Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner v. JAMES VINCENT ALBERTINI

No. 83-1624

April 15, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 o'clock a.m.

APPEARANCES:

DAVID AARON STRAUSS, Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

CHARLES STEPHEN SIMS, Esq., New York, New York; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in United States v. Albertini.

Mr. Strauss, you may proceed whenever you're ready.

ORAL ARGUMENT OF DAVID AARON STRAUSS, ESQ. ON BEHALF OF THE PETITIONER

MR. STRAUSS: Thank you, Mr. Chief Justice and may it please the Court, this case concerns events that took place at Hickam Air Force Base in Honolulu, Hawaii. Hickham is the Headquarters of the Pacific Command of the United States Air Force. And, for security reasons, Hickham, unlike other -- many other military installations, is ordinarily closed to the public. That is to say, members must obtain permission and a pass -- members of the public must obtain permission and a pass in order to enter the base.

In 1972, the Respondent in this case, James Albertini, obtained permission to enter the base, ostensibly to present a letter to the commanding officer. But once Albertini was on the base, he and a companion gained access to classified Air Force files and, as an act of protest, poured animal blood on the documents in the files.

Albertini was convicted of conspiracy to destroy government property and, in addition, the commanding officer at Hickham issued what is known as a "bar letter" to Albertini. This letter ordered him not to reenter the base until he had the written permission of the commander, and advised him of Section 1382 of Title 18 of the United States Code, which makes it a crime to reenter or to be found within a military installation after having been ordered not to reenter by the commanding officer.

In 1981 Albertini, without seeking permission, reentered Hickham. He reentered during the base's annual open house. Now, during the open house, portions of the base are open to the public and members of the public do not need passes to enter those portions of the base.

And the Air Force puts on various displays and exhibitions designed to show the civilian members of the surrounding communities what goes on behind the normally closed gates of the base.

Albertini was seen during the open house in the company of some persons who were staging an antiwar demonstration. He was identified by the commanding officer of the base as the holder of a bar letter. And he was apprehended and subsequently convicted of violating Section 1382 because he had reentered the base after having been ordered not to do so.

The Court of Appeals for the Ninth Circuit reversed Albertini's conviction, holding that it was unconstitutional under the First Amendment to apply Section 1382 in these circumstances.

Notably, there is scant mention in the Ninth Circuit's opinion of the fact that Albertini had received the bar letter. Instead, the Ninth Circuit undertook a relatively lengthy analysis of the question whether Hickham, on the day of the open house, was a public forum such that members of the public had a right to demonstrate there.

After answering that question in the affirmative, the Ninth Circuit concluded in a relatively cursory discussion that it was immaterial that Albertini was the holder of a bar letter.

Now, we sought certiorari because we believe that the Court of Appeals' decision had unjustifiably undermined what this Court has referred to as the historically unquestioned power of a commanding officer to exclude civilians from the area of his command, and because we thought the Court of Appeals' sweeping constitutional holding jeopardized the military's open house program, a widespread and worthwhile -- in our view -- effort by the Air Force and the Navy to improve communications between the military and civilian communities.

In its order granting our petition, the court requested the parties to address the question whether Respondent's attendance at the open house was the kind of reentry that Congress intended to prohibit in Section 1382.

Our submission is that the plain language of Section 1382 is sufficient to answer that question in our favor. Section 1382 has essentially three elements. It provides that whoever reenters or is found within a military installation after having been ordered not to reenter is guilty of an offense.

Now, in any ordinary sense of the words, Respondent reentered Hickham in 1981. And if there is any doubt about that, then there is certainly no doubt that in the ordinary sense of the words he was found within Hickham in 1981.

Respondent has never contended that Hickham is anything other than a military installation. And Respondent admitted at trial in his testimony and continues to admit that he received a bar letter.

QUESTION: Mr. Strauss, I guess the Respondent takes the position in his brief that the bar letter is stale and no longer valid. I suppose even if the Court were to agree with your position and reverse, that issue would be open on remand?

MR. STRAUSS: That's right, Justice O'Connor.

QUESTION: You do agree, do you, that a bar letter can be become stale. You did at one point in your papers; do you still --

MR. STRAUSS: Yes, we do.

QUESTION: We don't always follow the plain language.

MR. STRAUSS: I think the limitation on the duration of a bar letter is found not in Section 1382, but in the requirement that administrative actions be reasonable.

And therefore, a bar letter cannot extend beyond a reasonable time, and that is the limitation.

QUESTION: Do you have any idea what the Government's position is on a reasonable time?

MR. STRAUSS: I think it would necessarily depend on circumstances of each case. In this case, I think it is quite clear just from what we know in his record, which was not even developed with an eye toward establishing a reasonableness of enforcing this bar letter, that it was reasonable to enforce it against Respondent who, only two months before he reentered Hickham for the open house, had engaged in what he himself described as a clear-cut case of civil disobedience that involved a sensitive area of another base on Hawaii.

QUESTION: Was a bar letter then -- the justification is something he did elsewhere, over at Camp Smith?

MR. STRAUSS: The justification could be something he did elsewhere. If he had committed some minor disdeed in 1972 and had done nothing between 1972 and 1981, I would agree that he would have a very strong argument that it would be unreasonable to apply the bar letter to him in 1981.

But nothing like that is the case. His act in 1972 was quite serious, and by his own admission, quite apart from anything we might show where we put to the test of proving reasonableness, he committed a series of illegal entries and acts of civil disobedience between 1972 and 1971, which furnished reasonable ground for extending the bar letter.

QUESTION: May I just ask, because there's reference to the March incident, is Camp Smith part of Hickham Air Force Base?

MR. STRAUSS: My understanding is it's a separate -- it's a separate installation.

QUESTION: So that even if there was such a bar letter, that wouldn't really apply to this installation.

MR. STRAUSS: He was -- he had a bar letter from Camp Smith as well as from Hickham.

QUESTION: In '72. And then you also mention in your brief, and they say it's outside the record, and I was a little puzzled about it, that in March of '81 there was a bar letter mailed that he said was returned or he didn't get, or something like that.

But that would be from Camp Smith, but not Hickham?

MR. STRAUSS: No. Hickham sent him, as a result of his actions at Camp Smith, the commander of Hickham sent him another bar letter in March of 1981.

QUESTION: Mr. Strauss, was the same commander involved here?

MR. STRAUSS: I believe it was a different commander in 1971.

QUESTION: I don't think it matters, but I just wanted to know.

MR. STRAUSS: I believe it was a different commander in '72 and '81.

QUESTION: It was different?

MR. STRAUSS: That's right.

QUESTION: It seems to me if it was the same one, it would be very hard to say it had died.

MR. STRAUSS: Well, I think that's right, although I certainly don't think it should be necessary for a new commander to go through the formality of reissuing all bar letters on file when he takes office.

QUESTION: Did the Defendant in this case -- it was a bench trial, wasn't it?

MR. STRAUSS: That's right.

QUESTION: Did the Defendant make any argument to the District Court as to the staleness of the bar letter?

MR. STRAUSS: He moved before trial to dismiss the indictment on the ground that the bar letter was stale. That motion was denied and the case was tried on the premise that the bar letter was sufficient.

QUESTION: Does the record offer any explanation as to why the second bar letter was returned to the sender?

MR. STRAUSS: The only explanation is Respondent's statement when he was asked did you get a bar letter for your actions in March '81, and he said I never received one; no.

That is the state of the record.

QUESTION: Any question as to the correctness of the address?

MR. STRAUSS: Not that I know of, although I have to say those matters were not gone into this record because it was assumed that the early bar letter was sufficient.

That would, of course, bear on the reasonableness of applying the earlier bar letter to Respondent in '81.

QUESTION: May I just ask you to comment on one other aspect of this? If the Government acknowledges, as I think you did in response to Justice O'Connor, that there is an issue open on remand as to the staleness, possible staleness of the bar letter, why should that issue not be resolved before we go forward and address th constitutional question?

MR. STRAUSS: It's quite possible, and in fact I can see no reason why the Court of Appeals should not have resolved it before it addressed the constitutional question.

I would point out, though, that if the Court of Appeals' constitutional holding stands, not only can we not retry Respondent, which is not the case if it's merely found that the bar letter was stale in this record, but that has quite serious implications for the open house program elsewhere in the Ninth Circuit which is now constitutionally precluded from keeping off bar letter holders who want to demonstrate.

QUESTION: Mr. Strauss, is there any procedure at the base on open house days to try to exclude from those who are coming in holders of bar letters?

MR. STRAUSS: My understanding, Justice Brennan, is that while the base regulations forbid bar letter holders from entering, so many people come on the base during the open house, that unless an officer is lucky and spots someone whom he knows to have a bar letter, there is no practical way to screen.

QUESTION: Well, if there's no procedure at all, I wonder about your argument that it's necessary to prevent serious security risks.

MR. STRAUSS: Well, this is an instance, Justice Brennan, in which we have to rely principally on the possible deterrent effect and on people's willingness to obey the law rather than on being able to pluck these people from the stream of entrants onto the base.

It may also be that there are other circumstances in which bases do not have so many people and can screen. And, of course, it give us an additional basis for prosecuting someone if he does enter the base with an eye toward engaging in some kind of --

QUESTION: Incidentally, now that I have you interrupted, the Court of Appeals relied on Flower rather heavily, didn't it?

MR. STRAUSS: That's right.

QUESTION: And do I correctly now read your brief -- I looked back at your brief in Flower, and you didn't concede the unconstitutionality of the bar letter in that case at that time when we decided Flower.

Do I now read you as conceding that the use of the bar letter in Flower was unconstitutional?

MR. STRAUSS: We understand that to be the burden of the Court's holding in Flower, and we accept the Court's enlightenment on that.

QUESTION: So you now do concede that predicate.

MR. STRAUSS: In light of Flower. Yes, that's right.

QUESTION: And how do you distinguish this case?

MR. STRAUSS: I think this case is quite unlike Flower in at least two respects, Justice Brennan. In the first place, the Court in Flower made a point of the fact and the Court in Greer made even more of a point of the fact that the area in which Mr. Flower was handing out leaflets was completely indistinguishable from any other street in San Antonio, which was where the base was located. It was, for all intents and purposes, just another street that happened to run through a military base.

That's not the case here. This was still very much a military base, even though it had large numbers of civilians on it.

And the other distinction is that --

QUESTION: Well, excuse me. Was that the reason that you suggest in your brief now that there they were engaged in constitutionally protected activity?

MR. STRAUSS: No, that's the additional --

QUESTION: That's additional.

MR. STRAUSS: Well --

QUESTION: But you also, at page 35 of your brief, if I read you correctly -- perhaps I don't -- I thought you were conceding there that a person can't be prosecuted on the basis of a bar letter that was issued because he engaged in constitutionally protected activity.

I'm reading from your brief.

MR. STRAUSS: Yes, that is the other -- that is the second way in which Flowers differs from this case.

QUESTION: Well, if that's true, weren't Albertini's companions also engaged in constitutionally protected activity?

MR. STRAUSS: That is --

QUESTION: Maybe not he, but were not they?

MR. STRAUSS: That is a question that's not presented by this case because --

QUESTION: No, but I'm asking you here.

MR. STRAUSS: Our view is no, that they were not engaged in constitutionally protected activity.

QUESTION: Well, it was just a peaceful protest, wasn't it?

MR. STRAUSS: That's right, but it was on a military base. But I hasten to add that that is not in any way an issue in this case now.

QUESTION: I know it's not, but I'm asking you your view of it.

MR. STRAUSS: Our view for the issue -- for the reasons we explained in a somewhat lengthy footnote in our brief -- are that they did not have a First Amendment right to demonstrate during the open house. The situation was sufficiently comparable to Greer v. Spock that the military should not be put in the position of having to referee between possibly competing groups of demonstrators on its own base.

QUESTION: Now, they didn't write across Albertini's notation, "antiwar demonstrator."

MR. STRAUSS: They did, Justice Brennan. The testimony at trial was that that was something done by the desk clerk, although I have to say that when we were preparing --

QUESTION: Well, wasn't there also testimony that the officer who detained him had been told to stop the activities of persons carrying "anti-defense banners"?

MR. STRAUSS: The commanding officer told the officer who made the apprehension two things. He said there is some anti-defense demonstrating going on; please do something about it. And he --

QUESTION: Doesn't that smack of prosecuting him for a political activity?

MR. STRAUSS: I think not, Justice Brennan. I don't think there is sufficient evidence that he was -- that anyone was apprehended for that reason. I think it is quite clear on the basis of --

QUESTION: Incidentally, Albertini had been on and off the base several times. He even taught there.

MR. STRAUSS: He says that he had been on and off the base several times; that's right.

QUESTION: Well, didn't he teach there?

MR. STRAUSS: According to his testimony. We have no record that he ever taught there. But he says he taught there. He never -- what he did not say was that he ever reentered the base with the permission of the commander or anyone else on the base.

He simply, to judge from his testimony, slipped on without being detected.

QUESTION: Well, the printed advertisements inviting the public to attend the open house, isn't that something like a written permission? Everybody to come in?

MR. STRAUSS: I think clearly not, Justice Brennan. I think the entire -- it's perfectly clear from the bar letter that the purpose of the written permission requirement is to explain to the recipient that he's in a different category from the general public; that whatever might be true of the general public, he has to obtain written permission to enter.

There are open bases such as Ft. Dix, the base involved in Greer v. Spock, that have a sign over the portals of the base, "Visitors Welcome." And Respondent concedes explicitly in his brief that a bar letter holder couldn't enter such a base without written permission.

It seems to me to make no difference that Hickham decided to promote the open house by sending out press releases instead of putting a sign up saying "Open House, Visitors Welcome.

QUESTION: "Everybody come."

MR. STRAUSS: Or even a sign up saying, "Visitors Welcome" it seems to me is as close to "Everybody Come" as one can get. And it seems to make no difference that they sought to publicize it in one way instead of the other way.

Justice Brennan, let me say about the antiwar demonstrator notation on the form which you mentioned. When we were presenting the case to the court, we inquired of Hickham how many bar letters they had on file and why they were issued, and what the various reasons were, and we got a breakdown. The number of bar letters issued for activities relating to demonstrations was very small, but it's possible that the notation was for some reason such as that, some benign reason such as that.

QUESTION: Was anybody else prohibited from attending? Obviously nobody but those with bar letters.

MR. STRAUSS: That's right, Justice Marshall, people who have been barred from the base; which, of course, would include people who had been convicted of quite serious crimes on the base, as well as people like --

QUESTION: Well, if you're convicted of assault, murder, treason and bribery, if you didn't have bar letter, you could go on that base?

MR. STRAUSS: That's right, although I would think if you were --

QUESTION: I thought that was right.

MR. STRAUSS: If you were convicted of those things and you were in the area of the base and did not receive a bar letter, it would be an oversight of major proportion.

QUESTION: May I just ask about this? Does the statute only apply to written orders not to reenter? What if a sentry intercepts someone going in the base and tells him to get out? He sneaks back in and is thrown out again by the sentry.

MR. STRAUSS: I think it's clear from both the wording and legislative history that such a case would be covered.

QUESTION: So the bar letter doesn't have to be written.

MR. STRAUSS: That's right.

QUESTION: And if a person had received such kind of treatment from a sentry, I take it you'd say there's kind of a reasonableness standard on how long the prohibition would apply?

MR. STRAUSS: Oh, yes. Absolutely.

QUESTION: But it doesn't have to be written.

MR. STRAUSS: That's right.

QUESTION: I thought this was limited to an order of the commandant.

MR. STRAUSS: The statute says --

QUESTION: I mean are you saying that a private can say you can't come back on here, and that's it?

MR. STRAUSS: You're quite right, Justice Marshall. The statute is limited to orders by the commandant, but the phrasing of the statute is after having been removed therefrom or ordered not to reenter -- ordered not to reenter by the commanding officer. And the legislative history shows that that phrasing was not inadvertent, that Congress was concerned about situations when people would come on the base, be thrown off, and a day later show up back on the base.

And if people could do that before the commanding officer could process the paperwork to get them a bar letter, we would say that Section 1382 covered their conduct. But you're quite right, that as far as the order not to reenter, that has to be issued by the commanding officer.

QUESTION: Well, or the person in charge. The duty officer could do it, I suppose. It doesn't have to be the commanding officer.

MR. STRAUSS: That's right. The person in charge of the base.

QUESTION: It could be the duty officer.

MR. STRAUSS: That's right.

QUESTION: Mr. Strauss, do you think that a commanding officer could issue a valid bar order or letter solely because the commanding officer disagreed with the political views of the person barred?

MR. STRAUSS: Oh, certainly not, Justice O'Connor.

QUESTION: And none of that is at issue in this case?

MR. STRAUSS: That's right; none of it is at issue in this case.

QUESTION: Wouldn't the commandant allow a parade through the base advertising the candidates for president or governor or whatever?

MR. STRAUSS: I believe there are regulations that at least authorize him to prohibit that and may require him to prohibit that, regulations which are upheld in Greer v. Spock.

They don't require him to prohibit that, but they certainly authorize him to prohibit it. And I think it would be uniformly prohibited.

Respondent's two arguments on the statutory issue in addition to the one about the staleness, the other argument Respondent makes is that Section 1382 didn't apply because Hickham was open to the public during the open house.

The problem with this argument has come out to some extent in my colloquy with Justice Marshall, is that many bases are always open to the public. And Respondent concedes that the holder of a bar letter cannot enter those bases without permission.

QUESTION: Mr. Strauss, when was 1382 enacted?

MR. STRAUSS: 1908, I believe.

QUESTION: 1908.

MR. STRAUSS: No, 1909. Enacted March 1909.

QUESTION: What does the legislative history show the reasons that the Congress enacted it? What was the abuse that it called for? I'm sure it was not demonstrations or entering bases on open houses.

MR. STRAUSS: It was not demonstrations, and Mr. Albertini did not receive his bar letter for demonstrating. The abuse was --

QUESTION: Why did the Congress enact it?

MR. STRAUSS: The legislative history is fairly clear. The problem was that people would come onto bases for various bad --

QUESTION: To recruit soldiers for prostitution?

MR. STRAUSS: For prostitution, for saloons.

QUESTION: That was the reason, wasn't it?

MR. STRAUSS: That's right. That's right. And they would be thrown off the base, and then before you knew it, they would be back on the base. And Congress had to implement some way to enforce, wanted to implement some way to enforce the commanding officer's warning.

QUESTION: That was the -- those were the abuses, the limited abuses which led Congress to enact the statute; right?

MR. STRAUSS: Those were the specific things that gave rise to the statute, although even Respondent eschews any argument that you have to show that a person was on the base in order to promote drinking or prostitution in order to issue him a bar letter.

And it's certainly clear, and Respondent has never suggested otherwise, that he can be issued a bar letter for destroying government property on the base.

Let me turn briefly to the constitutional question on which we petitioned. I think the central point on the First Amendment issue is that the Court of Appeals and, to some extent, Respondent analyzed this case as those the question were the right of the public to demonstrate on the base during an open house.

As I hope is clear, it's our view that this case does not involve that question at all; because Albertini is not just any old member of the public; he is a bar letter holder. And he was not convicted for demonstrating. He was convicted for reentering the base.

In fact, as we explain in our brief, it's really only a slight overstatement to say that this is not a First Amendment case at all, because Albertini received his bar letter for reasons unrelated to speech, and he was prosecuted for reasons unrelated to speech.

The most that can be said is that Section 1382 has an incidental impact on his right to come back on the base and to demonstrate. But in view of the extraordinary historical pedigree of the commanding officer's authority to exclude civilians from the area of his command and of the fact that Albertini was the author of his own restriction -- this is not a restriction unilaterally imposed on him by the Government; he engaged in the conduct that led to this being restricted in this way -- we think it's clear that any such incidental impact is more than outweighed by the very important Government interest at stake.

If there are no further questions, I'd like to save the rest of my time.

CHIEF JUSTICE BURGER: Mr. Sims.

ORAL ARGUMENT OF CHARLES STEPHEN SIMS, ESQ. ON BEHALF OF THE RESPONDENT

MR. SIMS: Mr. Chief Justice and may it please the Court, criminal punishment for Respondent's activities in this case would amount to an unprecedented expansion of Section 1382 in three separate but related respects.

With the Court's permission, I plan to briefly address the facts and to clarify some confused facts, I think, which are particularly relevant to two statutory arguments; first, that this bar letter was stale; and second, that Respondent didn't have the requisite knowledge to be guilty of the crime.

And then I'll address those two statutory arguments and the constitutional reasons why the judgment below must be affirmed.

Five facts are particularly critical.

First, although for some years now Hickham, as a matter of fixed policy, has not allowed any indefinite bar letters or indeed any that last longer than three years, Respondent's indefinite bar letter was issued more than nine years before the 1981 open house.

Second, the record is undisputed that he did not in fact believe, as a matter of fact, that the bar letter was in effect.

QUESTION: When you say the record is undisputed, what do you mean by that?

MR. SIMS: I mean that there is a wealth of testimony by the Respondent asserting that fact.

QUESTION: The District Court, of course, was entitled to disbelieve him in toto, was it not?

MR. SIMS: This is not a case where the District Court did disagree.

QUESTION: How can you tell that?

MR. SIMS: Because the District Court said scienter or knowledge wasn't relevant. This case would be in far different posture if the District Court had disbelieved him.

QUESTION: Well, to say that scienter or knowledge -- did you say the District Court simply made no finding?

MR. SIMS: No. No, no. The District Court specifically said, and we've cited it in brief, that whether or not he believed the bar letter was in effect was irrelevant.

QUESTION: So it made no finding on whether it believed the Respondent.

MR. SIMS: That's right. There is no finding because the District Court said the issue was irrelevant. In our position on this record, it would be impossible for a reasonable fact-finder to find that he did believe it. But if the Court disagrees, then obviously a remand would be in order for a finding of fact.

Now, third -- and this particularly critical -- Respondent's bar letter which was issued for a misdemeanor was issued without any standards. And this conviction rests solely and squarely on that 1972 bar letter, without any more, issued in the base commander's unlimited discretion.

The Government takes that 1972 bar letter as sufficient to warrant perpetual exclusion on base open houses. The case was tried only on that theory. There is no evidence in the record that there ever was any subsequent bar letter from Hickham. The only indication in the record is -- there is a question from the prosecutor saying, "Did you ever get another bar letter from Hickham?" And the answer was no.

A prosecutor's question is certainly not evidence that there was a second bar letter. There is not a single other whisper of evidence in this record that there was one. The Government never tried to put it into evidence, and it's plain from the entire record of the case that the only question below -- and the Government's theory was that the 1972 bar letter was sufficient, and that's all the case was tried on.

QUESTION: Is it your position, Mr. Sims, that every three years the commandant must issue a new bar letter if he wants to continue the impact?

MR. SIMS: No, that is not my position, Mr. Chief Justice. That's the Government's position. At present, as I've indicated, Hickham as a matter of policy doesn't allow any bar letters longer than three years.

Now, whether or not it's additional policy of Hickham that the can, on the basis of one of those expired letters, simply reissue it without any subsequent conduct, the record doesn't say.

But the Government does not deny that in fact no bar letters, as a matter of policy --

QUESTION: Does the statute put any limit on the time?

MR. SIMS: I believe that the statute does, and I take issue with my colleague's position that the plain language plainly is violated here.

I think the plain language is ambiguous, and it depends largely on the use of the word "after." If I tell someone that I'm going to meet them after this argument on the steps of the courtroom, and I meet them in nine years, I don't think that they will have thought that we reached agreement on the meaning of the word "after."

I think, therefore, that it's plain that the word "after" might mean any time subsequent, or might mean some reasonable time subsequent. And as I'll set out when I get to that portion of my argument, I think the legislative history and the administrative practice makes plain that the plain meaning cannot be relied on in the way the Government says.

QUESTION: Well, I still want, if I can, it's not clear to me in your idea as to when this letter expires of its own weight. Days, hours, or minutes?

MR. SIMS: Our position does not provide that kind of bright line, Your Honor. I think the legislative history makes plain that the purpose of the statute was to vindicate an order to terminate unwanted conduct, and therefore that the bar letter expires, I would submit, after a duration of reasonably necessary determinant.

QUESTION: Well, then we'll have to decide as to one day or 20 years.

MR. SIMS: I think in this case it's not necessary for the Court to make any such determination. The only question squarely before you, of course, would be whether this bar letter, nine years old, is too late.

Now, obviously, that --

QUESTION: Is eight okay?

MR. SIMS: Well, Your Honor, obviously there are line drawing problems involved here, but the Government's recent practice --

QUESTION: And that's what I'm asking help on.

MR. SIMS: Well, I think the Government's recent practice largely makes those problems evaporate. Since, as a matter of practice, the Government has for some years now been issuing only time-limited bar letters and for short periods of time, it seems to me that the Court would be in a position in those cases generally to defer to those kinds of determinations; whereas in this case, with an indefinite bar letter, that kind of deference, I think, would not be in order.

QUESTION: Mr. Sims, it sounds like you and Mr. Strauss aren't too far apart on determining how long a bar letter like this that gives no definite expiration date is valid. You both appear to agree that it's a question of reasonableness.

Is that right?

MR. SIMS: That's right, Your Honor, but I think we're in quite --

QUESTION: All right. And the court below simply dealt with the constitutional issue and did not resolve the question of the reasonableness of the duration. Isn't that correct -- in the Court of Appeals?

MR. SIMS: The Court of Appeals did not resolve that question.

QUESTION: So why should we try to resolve that kind of an issue here? Shouldn't we focus on the constitutional issue as it came to us?

MR. SIMS: Well, Your Honor, I think there are two responses to that. First, under the Ashwander doctrine, if the Court can decide the case on a nonconstitutional basis, I think it's obligated to.

Second, and this is where Mr. Strauss and I are in some disagreement, the question of whether it might have been reasonable to extend this bar letter is obviously a fact-intensive question that I can understand this Court not wanting to get involved in. but that's not this case.

This case was not tried on the theory that it was reasonable to extend this bar letter or that the bar letter was in fact extended. The case was tried only on the theory that the mere issuance of the bar letter in 1972 in the commander's standardless discretion was sufficient. And under those circumstances, it seems to me the Court is faced with a very simple or reasonably simple question of law and not the kind of fact-intensive question that might warrant remand.

QUESTION: Well, where would the facts be adduced to thrash this thing out in the first instance? At the trial in the District Court?

MR. SIMS: At the trial in the District Court, if in fact the Government's theory had been, if the case had been tried on the proposition that it was reasonable to keep this bar letter in effect.

QUESTION: But he was tried the way an ordinary criminal defendant is tried. He was indicted on a particular account; evident was introduced; the judge made a finding of guilty.

There has got to be evidence having been introduced at the trial that took place, isn't there, if you're going to argue about a factual question.

MR. SIMS: That's correct, Your Honor. But since the Government's position was nothing that happened after 1972 was relevant, there was in fact no reason for the Government to try to make that kind of position.

The case comes to this Court on the theory and record that the Government made. Since the case was tried on the theory that the mere receipt of a 1972 bar letter was sufficient, that's the only question before this Court; whether it's reasonable to keep a 1972 bar letter in effect without any more. There are no subsequent relevant facts, I think, as this criminal case comes to the Court.

QUESTION: May I ask, Mr. Sims, does the record -- you've mentioned the fact that Hickham now has a policy, or maybe the whole military does, of issuing three-year bar letters or no longer than that.

Does the record tell us when that policy was initiated and whether it was in effect at the time of this proceeding?

MR. SIMS: No. The only thing that the record indicates is that Respondent -- and I'll get to this when I get to the scienter point -- knew in fact that recent bar letters from Hickham -- and they are in the record and I'm not sure of their age -- I think they're from the early 1980s. He knew that recent bar letters were time-limited, but we do not know when the policy went into effect. The Government hasn't brought forth that information.

I might say it's our understanding that a fixed period is overall military policy, but there's some discretion between bases as to how long that should be. The three-year policy is Hickham's policy. I'm not sure that it's precisely that year.

And one other fact about that: The three years is the maximum at Hickham. Many bar letters are issued for two years or one year.

Now, briefly finishing my summary of the relevant facts, this base was not open the way Ft. Dix was. It was expressly open through special public invitations, widely disseminated in the media, inviting the entire population of Hawaii, without exception.

I suppose the Government could have, but it did not, say bar letter holders not invited. The invitation simply invited everyone, without exception.

And the educational, entertainment, and public relations events that the military organized at the open house were quite different from what goes on at a base like Ft. Dix. They were organized for the benefit of the public, not for the benefit of the military. They included not only the Air Force's own communicative activity, but were compatible with communicative activity by civilians in attendance.

Fifth and finally, Respondent's own activity, as the Government concedes, was not disruptive or violative of any rules or regulations at the open house. He did what everyone else did, and he did it peacefully.

Now, for a number of different reasons, this conduct was not and cannot be made a crime. First, the bar letter issued in 1972 simply was no longer effective to bar his entrance in 1981 and without an operative bar letter, there is no crime under Section 1382.

The statute makes no sense without an operative order not to reenter. The crime is entering in violation of an operative bar letter, not one that is stale or expired or rescinded.

Under the Government's literalistic reading of the statute, a crime is committed even if the bar letter on its face is expired because someone has entered after having received the bar order. But that plainly is not what Congress had in mind, and therefore we think --

QUESTION: Well, Mr. Sims, that doesn't accurately characterize Mr. Strauss's position as I heard him. I understood him to say if the bar letter were no longer in effect, then that's a different question.

MR. SIMS: Well, if that's a different --

QUESTION: I think you're characterizing it differently.

MR. SIMS: Your Honor, if that's a different question, it's because one has to go past the plain meaning of the statute. The literal words of the statute do suggest that result, and my position here simply is the literal words can't be taken that way, and one has to go a little bit further and look at legislative history and administrative construction.

QUESTION: I'm not sure I got your responses to Justice Marshall's question as to just when this bar letter expired. When did it lose its vitality?

MR. SIMS: Well, this bar letter is not effective nine years afterward, and the precise day, I can't tell you the precise day, Mr. Chief Justice, but I think it relates to the duration necessary to effectuate the commander's order.

The commander was concerned about anti-Vietnam war conduct, and he issued an order precluding that kind of conduct. There's no question that the Vietnam War has long since ended. There was long since -- it's years ago, and it simply can't be said that exclusion of Mr. Albertini in 1981 was necessary to vindicate the commander's order in 1972.

QUESTION: You described his purpose by his testimony as engaging in an act of civil disobedience. Civil disobedience about what?

MR. SIMS: Your Honor, are you referring to the 1972 bar order?

QUESTION: Uh-huh. 1981. You said that he conceded that he was engaged in an act of civil disobedience in 1981, unless I misunderstood you.

MR. SIMS: Mr. Albertini's political views are that the defense establishment of this country is too large. He was engaged in conduct, as the Government concedes, that consisted merely of being at the base and taking photographs. There is no question in this case as to whether or not he could have lawfully been leafleting or holding a banner.

The Government has conceded that he wasn't doing any of those things.

Now, the Government is --

QUESTION: Mr. Sims, do I understand that part of the airstrip at Hawaii is within the limits of this base?

MR. SIMS: That's true, Your Honor.

QUESTION: Does that mean that if Albertini were on a plane within that airstrip, he'd violate the statute?

MR. SIMS: Well, I can't believe, Your Honor, that it would be the Government's position that he violates the statute by virtue of being on the Honolulu International Airport, but if that's so, I take it that that has to do with the meaningfulness of the fact that at least that portion of the base was open to the public.

Now, as I've indicated, the core situation that 1382 was intended to deal with is shown in a case like United States v. May or United States v. Holdridge, when misconduct occurs, a bar order is given, and people return shortly thereafter. Enforcement of the bar letter in that situation puts force behind the commander's order to leave.

Now, administrative practice confirms our view that nine years is simply much, much longer than the bar letter is effective for. There is not a single reported case in the United States reports that involves any bar letter issued more than a year, in force more than a year after its issuance.

Under these circumstances, we simply think that enforcement of this bar letter can't be said to fulfill the congressional purpose, effecting the initial exclusion from the base.

Now, the Government has suggested that even if nine-year-old bar letters might generally be stale, it should be allowed an opportunity to show at a remand or at a retrial that this one was or could have been extended. But the record the Government freely made below is insufficient to make out its statutory case under that view, and then the double jeopardy clause would bar further proceedings trying to make out the Government's case.

Both Burks and Hudson v. Louisiana could have given the Government a second bite at the evidentiary apple. Nor can this conviction be upheld on the ground that the present record is sufficient to justify the continuation of the bar letter. Due process bars an appellate court from upholding a conviction on what the Government might have proved or on a theory that could have been but was not advanced at trial.

The court held that --

QUESTION: Mr. Sims, suppose that the bar letter had been issued a week before your client reentered the base. Now, on the constitutional issue, is there a constitutional inability of the Government to prosecute him under this Section 1382?

MR. SIMS: Leaving aside the motive question which Justice Brennan touched on, I would say yes, Your Honor, although I think the case would be materially different, and material different in this --

QUESTION: And of course that was the position taken by the Court of Appeals below that we have to address, isn't it?

MR. SIMS: Well, Your Honor, assuming for the moment that O'Brien is the right analysis, and the Government suggests that it is, the relevant question -- and I would focus my argument on four criterion of O'Brien -- whether the enforcement of bar letters generally is greater than essential to fulfilling the Government's interests. And it seems to me under the Court's recent decisions in Heffron and Clark v. CCNV, when the Court has said you have to look not just at the particular case, but the general enforcement of this non-content-related rule, it seems to me plain under these circumstances that enforcement of bar letters generally is much greater than essential for the Government's -- fulfilling the Government's interest.

I'll come back to that. But if I could, I'd like to touch briefly on the scienter question because I think it's plain that Congress intended to prohibit reentry only in violation of a -- only a knowing violation of an operative violator.

Again, every court prior to this case has required the Government to shoulder that burden. In this case, as I've indicated, the District Court expressly held that such proof was not required, and it made no finding in that regard.

Now, both the United States Gypsum and the Moriissette case make plain that the lower courts which have unanimously required knowledge of an operative order not to enter have correctly construed the statute.

Morissette is particularly relevant. There, the Court held that no crime had been committed where a defendant who collected spent shell case things on a base believed they were abandoned, even in fact they hadn't been legally abandoned. In this case similarly, no crime was committed if the Defendant believed that the bar letter had been effectively abandoned by the military whether or not that belief is legally correct.

Now, as I have indicated, the testimony is that this man taught college courses on this base, had conducted tours on the base, he had receipt of an invitation in the newspapers and the radio inviting everyone, without exception.

He knew of a recent decision of the District Court there, Butler v. United States, involving a visit by President Nixon to the base which had appeared to hold that when the base is open to the public for this kind of an event, the public can come on, without exception.

QUESTION: Well, how does one come on and teach a class on a base that's normally closed, without some sort of permission?

MR. SIMS: Your Honor, it's inconceivable to me that it would be possible to do it without permission. This record doesn't answer the question specifically whether he had the written permission of the commander.

QUESTION: Because I take it that the rule is at Hickham that people have to have permits to come on the base.

MR. SIMS: That's what Mr. Strauss says. At the time he went to teach these courses, it was -- I think the record indicates five or six years after the issuance of the bar letter. And under those circumstances, it just seems to me plain, as I've indicated, that in fact he believed and reasonably, if reasonable belief is the test --

QUESTION: Of course, that isn't the basis that the case was decided on.

MR. SIMS: That's true, Your Honor. And that would leave this Court with a non-constitutional basis for decision, but it was not the basis reached by the Ninth Circuit.

QUESTION: I'm not sure it leaves us with a non-constitutional ground, but it might have been a ground that should be addressed below.

MR. SIMS: It might better have been, Your Honor.

Now, turning to the constitution --

QUESTION: May I just ask this question? I may have missed it, but in response to Justice Rehnquist earlier, did you say the trial judge ruled that his knowledge was totally irrelevant?

MR. SIMS: That's correct, Your Honor. The case does not come here on a finding that he believed it was effective. The case comes on a legal determination that that knowledge is irrelevant.

QUESTION: And the Court of Appeals not only didn't decide the staleness question, but also didn't decide that question.

MR. SIMS: That's correct, Your Honor.

QUESTION: So there were two non-constitutional issues they bypassed in order to reach out and decide a constitutional question.

MR. SIMS: That's correct, Your Honor, and we think that this Court can dispose of the case on either of those grounds.

Now, we think that the Court, as I've indicated, should decide this case on statutory grounds.

QUESTION: You mean we should decide either of those --

MR. SIMS: There's no question that you can.

QUESTION: Without remanding?

MR. SIMS: And I think that you can, without remanding.

But if the constitutional arguments are faced, we think that the judgment still has to be affirmed.

QUESTION: Well, was there a conviction in this case?

MR. SIMS: There was a conviction, Your Honor.

QUESTION: And what was the Defendant's submission to the District Court?

MR. SIMS: The submission to the District Court was that the bar letter was stale and that since he believed the bar letter was ineffective, the crime hadn't been committed --

QUESTION: But you've submitted your constitutional ground?

MR. SIMS: And the constitutional claims were submitted as well. Yes.

QUESTION: And the District Court reached the constitutional ground and so did the Court of Appeals.

MR. SIMS: Well, the District Court held that the bar order was not stale.

QUESTION: Right.

MR. SIMS: And that scienter was not required. Knowledge was not required.

QUESTION: And upheld the --

MR. SIMS: And rejected the constitutional challenge.

QUESTION: And the Court of Appeals just reversed on the constitutional?

MR. SIMS: That's correct, Your Honor. I think the Court of Appeals was correct on that ground as well, whether or not it should have reached it.

As we've indicated in greater detail in the brief, the total exclusion of an individual from a public forum is subject to rigorous First Amendment scrutiny under the compelling interest test. And since the Government has brought this case here, notwithstanding that footnote, essentially on accepting that this was a public forum and arguing that O'Brien nevertheless requires that the conviction be affirmed, I will follow the Government's lead and assume that it is a public forum and argue that O'Brien does not in fact help the Government here.

Now, there is not a single case where the Court has held that reasonable time, place, and manner restrictions permit the exclusion of individuals from forums and repeated cases, such as Heffran and Shad v. Modifium and the City of Madison case, suggest precisely the opposite.

The reason the Court had imposed a more lenient First Amendment test under time, place, and manner restrictions is precisely because the impact on First Amendment rights is much less severe. The essence of those regulations is that they do not respect persons, and that they channel but do not forbid expression within a forum.

QUESTION: This argument, Mr. Sims, on the idea that there was a non-stale bar order issued.

MR. SIMS: That's right. Once I get to the constitutional claims, I'm obviously assuming that you've either not reached or decided the statutory claims differently.

QUESTION: Mr. Sims, how do you draw the line between that and the criminal case where you're given a sentence and you're put on probation and told that you can't go near a bank?

MR. SIMS: Well, I'm not sure what the First Amendment interest is in that case, Your Honor.

QUESTION: Well, don't you have a First Amendment right to go to a bank?

MR. SIMS: Well, assuming that you do, Your Honor, it seems to me that under O'Brien, the relevant question is whether the Government is fulfilling its interest and in your situation --

QUESTION: Do you see anything wrong with that? It's done every day.

MR. SIMS: I think it might well be permissible, Your Honor.

QUESTION: It's done every day.

MR. SIMS: It might well be permissible and it would be permissible under O'Brien, assuming that there was a First Amendment interest precisely because the Government interest was narrowly tailored.

QUESTION: He's told not to associate with known criminals. It's done every day.

MR. SIMS: That's correct, Your Honor, and --

QUESTION: And they certainly have a First Amendment right to associate with people.

MR. SIMS: That's correct, Your Honor. And if in this case the Government had excluded Mr. Albertini because of any similarly focused determination that he presented a particular danger of harm at this open house, there's no question, I think, under O'Brien that the Government might well prevail.

I mean if he was engaged in this conduct at the base and excluded, he would -- I take it -- have a First Amendment claim. But there is no question it would be rejected precisely because the governmental interest would be furthered precisely -- would be furthered precisely.

And therefore, whatever incidental impact on the First Amendment right would be no greater than essential to fulfilling that interest.

Now, I think it's inconceivable that this Court would permit the Government to permit public officials to exclude individuals from the mall or from public auditoriums, such as in the Southeastern Promotion case, merely on their say-so that they had engaged in -- even if they're correct -- misconduct nine years ago in the past.

And I don't think the Court would permit criminal punishment if the legislature or Congress permitted a statute authorizing punishment for violating that kind of --

QUESTION: Mr. Sims, aren't you, for the purposes of your constitutional argument, assuming we have a valid bar letter and the reentry was within reason -- you know, a prompt reentry?

MR. SIMS: I am, Your Honor, but I do think it's relevant that bar letters are issued without standards, and therefore that this case, aside from the military base, is not materially different from a case like Coons v. New York.

QUESTION: No, but the statute only applies to military bases, and that's like saying -- that's the key to the case.

MR. SIMS: Well, let me turn in a more focused way to the bar letter practice which I think makes plain that O'Brien doesn't cover this case.

Bar letters are issued, as we have indicated in some detail in the brief, in extremely broad manner. At some bases they're issued for all less-than-honorable discharges, so that, for example, all homosexual -- people who are homosexual servicemen would get barred.

There's a regulation which apparently contemplates the issuance of bar letters against people who are misusing recreational jeep and snowmobiles on military property.

QUESTION: This bar letter was not for purposes such as that, however.

MR. SIMS: That's correct, Your Honor, but this case comes to the Court simply on the ground that a 1972 bar letter for a misdemeanor -- which is what this was -- is sufficient. And I think as the Court has indicated in Clark and Heffran, the Court has to look at the general question and not only at the specific thing.

I mean the fact is that bar letters are issued, as we've indicated, extremely broadly. And the question under O'Brien, as this Court has gone through that analysis in Taxpayers for Vincent and Grace, is whether or not the enforcement of this content neutral rule is broader than necessary to fulfill the Government's interest.

Now, in Clark and Taxpayers for Vincent, in finding the O'Brien test was essentially satisfied, the Court was able to find that the O'Brien test was absolutely satisfied because the determination of the Court was that every additional demonstration overnight or every additional sign was a marginal addition to the precise evil that the Government had a right to terminate, the esthetic evil, the protection of the parks.

In this case on the other hand, if the Government is correct that bar letters generally can be enforced at open houses, there is no such focused matching of the Government's interest and the First Amendment right.

In fact, what will happen is that thousands of people will be excluded, even though they don't present the evil that the Government has a right to protect itself from

Finally, the Respondent here was apprehended, detained, and expelled together with his companions, none of whom had previously been issued bar letters. Their joint apprehension and expulsion makes plain, as does the incident report on its face and the testimony of Major Jones, that they were excluded because of disagreement with what they were saying and their views.

On the facts of this case, therefore, we think it's clear that the Respondents were subjected to 1382 because the commander objected to what was being said and with the objectives of their protest.

This case would obviously be quite different if the --

QUESTION: What form did that protest take, Mr Sims?

MR. SIMS: Well, some of the individuals were holding a banner and others were --

QUESTION: How many individuals were there?

MR. SIMS: There were six altogether, Your Honor, and others were passing out leaflets, but it's undisputed --

QUESTION: And the banners carried some message?

MR. SIMS: Yes. There's a picture of the banner in the joint appendix.

QUESTION: Don't bother. I'll find it.

MR. SIMS: At page 58.

QUESTION: Mr. Sims, you're referring to Respondents, plural. I had thought we only had Mr. Albertini before us.

MR. SIMS: You only do have Mr. Albertini before you, Your Honor. The relevance of those other individuals is that it makes nonsense, I think, of the Government's claim that Mr. Albertini was proceeded against, was apprehended and expelled.

QUESTION: Well, that sounds like a selective prosecution claim you're talking about now. Did you raise that argument below?

MR. SIMS: Your Honor, it's not a selective -- it might also be a selective prosecution claim, but in this Court's cases involving --

QUESTION: Was that a claim you made below or that was made below by Mr. Albertini?

MR. SIMS: Not in the form of a selective prosecution claim, but we did argue below that the -- that this is impermissible for content based reasons; that is, that he was apprehended and expelled and detained and proceeded against because of disagreement with his views.

It's raised in the Court of Appeals' brief at page 32 and in the transcript in the District Court.

Now, as I've indicated, the relevance of the fact that he was treated the same as those other individuals is precisely that it shows that they were treated the way they were treated because of a disagreement with their views, what Major Jones called the anti-defense character of their speech.

In cases even where the Court has found no public forum, such as Greer and Adderly, the Court has repeatedly said that if the rules were being enforced because of that kind of disagreement, that the First Amendment would be violated. And I think the record fully supports the Court of Appeals' view here --

QUESTION: Your time has expired, Mr. Sims.

MR. SIMS: -- that it was that content that precipitated it.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Strauss?

MR. STRAUSS: One or two brief points, Mr. Chief Justice.

ORAL ARGUMENT OF DAVID AARON STRAUSS, ESQ. ON BEHALF OF THE PETITIONER - REBUTTAL

MR. STRAUSS: We brought the case here because of the First Amendment issue, and it's our view that that's the only issue that the Court need resolve and should resolve.

As I said, the staleness question will be open on remand, and before Respondent's position on that question could possibly be accepted, we think we have several substantial arguments that would have to be considered. For example, it's not at all clear to us that Respondent was entitled simply to ignore his bar letter and go ahead and violate it.

If he thought it was stale, the bar letter itself told him what he should do; he should seek the permission of the commanding officer. And if the commanding officer refused him permission, he could then challenge that decision which we concede is reviewable in court under a properly deferential standard.

QUESTION: May I ask you about the other statutory issue, the intent issue. Do you agree with your opponent's interpretation of the record that the District Court ruled as a matter of law that intent was irrelevant?

MR. STRAUSS: No, I disagree with that, Justice Stevens. On page 41 of the Joint Appendix, the District Court stated that the intent that is needed is the intent present in intentionally and voluntarily and knowingly entering the base and not stepping across a line unwittingly.

Respondent conceded that he knew he had a bar letter and that he knew he was on a military base. And our view is that is the intent; that it's --

QUESTION: What if -- just assume that the other court might have taken the view that the Defendant had to be aware of the fact that the bar letter had not become stale and that he did convince the judge -- just assume it for a moment -- that he had gone on several times and therefore reasonably assumed that it was no longer in effect, that there's a policy of three-year bar letters and so forth.

Would that not present an issue of law that ought to be decided before the conviction is finally final?

MR. STRAUSS: It would present an issue of law. I would have two points to make, Justice Stevens. One is that I'm not sure it was preserved on appeal. I don't think it was among the issued raised on appeal by Respondent.

And the other is that while it is an issue of law, I think the answer is extremely obvious, that a defendant in a criminal case, especially in a prosecution under a statute like this, does not have a reasonable mistake defense, a sort of Harlow v. Fitzgerald defense, that while he actually -- his conduct was illegal, he has the substantial argument that it was not illegal, and therefore he should escape from the liability.

QUESTION: Even if -- in other words, there's no distinction between what in fact is reasonable and what he might have thought was reasonable in your view?

MR. STRAUSS: The question whether it was reasonable to continue the bar letter in force is an objective legal question to be determined on all the facts. If it's determined that it was reasonable to continue it in force, then Respondent is liable, and the fact that he has a substantial argument in the other direction is not a means for him to escape from the liability.

I know of no such principle in the law, and certainly there's no reason to think Congress wanted every defendant prosecuted under Section 1382 to be able to say in his defense, well, I know I violated the statute, but for this reason, and this reason, this reason, and this reason I thought that perhaps my conduct was legal. And if his view was in good faith, he would escape punishment. There's no reason to think that that was Congress's intent.

But as I say, these are the sorts of issues including the question of whether that issue was even preserved on appeal, that quite clearly we think should be sorted out in the Court of Appeals on remand and not by this Court at this time.

QUESTION: How long before a bar letter is no good?

MR. STRAUSS: We think -- and I think I'm in agreement with Mr. Sims on this point -- that it's a question of reasonableness, Justice Marshall, under all the circumstances.

QUESTION: And you leave us between zero and what?

MR. STRAUSS: We would certainly leave you between a short period of time and a lifetime. If a person commits a sufficiently serious act or, like Respondent, keeps committing one act after another --

QUESTION: Are we obliged to find that date?

MR. STRAUSS: Excuse me, Justice Marshall?

QUESTION: Are we obliged to find that date?

MR. STRAUSS: Certainly not, Justice Marshall. The only question presented in the petition is the constitutional question.

QUESTION: How many bar letters have been received by Respondent at other bases?

MR. STRAUSS: We don't have the number, but the district judge, in response to a question by the district judge, he said he had collected one from pretty much every base on Hawaii.

QUESTION: And Respondent didn't deny it, did he?

MR. STRAUSS: No, he said pretty much every base when the district judge asked him how many he --

QUESTION: How many bases are on Hawaii?

MR. STRAUSS: I'm not sure. At least three or four.

QUESTION: More than that.

MR. STRAUSS: We also know that he collected multiple bar letters from some bases.

QUESTION: Is it clear that for every bar letter, he committed a crime? Or is it possible that some of these bar letters were in response to First Amendment protected activity?

MR. STRAUSS: I --

QUESTION: Which I assume you would concede would be invalid.

MR. STRAUSS: If it were --

QUESTION: So you don't know whether any of the other bar letters are valid or not, do you?

MR. STRAUSS: We don't know about the other bar letters. It wasn't developed in the record.

If there are not further questions, thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

We'll hear arguments next in Northeast Bancorp v. Federal Reserve.

(Whereupon, at 11:04 o'clock a.m., the case in the above-entitled matter was submitted.)