.
We argued that for purposes of applying the Benton rule, a prior prosecution by a municipality within the state must be treated as equivalent to a prior prosecution by the state itself.
The reason being that the municipality is a part of the state, a creature of the state and is not an independent sovereign.
We recognize that there have been attempts to employ a dual sovereignty theory.
The attempts following traditional Florida law in the Theisen case have urged that the municipality is a separate sovereign from the state and that each has a special interest which it may vindicate.
And many of the cases in Florida and other states used as analogy, the relationship between the state and federal Governments.
10 years ago, this Court held in the two cases of Bartkus and Abbate, this Court held that successive prosecutions by state and federal Governments are permitted within the framework of the double jeopardy rule.
We do not think it's necessary to reach for Bartkus and Abbate decisions in order to dispose of present case.
We think the relationship between city and state is not the same as the relationship between state and federal Government.
Justice William J. Brennan: Now suppose you prevail on that point, what do you suggest be done with this case?
Mr. Leslie H. Levinson: This case I believe should be reversed.
I think the second trial for grand larceny in the Circuit Court should never been held.
The second --
Justice William J. Brennan: Well I know, but do you -- what is the Florida double jeopardy rule, same transaction or same evidence, what is it?
Mr. Leslie H. Levinson: Now, the Florida double jeopardy --
Justice William J. Brennan: Last time as I read this opinion, they went off on the so-called to sovereign issue?
Mr. Leslie H. Levinson: Yes, they did Mr. Justice.
Justice William J. Brennan: And they don't tell us what their double jeopardy rule would be if they were advised that they can't apply with this act?
Mr. Leslie H. Levinson: Well Mr. Justice, the leading case in Florida on double jeopardy, obviously has to be a case evolving two prosecutions in the state courts.
Justice William J. Brennan: Yes.
Mr. Leslie H. Levinson: Because no other possibility crossed the threshold and in this connection, the Florida case of Stanford versus Faith cited in the brief on pages 30 and 31, decided in 1918, I believe still be definitive of State of Florida law.
It was reiterated by the Wilcocks's case in 1966.
And if may read a quotation from Stanford on page 30, Florida says “If the first information as such that the accused have been convicted under it on proof of the facts by which the second information is sought to be sustained then the jeopardy which attached on the first must considered a protection against the trial on the second.”
Justice William J. Brennan: Well, that would suggest then that -- as I understand it, as far as you know the identical facts that established the municipal conviction were the facts on which the grand larceny conviction is based?
Mr. Leslie H. Levinson: That's correct.
Justice William J. Brennan: And you're suggesting that in that set of facts, Stanford holds that there could not have been a grand larceny prosecution?
Mr. Leslie H. Levinson: That's correct.
Justice Byron R. White: Are we to say that or should -- if we say the wrong on double -- on the so called two sovereignty, should we send it back to them to let the state courts apply the Stanford rule to this case?
Mr. Leslie H. Levinson: I believe that the case is clear enough that this Court can dispose of it completely.
Obviously, this Court would first, have to reach the question as to whether the dual sovereignty rule should apply and I think clearly as this Court should hold --
Justice William J. Brennan: Well on this my question assume the premise that we agree with you?
Mr. Leslie H. Levinson: Yes.
Well first, if this Court agrees that a municipality is a pose of the same sovereignty as the state, then we reach the Stanford rule.
I believe the Stanford rule is clear enough.
Justice William J. Brennan: Should we apply the Stanford rule or let the Florida Court's apply it?
Mr. Leslie H. Levinson: Since Florida law failed to apply it because they never reached it, I believe that the interest of justice so as to the disposal of this litigation this Court is probably able and certainly has jurisdiction to apply the Stanford rule under its general authority to dispose of the litigation as interest of justice may require.
Now, this man is been in jail for 16 months and for about another 18 months, he is been out on bond in the shadow of imprisonment.
Chief Justice Warren E. Burger: What was his first sentence?
Mr. Leslie H. Levinson: His first sentence was two consecutive 90-day sentences.
So, that was six months.
Justice Hugo L. Black: Did he say at the trial --
Mr. Leslie H. Levinson: This is a -- this is the question which is still unfortunately not clear because while he was serving the 6-month city sentence, he was also being held for trial in the state court.
And when the state judge sentenced him to six months to five years the state court judge said the allowing credit for the time he is being confined.
And we are not yet clear whether that credit refers to the fact that petitioner served a city sentence or to the fact that petitioner was held pending trial of the state case?
We have approached --
Justice Hugo L. Black: When he was confined on the city cases had he been tried and convicted of the state case?
Mr. Leslie H. Levinson: No sir.
He was awaiting trial and we have approached the city judge in an attempt to determine whether the city believes that the man has served sentence or not and I sincerely hope that the judge will -- would agree that he has served his sentence, but there is at least a possibility.
Justice William J. Brennan: Well, if he served a city sentence in one city jail and the state sentence was in state penitentiary or what?
Mr. Leslie H. Levinson: Well, he was confined to the county jail and it's not unusual for city prisoners to be switched around, even to county jail or even to state penitentiary while they're awaiting trial on state offenses.
Justice William J. Brennan: I see.
Mr. Leslie H. Levinson: And my understanding is that as a matter of Florida law, it's somewhat unclear whether he has yet served the city sentence or not.
Justice Hugo L. Black: Does the record show what bond do you wish for you to make of?
Mr. Leslie H. Levinson: Yes, and as a matter of fact Mr. Justice, there was problem about the bond also.
We have to appeal for the Florida District Court of Appeal and also to the Florida Supreme Court before we go out on bond.
He turned out to be a defendant who was --
Justice Hugo L. Black: A what?
Mr. Leslie H. Levinson: He turned that to be a defendant who was not given the maximum leniency by the trial court.
Justice Hugo L. Black: Where the bond was fixed?
Mr. Leslie H. Levinson: $2,500.00.
Justice Hugo L. Black: And he couldn't make it?
Mr. Leslie H. Levinson: Yes he did make it.
Originally, a higher bond was set.
Originally, the court refused any bond, then a high bond was set and it took the pedal court proceedings.
Justice Hugo L. Black: And not the bond entirely?
Mr. Leslie H. Levinson: Yes sir, and as a reported opinion in the Southern Reporter in which a Florida appellate court reversed the trial judge on that matter which suggests amongst other things that the pre-sentence investigation report may have had prejudicial effect on the mind of the trial judge which perhaps will be discussed when I reach the other point of the argument.
Justice Hugo L. Black: What was it about it?
Was the case a sensational case, what was it about it that made it --
Mr. Leslie H. Levinson: Well Mr. Justice --
Justice Hugo L. Black: What was it that he took?
Mr. Leslie H. Levinson: He took a mural from the wall of the City Hall.
A painting --
Justice Hugo L. Black: What kind of a mural?
Mr. Leslie H. Levinson: A canvas painting.
The big thing, a group of Negro musicians.
Justice Hugo L. Black: A what?
Mr. Leslie H. Levinson: A group of Negro musicians were depicted on this painting and he and other members of his group allege that this was an insulting caricature of their race.
Now, he was punished for his conduct by 180 days in the city jail.
We are not appealing that.
We are protesting that he should not have been tried twice on the basis of this single --
Justice Hugo L. Black: Same transaction?
Mr. Leslie H. Levinson: For same transaction, the same course of conduct or in current language the same happening, if I may use the words.
Now, I indicated before if it please the Court, that the relationship between municipality and state is not analogous to the relationship between the state and the federal Government.
I believe the more appropriate analogy is that between a territory of the United States and the Federal Government and this Court held as long as 1907 in the Grafton case that former prosecution by a territory clearly bars a subsequent prosecution by a tribunal of the United States.
And I believe that Grafton case is adequate precedent for the proposition that two arms of the same sovereign should not be permitted separately to try a defendant.
If we may assume that municipality is an arm of a sovereign state, I believe we have two alternative approaches either of which would lead to the conclusion that the double jeopardy rule bars the state prosecution.
One theory is a theory of compulsory joinder and another theory is a theory of the lesser include of offense and Mr. Chief Justice, I see that the white light is flashing, I wish to reserve the remaining five minutes for rebuttal.
Argument of George Georgieff
Mr. George Georgieff: Mr. Chief Justice --
Chief Justice Warren E. Burger: Mr. Georgieff?
Mr. George Georgieff: -- may it please the Court.
What we have here is a wish to extend something that is patently stated in both documents whether in Florida or in the United States Constitution, the question of what constitutes double jeopardy?
Counsel tells you that he's talking about the same conduct.
I tell you that both documents are the same offense, not the same conduct, not the same happening, not the same event, but the same offense.
Here we have two courts, the municipal court and the court of record in Pinellas County, Florida.
Now, the one charge was the grand larceny which is here before you to decide whether it constituted a second attempt to do this man in for what he been prosecuted for in the city court to --
Justice Hugo L. Black: Where was the mural that he took?
Mr. George Georgieff: I Beg your pardon?
Justice Hugo L. Black: Where was the mural that he took?
Mr. George Georgieff: City Hall in Saint Petersburg.
Justice Hugo L. Black: Of what?
Mr. George Georgieff: The City of Saint Petersburg and he was charged there under municipal ordinances with the disturbing of the peace and I don't know the exact wording of the charge on the second one, but it was damaging city property.
Now obviously, we couldn't prosecute him in the state for damaging city property because it isn't state property.
We couldn't prosecute him for disturbing the peace because we don't have such an animal.
So, we have --
Chief Justice Warren E. Burger: You mean at the state level?
Mr. George Georgieff: At the state level.
So, the prosecution had to be in two separate courts if it was going to be at all.
Now, somebody decided to prosecute him in the city court for these two violations, I assume the city prosecutor.
The county prosecutor decided for one or another reason that he did not want to move against this man on the misdemeanor charges in the county court or the county judge's court.
Now, that was his option and he exercised it and that's not here except to demonstrate that somebody decided they didn't want to move against him.
Now, I don't know what lesser included has to do with it.
I don't see that disturbing the peace or destroying this city property was a lesser and included offense of grand larceny.
And I don't understand that the law in Florida says that you can commit grand larceny by destroying property.
Now, it may and I may stand corrected, but I don't believe that that's the law in Florida no matter what the Second District Court said.
Now, when this painting was taken off the wall either because it was offensive or for any other reason he then violated for the first time the state law. Now, we're told that this can't be so because the separate sovereign theory that may have been the predicate from what you said in Bartkus and Abbate can't prevail here since the cities can't exist without the express provision of the state legislature which creates it.
Chief Justice Warren E. Burger: At what point in time do you say the state offense begun?
Mr. George Georgieff: I would say the minute they ripped it off the wall and carry it away and meant to keep it from the property of the --
Chief Justice Warren E. Burger: And have it -- had any other offense been committed against any sovereign in your view before they begun to tear it off the wall?
Mr. George Georgieff: Certainly, breech of the peace was.
That seems to be the very first one.
Chief Justice Warren E. Burger: What was the breech?
What were the facts constituting the breech which occurred before they begun to tear it off the wall?
Mr. George Georgieff: Would you believe Mr. Chief Justice, I can't tell you because there is no record here of it.
What went on in the city court was not made a matter of record, I was not there.
I had no hand in it and I don't function at that level, and I think Mr. Levinson did not either.
I think the affidavit simply says that the same or similar evidence was introduced at both hearings.
Now, I cannot tell you and it's simply because I don't know what physical events took place.
The gathering and don't let me amplify but the storming of the City Hall to get this mural off the wall.
I would assume that constituted the breech of the peace, that would have been number one.
Number two, the destruction of the public for the city property would have been one, pulling it off the wall, destroying the adhesion which was on there, the attendant plaster that may have fallen off and the destruction of the wall on which it was attached and when they carried it off, the larceny.
So, I would assume now that that ran it one, two, three in approximately that order.
Chief Justice Warren E. Burger: What was the offense of damaging the wall?
Let's assume that the breaking of the bond of the adhesion did substantial damage to the wall for the moment.
Mr. George Georgieff: Chipped the plaster off as I understand it and damaged the painting so.
Chief Justice Warren E. Burger: Was that in your view the damage to the wall an offense against the municipality or against the State of Florida?
Mr. George Georgieff: That would have to been against the municipality, it was their property.
Chief Justice Warren E. Burger: Did the State of Florida prosecuted it?
Mr. George Georgieff: No sir.
Chief Justice Warren E. Burger: So that we rule that out.
That falls if it falls anywhere under the local offense?
Mr. George Georgieff: Yes, of course, that's not here before you.
That's the part of the two that they're not complaining about.
Chief Justice Warren E. Burger: I'm trying to find two separate offenses.
Mr. George Georgieff: Oh yes.
Now on the breech of the peace, there isn't any such animal at our level.
Chief Justice Warren E. Burger: At the state?
Mr. George Georgieff: That's right, or disturbing the peace I think they call it, I'm not sure what the exact nomenclature is.
Justice Thurgood Marshall: Do you have a state statute against malicious destruction of the property?
Mr. George Georgieff: Not city property.
Justice Thurgood Marshall: Do you have a state statue which makes it a crime to maliciously destruct property?
Mr. George Georgieff: I'm sure there are several Mr. Justice.
I can't recall them off hand, but I'm sure there are several involving both private and public.
Justice Thurgood Marshall: So that when they damaged that wall, there was a violation of state law?
Mr. George Georgieff: No sir.
The state has no ownership or interest in the City Hall in Saint Petersburg.
It belongs to the city.
Justice Thurgood Marshall: Well, if you maliciously destroy a person's private property, isn't that a violation of state law?
Mr. George Georgieff: Yes sir, in Florida.
Justice Thurgood Marshall: And it would be the same for the city, wouldn't it?
Mr. George Georgieff: No, I don't think so because --
Justice Thurgood Marshall: Well, that's because it set in sovereignty of business, is that the reason?
Mr. George Georgieff: Yes sir.
Justice Thurgood Marshall: I see.
Mr. George Georgieff: Now --
Justice William J. Brennan: Mr. Georgieff, may I ask you.
The affidavit in which refer is this Mr., Waller's affidavit on page 15 and 16?
Mr. George Georgieff: That is sir.
I take, it's the only one in the attendance sir.
Justice William J. Brennan: I gather this -- that it is before the trial than it was --
Mr. George Georgieff: I think so.
Justice William J. Brennan: And to make complete characters referred -- that's final knowledge of the belief?
Direct information with grand larceny made solely upon allegation to the engagement -- that is the conduct alleged in the prosecution in the district court.
If you don't know the lead of -- if remand any affidavit anywhere perhaps there is a record of what happened, I guess you would unable to work with this files as this information grand larceny?
Mr. George Georgieff: That's on the state charge.
You do have that, but you have no record whatsoever --
Justice William J. Brennan: Do we have any representation that what we have here is having been offered as evidence on the grand larceny charge, the same evidence that was offered in the District Court?
Mr. George Georgieff: No, you do not sir, no sir.
Justice Hugo L. Black: Suppose he had been tried in the City Hall -- in the city for larceny taking that away and then, could he even tried in the state with same offense?
Mr. George Georgieff: Under the separate sovereign theory, yes he could Your Honor.
Justice Hugo L. Black: So, that really is the basis of this thing?
Mr. George Georgieff: That's one of them.
I prefer that you didn't make me hang it on just that one, but if I have to, yes it is, yes because --
Justice Hugo L. Black: Of course, the city is subordinate to the state --
Mr. George Georgieff: Just as the states are to the federal in my opinion --
Justice Hugo L. Black: Well not just that --
Mr. George Georgieff: Similarly, I would assume that--
Justice William J. Brennan: In order that the rational of following -- it's a rational of body binds the relationship of this conduct to a state?
Mr. George Georgieff: Well, I'm not sure I quite understand your question.
Justice William J. Brennan: Oh, I gather, what we dealt within the body was the questionable relationship between the federal Government and a state Government?
Mr. George Georgieff: Yes sir.
Justice William J. Brennan: And prosecution for the same conduct?
You think that the body at least support two sovereign theory?
Mr. George Georgieff: Yes sir and I tell you why.
In Florida, I don't know that it's true in any other state, but I can tell you affirmatively that in Florida, when a city is structured, now, some of due come intervene from time to time, most of them are already there, but periodically they exercise the option of drafting their own ordinances or adopting by one ordinance, all of the laws of the state as their own in ordinance form you see.
Now, if they do the latter, they are required to do one thing in addition there too.
They may not about the sentencing.
They must adopt their own sentences for violations of criminal laws that they adopt as their own one ordinance.
Whereas, if they take a separate position and adopt individual ordinances by adopting a code of their own and may set whatever out -- whatever they like out.
So, there is a difference when they take this or that course.
Now obviously, if they adopt and they're just a handful of that have --
Justice William J. Brennan: Well, I still don't understand how old is just rational of a body advice --
Mr. George Georgieff: Well, I don't see why it doesn't.
They are simply creatures.
They are not an arm of the state.
They don't function as we tell them to.
They simply exist because we allow them to have life.
Justice William J. Brennan: But what you think of them--
Mr. George Georgieff: Oh yes, tomorrow.
Justice William J. Brennan: (Inaudible)
Mr. George Georgieff: No, but I would imagine before the Congress would allow Puerto Rico in, a certain number of things would have to follow.
Justice William J. Brennan: What we are dealing with is whether or not a state and federal government could prosecute a man for the same conduct (Inaudible)
Mr. George Georgieff: Well sir, I think that's meaningless in this argument today because he's told you that if you brought all three of these in one court, he wouldn't be here complaining about it and that is what he said.
He says under compulsory joinder, if you were to move against Mr. Waller on all three of these in one court, then there wouldn't be any question of jeopardy and we wouldn't even be here.
So, he cannot have the best of both worlds.
He's got to have it one way or the other.
To Mr. Waller, I would imagine, it makes no difference whatsoever that he sits in jail under one theory or the other.
If it jeopardy it is, and if it isn't, it isn't.
Justice Hugo L. Black: How does it makes quite a difference to him is whether he is once in jail or twice in jail for the same thing?
Mr. George Georgieff: I'm sure of that.
But, I don't quarrel about the idea that if it is jeopardy, it ought to be put aside.
I say if it isn't jeopardy, it isn't made jeopardy by the fact it was done in the different court.
Now, we were told that the fact that this is a part of the same transaction, is it all one open situation that nobody hiding or stealthily doing this that or the other.
What seems to me that if that's the rule then what we wind up with is if you hold an audience, call an audience before you commit your crime, then that's the defense to the crime of larceny.
I don't understand it that way and counsel tells us about compulsory joinder.
Who's compulsory joinder?
I don't know what that is?
There is no such creature, not in existence in Florida today.
He may have asked for it, although the record doesn't' even reflect that he did that, but the point is how can we complain about they should have been brought in the same court?
The point is, he didn't ask for it and they were not and structurally, Florida could have moved against him in one court for these three offenses.
Now, the question of Benton -- we're told about Benton in doing this and that and the other thing.
I don't pretend to tell you Mr. Justice Marshall what you meant in Benton.
All I will tell you is that it gives a complaining citizen another reason to complain about jeopardy, that's all it does, very much the same as Matt did on search and seizure and Gideon did as to counsel.
Now Benton didn't change anything.
It simply says that here after, it will be a federally assured right under which people can complain when they think they've been placed in jeopardy twice for the same offense, not for the same course of conduct.
Now, if you want to restructure the word offense to make it mean the same course of conduct, that's one thing, but if you are going to stick to offense that's what has to be done and it is simply not the same offense.
It is a series of acts, each one of which constituted a separate offense, two against one sovereign, one against another.
Since he doesn't complain about the 180-day sentence which was imposed on the city complaint, but only complains about the grand larceny charge which didn't include the other two then as far as I'm concerned, the question of double jeopardy does not come up.
The question of collateral estoppel doesn't become a collateral estoppel simply because we decide we're going to make it something other than the same offense.
Well in collateral estoppel you have to have an acquittal in order to have some adjudication of some question that's going to be involved in the other situation and that you certainly didn't have here.
So, I submit that collateral estoppel can't apply.
I'll give you a good hypothetical.
How about the man who kills two people in let's say in a span of four or five minutes in an automobile.
He pleads insanity when he's charged with the killing of the first one, and the jury acquits him.
Then the state seeks to try him on the second one and he moves to prohibit them by saying well now look here, you acquitted me and it must have been obvious that you did so because you found me insane, and therefore, considering this my insanity of time, it's absurd to say that I could have been insane at this time, wasn't at the second one.
But the question is suppose, suppose the jury have found him guilty, is it just possible that somebody would suggest that he's precluded from raising the defense of insanity on the second go around because the verdict of guilty precluded that?
No, it does not and we don't have mutuality here.
It weren't the same issues, it weren't the same sovereigns, it weren't the same victims, city the victim in the first; state the victim in the second.
Same defendant, admitted; covered a short span of time; admitted, but not the same facts, no mutuality, no collateral estoppel.
The question of whether the pre-sentence investigation report should have been made public.
I don't know how much of a role that plays in this, I suspect probably not a great deal.
But you are to recall into the federal rules, federal district judges are free to make them available to counsel or not as it happens to suit them.
Now, I think that it's clear that if they decide not to give this information to defense counsel and so exercise their discretion, it is not reversible error.
I submit that in Florida, though some courts have been heard to do this, it is the rule in Florida that they are secret and they are not to be made available to counsel but only available to the court for such information as they may take from it.
If it isn't a violation of law for the federal courts not to make these available on the discretionary basis then how can it be for the state court not to give it to counsel in this instance?
It is the same PSI report.
It's very much the same as what we do in the confidential informant.
We don't allow the man to be bedeviled by people who want to challenge what the informants may say about him, the neighbors, the one thing and another.
Counsel says to you we want to have the opportunity to check this to see if hearsay comes up, to see if inaccuracies are there.
The only way he can do that is to go to the people whose names appear in the PSI and tell them, “Look!
Why did you say this, and you're wrong this that the other, you must come in and you must correct it.
They'll harass him and you dry up the well spring, but beyond that, this doesn't go to the man's guilt or innocence.”
In Florida, the PSI has no function whatsoever unless and until a guilty verdict is found.
When it's found, there is an adjudication.
Then the judge orders a pre-sentence report and he uses this as a predicate for wherever sentence he imposes and if the sentence is one that's well within the limits prescribe by law and this one is, six months to five years, then the sentence in Florida is not reviewable, that is the law in Florida.
They will not review the sentence, if it's within the limits prescribed by law.
This one was six months to five years, well within it.
PSI couldn't made any difference whether it's available or not.
Justice Hugo L. Black: How much you say this one was?
Mr. George Georgieff: Six months to five years sir.
All sentences now on Florida for anything less than capital must be predicated on a six-month minimum, and that is to say believe it or not that six months and one day conceivably a man could be turned loose on parole, but not before six months.
All sentences that can be given a year -- year sentence must have a six months minimum and the maximum can go to any number of years less than life.
Now life and of course a terminal sentence and subject to that.
Justice Hugo L. Black: Was this sentence appealed to the six -- this larceny larceny sentence?
Mr. George Georgieff: I didn't hear you sir.
Justice Hugo L. Black: Was the larceny sentence appealed?
Mr. George Georgieff: Oh, yes.
Justice Hugo L. Black: And did the State Supreme Court affirmed it?
Mr. George Georgieff: It did not go to the Supreme Court.
It went to the District Court and the certiorari was brought here to that District Court, the intermediate appellant court.
Justice Hugo L. Black: And they affirmed?
Mr. George Georgieff: Yes sir.
Now as I say now, they affirmed the judgment.
They don't affirm sentences Your Honor.
I guess what I want to make clear is that they'll review convictions and judgments, but they won't review sentences unless the sentence is patently in excess of that provided by law.
All they'll look to is to see whether it's within the limits prescribed.
If it is, they won't disturb it as being excessive or otherwise.
Justice Potter Stewart: Did the -- was this question of the making available to the defendant the pre-sentence investigation report an err that was brought to the -- claimed error that was brought to the attention of the District Court of Appeal?
Mr. George Georgieff: Yes, it was sir.
Justice Potter Stewart: Because I don't believe there's any mention of it in the -- their opinion, is there?
Mr. George Georgieff: Oh, they are often are not.
Justice Potter Stewart: Well, I understand that there is a catch all in the last next last paragraph, but we've examined the other --
Mr. George Georgieff: I shall be glad if that's included in that, but quite often, even when they -- I will assume when they don't want to particularly say anything about it.
They may include it in the phrase such as that, but it was brought to their attention, made a part of their complaint.
As a matter of fact, I think, there was some eight points involved in the appeal to the District Court.
But in any case, it's our position very simply whether you view it under Bartkus or Abbate, with or without Benton, it doesn't make any difference.
It can't have jeopardy here because you don't have the same offense.
Not because the sovereigns are different, but because the act is different.
One constitutes an offense against the municipality, the other one is separate felony.
Not an offense against a municipality.
I would say the same if it been in the county court where we don't have the question about the sovereigns.
It doesn't make any difference.
I say that you have to have the same offense unless you mean to restructure double jeopardy to make it the same course of conduct.
And if you're not going to that, if you mean to have double jeopardy stand as the Florida Constitution and the Federal Constitution proscribe it then we're talking about the same offense or as it used to be said, crime.
Justice Thurgood Marshall: Did I understand you earlier to say that the state crime occurred when they ripped this mural off the wall?
Mr. George Georgieff: And carried it off, and carried it off.
Justice Thurgood Marshall: When did the city crime of destroying the city property start?
Mr. George Georgieff: Damaging sir, I think it was.
Justice Thurgood Marshall: When did that start?
Mr. George Georgieff: When they started to tear it off and the plaster came off, the adhesive, and I think --
Justice Thurgood Marshall: So, they both started, both crimes started at the exact same time involving the exact same instrument?
Mr. George Georgieff: For a point, yes, they did.
Justice Thurgood Marshall: And did they end at the same time?
Mr. George Georgieff: No sir.
Justice Thurgood Marshall: When did the city crime end?
Mr. George Georgieff: After it came off the wall.
Then, they cut it off.
Justice Thurgood Marshall: Then.
That's when the city crime ended?
Mr. George Georgieff: Yes, I would assume, oh yes.
Justice Thurgood Marshall: And then they carried it off -- how far did they take it?
Mr. George Georgieff: I'm hard to put to be accurate about that, not too far.
Justice Thurgood Marshall: Not too far.
Mr. George Georgieff: They got away with it --
Justice Thurgood Marshall: Few minutes?
Mr. George Georgieff: Perhaps by a tenth Your Honor.
Justice Thurgood Marshall: Another 10 minutes.
Mr. George Georgieff: I'm not that --
Justice Thurgood Marshall: So, that's the only difference between the facts of the two crimes?
Mr. George Georgieff: I'm afraid if I say yes to that, I'll agree that it's so minute that it isn't worth any discussion.
I agree that there is that difference, but the difference is vast when we steal that which we damaged.
You can damage it without stealing it.
Justice Thurgood Marshall: Well, I understood that your District Court said that the crime isn't the damaging, that's what made it larceny?
Mr. George Georgieff: Well, it was also in the carrying away if Your Honor please.
Justice Thurgood Marshall: But, they put emphasis on the damages, am I right?
Mr. George Georgieff: That they did.
Justice Thurgood Marshall: So, we got two damages?
Mr. George Georgieff: That's right.
Now that the mural was damaged and was recovered in the damaged condition, beside of that fact that it was carried off.
But the damage that the city complained about and was made actionable against Waller was a damaged to the structure from which it was taken, a different kind, perhaps minute, but nevertheless, different.
Justice Hugo L. Black: Does the record show where they put it back?
Justice Thurgood Marshall: Do you mean that the city ever put the mural back?
That, I do not know sir.
I've not been down there and I don't know and I've not heard.
Perhaps, Mr. Levinson can tell you, I don't know.
In any case, I say very simply, I don't care whether we view it with or without Benton.
I'm not relying on the separate sovereign to the exclusion of everything else.
I say that separate acts occurred.
I prefer to call them crimes but the word used is offense.
Now, if he can show after flaw acquit or a convict, he's in business and we all know it.
There's no use of kidding ourselves, but he can't do that.
He's saying because I did three things in a short interval, what you should do is now extend the protection of double jeopardy to me and I say, unless you want to redo it, you ought not to and you ought to affirm the action of the District Court --
Justice Potter Stewart: I thought it was your argument Mr. Georgieff is that the District Court of Appeal did seem as I read their opinion beginning on page 52a of the appendix, did seem to rely exclusively upon this so-called two sovereignty's rule because they said one of the things, this information was based on the same acts of the appellant as were involved in the violation of the two city ordinances.
And then they say, assuming but not holding that the violations of the municipal ordinances were included offenses of the crime of grand larceny, that the appellant nevertheless has not twice been put in jeopardy because and they go along and talk about your Florida's so-called two sovereignty rule and they based their decision as I read this, exclusively upon that ground.
Am I mistaken of reading of that?
Mr. George Georgieff: No.
No, you're not and it's a painful reminder.
I don't know whether silos preferable or correct this, I can't tell you which I rather go to.
However, their outcome was correct, even though their reason was wrong and I don't know how much of this will get back to them but in any case that's my problem.
I don't care what they said, my sins are enough for me to pay for it.
The point is if they reach the proper result, I don't care that they gave the wrong reason.
My contention is that the acts or offenses or crimes if you want to call them that, were separate and distinct and that they gave a wrong reason is to me relatively unimportant.
You're not bound by what they say.
It never happened in the past and I don't suspect it will be in the future.
Chief Justice Warren E. Burger: Well, the offense against the State of Florida could not begin until that mural was off of the wall?
Mr. George Georgieff: That is correct.
Chief Justice Warren E. Burger: Because it began with the carrying away?
Mr. George Georgieff: That is correct.
And that is done --
Chief Justice Warren E. Burger: The damage begun as soon as the tearing commenced, so that they did not commence at the same time?
Mr. George Georgieff: Well, as I said to Mr. Justice Harlan Mr. Chief Justice, I don't like to see to something when it so minute that I may go into tank without knowing about it.
It's a little difficult to find when one stopped and the other begin, but they couldn't carried away until they got it off the wall, so obviously, there's a difference.
I don't know how much and nobody seemed to remember those particulars since we don't have the record of the municipal prosecution.
Justice Thurgood Marshall: That's the real problem is it.
We don't have that record of that events.
Mr. George Georgieff: That is correct sir, and I wish as much as Mr. Levinson and the Court that it was here, but it is not and I don't know how to restructure that.
It's our position in the face of the matter puts to you today that the action of the District Court below, even if for the wrong reason should be affirmed today.
Chief Justice Warren E. Burger: You have five minutes.
Rebuttal of Leslie H. Levinson
Mr. Leslie H. Levinson: Mr. Chief Justice, just a word about this question of larceny by destruction.
In order to establish the crime of larceny, the state has to prove amongst other things felonious intent, and as I understand Florida law, felonious intent can be proved either by an act of taking away to conceal the property or in Florida, felonious intent can be established either by the destruction or by exposing the property to an unreasonable risk of destruction.
Since the taking took place in broad daylight in the presence of public officials and police officers, we contend there was no evidence before the jury which would justify a finding of felonious intent based on an attempt to conceal, that was impossible that in the circumstances.
And so, since jury found him guilty, the only possible basis of those finding of guilt must have been on the other branch of felonious intent, that is to say on the destruction or creating the reasonable risk of destruction of the property.
Chief Justice Warren E. Burger: How about carrying it off?
Mr. Leslie H. Levinson: Carrying it off can only be the ingredients of larceny if it is carried off with felonious intent and the presence of police officers negated the possibility of the requisite felonious intent on the evidence presented by the state.
Chief Justice Warren E. Burger: You're making a pretty difficult to prove a bank robbery where you have a lot of uniform armed guards around?
Mr. Leslie H. Levinson: Well, the circumstances of a bank robbery make it obvious that the robbers intend if they can to get away with the haul.
The circumstances of this case make it obvious that the petitioner had no intention of keeping the mural.
He wants it --
Chief Justice Warren E. Burger: I don't see difficulty with that.
Mr. Leslie H. Levinson: Well --
Justice Hugo L. Black: Well, you said, they have some intention to take it away, did you?
Mr. Leslie H. Levinson: They have an intention to take it away for the purpose of carrying out a demonstration.
Justice Hugo L. Black: They have an statement there?
Mr. Leslie H. Levinson: They walked the few city blocks with it in the presence of a large crowd of people including the police officers.
Justice Hugo L. Black: Did the police back off?
Mr. Leslie H. Levinson: The police recovered.
This is I believe, the city authorities still have it in custody, --
Justice Hugo L. Black: Did they put it back up on the wall?
Mr. Leslie H. Levinson: No sir.
They're holding it dependently --
Justice Hugo L. Black: Your (Inaudible) been without that all this time?
Mr. Leslie H. Levinson: Yes sir, they have.
Justice Hugo L. Black: How long since this?
Mr. Leslie H. Levinson: Three years, but the mural was in the custody of the city even or not on the wall of the City Hall.
Now, we believe it is possible for this Court to resolve the issue of the identity of the proofs without the necessity of remanding it to the Florida Court.
Obviously, if this Court find itself unable to resolve the issue it would be a proper one to send back to Florida.
Now, I would take the liberty of correcting the Attorney General in his comment that the State is unable to prosecute for the destruction of city property.
Our appendix on pages 6 and 12 presents pertinent state statutes which do make it a misdemeanor.
In fact, one of the three misdemeanors which was filed and then dropped, specifically referred to the destruction or damaging the city property, and this is set forth on pages 6 and 12 of the appendix.
In fact, the state has an ample arsenal of statutes that whatever conduct violates a city ordinance can pretty well be assured that having a counterpart in the state statutes, the state assumed a self resourceful.
Indeed, in finding statutes, there are the points of violating the Constitution and having the Vagrancy law reversed by a federal court recently.
And so, I believe that if we require the State to have a single trial of all their complaints against an individual the prosecutor can find in their discretion adequate statutory basis for bringing whatever trial will appropriate.
Mr. Georgieff states that we will be quite prepared to have our petitioner tried and sentenced for all of his offenses in one trial.
This is not quite so.
We certainly want only one trial.
In that trial, the State could bring whatever complaints it wanted to.
We might then argue that that they would be unnecessarily overlapping between the complaints under rule of (Inaudible) case which holds that a legislation will be presumed to intend multiple punishments arising at a single act unless the language of the statute clearly states that multiple punishments are called for.
Just to summarize the double jeopardy argument, and I can hope I can spent it at one minute on the important issue of pre-sentence reports.
We believe there are two basis, either one of which will support our argument on the double jeopardy claim.
One is compulsory joinder.
We assert as a rule of constitutional dimensions that the state should have only one trial of a defendant on the basis of a single act or course of conduct.
There maybe exceptions to this rule.
For example if the victim of an assault dies after trial, we could say will this would give rise to an exception to the compulsory joinder rule or if the first trial was a sham.
But in all that you clarify the law of double jeopardy and also included within it the common law tradition.
We submit that compulsory joinder should be the presumption and to then the exception needs to be justified by the state.
Chief Justice Warren E. Burger: Your time is up Mr. Levinson.
Mr. Leslie H. Levinson: Thank you Mr. Chief Justice.
Chief Justice Warren E. Burger: We'll take your other points on the brief.
Thank you for your submission gentlemen.
The case is submitted.