Cases by Issue - Presentation or Admissibility or Sufficiency of Evidence

Old Chief v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

Old Chief v. United States

Media File:

95-6556_19961016-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Daniel Donovan

Chief Justice Rehnquist: We'll hear argument now in Number 95-6556, Johnny Lynn Old Chief v. United States.

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

Mr. Donovan: Mr. Chief Justice and may it please the Court:

The fact of the prior felony conviction, not the nature of the prior felony conviction, is an element of the offense of felon in possession of a firearm.

The name and nature of that underlying conviction is not relevant to that issue.

Unknown Speaker: Well, when we're talking about... we're talking about admissibility of evidence, here, I take it.

Mr. Donovan: Yes.

Unknown Speaker: Ordinarily you don't start talking about the relevance of a... you look at the piece of evidence and you say, is it relevant, don't you?

Mr. Donovan: Yes, and in this particular case there were pieces of evidence that we contended weren't relevant.

Unknown Speaker: Well, what was it, a certificate of prior conviction?

Mr. Donovan: Well, also the indictment itself.

It's a practice of this judge to have the prosecutor read the indictment to the jury at the time of the voir dire, so we had come in pretrial and filed a motion in limine asking the judge to prohibit that reading as well as the prejudicial... we contend the prejudicial parts from the judgment--

Unknown Speaker: But that's not raised in your petition for certiorari.

The question is, if the defendant in a felon in possession of firearms case offers to stipulate to his status as a felon, should the district court require the Government to accept the stipulation.

So it's no different whether the judge read the indictment or whether there was a certificate of prior conviction, is there, under that question?

Mr. Donovan: --Well, yes, but we did do three things.

The first thing was move in limine to exclude, the second thing was offer to stipulate, and the third thing, we submitted a proposed jury instruction we felt even went farther than stipulation and admitted, basically, the fact or the element.

Unknown Speaker: But your... the question you raise with us is whether the Government should have been required to accept the stipulation.

Mr. Donovan: That's correct.

Unknown Speaker: And so we're talking now about a piece... what, a certificate of conviction of some sort was offered?

Mr. Donovan: Well, we only made a verbal offer.

We never got farther than that because the Government basically said we don't have to stipulate if we don't want to.

The trial judge said they don't have to stipulate if they--

Unknown Speaker: So what was it that the Government offered?

Mr. Donovan: --They offered a... well, aside from reading the indictment and mentioning it during the trial, they offered the judgment and conviction document.

Unknown Speaker: Okay, so the question, it seems to me, if you're talking about normal application of the rules of evidence, is, is this judgment of conviction relevant, and it seems to me you have to answer yes, don't you?

Mr. Donovan: Well, it may be relevant in general, but what I was saying was, parts of it were not relevant, and I tried to solve that problem pretrial, and the judge basically said no.

Unknown Speaker: Mr. Donovan, when the judge had said no, did you then offer the statement as a signed admission, even though the Government had not stipulated to its correctness?

Mr. Donovan: No.

I just fell back and put the Government to their proof, basically, but I still renewed the objection during the trial.

Unknown Speaker: Well, do you agree that the Government... I mean the stipulation is by... I think is by definition a statement in which each party concurs.

Mr. Donovan: That's correct.

Unknown Speaker: And I presume there isn't any power in a court to make the Government concur in something it doesn't want to concur in.

Mr. Donovan: That's true.

What I'm really saying is that I think a stipulation is the best remedy for this problem, and I'm asking--

Unknown Speaker: No, but the problem doesn't arise under the rule until there is at least some alternative evidence under the rule, and if you're saying the evidence is the stipulation, and the Government hasn't signed it, you haven't got a stipulation, and you don't have that kind of evidence.

And that's why I asked you the question, when the Government wouldn't stipulate so that you couldn't offer a stipulation, did you have a kind of fallback evidence like saying, okay, judge, we've signed it, and my client has signed a statement saying, I did thus and so, or I was convicted of thus and so, and we're offering this as evidence as an admission.

That, I presume, would have been evidence, but I take it that was not in this case.

Mr. Donovan: --What I did, though, I did offer a proposed jury instruction whereby the jury would instruct the... or the judge would instruct the jury that you are hereby instructed that the defendant, Johnny Lynn Old Chief, has been convicted of an offense punishable by a term of imprisonment exceeding 1 year, and I think that's--

Unknown Speaker: That was in the nature of an admission, you're saying?

Mr. Donovan: --Right.

Unknown Speaker: Yes, but you did that on the assumption, or in order to build a case that the evidence of the nature of the crime must have been... must be excluded based on your instruction.

Mr. Donovan: Yes, that's true.

Unknown Speaker: Well--

--It seems to me this is very much of a 403 case, and I think the Government concedes as much.

I don't see that as necessarily presented by your question.

That's why the case is a little hard to grasp, and I don't see you arguing it in your brief.

Mr. Donovan: I think the problem is the Ninth Circuit case, the Breitkreutz case, which the Government... the prosecutor and the trial judge relied on I think is decided wrong, because it says if there is an offer to stipulate in this kind of a case you don't apply 403, but I think clearly the Government's admitted here, and they admitted I think in 1992 in a case that was argued called Hadley, that an offer to trigger, or offer to stipulate--

Unknown Speaker: Well--

Mr. Donovan: --does trigger a 403 balancing analysis--

Unknown Speaker: --Well--

Mr. Donovan: --and we never had such an analysis here.

It's therefore--

Unknown Speaker: --I don't... excuse me.

Supposing that a criminal defendant is charged with the offense of murder, is the Government required to simply accept a statement from him that yes, I killed this person, rather than have the evidence put on by the Government as to how the person was killed, and that sort of thing?

Mr. Donovan: --I don't... I don't think the Government's required to do that.

Unknown Speaker: Well, why... if you're right on the felony point, why isn't the Government required to accept a stipulation on some other element of the crime?

Mr. Donovan: I think this... I'm asking the Court just to focus on this one statute, and I'm saying in addition to the stipulation issue that the nature of the prior conviction is not relevant, and--

Unknown Speaker: Well, maybe... can't the defendant in my hypothesis argue that this... the evidence as to how he killed the defendant could be very prejudicial, and it really doesn't make any difference in the eyes of the law so long as he killed him.

Mr. Donovan: --I think that's true, but you start with a proposition that that evidence is relevant, and then of course you could argue 403.

Unknown Speaker: But you start with the proposition that this evidence is relevant.

Mr. Donovan: Well, if you combine the total... if you're calling the total judgment and conviction document itself relevant, yes, but what I'm saying is part of that judgment includes the nature and name of the prior felony, which isn't relevant, as well as the fact that Old Chief got 60 months, obviously, which is more than--

Unknown Speaker: But why doesn't that just raise a section 403 balance question, rather than some question of whether the Government has to accept a stipulation?

Mr. Donovan: --Well, I did raise that at the trial level, and the problem with the Ninth--

Unknown Speaker: But not here.

Mr. Donovan: --I argued 403 balance here.

I'm saying if you assume this is--

Unknown Speaker: But the question, as the Chief Justice pointed out, just asks whether we have to accept the offer of the defendant to stipulate.

Mr. Donovan: --Yes, and--

Unknown Speaker: And surely the answer to that is no.

Mr. Donovan: --Well, that's true, Justice O'Connor, but what I'm trying to get the Court to look at are some of the circuit cases, Tavares in the First Circuit, and what... basically what that says is the offer to stipulate triggers a process and then the Government has to come in and prove under 403 that there is probative value which--

Unknown Speaker: I don't see what relevance the offer to stipulate has.

I mean, if the Government doesn't have to accept it, and I think it doesn't, then it just doesn't trigger anything.

Mr. Donovan: --Well--

Unknown Speaker: You'd have to raise the 403 issue, and ask whether what is offered by the Government is unduly prejudicial and unfair.

Mr. Donovan: --And I think I did that, but I got ignored, and again, I feel because of the law in the Ninth Circuit, the case... Breitkreutz says if you object, if you offer to stipulate, you don't apply the 403 balancing test.

Unknown Speaker: But--

--Well, I think it's true that even the Government at page 28 of its brief, a paragraph I can't quite square with its position, says that once there is an unconditional offer to stipulate, then 403 analysis is triggered, so in that sense I think the Government seems to agree with you on that point.

Mr. Donovan: Yes, and Ninth Circuit law says you don't trigger it.

Unknown Speaker: But the... Tavares was a pure 403 case, wasn't it?

I mean, I think I remember.

I think I was on the panel.

Mr. Donovan: Yes.

Unknown Speaker: Pure 403.

It says that in the presence... there are a lot of ways you can keep the prejudicial thing out.

You can redact it.

There may be dozens of ways, and if the defendant comes in, offers to stipulate, then there's just one additional important way that the Government doesn't need it, and that goes in the 403 balance.

Mr. Donovan: And the Tavares test in the first Circuit stands for the proposition if the Government refuses to stipulate, you still exclude that evidence by some other means, and the First--

Unknown Speaker: I thought--

--Mr. Donovan, your argument and also your reliance on 403 assumes that the only evidence admissible is evidence which is probative.

That's what 403 says, if it's probative value is outweighed by something else.

Is that the case?

It seems to me a lot of evidence gets in in trial routinely to simply place a crime in its context.

For example, the identity of the victim, as the Chief Justice was alluding to.

Do you think the identity of the victim, if it happened to be Mother Teresa, could be kept out of the case--

Mr. Donovan: --No, I--

Unknown Speaker: --on the grounds of what difference does it make who it was?

It was a murder, and pleading 403, you should suppress the fact that it was Mother Teresa.

I doubt whether you have to do that.

It's part of the circumstances of the event which the State is entitled to get in.

Mr. Donovan: --I think in comparison you start with the proposition that the victim of the... the evidence of the victim of the crime is a relevant question.

Unknown Speaker: No.

It's no more relevant than the nature of the prior crime in your case.

It was a dead human being is all that's necessary for the conviction.

The identity of the human being makes no difference.

Mr. Donovan: Well--

Unknown Speaker: So if I come in with a stipulation, I stipulate there was a dead human being, whereupon you think the State could be precluded from introducing who the human being was, placing this event in its real life context, simply because that would be harmful to the defendant?

I doubt it.

Mr. Donovan: --I think that does place it in the real life context and get into evidence of the act and intent of the crime, and one thing I'm saying here, the status of the felon is not part of the act and intent of the crime.

It's something different.

Unknown Speaker: Are you saying that because of the state of the law in the Ninth Circuit there was no way you could have gotten a 403 balance?

I'm confused about what... the exact question you were asking us to decide, however you phrased it in your cert petition.

I thought you said that in the Ninth Circuit, as distinguished from the First Circuit, there is no possibility for a 403 balancing on whether the jury will be told the name of the felony.

Mr. Donovan: That's how I read the Ninth Circuit Breitkreutz case, Justice Ginsburg.

Unknown Speaker: So what you're challenging is circuit law that says that the character, the crime, the actual crime, the name of that crime is not something that the judge should weigh in a 403 balance, it just comes in automatically.

Is that what you're saying?

Mr. Donovan: I think the Ninth Circuit says that automatically comes in regardless of defense objection or defense offer to stipulate.

And I think that's how I got here.

That's why I got here.

Unknown Speaker: But that certainly isn't the question you present us with.

It's whether that Ninth Circuit decision might be wrong.

Mr. Donovan: No, I... I mean, it's an aspect of the question, yes.

Unknown Speaker: Well, what if a criminal defendant and his lawyer figure that our only chance is to raise a defense of justifiable homicide, that you killed in self-defense, can that defendant come in and say, I stipulate to all the elements of the crime of murder, that it was... I killed him unlawfully, et cetera, et cetera, and can the Government be required to accept that sort of stipulation, and only argue about... the only evidence you really hear is about whether there was justification or not?

Mr. Donovan: I don't think so.

I think the Government is entitled to present a full picture of that, and it also relates to whether or not there was self-defense.

Unknown Speaker: Well, why can't it present a full picture of the felony that the person was convicted of?

Mr. Donovan: Well, my first argument is, it's not relevant.

Unknown Speaker: Well, if it's not relevant, then you don't ever get to a 403 balancing.

Mr. Donovan: That's right.

Unknown Speaker: You simply would exclude it automatically.

Mr. Donovan: And I think that's the rule of the First Circuit, is just that, but--

Unknown Speaker: It is a relevant part.

The relevant part is that the felony was committed.

Mr. Donovan: --That's--

Unknown Speaker: The question is, how do you... I mean, the question is, how do you get in that relevant part without going into all the details, and the difference between doing that with an ancient felony and doing it with the details of the accused felony, i.e. the present crime, the difference, because you don't allow it with the present crime, I thought the Chief Justice's question is, why do you allow it with the past crime, and the answer to that is?

Mr. Donovan: --Well, the... I believe the answer is whether or not it's a qualifying crime is a question of law for the Court to determine, and whether or not the defendant in fact committed that crime, or was convicted of that crime, is a question of fact--

Unknown Speaker: Well, perhaps--

Mr. Donovan: --A question of fact for the jury.

Unknown Speaker: --on a somewhat broader picture, can the criminal defense in a sense require the Government to accept a lot of stipulations so that a very abstract picture is presented to the jury simply almost in terms of judges, rather than having live evidence describe what happened?

Mr. Donovan: No.

No, I don't think it can, but the defendant can offer to stipulate or object and get a 403 analysis and ask the Court to exclude that over Government objection.

Unknown Speaker: It seems to me what you have to say in order to avoid some of these very difficult problems is that evidence of the prior crime for the felon in possession statute is somehow sui generis and we should have a special rule for that.

I'm--

Mr. Donovan: That's essentially--

Unknown Speaker: --I think that's a difficult principle to explain if I have to write the opinion, but it seems to me that that's where you're going.

Mr. Donovan: --Well, I think I am going there, and I'm asking the Court to consider the Tavares rule, and I think the Tavares rule is better summarized in the case of Melvin, which is cited in the amicus brief, and that basically Melvin states that in a felony possession of a firearm case, evidence of the nature of a prior... of the nature of the prior conviction is not admissible unless the Government establishes probative value in the 403 balancing process, and I think that is a simple rule to apply.

Unknown Speaker: Could I go back to your answer to the Chief Justice's question?

I really didn't understand it.

He asked you whether the defendant could in effect render a trial a very abstract proceeding by asking the Government to stipulate all of the elements of the crime with the only issue left being whether the defendant in fact committed it or not, and you said no, but then you followed up with an explanation that seemed to me to mean yes.

Mr. Donovan: Well--

Unknown Speaker: You said no, but the--

Mr. Donovan: --I think that--

Unknown Speaker: --but the defendant could offer the Government a stipulation, and if the Government refused the trial court could exclude that information, which I think is the opposite of your first answer.

Mr. Donovan: --Well, I think what I'm trying to say is that the defendant can't preclude... cannot on his own preclude, but he could offer to stipulate it, otherwise object and ask the judge to preclude, and of course the Government would... would not--

Unknown Speaker: Are you saying the Government... and what must the judge do?

You think the judge should preclude?

Mr. Donovan: --No, the Gov... the judge... well, I would argue in certain cases, in certain situations the judge should apply 403 and exclude the evidence, but the Government would argue, and--

Unknown Speaker: What cases are they?

I mean, in all cases, it seems to me, putting before the jury the gory, real life facts is always going to be harmful to the defendant, number 1.

Number 2, it is always going to be unnecessary in the strictest sense.

You can always stipulate there was a dead human being.

What criterion are you urging upon us?

Mr. Donovan: --Well, I think... if I may give an example, I think the trial court's rule on photographs, for example, every day, and the defense may say, this photograph is too gory, but this one isn't, and the prosecution may say, we want to use a real gory photograph, and the judge applies 403 and decides that gory photograph is so highly prejudicial I'm going to keep it out, even though the Government wants to introduce it.

Unknown Speaker: What if we were to rule in your favor in this case and then a year from now you get a defendant, maybe, and the felony... a similar charge, the felony of which he's convicted is having trafficked in counterfeit Louis Vuitton bags.

And this time the Government wants to stipulate what the felony is, and you say, no, I think the jury should know that this guy was just trafficking in counterfeit Louis Vuitton bags.

[Laughter]

Or short lobsters.

Mr. Donovan: The First Circuit addressed that, and in me advocating the First Circuit rule, the First Circuit basically says, that would also be irrelevant, so that doesn't come in.

Unknown Speaker: So the defendant couldn't make that point.

Mr. Donovan: Right.

It applies both ways.

Unknown Speaker: Under your view I take it the certified copy of previous conviction cannot be shown to the jury.

It seems to me a very odd evidentiary rule.

Mr. Donovan: Unless it's--

Unknown Speaker: Redacted.

Mr. Donovan: --Redacted.

Unknown Speaker: And then the jury has to read something that's redacted.

That's an odd way to proceed, it seems to me.

Mr. Donovan: I think... and that's one of my arguments to advocate a stipulation is better than a redacted judgment and conviction, because if you redact the judgment and conviction by crossing out lines and such, I think that invites jury speculations of what was crossed out, whereas if you have a clean stipulation, it is hereby stipulated, the jury either hears that or reads that, and there's less likelihood for speculation to come up.

Unknown Speaker: Well, but if there's so much trouble in enforcing the rule you propose, maybe that indicates that we shouldn't try to make the effort.

The historical fact is the historical fact and the jury considers it for what it's worth.

Mr. Donovan: Well, but I think the reason this Court has to do something is, there's a different rule in some of the circuits, and my circuit, obviously the Ninth Circuit happens to be against the defendant, and the other circuits, most of the other circuits now would rule in my favor.

Unknown Speaker: Well, I guess the first question is whether the evidence of the nature of the felony offense, the prior offense is relevant.

Mr. Donovan: And that's--

Unknown Speaker: That would be the starting point, I would guess.

Mr. Donovan: --That's my first points.

That isn't... the nature of the offense is not relevant.

Unknown Speaker: If it is relevant, then the section 403 balance would exclude it if it unfairly prejudices the defendant.

Mr. Donovan: Unless the Government had some other legitimate reason for--

Unknown Speaker: And I think it's pretty hard to say that disclosing the name of the offense is an unfair prejudice.

I mean, what the defendant did, he did.

Mr. Donovan: --Well--

Unknown Speaker: And he was convicted of it, and it's hard for me at least to say it's unfair to have it known.

A much harder question for me is to answer whether it is relevant at all.

Mr. Donovan: --It's unfair in the sense of this case is a prior conviction, and was assault resulting in serious bodily injury which first brands Old Chief as a violent felon.

And then when you have this case where you have count 1 as a felon in possession, count 3 as a new felony assault, then we have the propensity, well, if he did it before--

Unknown Speaker: Well, but what's unfair about it?

He was convicted of what he was convicted of, and I don't see why it's unfair that the jury know it.

It's a matter of public record.

So I have trouble saying it's unfair, but I don't know, yet, whether I think it's irrelevant.

Mr. Donovan: --Okay.

Well, if the element is a conviction of an offense, of a crime for an offense with the punishment exceeding 1 year, then I'm saying that's all the jury needs to know.

It doesn't need to know that it was assault, or theft, or whatever.

Unknown Speaker: But as a practical matter, the Government doesn't have to stipulate, you agree.

Under your view, what can the Government bring in to prove the prior felony that you think would be permissible?

Mr. Donovan: Aside from the redacted and... the redacted judgment and conviction they could bring in the Clerk of the Court to testify, a probation officer to testify--

Unknown Speaker: These are superior to the certificate?

Because... and I suppose the Clerk could not be asked what the prior felony was?

Mr. Donovan: --That would be my position, yes.

Unknown Speaker: How would you know it was felony?

Would the Clerk of the Court know it was a felony?

Mr. Donovan: Well, the judge would... the judge I think would instruct the jury that this offense that the Government has introduced, this prior case--

Unknown Speaker: This offense which shall remain nameless was a felony?

Mr. Donovan: --Yes.

Unknown Speaker: Is this only if the defendant stipulates that he's not going to contest the prior conviction?

Suppose he says, I'm going to contest the prior conviction.

Mr. Donovan: I think if he contests the prior conviction the whole thing's open for evidence, but if he says, I'm going to contest whether or not I was convicted of it, but I admit that it was an offense for which the term of imprisonment could exceed 1 year, then I think the judge could instruct the jury that that part of the element's proven as a matter of law.

Unknown Speaker: So you have a rule in advance based on what the defendant's tactical decision is and how that tactical decision is communicated to the prosecution and to the court.

That also strikes me as a little odd.

And how does the best evidence rule fit in here?

Normally the best evidence is considered the official order or record, and that is what the State would be required to, offer and seek admission of, because that's better evidence than the testimony of some clerk or probation officer.

So I don't know how the application of that rule would--

--Mr. Donovan, I don't understand why... I've been in a lot of courtrooms... why if the defendant comes in and says I'm willing to stipulate to X, Y, and Z, why does the Government have to sign that stipulation?

Can't the judge accept that as a fact that's taken as proved?

Mr. Donovan: The judge accept it as an admission of fact?

Unknown Speaker: Sure.

Mr. Donovan: I think the judge could.

Unknown Speaker: I don't understand why there's all this complication about this.

This fellow was convicted of a crime punishable by more than a year, or whatever it was, and he's willing to admit it.

That takes care of the whole issue in about 15 seconds, it would seem to me.

Is there a provision in the criminal rules for admission of facts the way there is in the civil rules?

Mr. Donovan: I believe... I don't know if there's a difference, but there's a jury instruction that as I understand it would say if the parties have... or a party has admitted this fact.

You should consider this fact proven.

Unknown Speaker: And the other party can be required to accept that?

Mr. Donovan: I don't think so.

Unknown Speaker: Mr.--

--Mr. Donovan, could we be concrete about that?

I thought that you have been trying to tell us that this crime is different from all others.

There are cases out there, like one in the D.C. Circuit, the Crowder case, which does say defendant wants to admit... as in Rule 36 of the Civil Rules, defendant can admit so intent can be taken out of the case, knowledge can be taken out of the case.

I thought you had consistently distinguished your case from those others on the ground that the only thing that Congress has made relevant is that there was a prior felony conviction.

Mr. Donovan: And I think I tried to say to that previously was that that doesn't relate to the act and the intent of the offense or the picture of the offense.

It only relates to the accused's status.

Unknown Speaker: In the case of your client, were there other prior felony convictions that could have been used to establish this that were less close to the current charge?

Mr. Donovan: There actually was one that the Government considered more prejudicial, was a robbery.

He had a robbery--

Unknown Speaker: Did he have any that was less?

Mr. Donovan: --No, none less.

There were just two to pick from, basically.

Unknown Speaker: Mr. Donovan, I want to get clear on what happened in this case, because in responding to Justice Stevens' question about the general rule, I think you're talking about a case which as you described it was different from what you described to me earlier.

I take it in this case you said we are prepared to stipulate.

The Government said no, we won't stipulate.

We won't sign this document, or whatever you wanted it to agree to, and the judge said, okay, they don't have to.

That's the end of that.

Your response came in effect later on when you said I would like a jury instruction.

Mr. Donovan: See, it was all--

Unknown Speaker: Is that what happened?

Mr. Donovan: --It was all part of a written motion.

Unknown Speaker: No, but is that what happened?

Did you... let me put it the other way, then.

Did you ever... when the Government said, I won't... we won't stipulate, did you ever say to the judge, all right, we will sign an admission or make an admission in open court in some fashion that in fact he was convicted and he has this status.

Did you ever offer to do that?

Mr. Donovan: No, but in the process of... what I did in writing was... I tried to say this.

Not only did I offer to stipulate, but I moved in limine to exclude the evidence, and I offered this jury instruction, and the judge's motion denied the whole motion in limine, so... I've been dealing with the judge for 15 years.

You state your objection, you get overruled, and that's it, you know.

[Laughter]

Unknown Speaker: Well, that's... that probably moves things right along.

[Laughter]

Mr. Donovan: And another thing that happened here is the judge read the jury instructions to the jury before we had a settlement conference, so I didn't have an opportunity to object or resubmit or have any discussions with the court until after the instructions were read.

Unknown Speaker: So all you can do then is object.

You can't argue it.

Mr. Donovan: Right.

I can't submit... ask to change the instructions or withdraw, you know, so I was kind of boxed in.

Unknown Speaker: Well, could you raise a 403 objection?

Mr. Donovan: I just... I renewed the motion in limine when the judgment and conviction was admitted into the evidence, and I also renewed it as a basis of the objection to--

Unknown Speaker: Did you base your objection on 403?

Mr. Donovan: --I didn't use the words 403 except pretrial, Mr. Justice Kennedy.

May I reserve the remaining--

Unknown Speaker: Yes, you may.

Mr. Donovan: --Thank you.

Unknown Speaker: We'll hear from you now, Mr. Estrada.

Argument of Miguel A. Estrada

Mr. Estrada: Thank you, Mr. Chief Justice, and may it please the Court:

Section 922(g) expressly requires proof that a defendant has been convicted before.

There can be no doubt, and I think it has been conceded here today, that in the absence of a proffered stipulation the certified judgment of conviction would no longer be the most probative evidence, but the evidence that the Government naturally would be expected to rely on.

The question, then, in this case is whether a criminal defendant can keep the Government from proving a criminal case in the usual and ordinary way by interjecting its own alternative method of proof.

Unknown Speaker: Well, Mr. Estrada, under the particular statute that we're... that says if the defendant has been convicted of a felony punishable by more than a year in prison, is the nature of the prior offense relevant under that statute?

Mr. Estrada: Under our view, yes, it is, Justice O'Connor.

Unknown Speaker: Why?

Mr. Estrada: Because the definitional section that lets us know what is a felony, or what is a crime punishable for more than 1 year imprisonment, exclude certain offenses, and in order for the jury to fulfill its factfinding function it would have to be instructed as to what offenses are covered and whether the one that they have heard evidence on is actually one of those offenses.

In other words, under our theory of the case, a proper instruction would be, I instruct you that mail fraud is one of the offenses that is covered.

It is for you to find that... whether this particular defendant has been found guilty of mail fraud.

Under their view, the instruction would be, I instruct you that he has been convicted of a covered felony and you have no further factual finding functions in this case as to that element.

And I think that that difference highlights that at the threshold, to get back to your earlier question, the type of the felony is indeed relevant, even taking their own conception of how relevancy should work.

Unknown Speaker: Is it true that the Ninth Circuit says that there would never have to be a 403 balancing in these cases?

Mr. Estrada: No.

That is close to true, but not exactly, and I think it is sufficiently distinct to warrant some emphasis.

What they say is that a stipulation, as a stipulation, does not get factored into the Rule 403 balance, and I think if you take what a stipulation is strictly, that would be true.

It is possible to conceive of an offer to stipulate in the sense that Justice Souter pointed out earlier as an offer to tender an admission and then put in an admission, and viewed in that light, we would concede that (a) it wouldn't truly be a stipulation in the technical sense, but (b) that Rule 403 could contemplate that that could be factored into the Rule 403--

Unknown Speaker: Well, what about the best evidence rule?

Mr. Estrada: --I think--

Unknown Speaker: How does that fit in?

Mr. Estrada: --The best evidence rule I think textually would apply, and I think it is not usually thought to have direct bearing because everybody understands in the more specific factual context here that the relevant unit of what the evidence is is the judgment of conviction itself, as the Chief Justice pointed out, rather than particular information within the judgment or conviction, and--

Unknown Speaker: Well, why is 403 balancing, Mr. Estrada, necessary if your position is that the nature of the offense is relevant for the jury's consideration, or for the jury's determination?

I had that trouble with... at page 28 of your brief.

Mr. Estrada: --Maybe we didn't--

Unknown Speaker: It seems to me that you con... I read it as a concession that 403 analysis can apply in these cases.

Mr. Estrada: --Well, I guess that is literally true, but it does not convey the understanding that maybe we inartfully put into it.

What we meant is that in every ruling in a trial court there is always a 403 issue.

That is to say, there is always open the argument that upon a consideration of the proper factors the evidence should be excluded.

The fact that a weighing might be conducted, and the fact that an admission might properly be considered in the weighing says nothing about the outcome of the weighing, and--

Unknown Speaker: Mr. Estrada, I have problems with that argument in this context, that we can allow every district judge in the land to have a 403 balance when, say, the conviction is for assault with a deadly weapon, and Judge A will come out this way, and Judge B will come out that way.

I think that's why the Court had some interest in this case, because there is disarray, and the one thing that we all have an interest in is to say what the law is, and it should be that same law, so what's disturbing about your suggestion is that, oh, 403, and that's it, it will all wash out in every individual court.

Mr. Estrada: --Well--

Unknown Speaker: That can't be the Government's position.

Mr. Estrada: --that's not what we mean to convey, Justice Ginsburg.

Let me step back and put Rule 403 in context from our point of view.

Rule 402 in effect says all evidence must come in unless it is specifically excludable by some source of law, and if it is a rule made up by a court, it has to be made by this Court, noting the exercise of freewheeling authority, but under statutory authority.

Rule 403 is an exclusionary rule that gives the district courts authority to have play in the joints, if you will, but it's not a source of rulemaking authority.

Unknown Speaker: Nothing escapes it, so that it really is a question to be considered under 403 whether the identity of the victim as Shirley Temple or Mother Teresa can get to the jury.

It's up to... that's really a 403 question?

Mr. Estrada: Well, there are lots of questions, Justice Scalia.

It doesn't mean that they all require the same answer, and I agree with you that in a criminal case in effect you have a categorical rule that this evidence always comes in.

But let me make this point, and I think the Chief Justice pointed out to what the problem is here earlier, which is trying to tease this particular result out of the rules of evidence is to some extent an exercise in misdirection, because these are matters that tend to flow from the controlling substantive law.

They may be different in civil cases or in criminal cases, and they're dealt, to the extent that they're different, in the civil rules or in the criminal rules.

In the civil rules, you are encouraged to get your adversary to narrow down the issues and under Rule 8 you have to say what's true and what isn't and what is not under dispute, and that's enforced through Rule 11.

Under Rule 36 of the civil rules, you can ask your adversary for an admission that you can use.

Now you switch to the criminal rules.

In the criminal rules, you have a trial of the general issue unless you enter a complete guilty plea.

There is no inbetween.

There is Rule 11 that says that you can have a guilty plea, but there is nothing that contemplates what is being argued for here, which is in effect a partial--

Unknown Speaker: Mr. Estrada, this situation is a little bit different, in that the defendant isn't contending that any of the part of the story of the crime at issue, the current possession, can be kept out.

He's just talking about an element that puts the defendant eligible for this particular guilt.

And if for your... to give an example that troubles me, supposing there are two felonies that the man had been guilty of before.

In your view, does the Government have the right to put both in?

Mr. Estrada: --We can... generally, yes, but I would like to qualify that in the following respect, Justice Stevens.

The principle that we are contesting here is not that the district court has no discretion.

Unknown Speaker: Let me put them the other way.

Does... would... I guess the same question.

Do you think the district judge could not exclude one of the two felonies?

Mr. Estrada: The answer is, probably it could, and when it did, we likely would have no remedy in most of the cases, but let me--

Unknown Speaker: And why could he exclude one?

What would be the reason?

Mr. Estrada: --Okay--

Unknown Speaker: Is... would it not be that the second felony is really irrelevant because the condition--

Mr. Estrada: --No.

Unknown Speaker: --had been established?

Mr. Estrada: No.

It would be that the second felony is cumulative.

It is relevant, but I as the district judge have to keep this trial moving along.

You, the Government, have the burden of proof as to every fact, and conceivably you could bring 20 people to testify as to every relevant fact--

Unknown Speaker: Yes, but you could certainly put two... you could certainly put two convictions in in 2 minutes.

You wouldn't need... I think you can't... cumulative evidence to save the time is a waste of time, but you think that's the only reason for excluding it, would be that it would be cumulative?

You don't think the fact it would be prejudicial would be relevant?

Mr. Estrada: --No, I think all... I'm sorry?

Unknown Speaker: You don't think the fact that the second conviction would be prejudicial and would not add to the person's eligibility for the particular offense he's now on trial for, you don't think that the relevance is a factor in that?

Mr. Estrada: I don't think relevance is a factor in that.

I think that if you have more than one, and if it is plain that the Government is just piling on, as someone said, it is--

Unknown Speaker: Well, what else could be the Government's purpose?

Well--

Mr. Estrada: --Well, let me get to that, because I think that is an important issue, and it has gone... and the argument has been that we could have no conceivable purpose to turn down a stipulation.

And let me outline four for you.

We get to try our own case, and what I mean by that is that there is a tactical value in not letting our opponent set for the jury what the case is about.

Have the argument to the jury that we only fight the Government on the little detail on which they are wrong, which incidentally is all you need to find to let my client go.

The second point is that we want the jury to have evidence that it can touch and see.

It is an exhibit.

Under their approach the jury would hear nothing from the Government during the trial on one entire element of the offense.

Under our approach--

Unknown Speaker: --Well, that's not necessarily true.

The Government... the stipulation could be the first element of the Government's proof.

The Government could start out by saying, we've accused him of X and they have admitted X, so we don't have to waste any time proving it.

Mr. Estrada: --Well, that wasn't done here, Justice Stevens.

It is--

Unknown Speaker: Well, what if there was... what if there was the written admission?

The Government offers the paper, exactly what you want it to be able to do.

Mr. Estrada: --I think that that is a somewhat different case, but not enough, and let me explain to you why.

The principle that we're sticking up for here is not that the district judge has to let us run how the courtroom is run, but that we have a right to try our own case without our adversary shaping how our evidence comes in--

Unknown Speaker: Well, I'll grant--

Mr. Estrada: --through technical concessions.

Unknown Speaker: --I'll grant you that as a general principle, but how does it square with what you said before, because I thought you said before that in the instance in which the written admission is offered so that it's evidence within the meaning of Rule 403, that there would at least have to be a 403 balancing.

Are you saying now that although there would have to be a 403 balancing, your interest in structuring your own case is such that you will always win that balancing?

Mr. Estrada: When the facts are those, yes, that is what I'm saying.

Unknown Speaker: Well, then that's not much of a balancing.

Mr. Estrada: Well, no--

Unknown Speaker: I mean, you're saying you win as a matter of law.

I mean, I assume balancing means there's a real issue.

Mr. Estrada: --No.

What I said earlier about what the rules of evidence contemplate as being within the proper scope, I think there's emphasis, because at the time that the rules came into being in 1975, it was already a settled rule that the Government could not be required to accept a stipulation because it always has the burden of proof and it always bears the risk of nonpersuasion, and it is their burden to show that there is something in the rules that changes that.

Unknown Speaker: Is there such a thing in... is... what has been referred to as a written admission, is there any recognition of that sort of an instrument in the Rules of Criminal Procedure?

Mr. Estrada: No.

I guess the close that you could... the closest that you could come is that there are cases in which a defendant will confess, and under the hearsay rules you can have evidence of the confession as an admission, which is not hearsay, but it is not in the same--

Unknown Speaker: That comes under the Rules of Evidence.

Could I ask you, we found this... I still find it quite a difficult case.

In Tavares the circuit felt that we had to answer the question, pure 403 question.

You could say leave it up to the judges, but we felt we had to answer it because these cases came up all the time and different judges were making in the mill, mine-run average case, the same calls differently, so we thought we had to answer it, telling them how they should exercise their discretion, either let it in or don't let it in.

And I guess we are in that same boat here, though normally 403 is just up to the district judge, but if we have to answer it, and I guess we do, we ultimately in the First Circuit said, well, there are four special things.

Of course the Government can present anything, it's normal order of proof, all the facts, et cetera, but here the reason for that rule doesn't apply.

The reason was to give the Government a chance to present the full picture.

That reason doesn't apply.

Mr. Estrada: --Let me--

Unknown Speaker: And the second part was that by and large, with the exception whether it's an antitrust violation or not, you know, by and large it's not relevant except for the fact that it was committed, and the third reason was, by and large it's very prejudicial.

All right, so you add those three things together, and the fourth reason was, it's easily separable from the rest of the case, very administrable, people won't get mixed up.

They added those four things together, and then the... we said in Tavares, we are not saying the Government's... the stipulation has to be accepted.

It doesn't have to be accepted, but if it's offered and the Government refuses to accept it, at that point the judge in his 403 exercise of discretion should require the Government, if it wants to prove the point, to submit or redact it, a piece of paper telling of the fact of conviction.

All right.

Now, I'm bringing that up because I'm... that was, of course, before how we balanced this difficult case and came out with it, and I want to know specifically why, which of course you don't accept that, and I just want you to focus directly on that and explain why.

Mr. Estrada: --Well, let me start out with the last point, which is the redaction point.

There is no issue as to the appropriateness of redaction in this case in this Court, because the defendant never asked for it in the district court.

Unknown Speaker: I'm not... we're trying to get a rule.

I'm saying that was the general rule for these cases that came up all the time, and they come up all over the country, and the different judges in the different circuits are treating them differently, so I'd say why don't you focus on Tavares, which would be most helpful to me.

Mr. Estrada: I don't want to fight with the formulation of the question, merely to note that if you took the case to answer that question, it doesn't raise the question, because it's not within the question that he brought to the Court.

The question that he brought to the Court is limited to the stipulation issue.

Moving to the merits, we have a fundamental disagreement with how your former court dealt with the question, because it seems to me that it wrongly started on the wrong assumption, which is that the nature of the type of felony is not relevant, if you want to use that word, and that was wrong.

It was also wrong--

Unknown Speaker: Yes, but wasn't... isn't your position that the reason it's wrong is that there some felonies, some business crimes and so forth that don't give rise to this particular liability?

Mr. Estrada: --That is correct.

Unknown Speaker: But isn't that something that the judge will cure by his instructions to the jury?

In any event, even if you put in the crime itself, the judge still has to tell the jury as a matter of law this is a qualifying felony.

Mr. Estrada: Yes, but it is an instruction on the law that is no different from every other instruction that the judge gives, and as I said earlier, the instruction that would be the outcome of the First Circuit's case is quite different.

It is, I instruct you that on this element you have no factfinding rule, which is quite different, and it opens up the Government to other risks.

Unknown Speaker: Well, he doesn't say you have no factfinding role.

He says either the stipulation if there was one, or the admission if there was one, or the redacted judgment if there was, whatever the method used, he would say that is sufficient.

The Government, by using that, has proved this element of the offense.

Mr. Estrada: Well, that was not even the... that was not the instruction that was tendered in this case.

Unknown Speaker: Oh, I understand that, but if you're asking us to decide whether the procedure used in this particular case was sufficient, you might win this case, but are you asking for a general rule that no matter how the defendant tries to keep this out the Government always can get the nature of the crime in evidence?

Mr. Estrada: Yes, because--

Unknown Speaker: Well, then you don't have to argue about these other... the procedural difficulties.

Mr. Estrada: --Well, yes we do, because they're different arguments that different members of the Court--

Unknown Speaker: You can ask for a rule broader than the question raised by the petition--

Mr. Estrada: --Well, that's right, and that seems what the question that Justice Breyer asked--

Unknown Speaker: --But that doesn't necessarily change the proposition that we decide only the question... we may do it by invoking a broader rule than necessary.

Mr. Estrada: --Well, that's right.

Unknown Speaker: So Mr. Estrada, 403 does not apply unless you determine first that the evidence offered is relevant.

Mr. Estrada: That's correct.

Unknown Speaker: You say it is relevant because of the crimes that are excluded.

Mr. Estrada: Mm-hmm.

Unknown Speaker: If we agree with that, then it can be excluded, may be excluded, if the probative value is substantially outweighed by the danger, not of prejudice, but unfair prejudice.

Mr. Estrada: That is correct, Justice O'Connor.

Unknown Speaker: Is that not right?

Mr. Estrada: That is correct, Justice O'Connor, and--

Unknown Speaker: So what is your position on whether it's unfair or not?

Mr. Estrada: --It is never unfair, because it is inherent in the nature of the crime that Congress necessarily contemplated that we would prove this element in the vast run of cases in which there was a trial with this very evidence, and it may be that the defendant doesn't like it, but it is his judgment of conviction, and it is relevant evidence.

Unknown Speaker: Mr. Estrada, if you are now taking the position that the Government would win every time assuming a 403 balance, then what in the world did you mean in your brief when you said, consistent with those principles, where a defendant offers an unconditional stipulation coupled with an adequate jury charge, the trial court should consider the availability of the stipulation as one of the factors in the Rule 403 balance?

Mr. Estrada: Maybe that wasn't clear, and that's our fault, Justice Ginsburg, but the structure of the argument is as follows:

In 1975 the rule was settled that we didn't have to do this.

If you disagree that a stipulation is something that can be forced upon the Government, then it only comes into play once it has given us adequate insurance against the risk of nonpersuading the jury, which means that it has to be coupled with an instruction that effectively tells the jury that we are home on the element, have no doubt about it.

In this case, and it bears emphasis, while tendering an instruction that ostensibly took this issue from the jury, Mr. Old Chief also tendered an instruction that reminded the jury that we kept the burden of proof on every element of the crime, and that is exactly the danger that I'm trying to highlight for the Court.

All of the issues that Justice Breyer brought up, whether you could enter a severance, whether you could have a redacted judgment, had to do with how courts have traditionally dealt with evidence before and after the Rules of Evidence.

What is--

Unknown Speaker: I could understand what you were telling me, Mr. Estrada, if the portion I read had been proceeded by, this is the Supreme Court's case law and so because of that case law, we have to make this qualified semi-concession, but what it flows from is the Advisory Committee's note to Rule 403.

It's nothing about the Court's case law.

It's about--

--What page is this on?

This is on page 27 and 28 of the Government's brief, and the particular... the paragraph is the runover paragraph starting from the bottom of page 27, and the sentence that puzzles me is, Consistent with those principles which seem to be the principle that motivated Rule 403.

Mr. Estrada: --Mm-hmm.

That flows not from a case from this Court, Justice Ginsburg, but from a recognition that the Advisory Committee note indicates that the availability of alternative means of proof is a factor that should be considered by a court in ruling on the admissibility of evidence under Rule 403, and conceivably, the existence of a stipulation that acts as an alternative means of proof, if it is, in fact, such, should be considered in keeping with what the Advisory Committee said.

That is not to say that unless we're entering 20 judgments of conviction, or we're doing other things of the type that Rule 403 contemplates, that we're not entitled to prove our case in our own way.

There is a vast difference in saying that the judge can keep the case moving along after considering all relevant facts and saying that we're going to have for the first time as a rule of law the proposition that the criminal defendant can dictate how the Government's case is tried, because acceptance of the latter proposition is what we're fighting here.

Unknown Speaker: Let me go back... can I ask you to answer Justice O'Connor's question for a second, because I had thought that it was... you said on the question of unfair prejudice the reason that I think... and at the heart of Tavares, frankly, I think is that issue, and what we thought was the unfair prejudice was this.

Even if you assume it is relevant to show it isn't an antitrust violation, which is I guess the only way in which it's relevant, that it isn't a business violation... there was an argument in the court about that.

We did think that there was tremendously unfair prejudice, and the reason that it was unfair prejudice was because there would be concern, as the policy of Rule 404 suggests, that a jury uncertain about whether the person committed the crime in front of them... in front of them.

You know, the present crime... might think, well, I've just learned he was a triple ax murderer, he was... in fact had loads of drugs previously, in fact beat his family, in fact did seven other really quite bad things previously, and therefore, although I, the juror, am uncertain about whether he committed the present crime, he's a bad guy, we'll put him away.

I mean, it's that kind of unfair prejudice that we thought might flow from introducing the irrelevant, except for antitrust, fact of the nature of the previous crime.

So I'm putting that in front of you so you can then respond to it.

Mr. Estrada: Well, the answer, Justice Breyer, is that the irrelevant item of evidence is the judgment of conviction.

The Rules of Evidence treat the possibility that parts of a relevant piece of evidence will be misused not as a question of relevancy but as a question to be dealt with under Rule 105 with limiting instructions, because a background principle of our system is that juries will follow such instructions.

With respect, I would also suggest to you that part of what drove the court of appeals in Tavares is a little bit of a disagreement with the congressional policy that is reflected in the statute, that it is unfair to have a crime that holds someone who has already done his time and paid his debt to society, but if the evidence is what Congress necessarily must have anticipated would be used to prove that element of the crime, you may think that it is not a fair statute, but that's not a problem with the evidence, it's a problem with the policy of the statute, which is for the people across the street.

Unknown Speaker: I don't think we thought that.

It seems to me that you have a per se answer for your position, and that Tavares is based on an assessment of the likelihood of prejudice that the two arguments don't quite meet.

I'm not saying it's not responsive, but it does leave one with the lingering feeling that there's going to be unfair prejudice in some cases, and you say that's just the way the statute works.

Mr. Estrada: Well--

Unknown Speaker: And I know of no other area... we're talking about the difficulty of having a per se rule in the petitioner's favor.

On the other hand, you have almost a per se rule that you're arguing for in your favor, and I'm not sure I know of another one in the law.

Mr. Estrada: --Well, the answer is this, Justice Kennedy.

Under the substantive criminal law, we always bear the burden of proof and the risk of nonpersuasion.

We cannot get a directed verdict no matter how overwhelming the evidence, and it is open to the defendant to invite doubt as to any piece of evidence, even his own admission, and because that has always been the rule in our system, it was already the substantive law in 1975 that we could not be required to accept a stipulation from our opponent.

Our burden--

Unknown Speaker: But isn't the extreme... Mr. Estrada, isn't the extreme unlikelihood of success in inviting doubt about either a stipulation or an admission what takes the stipulation and the admission about a status out of what might be a general rule in your favor about proving the elements of the... or the case in the sense of the acts of the defendant in this particular instance?

Isn't it unlikely that they will doubt the one, more likely that they will doubt the other, and that is why bloodless and nonprejudicial evidence is more justifiable in the first case than in the second case?

Mr. Estrada: --No, and you need go no further than this case to realize... and we quote this at page 29 of our brief.

It was proposed jury instruction number 22, tendered in this very case in conjunction with their stipulation instruction, saying that his plea of guilty puts at issue every fact, and the Government retains the burden.

And it is possible for someone who has to do nothing other than to raise doubt in the minds of the jury to give what in effect amounts to Mark Anthony's speech, Brutus is an honorable man, and keep saying it.

We've stipulated.

Maybe it wasn't provident, but we've stipulated it, and under our rule... under our system, when we always have the risk of nonpersuasion, we're entitled to put in front of the jury evidence that they can see and touch.

Unknown Speaker: Your answer is that the evil that men do live after them.

Mr. Estrada: That's right.

[Laughter]

That's correct.

That is correct, and I fully concede it is a practical concern, but it's one that has shaped what the substantive law is in this country since the beginning.

Because, as I said earlier, no matter how overwhelming the evidence, we can always be nonsuited by a jury that has any doubt on any reason, even an irrational one.

And our view is very simple.

Seeing is believing.

We want the jury to have in their hands the judgment of conviction with the gun, the shell casings, and the photos.

Unknown Speaker: Thank you, Mr. Estrada.

Mr. Estrada: Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Donovan, you have 1 minute remaining.

Rebuttal of Daniel Donovan

Mr. Donovan: If I may, I'd like to make four quick points.

First, the Government never objected to my proposed stipulation until this level.

It was never talked about at the trial court or the circuit court, so we never had any discussion to resolve it.

Unknown Speaker: They did refuse to stipulate it.

Mr. Donovan: Right.

That's true, and that was the entire focus.

Secondly, I agree the Government has a right or a duty to present the case as they see fit, but I don't think they can do that and violate the Rules of Evidence at the same time.

We're contending they violated 401, 402, 404, and 403.

Thirdly, I think this is significant.

At footnote 12, page 20 of the Government's brief, and it goes on to page 21, I feel the Government admits that the question of whether or not there's... it is a qualifying felony is a question of law for the judge to decide, and if it's a question of law for the judge to decide, there's no need to tell the jury the nature of the felony.

Chief Justice Rehnquist: Thank you, Mr. Donovan.

Mr. Donovan: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Dunnigan - Oral Argument

Fri, 09 Jan 2009 14:49:28 +0000

Case:

United States v. Dunnigan

Media File:

91-1300_19921202-argument.mp3

Related Transcript:

1992_91_1300_argument.xml

Transcript:

Argument of Paul J. Larkin, Jr.

Chief Justice Rehnquist: We'll hear argument now in Number 91-1300, United States against Sharon Dunnigan.

Mr. Larkin.

Mr. Larkin: Thank you, Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Constitution prohibits a district court from enhancing a defendant's sentence under the sentencing guidelines if the Court finds that the defendant committed perjury when he testified at trial.

The court of appeals held that the Constitution forbids a district court from applying the guidelines in that manner, and we disagree.

Long before the sentencing guidelines went into effect, a district court at sentencing could take into account its belief that the defendant committed perjury when he testified.

Nothing in the sentencing guidelines alters that long-settled rule or justifies the conclusion that the Constitution now demands that a different balance must be struck.

Respondent was a member of an organization responsible for distributing cocaine in Charleston, West Virginia.

The Government's evidence, which consisted largely of the eyewitness testimony of respondent's former confederates, showed that respondent was responsible for purchasing powdered cocaine, manufacturing it into crack cocaine, and then selling the crack.

Respondent's defense at trial was simple.

As the court of appeals put it, respondent took the stand and denied everything.

The district court, however, credited the Government's evidence and convicted respondent of conspiracy to traffic in drugs.

At sentencing the district court found that respondent had committed perjury when she testified at trial.

The district court's finding is at page 29 of the joint appendix.

Based on that finding, the district court concluded that sentencing guidelines section 3C1.1 required a two-point enhancement to the base offense level.

Unknown Speaker: Does perjury imply a finding of willfulness?

Mr. Larkin: Yes, Your Honor.

The case law makes that point so that a person who perjures herself at trial has willfully obstructed or attempted to obstruct justice.

Unknown Speaker: Because he didn't say that she was convicted of... that she committed perjury in so many words, did he?

He said she should be assessed with a two-point addition for obstruction of justice by reason of her trial testimony, she was untruthful at trial.

He doesn't anywhere say that she committed perjury, did he?

Mr. Larkin: He doesn't.

He doesn't, I think, use that precise term at page 29.

But he does assess her the two point enhancement because he found that she was untruthful at trial with respect to material matters in this case.

And that, we think, is a sufficient finding to justify the enhancement under that guideline.

Unknown Speaker: I think it would be rather difficult to say that it wasn't willful, given the circumstances of this case.

Mr. Larkin: But--

Unknown Speaker: In some cases the defendant might not be believed, but her testimony might not be willfully... willfully.

Mr. Larkin: --Correct... correct, Your Honor.

And I would like to make that point very clear.

It's not our position that a district court either should or can enhance a defendant's sentence simply because the defendant was convicted after testifying.

The district court must make a finding that the defendant committed perjury.

That finding cannot be based simply on the jury's verdict of conviction.

The court, under this guideline as under the other guidelines that are now in place in the Federal system, has the fact-finding responsibility to decide whether enhancements are appropriate once the court calculates the base offense level.

In making that finding, the district court is entitled to consider all of the evidence, since both the Sentencing Reform Act and the sentencing guidelines direct district courts to consider all of the evidence.

But the district court must make an independent finding in this regard and that, we think, is an adequate response to many of the concerns that otherwise might be raised about this guideline.

The court of appeals believed that the application of the guideline and the way the district court conducted it rendered the guideline unconstitutional.

The court of appeals therefore held that the sentence had to be set aside and the case vacated and remanded.

In the course of its ruling, the court of appeals expressly rejected the contrary conclusion that had been adopted by numerous other courts of appeals, eight in number now, and we believe that in so doing the Fourth Circuit erred.

Historically, the criminal law found it important to allow a sentencing judge to consider a broad range of information, including prior misconduct by the defendant.

In fact, prior misconduct was deemed so probative and so weighty that a district court at sentencing was entitled to consider such evidence even in the absence of a conviction.

Among the types of misconduct that a court could consider at sentencing was the defendant's perjury at trial.

In 1978 in the case of United States v. Grayson, this Court endorsed that practice.

The Court at the same time also rejected the argument that allowing a trial judge to consider his firsthand observations of the defendant's perjury would amount to punishing the defendant for an uncharged crime or would deter other defendants from taking the stand.

The background principles of law against which Grayson was decided are still vital today.

When the guidelines went into effect on November 1 of 1987, those principles were not changed.

In fact, the Court in cases has made clear that those principles are still valid.

For example, in the last two terms in the Payne and Dawson cases, the Court has made clear that a district court at sentencing is entitled to consider a broad range of information.

In addition, in the case of Nix v. Whiteside the Court has made clear the defendant's right to testify does not include the right to give false testimony.

The Sentencing Reform Act of 1984 and the sentencing guidelines embrace those principles.

As I mentioned to Justice Kennedy, both the act and the guidelines direct the district courts to consider a broad range of evidence at sentencing.

And in particular, the guideline they were concerned with here today, section 3(c)1.1, directs the district courts to enhance a defendant's sentence if the court finds that the defendant committed perjury.

That guideline therefore serves as the vehicle through which the Sentencing Commission and, in each case, the district court can implement the principle that this Court approved in Grayson.

Now, the Fourth Circuit held that that guideline unconstitutionally infringed on the defendant's right to testify and gave several reasons.

We think none of those reasons are sufficient.

To begin with, the court of appeals was troubled by the fact that section 3(c)1.1 classifies a defendant's false trial testimony as the obstruction of justice rather than as simply one factor that a district court can consider or ignore in the exercise of its sentencing discretion.

The label used to describe this factor, however, should be immaterial because the label has no independent effect.

In addition, the guideline is not a disguised means of punishing the defendant for a crime not charged against him.

A defendant who testifies perjuriously at trial thereby indicates his willingness to break the law when he finds it in his interest to do so.

That factor therefore shows the defendant is a greater danger to the community than might otherwise be the case, and therefore in turn is relevant to the question of what period of incarceration is necessary to incapacitate him for the protection of society.

The court of appeals also believed that because this guideline is mandatory, it amounts to the type of wooden or reflex enhancement that this Court criticized in Grayson.

While it is true that Grayson did not direct the district courts in every case to enhance a defendant's sentence if the court found that the defendant committed perjury, Grayson at the same time did not prohibit Congress or the Sentencing Commission from making the judgment across the board that a defendant's trial perjury is an aggravating factor and should be treated as such in every case.

That is precisely what section 3(c)1.1 does.

There is also nothing unusual about codifying this rule or others like it.

The sentencing guidelines codify numerous sentencing factors that prior law had left to the individual discretion of district court judges in each case.

The new mandatory nature of these rules is just the inevitable result of making the choice to target a district court's attention to certain matters deemed aggravating or mitigating and to guide the district court by giving weight to those factors, instead of leaving to each court in each case the authority to make that decision for himself or herself.

If a district court, however, can consider defendant's perjury at trial, and we know from Grayson that it can, a district court then can be channeled in the exercise of that discretion by Congress or the sentencing commission.

The court of appeals also believed that, again, because this guideline is mandatory, it would deter innocent defendants from testifying, especially defendants with prior convictions.

We think that's unlikely.

A defendant who goes to trial has as his overriding concern avoiding a conviction.

A defendant therefore will decide whether to testify based on his assessment of the likelihood that his testimony will increase the prospects of his acquittal.

In making that judgment a defendant will rely on various factors, such as the strength of the Government's case, the strength of the other defense evidence available, the defendant's prior record or other factors that may be used to impeach him, his credibility as a witness, and his ability to withstand cross-examination.

We think it would be a rare case in which a defendant, after balancing all those factors, concludes that he should testify in order to increase his chances of an acquittal, but then nonetheless decides against doing so because of his fear that the jury would erroneously believe he is committing perjury, would therefore erroneously convict him, and that the district court then erroneously would make the same conclusion and enhance his sentence under this guideline.

The Fourth Circuit expressed skepticism that the district courts could or would apply this guideline properly and that courts of appeals could or would police the actions of the district courts.

We see no reason to be pessimistic in this regard.

As I mentioned before, the guideline requires that a defendant's sentence be enhanced if the court makes the finding, independent of the jury's verdict, that the defendant committed perjury.

The district court, therefore, has this responsibility at sentencing, like many of the other responsibilities district courts now have under the guidelines.

We have no fear that the district courts and the courts of appeals will not be able to apply this guideline in the correct manner.

In fact, this Court in Grayson expressed no fear that district courts would misuse the sentencing authority that was recognized in that case.

In Grayson the Court recognized that a judge's oath of office and a judge's integrity would be a sufficient guarantee that district courts may not misuse this factor.

We see no reason today, now, simply because the guidelines are in... in effect, to have any less confidence in the ability of district courts properly to conduct the sentencing proceedings than this Court did back in 1978.

I'd like to reserve the balance of--

Unknown Speaker: Mr. Larkin, what... what do you say is the level of the burden of proof to satisfy this guideline?

Some... at least one court has held that it's some higher level than a mere preponderance.

Have you examined that question?

Mr. Larkin: --Yes, Your Honor.

Unknown Speaker: Uh-huh.

Mr. Larkin: It... it has been our position that the preponderance standard is the correct standard.

The Sentencing Commission also takes that view.

The one court you're referring to is a Third Circuit case called Kikamora.

In that case what in essence happened was a defendant's sentence was increased from a guidelines range of 30 months to up within the statutory range of about 30 years.

And what the Third Circuit said was when you have a situation where the increase is that great, it would be appropriate to apply a greater standard to ensure that the facts are found in a proper manner.

Now we don't have any type of increase in this case that remotely approaches that one, and we have rarely, rarely seen that sort of large increase in other cases.

The Third Circuit, in fact, mentioned in that case that it hadn't seen it in other cases, I believe, and certainly no other court since then has applied that more stringent standard.

So we believe that in accordance with the Court's jurisprudence, the preponderance standard is sufficient.

Unknown Speaker: I suppose that allocution, if the defendant makes a statement that's not sworn... well, suppose the defendant said everything that was said on cross... on... on... on... at trial at allocution, and did not take the stand at trial, could the sentence then be enhanced?

If the defendant said I didn't do it, I wasn't there.

Mr. Larkin: I believe so, Your Honor, because I believe that the defendant would have been sworn.

And--

Unknown Speaker: Are you sworn for allocution?

Mr. Larkin: --I believe so, Your Honor.

So that when the defendant expresses opinions, for example, as to the quantity of drugs that would be involved in a particular case, since the judge at sentencing has to make findings in that regard, it would be important for the district court to know that it can rely on what the defendant says if the defendant is sworn.

Unknown Speaker: Allocution.

Mr. Larkin: Well, I thought so, Your Honor, but I was just advised by my cocounsel that the defendant is not.

If that were--

Unknown Speaker: All right, yeah.

Mr. Larkin: --True, the defendant were not sworn, then the judge would know from the outset that he would... should take the defendant's statements with far more caution.

So in that circumstance, it would probably not be appropriate, I think.

But I have not seen that precise circumstance arise.

There are situations in which a defendant, for example, could make perjurious statements at a suppression hearing.

He wouldn't be at trial, but it would be at another type of hearing.

And in cases like that, it would be appropriate to consider applying this enhancement, because in many cases if the defendant loses at the suppression hearing, you'll thereafter not have a trial, you may just have a guilty plea.

But that is an impediment to the effective administration of justice.

So there are circumstances where the perjury can occur other than at trial.

And if it does, then it would be proper basis for the enhancement.

Unknown Speaker: Thank you, Mr. Larkin.

Mr. Beveridge, we'll hear from you.

Argument of Brent E. Beveridge

Mr. Beveridge: Thank you, Mr. Chief Justice, and may it please the Court:

The purpose of me being here today is to assert that the Fourth Circuit Court of Appeals properly decided that there was a chilling effect on the Fifth Amendment right to testify on one's own behalf.

And the Fourth Circuit in this instance basically said why it had a chilling effect, and... when you consider all the factors that are involved in determining whether a defendant should testify.

Basically, I'm here to assert and tell you why the... or how the chilling effect takes place.

And if you look at Grayson, which is the key case originally decided on the right of the court to consider those as an aggravating factor, the defendant's perjured testimony at trial, you can see in there that there is a reference to the case of Hummelway v. Arkansas.

Which basically says... in a footnote in Hummelway v. Arkansas, is that the counsel for the defendant has an obligation to court... to the court, to present testimony that is true or accurate or reasonable, and counsel has made an effort to determine whether or not the defendant is testifying to perjurious events.

And in this instance, what we have is a case where the burden on counsel in this instance... and this goes to the very roots of effective assistance of counsel.

Counsel presents testimony at trial and before your client testifies you go to your client and basically say, you know, these are the things that you should consider before you testify.

And under the guideline in this instance, that if it's applied with an automatic enhancement, as it was in this case, for perjured testimony, you're going to have to advise your client that if you take the stand and you lose, effectively you're going to get a two-level enhancement.

Unknown Speaker: What was the situation before the guideline?

Mr. Beveridge: Before the guidelines you would advise him that the judge has discretion.

And if you get on the stand and you give a cock-and-bull story, the judge can come up with an aggravated circumstance such as in Grayson that could apply.

Unknown Speaker: But so you--

Mr. Beveridge: Now you've reached a level of automatic enhancement, and so you--

Unknown Speaker: --Well, isn't that... that, then, is your point, that the enhancement is automatic and it wasn't automatic in Grayson.

Mr. Beveridge: --Right.

So then and in Grayson--

Unknown Speaker: And you say... excuse me.

You say it's automatic because it follows simply from the fact of testimony followed by a conviction.

Mr. Beveridge: --And in the... in the court of appeals, and if there was ever oral argument in a case that had an impact on the ultimate outcome, the oral argument in the Fourth Circuit, at which time the Government basically stated that every guilty verdict in which a defendant testifies, it's going to result in an automatic enhancement.

Unknown Speaker: Well, maybe... maybe the... I don't dispute that the Government may have said that, but that was not the facts of this case, was it?

Mr. Beveridge: The... the facts of this case involved a finding and the question was posed as to what the finding was.

And the finding in this instance, there were not specific findings such as have been recommended in the Eighth and Tenth Circuits and followed where, you know, you testified that you were not in the apartment, there is substantial evidence on the record that you had an apartment key, three Government agents were standing there and saw you in the apartment.

There were no findings such as that.

Unknown Speaker: Well, there may not have been, but I'm looking at findings as you quote them in your brief and the trial judge is saying the defendant denied her involvement when it is clear from the evidence in the case, as the jury found beyond a reasonable doubt, that she was involved in the conspiracy and so on.

Doesn't that make it reasonably clear that he's making the finding himself?

Mr. Beveridge: If they can... it has been, and that's one of the inconsistencies of the guidelines themselves.

One circuit basically says that findings mean more than just simply finding inconsistencies.

Unknown Speaker: Well, maybe so, but don't we... aren't we entitled to say as a threshold matter that what the court in this case did was to make his own finding?

He may not have made it with the kind of tomey and detail that some of the other circuits require, but this is a finding of the court, it's not merely a recitation of what the jury found, isn't it?

Mr. Beveridge: Well, the Fourth Circuit addressed this and basically says we have no reviewable findings in this instance.

The only thing we have--

Unknown Speaker: Well, don't you think what I... don't you think what I just quoted to you is a reviewable finding?

Mr. Beveridge: --Not according to what has been recommended, what has been followed in--

Unknown Speaker: Well, let's forget what had been recommended.

Isn't it a reviewable finding?

Can't we look to the record to decide whether it is clear from the evidence or whether... whether, indeed, a trial court could so have found on the record?

Mr. Beveridge: --Well, and if you follow in the cases the Eighth Circuit has decided--

Unknown Speaker: No, but that isn't--

--Justice Souter asked you a question.

I think you should answer it and then perhaps explain that.

Mr. Beveridge: --Yes.

Yes, sir, Your Honor.

Unknown Speaker: Okay.

Mr. Beveridge: And one of the problems exists with the inconsistencies among the various circuits in their treating what constitutes a finding.

Within one circuit it requires a specific finding that an apartment, a key, a license plate, a vehicle belonged to a specific defendant, while in other circuits it basically says we will look to the record and review the record as to the facts, whether she went... in this instance, whether she went to Cleveland, whether she sold the crack to Mr. Dickerson, so on and so forth.

And in other circuits it's basically we will just simply rubberstamp under the clearly erroneous standard, we will rubberstamp an independent finding.

Unknown Speaker: Well now, are you paraphrasing the language of the courts of appeals here?

Did they say we will rubberstamp under the clearly erroneous standard what the district court has done?

Mr. Beveridge: They would not say rubberstamp.

We will look at this and we--

Unknown Speaker: Well, you should be careful, Mr. Beveridge.

If you're describing a holding of a court, you should not put words in the mouth of the court that weren't there.

If you're characterizing it yourself, that's another thing.

Mr. Beveridge: --I'm characterizing, Your Honor.

And, as I... as I indicated in this instance, the counsel and the burden that is placed upon counsel for self-protection purposes, it involves telling your client I do not know what your... whether you are perjuring yourself, but I am telling you, basically, that if the court hears your testimony and you are found guilty, then you will be subjected to an automatic enhancement.

Unknown Speaker: Well now, would that be sound advice in view of the position that the Government and other courts of appeals have taken, that it is not automatic and the mere fact that the jury finds a defendant who has testified guilty does not mean it's... it's an automatic enhancement of justice, an obstruction of justice?

Mr. Beveridge: Well, the Government has taken that position before the Fourth Circuit Court of Appeals.

Unknown Speaker: It doesn't take... it certainly doesn't take that position here.

Mr. Beveridge: The... the problem with... with that is that ultimately counsel is going to have an influence upon his client.

And in this instance, it sure would have resulted, or what the Fourth Circuit found as a potential chilling effect in this instance, that counsel is going to advise the client that perjury could be and will be found.

Unknown Speaker: Well, but the counsel would be obliged to have advised that before the sentencing guidelines that perjury could be found under our Grayson opinion.

It's just possibly a question of slightly increased degree.

Mr. Beveridge: Well, more than an increased degree, as we have found throughout the... the various circuits that have decided and basically have said that as long as the court makes a simple finding of perjury and as long as it's not solely based upon the jury verdict, that it will be found.

It's a much greater degree.

Unknown Speaker: Well, why is that somehow greater than it was under... under Grayson, so far as the reviewability or the ability of the trial judge to make that sort of finding?

Mr. Beveridge: Well, it becomes... and as we've found, the critics of the guidelines have pointed out that basically the rule of lenity has been ignored and that... that covered--

Unknown Speaker: Well, you're... you're not answering my... I asked you a rather specific question, Mr. Beveridge, and I'd appreciate your answering it.

My question was why is the action of the district court prior to the sentencing guidelines that might have taken place under our Grayson opinion any more reviewable than the action of a district court following the sentencing guidelines in this case?

Mr. Beveridge: --One is the standard of review, Your Honor, which is the clearly wrong standard of review as it relates to the sentencing guidelines.

Two is the mandatory nature of the sentencing guidelines when it comes to the application of the enhancements that exist under the sentencing guidelines.

Unknown Speaker: Well, you mean if a... if a district court finds there was obstruction of justice, it must enhance.

Mr. Beveridge: Right.

Unknown Speaker: Not that if a defendant testifies at trial and loses, it must find obstruction of justice.

Mr. Beveridge: Well, Your Honor, in response to what obstruction of justice means, and in this instance the obstruction of justice is equated to a finding of perjury.

And regardless whether or not obstruction of the judicial system actually occurs, essentially it's flaunting the court's authority or punishing actions in front of the court.

And it's... which have... being an aggravating circumstance.

Unknown Speaker: Mr. Beveridge, have any of the courts of appeals considered the question whether there is discretion as to the amount of the enhancement?

This does speak indeed of... of two levels, but have there been actually any holdings that a judge could say well, I'm only going to go one level?

Mr. Beveridge: No, Your Honor, there has not been.

Unknown Speaker: Hum.

Mr. Beveridge: The... the two-level enhancement is what's prescribed and specifically prescribed--

Unknown Speaker: Uh-hum.

Mr. Beveridge: --within the sentencing guideline, the 3(c)1.1.

And--

Unknown Speaker: May I go back to your... to your chilling argument and ask you this.

Even if there were no enhancement possible, even if Grayson had gone the other way and the guidelines did not provide as they provide, wouldn't it be good advice to a client in a criminal case, in anticipation of his decision to take the stand or not to take the stand, to tell that client that if he takes the stand and lies and the jury so concludes that he is lying, he is doing himself immense damage and that it would, in fact, be better for him not to take the stand and lie?

Wouldn't that be good advice?

Mr. Beveridge: --Your Honor, that is... the advice would be good advice in all cases.

Unknown Speaker: Okay.

Mr. Beveridge: And that would be--

Unknown Speaker: How much more chilling is it to tell him that not only is he going to be in serious trouble with the jury, but he's also going to be in serious trouble with the judge?

If the one is chilling, the other's chilling, isn't it?

Mr. Beveridge: --Your Honor, that's correct.

And if I may explain, there you're talking about a jury finding of guility and you're finding a judicial... a judge's finding of obstruction and perjury.

The jury only makes the finding of guilty of the elements of the offense.

And in this instance Ms. Dunnigan was charged with a conspiracy to distribute crack cocaine.

She got on the witness stand and denied distributing crack cocaine, denied going to Cleveland, denied being involved with these individuals who testified against her.

And she... the judge's finding, on the other hand, is a finding of obstruction of justice which basically is equated with perjury.

There is no real distinction between the two and the question that was asked to counsel here beforehand was if... if you're... if you're talking about obstruction, that it occurs at the time of allocution, then there is no enhancement.

You can get up and say whatever you want at that time.

If you get on and testify at the time of trial, you could also say whatever you want to say if you're out there and the police come to your house and they say is this your apartment, is this your dog, is this your car?

You can reply no.

You can lie to them and do whatever you want to do and it is not an obstruction of justice, even though it may exist as over... it may result in 200 more manhours from the police to have given that false information, that is not an obstruction of justice and cannot be considered for the enhancement.

But if you get on and testify at trial when your Fifth Amendment rights and your Sixth Amendment rights come into play, if you get on and testify at that time falsely and even though it results in no more witnesses being called, it results in no more additional manhours on the part of investigative officers, it makes no difference.

Unknown Speaker: Well, all of this is true but I don't see what it's got to do with the chilling effect on honest witnesses.

If an honest witness is not going to be chilled from testifying when the lawyer tells the witness in advance that the witness will be in trouble if he lies, I don't see why the witness who is otherwise honest is going to be chilled any further by telling him that he's not only going to be in trouble with the jury if he lies, but in trouble with the judge when he lies.

Mr. Beveridge: Well, Your Honor--

Unknown Speaker: Why is the one substantially more chilling to the honest witness than the other?

Mr. Beveridge: --When the... Your Honor, as I tried to point out, and maybe perhaps inadequately, to the Court, the counsel is... his license to practice law, basically, gets on the line, and much more so than what you speak of in a Grayson situation where the judge has discretion and an individual gets on and testifies and simply gets on, does not give a cock-and-bull story, does not go out far in left field and say that he was in Australia at the time that this offense happened.

He gets on and simply says I did not go to Cleveland, I did not distribute crack, I did not do any of these things alleged in the... in the Government's proof.

And in that instance, it still results in perjury and I can see the day coming, and if it's not here already, that the trial judge afterwards said Mr. Beveridge, you just put on Ms. Dunnigan to testify in this instance and she testified contrary.

You knew that the Government had tapes of these telephone conversations or bus-trip tickets and you went ahead and put her on anyway.

And now it's your turn to essentially be on the firing line and be the one subjected.

And if you want to extend this, then there is a concern and a legitimate concern that it may be extended to the entire legal system as we know it.

And why not in civil cases?

What is the difference when an individual gets on and testifies that the light was red in an automobile accident case?

The plaintiff gets on and testifies that it is green and the jury finds for the plaintiff.

Why isn't there a finding of perjury for the 72-year-old lady who also... who testified that the light was red?

There's no diffference.

Unknown Speaker: I assume... I assume she is subjected.

Are 72-year-old ladies exempt from the perjury laws?

Mr. Beveridge: Not--

Unknown Speaker: You mean you cannot bring a perjury prosecution for... for... for perjury in a civil case?

Mr. Beveridge: --No, there... it can be brought, but not to the extent that it is brought now in these criminal proceedings.

There... everybody abhors perjury.

An attorney who is representing a criminal defendant, the judiciary sits there and would like to choke people who get up there and testifies falsely in the face of all kind of substantial evidence in front of them.

And the right to impose a penalty for that, there are perjury statutes that you can impose the penalties for and not impose it without the safeguards that are available.

The little old lady who is accused of perjury would have all kind of safeguards before she is convicted of it.

She would have the right--

Unknown Speaker: But... but we're not talking about simply augmenting her sentence, either.

We're talking about a separate criminal prosecution for perjury itself, and... which, you know, is not necessarily the... simply an incident of... of a criminal proceeding.

You're... you're dealing with a situation in which historically the sentencing judges had a great deal of authority to consider other conduct in imposing a sentence.

And that, I think, quite distinguishes it from a civil case in which a losing defendant is not sentenced to anything.

The defendant simply is required to pay money.

Mr. Beveridge: --But there... that is specifically... this is penal.

And the absence... the Fourth Circuit stepped forward and said there are inadequate safeguards to assure that, one, is the burden of proof... whether it is applied properly.

And if you look at the circuits, the various circuits and what they've decided and the conflicts within them, the procedural safeguards are not there.

You have the mandatory nature of the sentencing guidelines themselves as opposed to little old ladies being stuck with perjury or even attorneys for little old ladies being stuck with Rule 11 sanctions or any kind of penalties involved.

Unknown Speaker: Well, I... I suppose you're right to give... how many... how many additional years did... did your client get in this case?

Mr. Beveridge: My client got an additional... if she would be sentenced at the bottom of the next--

Unknown Speaker: Yeah.

Mr. Beveridge: --two levels down, she would have gotten approximately 10 months.

In the difference, in the sentence and what she had received, she received 51 months in this instance.

Unknown Speaker: And she would have gotten 10 otherwise.

Mr. Beveridge: She would have gotten 60... 61 months if this didn't... well, she would have gotten--

Unknown Speaker: 61, 10 months.

Mr. Beveridge: --10 months.

Unknown Speaker: But it could... it could amount to much more than that, as we heard earlier, right?

Mr. Beveridge: 40... well--

Unknown Speaker: Yeah.

Mr. Beveridge: --It depends on... at what level you are and what your criminal history category is.

Unknown Speaker: Well, let's say it's 5 years.

Let's say somebody gets 5 additional years in jail because... because a judge found that in the course of testifying in the criminal proceeding he perjured himself.

I suppose you have a point that to get somebody for perjury, we would have to empanel a jury and find... 12 people would have to find beyond a reasonable doubt that the person perjured himself.

And here we're giving this... this person 5 years without... without a jury, without a beyond a reasonable doubt finding, just a single judge finding that it's probable that the person... I think you have a point.

Unfortunately, it's always been done that way, and therefore does not seem to be unconstitutional.

Mr. Beveridge: I... I hate to rely upon... and in response to that there is a court opinion, basically, that echoes what you're saying about... we have taken the sentencing guidelines, we have accepted them, we have accepted Grayson, which is... is acceptable, and we're not arguing that Grayson is unacceptable.

But there is a dissent or a concurring opinion by Judge Edwards of the D.C. Circuit in U.S. v. Harrington in which he basically relies on a Hans Christian Anderson, the emperor has new clothes, as the opening for what he says.

And he says basically we have accepted the sentencing guidelines and we have found out after the sentencing guidelines are in place that there are many problems that exist.

And within those sentencing guidelines... and as he points out, it's always the rule... instead of the rule of lenity it's always the harshest result that could happen.

The little old lady would receive, as a matter of equitable lenity, a break when she said the light was red.

But the criminal defendants, under the sentencing guidelines, end up with the harsh result, basically because they say this is the cure-all for uniform sentences.

And as Judge Edwards points out, there are not uniform sentences because there are basically games that you play with the sentencing guidelines.

And as we see, the Eighth Circuit has dealt with this issue.

Of all the cases that are cited in both briefs, the Eighth Circuit has dealt with all the issues on at least nine or ten cases.

And our court of appeals are clogged up right now debating basically what standard should we use, whether these things are mandatory.

We are spending millions of dollars per year on these sentencing guidelines arguing about these difficult, cumbersome, unfair, disproportionate... and it does not cure what they were intended to do.

If you read, there are... and I've cited in my brief and cited in the Government's brief.

And none of them have any consistency among them.

Unknown Speaker: Well, you're right, there are an awful lot of judges who are very unhappy with the sentencing guidelines.

But I'm afraid we don't have the power to repeal them.

Mr. Beveridge: But you have the right to declare unconstiutional the applications that are used in this instance where the judge is forced into implementing the sentencing guidelines.

Unknown Speaker: May I got back to one thing you said earlier.

You said that if a... a person who is charged or being suspected of a crime lies to police officers during the course of the investigation and lies here and there and obstructs, that that's not obstruction of justice--

Mr. Beveridge: Not under 3(c)1.1.

Unknown Speaker: --I mean maybe it's not covered by--

Mr. Beveridge: It's only once... once he gets... he can step up afterwards, after--

Unknown Speaker: --But are there holdings that that would not qualify as obstruction of justice?

Mr. Beveridge: --There is a specific holding, U.S. v. Faila, F-a-i-l-a, and I believe it's out of the Eighth Circuit, 929 Fed 2d 285, where it says that you get an enhancement once you get to trial and you lie about this under oath or at a supression hearing.

But if you lie back here at the time they were trying to arrest you on the turnpike or wherever you were, about whose car this was and the time that they spent, hundreds of manhours, is not obstruction of justice.

Unknown Speaker: That's interesting because for the Federal officer, it's a separate offense to lie to a Federal officer during an investigation.

Mr. Beveridge: So is perjury during trial.

There's no rationality.

And, you know, Judge Edwards points this out when he... when he points to that, you know, we've accepted these Federal sentencing guidelines without question.

And there have been some, such as Judge Bright in the Eighth Circuit, who has advocated and has come up with... and Judge Haney, Judge Haney in the Eighth Circuit, who have come up with a... for example, they use an objective standard in determining whether or not the defendant lied.

And basically is no reasonable jury would have believed him, which is what... the standard that would be applied to the little old lady who ran the red light.

And the Eighth Circuit decided the objective standards and right after that the D.C. Circuit rejected it and said we'll... we'll rely upon the judge's independent subjective finding that the defendant lied.

We don't need any reasoning such as Judge Haney said in Willis, United States v. Willis, and said we're not going to use this objective standards.

And, of course, there's a dissent in U.S. v. Thompson.

The D.C. Circuit case decided, rejecting Willis, rejecting Dunnigan.

And the circuits go all over the place in each one of these cases and it does not result in uniformity of sentence and ease of application.

I have practiced for 20 years in the trial courts of the Northern and Southern Districts of West Virginia and I would much rather... having a person sitting on a bench behind there deciding it than some numbers.

And the judges, as they sit out there, need to have some of that discretion restored.

This is not a discretionary thing in this instance.

It becomes--

Unknown Speaker: The guidelines say that before you get this enhancement you have to be guilty of obstructing justice, and I don't suppose that a... that every judge would consider every piece of lying that he hears in the courtroom to obstruct justice, would you?

Mr. Beveridge: --In this instance--

Unknown Speaker: I didn't say in this instance.

Mr. Beveridge: --In--

Unknown Speaker: I don't... do you think the guidelines requires them to... to hold that a testifying defendant is obstructing justice no matter what kind of a lie he tells?

Mr. Beveridge: --Yes, Your Honor.

Unknown Speaker: You do.

Mr. Beveridge: That's the way they are construed at... at the present time and that's the way they are applied.

Unknown Speaker: Well, that isn't... that isn't what the guidelines say... say to me anyway.

Mr. Beveridge: Well, the guidelines say that you should apply a standard most... much the same as a directed verdict standard and much the same as what the Eighth Circuit has applied in United States v. Willis.

The guidelines say that you should apply it and if this is sustained as being constitutional, then that is the standard that should be used, that if no reasonable jury would have believed this story or these facts.

And to give the defendant the benefit of the doubt.

And that's essentially a legislated rule of lenity that exists under the note... note 1 and note 3 of the sentencing guideline in question in this instance, that it should be applied, and not every case where a defendant is convicted.

And the courts have said, basically, that if you applied it, and much the same as in this instance, what... as what the Fourth Circuit says, that it was an automatic enhancement.

That's what the Government argued and that's what the Government is arguing out there, whether it's in the Ninth Circuit, whether it's in the Eighth Circuit, or the D.C. Circuit.

They're arguing that and telling the district court at the time of sentencing that the defendant was convicted, the defendant obviously lied, you've upheld the verdict in this case, you haven't set it aside when the defendant has testified, and it is mandatory.

And discretion has been transferred from the sentencing judge who was afforded all kind of discretion in Grayson.

And I agree, United States v. Williams, I agree.

Thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Beveridge.

Mr. Larkin, you have 16 minutes remaining.

Rebuttal of Paul J. Larkin, Jr.

Mr. Larkin: Your Honor--

Unknown Speaker: Mr. Larkin, can you tell us, is it the Government's position that if the trial judge is convinced that there's been perjury, that he must enhance?

He must, number one, go ahead and make the findings and then enhance?

Mr. Larkin: --Yes, Your Honor, a judge does not have the discretion to refuse to enhance the sentence once he makes the requisite finding.

Unknown Speaker: Does he have the discretion not to make the finding if he's convinced that there's a fair probability of perjury?

Mr. Larkin: Your Honor, if the judge, by a preponderance, finds that the defendant committed perjury, he must then go ahead and make the finding.

Unknown Speaker: No, no, no.

But does he have to... to make the finding?

Mr. Larkin: Does he--

Unknown Speaker: Does he have to proceed to make the inquiry--

Mr. Larkin: --Well--

Unknown Speaker: --if, say, he's convinced or there's probably cause to believe there's perjury.

Mr. Larkin: --Right.

I think the best way to answer that is if someone asks him to make the finding, a judge is required to go ahead and decide whether or not the evidence satisfies that standard.

Unknown Speaker: That someone being the Government, of course.

Mr. Larkin: Or the probation officer which has to prepare a probation report for the trial judge.

And if the judge honestly makes the finding, then he must go ahead and make the enhancement.

Because otherwise, Your Honor, you don't have the guidance that Congress and the Sentencing Commission believed was necessary.

Unknown Speaker: But... but one step anterior to that he also must make the inquiry, at the request of the Government, if there's plausible ground for believing that perjury was committed.

Mr. Larkin: That's right.

Unknown Speaker: Mr. Larkin, why must the Government make a request?

As I read the guidelines it says if the defendant wilfully obstructed, blah, blah, blah, blah, increase.

If the defendant willfully obstructed, increase the offense level by two levels.

Mr. Larkin: Well, I think in any case where a district court does not make a finding and the Government then tries to say that the district court was wrong in not going ahead and making that finding, the courts of appeals have said the obligation is on the Government to urge the judge to make the finding.

And therefore unless the Government can satisfy the plain error standard, the judgment that was imposed by the district court shouldn't be reversed.

So the courts of appeals have said that the parties--

Unknown Speaker: Well--

Mr. Larkin: --must present their arguments--

Unknown Speaker: --but that's quite different.

You're saying he won't be reversed for not having made it unless the Government asks him to make it.

But that's a little separate question, I think, from whether he ought to make it, whether the Government asks him or not.

Mr. Larkin: --Well, whether a judge, when he's presented with the presentence report and is reviewing all the facts of the trial, should independently make various calculations under the guidelines--

Unknown Speaker: I don't see why this is different from any of the other ones that he... that he ought to make--

Mr. Larkin: --Well, I mean it may be a matter that a judge on his own should inquire about.

But from the point of view of whether there is an appellate reversal for not doing so--

Unknown Speaker: --Right.

Mr. Larkin: --the courts have applied a plain error rule.

Unknown Speaker: I understand.

Mr. Larkin: I would like to make just two points.

One is I would like to correct an answer I gave to Justice Kennedy.

Justice Kennedy asked me would the enhancement be applicable at allocution because the defendant would normally not be sworn.

And it's true the defendant normally would not be sworn at allocution.

In this case, however, if you look at page 6 of the joint appendix you'll see that the defendant was sworn at the outset of the sentencing proceeding.

Plus, under the 1992 version of the guidelines, if you look to page 248, you will see that one of the comments by the Sentencing Commission gives as an example of instances in which the... the guideline could be applied, quote, providing materially false information to a judge or magistrate.

And that is... does not exclude the allocution stage.

And secondly, in response to Justice Stevens' question, it can be the case that a false statement to a police officer could lead to this enhancement.

Again, if you look to the same volume as the 1992 edition and again to page 248, you'll see that another comment by the Sentencing Commission reads as follows.

Another example would be providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense.

Now that doesn't mean every false statement; there are the qualifications, material and significant.

But with those two qualifications it could apply in that circumstance.

Unknown Speaker: Thank you.

I was just going to say that I wonder if in the actual perjorative trial it would have be more precise to say attempted obstruction of justice because presumably he didn't... he wasn't very successful in his attempt.

Mr. Larkin: Perhaps, Your Honor.

Thank you.

Unknown Speaker: Mr. Larkin, I have one question.

Do you agree with your brother that if there is an... an enhancement it must be the two-level enhancement, that there's no discretion to make it a one-level enhancment?

Mr. Larkin: That's right.

Within that second level of range the district court can take into account the concern that--

Unknown Speaker: That's where the discretion comes.

Mr. Larkin: --Right.

It's within a range.

But an enhancement that is two levels up has to be two levels up.

Unknown Speaker: Well, do you think every... every... every piece of perjury or lying on the stand by a testifying defendant obstructs justice?

Mr. Larkin: No.

It has to be material.

Unknown Speaker: Well, so there is--

Mr. Larkin: If a defendant, for example, were to give, you know, a false statement about his weight--

Unknown Speaker: --Sure... sure... so a judge then... and I suppose a judge could say how material is it.

Mr. Larkin: --Well, I think it would be the... a matter that generally might affect the outcome of the proceeding.

Unknown Speaker: So there are some perjuries that will obstruct justice and some that wouldn't.

Mr. Larkin: Perhaps.

If you--

Unknown Speaker: Well, perhaps--

Mr. Larkin: --If you define--

Unknown Speaker: --You just said that's true.

Mr. Larkin: --Well, if you define perjury to mean... to always require that the statement be material--

Unknown Speaker: Which is how it's defined.

Mr. Larkin: --Then you wouldn't have perjury--

Unknown Speaker: Yes.

Mr. Larkin: --without there being material... a material statement.

But if you define perjury to mean any false statement, then a false statement that wouldn't affect the outcome would fall outside that.

Chief Justice Rehnquist: Thank you, Mr. Larkin.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

United States v. Salerno - Oral Argument

Fri, 09 Jan 2009 14:49:29 +0000

Case:

United States v. Salerno

Media File:

91-872_19920420-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James A. Feldman

Chief Justice Rehnquist: We'll hear argument first this morning in No. 91-872, United States against Salerno.

Mr. Feldman.

Mr. Feldman: Thank you, Mr. Chief Justice, and may it please the Court:

This case raises an issue concerning the proper interpretation of Federal Rule of Evidence 804(b)(1).

Under Rule 804(b)(1) former testimony is admissible if the party against whom the testimony is offered had an opportunity and similar motive to cross-examine the declarant at the time the testimony was given.

The court of appeals in this case held that that express similar motive requirement was irrelevant, and that the former testimony at issue here... which was grand jury testimony... was admissible under Rule 804(b)(1).

Unknown Speaker: Did the court of appeals question whether or not there was a similar motive?

Mr. Feldman: No, they did not.

The court of appeals... the only thing they said about whether there was a similar motive was that they agreed... I think this is almost a quote... they agreed with the district court that the Government may well not have had a similar motive to cross-examine the declarants.

They didn't say... I don't think there's a word in the court of appeals opinion, or in their later opinion in the case of United States v. Bahadar where they attempted to clarify their opinion in this case.

I don't think there's a word in either opinion that suggests that they thought the Government did have a similar motive.

Unknown Speaker: Mr. Feldman, the district court found the Government did not have a similar motive.

Is that correct?

Mr. Feldman: That's correct.

Unknown Speaker: Was that a determination that there was no similar motive as a matter of law, or as a matter of fact?

Mr. Feldman: I believe that was largely a determination of fact.

The district court made--

Unknown Speaker: It reads as though the district court decided as a matter of law that there never would be a similar motive at the grand jury proceeding.

What do you think they decided?

Mr. Feldman: --I think the factors that influenced the district court... a lot of those factors would probably be present in other cases.

And therefore, I think district courts would frequently... and should... reach the same conclusion that the district court did here.

But the district court, when it made that decision, had before it the particular grand jury transcripts at issue here.

The court had sealed materials that it referred to in its opinion, actually.

Unknown Speaker: Well, do you think it's an issue of fact?

Mr. Feldman: Yes, I do think it's an issue of fact.

Unknown Speaker: And so on a case-by-case basis the court would have to determine whether there is similar motive.

Mr. Feldman: I think that... I think that as a general matter that's certainly... that's certainly true under Rule 804(b)(1), as the rule would be applied to a variety of different former proceedings.

I think in particular, with respect to grand jury proceedings, the answer should almost always or always be, because of the structure of the proceeding, and because of the nature of the inquiry that the proceeding is undertaking, that the answer should almost always be that the Government did not have a similar motive.

Insofar as... in fact, I think generally the considerations as to whether hearsay grand jury testimony should be admitted against the Government or against a defendant, I think that it's more profitably considered as a general matter under Rule 804(b)(5), where a court can look at the particular circumstantial guarantees of trustworthiness and look at the whole situation and decide whether there is some basis to think that the testimony is reliable enough to be introduced at trial.

Unknown Speaker: Have the circuit courts discussed the question of the test for and the definition of similar motive, or is this still a very newly emergent doctrine?

Mr. Feldman: I think... I guess... I think it would be fair to say that it's been seen as largely a case-by-case factual determination.

There hasn't been a lot of detailed legal discussion about what would and would not constitute similar motive.

The factual... the issue is whether the party against whom it's offered had the... had a motive to cross-examine in the prior case so that that party fairly can be held to what it did with the witness in the prior case or the prior proceeding.

Unknown Speaker: If the Government decided that it wanted to question a witness extensively in order to lay the background for a perjury prosecution, but the objectives were... and the course of questioning was the same as would be pursued in the trial, is that a similar motive or a different motive?

Mr. Feldman: I think, if I understand the hypothetical right, it would be a similar motive... at least... if what... if you have a particular piece of testimony that someone has given, the question is what is the Government's motive to discredit that testimony, and what is the Government's motive to discredit it by confronting that witness with a full cross-examination, as opposed to by just introducing contrary evidence when the witness leaves the grand jury.

And I think regardless of whether the Government would want a perjury prosecution... in your hypothetical... or for some other reason, if the Government has a reason to fully... to discredit the witness' testimony and to fully confront that witness with full-scale cross-examination, with full-scale confrontation with the evidence against that witness, as it would do at trial, then I think it would have a similar motive.

Unknown Speaker: Mr. Feldman, can I ask you a question there?

It seems to me there are two different ways to phrase the question: one, does the Government have any motive at all to show that the witness is a liar.

It seems to me they clearly had a motive, but maybe that motive is overcome by other considerations.

Is the fact that other considerations make it unwise to do what you have a good motive to do destroy the existence of the motive?

Mr. Feldman: I would quibble with the question just insofar as I'm not sure that the Government did have much of a motive to discredit these witnesses.

Unknown Speaker: Well, if they thought they were lying, and that there really was this conspiracy, they surely had a motive.

Maybe they didn't want to go ahead and do it.

And I... it's pretty clear from the... what I understand the facts to be, they did think these people were lying.

Mr. Feldman: That's right.

But--

Unknown Speaker: And they didn't have any motive to show that perjurers on the grand jury were liars.

Mr. Feldman: --Well, I... the Government may have some... maybe I... the Government may have some motive to show that.

But it... I think it's important to keep in mind that a grand jury... in a grand jury investigation the issues are not... they are not focused on particular charges as they might be at trial, and there may be testimony that's given in a grand jury that turns out not to be very relevant or important to the Government at that time.

Unknown Speaker: Well, that may be true.

There may be reasons not to go forward and prove they're liars.

But to say there's a total absence of motive, or that it's not similar to the motive at trial, I find very difficult to understand.

Mr. Feldman: I... well, the rule requires similarity of motive, not total absence of motive.

But in any event, let me proceed to the other part of your question.

I think where the Government did not cross-examine witnesses, in order to preserve the integrity of the proceeding, it was not a tactical decision that the Government made in order to improve the strength of its case, if you can talk about that in the grand jury.

It was a decision that the Government made in order to... in part, in order to preserve the secrecy of the grand jury, to protect informants, to protect methods of investigations... for all of those sorts of reasons.

Unknown Speaker: Those are all good reasons.

But do... are they inconsistent with the fact that the motive was, nevertheless, there?

Mr. Feldman: I believe they are.

The motive... if you look at the rule, the rule is not... is motive to develop the testimony by direct, re-direct, or cross-examination.

It's not motive to discredit the witnesses.

And I think it's important to make a distinction between those things.

It may be that the Government had a motive to discredit the witnesses... although as I said, it may be quite different from its motive at trial.

But it doesn't have the same motive in the grand jury to develop... to discredit them by developing their testimony, as opposed to, by, for instance, simply introducing surveillance tapes, by introducing the evidence of other informants.

And, in fact, it has a positive motive not to do some of those things in order to protect the integrity of the investigation itself.

Unknown Speaker: Could you also just... while I've interrupted you... comment on the similarity of the situation for a defense... a witness at a preliminary hearing where the defendant decides, for tactical reasons, not to cross-examine?

Is there a similar motive there?

Mr. Feldman: I... again, I don't really want to make broad rules for all of these things.

I guess my... I would... I think at a preliminary hearing the situation is sufficiently different from a grand jury that at least frequently the defendant will have the same motive.

Where a defendant chooses, for tactical reasons, not to examine the witness, it's not to preserve the integrity of the preliminary hearing, and it's not to advance the purposes of the preliminary hearing, which is to determine whether there's probable cause to hold the defendant.

It's for really some other reason that I think more appropriately is labelled tactical.

I think the situation in the grand jury is rather different.

In the grand jury the charges have not clearly been articulated, or even perhaps focused on or made at the time that a witness testifies.

And the positive reasons the Government has not to develop the declarant's testimony relate directly to maintaining... not to advancing its position in that hearing, but maintaining the ability of the grand jury to investigate... continue to investigate the crimes and bring an indictment in that--

Unknown Speaker: Mr. Feldman, don't you think a similar motive means similar in degree?

Do you think it's enough that you have some very slight, remote motive of the same... why would it make any sense to write a rule like that if you have some vestige of a motive of the same type... although it is not remotely the same in degree?

Why would that assure reliability?

Mr. Feldman: --No, I... Your Honor, I don't think it does.

I think the rule requires similar motive.

If you look at the notes of the advisory committee that drafted the rule, they considered identity of motive, I believe, as a possibility, and decided that similar or... then they considered substantially... substantial identity, I think... actually, that... I may not be right about that.

But in any event--

Unknown Speaker: You mean similar in degree, as well as in time.

Mr. Feldman: --I think it should be similar both in type and degree.

That's right.

Unknown Speaker: And I don't understand your argument that you think this whole thing should be considered under (b)(5) instead of under (b)(1)?

How could you consider under (b)(5)... (b)(5) requires that the statement not be specifically covered by any of the foregoing exceptions.

Do you think that one that does not qualify for one of the foregoing exceptions because it doesn't come within the exception... although it is prior testimony... could nonetheless qualify under (5)?

Mr. Feldman: I tend to think that it can.

If you look... at least let me say this.

It's not an issue that has to be reached in this case.

But if you look at the way the lower courts have dealt with, for instance, grand jury testimony and so on, they have felt... they have dealt with it as if it doesn't come in under one of the (1) through (4) exceptions, that it still could come under (5), if it has the proper circumstances.

Unknown Speaker: You mean the district court can say, well, this is really not a similar motive.

It's not similar in kind, it's not similar in degree, but what the heck, we're going to bring it in under (5) because we think it's reliable anyway... even though the rule says it's not reliable unless it's similar?

Mr. Feldman: I believe... well, I think a district court could say we're going to look at this testimony and look at all of its characteristics, including the relationship of the declarant to the defendants, to the Government, the circumstances under which the declarant testified.

There may be a number of other factors that are worthwhile in looking at to determine whether or not there's a circumstantial guarantee of trustworthiness.

Unknown Speaker: Well, Mr. Feldman, is it still the law as it was when I went to law school and when I practiced that the district court... the trial court is given a considerable amount of discretion in deciding whether or not a particular piece of evidence is relevant or not?

Mr. Feldman: Yes.

Unknown Speaker: That a district court could decide some of these questions either way, and should not be reversed by a court of appeals?

Mr. Feldman: I think that's right.

Generally.

In fact, if you look at the decisions under the Federal rules, the courts of appeals articulate the standard differently.

But generally, it's abuse of discretion standard or something like that, as to the degree of discretion that a district court has to rule on evidentiary issues.

In this case, I might add, the district court had before it 9 months of trial.

It was quite familiar with what the issues at trial were and the contentions of the parties.

It had the grand jury transcripts.

It had the sealed submissions of the Government.

It had arguments of counsel.

Based on all those things, and looking at the direct text of the rule, the district court held that the evidence was... was not admissible because there was no similar motive.

The court of appeals kind of... by holding that it had to be admitted under Rule 804(b)(1), it put the district... it puts district courts in a kind of odd situations since they have to decide... notwithstanding the fact that the text of the rule says similar motive, they now have to decide when a court of appeals is going to feel that fairness or something like that requires that the text of the rule be ignored or disregarded... or, as the court of appeals said in one place, evaporates.

I think the linchpin of our argument, and I think the key point to make in this case is that the rule... the text of Rule 804(b)(1) is entirely unambiguous.

It requires opportunity and similar motive.

The opponent of the testimony have to... has to have opportunity and similar motive to develop the testimony.

The Federal Rules of Evidence were enacted into law by Congress.

And absent a holding that Rule 804(b)(1) is unconstitutional as applied to this case... and there was no such holding by either of the courts below, nor do we believe any such holding is possible on the facts of this case... the rules must simply be applied according to their terms.

The court of appeals said that the similar motive requirement... and, in fact, in one place they said the opportunity requirement, as well... is irrelevant, or evaporates.

And we believe that since rule... since the Federal Rules of Evidence were enacted by Congress, the specific terms of those rules have to govern in criminal cases, and the district court was correct in relying on the specific terms of that rule.

What the court of appeals did was make up exception... a new hearsay exception, Rule 804(b)(6), which is where testimony has been... where a defendant has hearsay testimony... hearsay evidence that the defendant believes is exculpatory, and where the declarant takes the Fifth Amendment and the Government doesn't immunize the declarant, that hearsay testimony is admissible at trial, period.

I don't find any principle of that nature in the Federal Rules.

I think there would be a lot of reasons why a rule of that sort would be a mistake to adopt.

But in any event it's not there, and I don't think the court of appeals had authority, in essence, to adopt it for purposes of this case.

I would add that the error that--

Unknown Speaker: May I just raise one question?

Of course, the availability issue has to be satisfied, though, doesn't it?

Mr. Feldman: --That's right.

Unknown Speaker: And, of course, their theory was that the witness was unavailable.

And you disagree with that.

Mr. Feldman: No, we agree, actually.

In fact, the predicate for getting evidence in under any of the Rule 804(b) exceptions is that the witness is unavailable.

Unknown Speaker: Right.

Mr. Feldman: And the... therefore, in order for the defendants to get the... the evidence in in this case, there had to be a finding that the witness is unavailable.

Unknown Speaker: Actually, they were unavailable to the defendant, but not to the Government, was their theory.

Mr. Feldman: Right.

The availability to the Government, I think is of no consequence here.

I think the court of appeals was mistaken about that.

But even if they were right, if the... the declarants were... if the declarants were, in some sense, available, the consequence of that would simply be that the evidence is not admissible under Rule 804(b)(1), because 804(b)(1) requires, initially, that the declarants be unavailable.

So I just didn't... don't follow that line of reasoning at all.

The court of appeals' error was not merely a technical one.

The point of the hearsay rules is that hearsay evidence is not admissible unless there's some specific reason to believe that it's reliable... either it falls within one of the general categories which have their kind of categorical guarantees of reliability, or within the residual exception.

In the case of Rule 804(b)(1) that purpose is served by requiring that the party against whom the testimony is offered have the opportunity and motive to cross-examine or to develop the testimony thoroughly.

And where a party has had that kind of opportunity and motive, it provides some reason to think that the testimony is trustworthy, since it's been subject to cross-examination.

And moreover, the party has already done... where it had the opportunity and motive... it's already done what it would have done at trial, and it's not considered to be that unfair to then introduce the hearsay testimony.

I think the court of appeals' holding eliminates the motive requirement and substitutes nothing else in its place.

So that instead of the standard pattern of the hearsay rules, where there'd be some reason to think that a... hearsay evidence is reliable before it's admitted in evidence... instead of that, you have evidence that's never subject to any guarantee of reliability or any reason to think it's reliable at all.

And, indeed, in this case, the district court held that the... there was no circumstantial guarantee of reliability in considering Rule 804(b)(5), and held that they didn't think... the district court held in another... I think in its opinion that's in the appendix to the petition, that there was just no reason to think it's reliable.

Unknown Speaker: Well, but as I understand the court of appeals, the court of appeals saying, well, that may be, but the Government has no basis to complain about that because the Government has the remedy right in its pocket.

Mr. Feldman: That's--

Unknown Speaker: If you don't think it's reliable enough, then give them immunity.

Mr. Feldman: --That's what the court of appeals said.

I think that trenches seriously on the executive branch's prerogative to grant immunity.

But more importantly, there's nothing in the rule that says well, where a party... I mean, assertion of a valid privilege is specifically defined as a basis for a finding of unavailability in the rules.

The rules don't anywhere provide that if a party somehow could make a... a declarant available, that then the hearsay rules just vanish, and if the party chooses not to use that power the evidence comes in.

Um--

Unknown Speaker: Well, if you... I suppose... I suppose the Government would have to tell a defendant where a particular witness is, if the defendant didn't know.

Mr. Feldman: --I think it would depend on the circumstances.

But sure if... the Government has Brady obligations.

It complied with those Brady obligations in this case.

It... in fact, the Government informed the defendant--

Unknown Speaker: But if the witness is hiding somewhere, and the defendant can't find him, and the Government knows where he is, you would have to tell, I suppose?

Mr. Feldman: --I think... I would think that that would come something under... if there's a Brady obligation to do so, I think... yeah, under those circumstances.

Unknown Speaker: Well, is it a Brady obligation or not?

Mr. Feldman: I think under the right circumstances, yeah, there would be.

Unknown Speaker: You mean not always.

You wouldn't have to always tell them where the witness is.

Mr. Feldman: I don't... the only reason I don't want to answer that categorically is because it might depend on the--

Unknown Speaker: Well, you don't think that's somewhat similar to this situation?

The Government just doesn't want to immunize this person.

Mr. Feldman: --That's right.

I think it's rather different from a situation where the Government doesn't tell the defendants where the witness is.

The general rule is that the executive branch has the authority, it has the discretion whether to immunize witnesses.

It's the executive branch that has to, in a sense, pay the cost by foregoing prosecution when someone gets immunized.

And defendant has no motive to avoid immunizing witnesses so they can later be prosecuted for, perhaps, very serious crimes they might have committed.

In this case... the general rule is that the defendant has to bear... has to bear the cost of not having access to witnesses who assert the Fifth Amendment privilege, just as the Government does in cases where the Government finds it not worthwhile to immunize them because the Government wants to prosecute them.

And it would make it too difficult.

The Government did what it was required to do, and in essence, disclose the identity and the whereabouts of the defendant... of the declarants were never an issue... disclose that to the defendants.

And that's all that the Government's obligation... that the Government had to do in this case.

Unknown Speaker: You certainly were not agreeing with Justice White that you always have a duty to tell the whereabouts of witnesses, are you?

Mr. Feldman: No.

Unknown Speaker: I mean you've got a Witness Protection Program out there, I suppose.

Mr. Feldman: Right, so that's what I was saying.

And I wouldn't... I don't want to answer categorically, because I think it depends on lots of things, such as the defendant's real motive to find the witness, and the importance of the testimony.

I don't think you can give a categorical answer to that.

Unknown Speaker: Did the defendant have the precise transcript of the grand jury testimony available to them?

Mr. Feldman: No, the defendant didn't... they didn't have that, actually, until after the court of appeals' decision.

Unknown Speaker: They just had information... did they have formal communication from you that there was exculpatory testimony?

Mr. Feldman: Yes, that's what they had.

And I think if you look at their... they were familiar with the industry; they were familiar with these two declarants and what their role in the industry was.

And actually, if you look at their papers below, I think they had a reasonably good idea of what the nature of the testimony was, the exculpatory testimony.

Unknown Speaker: If this is a factual question to be decided by the district court, they're at something of a disadvantage in arguing about the motive, aren't they?

Because they... I mean, the Government knows what the transcript says, and they don't know.

Or do you propose that in these factual inquiries the defendant be given the grand jury--

Mr. Feldman: No, I think as a general matter, that also... that, itself, is a decision the district court has to make in light of Rule 6(e).

There's well-developed law about under what circumstances a defendant has a right to get grand jury transcripts.

And lots of evidentiary decisions might be made in a district court where one party or another submits something under seal, because the other party doesn't yet have the right to know what that material was.

In this case, the district court made a decision on the particular facts of this case that the defendants didn't need the text of the grand jury transcripts.

And that ruling was not reversed on appeal... or not even on... well, the court of appeals didn't even comment on that ruling.

In short, I think the text of Rule 804(b)(1) is clear and unambiguous.

Former testimony... the party against whom former testimony is offered must have an opportunity and similar motive to cross-examine the declarant, or to develop the testimony fully at the time the testimony is given.

The court of appeals held that that similar motive requirement is irrelevant, or evaporates in some circumstances.

We think that that's a clear misreading of the rules, and that the decision of the court of appeals should be reversed.

I'd like to reserve the balance of my time, if I may.

Unknown Speaker: --Very well, Mr. Feldman.

Mr. Tigar, we'll hear from you.

Argument of Michael E. Tigar

Mr. Tigar: Mr. Chief Justice Rehnquist, and may it please the Court:

I hold in my hand nearly 400 pages of grand jury transcript, first released to us after certiorari was granted: 280 pages of Mr. DeMatteis, including 10 separate document requests, with which he complied; and 75 pages of Mr. Bruno, under a subpoena duces tecum.

This is the testimony of which the Government said we didn't have a similar motive and, in fact, we didn't develop it.

These witnesses were confronted in the grand jury with every, single, key witness that was to testify at trial.

An indictment had already been issued in this very case.

It was a superseding one that came out afterward.

They were confronted with a key wiretap of Skopol, who was the central declarant in the alleged conspiracy.

The court of appeals found that with this testimony, if it was believed by the jury, there was no conspiracy.

Because these witnesses were key oligopsonist players in the receipt of concrete from the trucks, and key oligopolistic players in the alleged bid-rigging.

And without them, of course, there couldn't be a conspiracy.

Unknown Speaker: Mr. Tigar, do I have the question presented wrong?

I thought that under the question presented, we are assuming that the Government lacked motive to cross-examine.

As I read the question presented, it's whether Federal Rule of Evidence authorizes admissions against the Government of the former testimony of a declarant who has been rendered unavailable by his assertion of his Fifth Amendment privilege, even though the Government lacked any motive to cross-examine, when--

Mr. Tigar: Under the question presented, Justice Scalia, the answer is clearly yes, because the question presented misstates the rule.

The rule--

Unknown Speaker: --Well, it's an easy case, then.

I mean we took the case to decide the question presented.

Mr. Tigar: --Yes.

Unknown Speaker: You're telling us it's an easy case.

Mr. Tigar: Justice Scalia, it's an easy case on the question presented because the rule doesn't require a motive to cross-examine, it requires a motive to develop the testimony.

Your question to Mr. Feldman illustrates this.

This rule jettisons the common law requirement of identity of parties, and substitutes the much more supple concept of similar motive.

Second, Justice Scalia, as cited in our brief, we're entitled to defend our judgment on any ground... whether raised in the court of appeals or not.

And the Government brought this case here telling--

Unknown Speaker: Yes, but we don't have to decide the case.

You may present that reason, but we're not required to even recognize it.

Mr. Tigar: --The Court has the power, Justice White--

Unknown Speaker: Yes, I agree.

Mr. Tigar: --to do that.

Unknown Speaker: I agree with you.

We don't ordinarily indulge in it.

[Laughter]

Mr. Tigar: Chief Justice Rehnquist, I am comfortable with the merits.

But I wish to make clear that the Government, in its certiorari petition, filed at a time when we didn't have this material, described the case as though it had had no motive before the grand jury to talk about these wiretaps and to reveal its investigation.

After certiorari was granted and we got the facts for the first time, we learned that these things did, indeed, happen before the grand jury.

Unknown Speaker: But this wasn't the ground that the court of appeals relied on.

Mr. Tigar: No, well the ground that the--

Unknown Speaker: Well, are you defending that or not?

Mr. Tigar: --I do defend that, Justice White.

Unknown Speaker: Well, I think you better get with that for a while.

Mr. Tigar: Yes, Sir.

I defend the court of appeals' decision on its own terms as follows:

For 25 years at the bar, the most uncomfortable thing a judge has ever said to me, and it's happened a lot of times, is leaning over the bench, in a tone of voice used by cats to explain to canaries the meaning of dinner, the judge says, Mr. Tigar, you have opened the door.

That is to say, Mr. Tiger, evidence that you might be able to block the admission of is not going to come in because you have done things, or said things, or suffered things to be done at or said that make... mean that you can't rely on it.

Now you could go, for these purposes, to Rule 104(a), which requires a preliminary fact-kind-of determination and say that that's the Rules of Evidence equivalent to 37(a), and use the same analysis you did in Insurance Company of Ireland v. Companie de Boxie de Guinea, saying essentially that the personal jurisdiction issue is pretermitted, we don't have to get to it.

Here the Second Circuit said... and it explained it clearly and narrowly.

It's at page 15 of our brief, quoting from their opinion in Bahadar, that we concluded in Salerno that it... i.e., similar motive... could not be invoked by the Government under the specific circumstances of this case.

And when the Second Circuit so spoke, it did so having in its hands something that we did not... that is, these nearly 400 pages.

When we look at them we see that the Second Circuit was right, that the adversarial fairness goal is met here.

The Court in Jones against Illinois... Justice White, Justice Scalia, Justice... Chief Justice Rehnquist, excuse me... also addressed this question.

Nothing is more sacred, I suppose, then defending the Constitution.

The Exclusionary Rule is a means to do that.

But if the accused opens the door, then it comes in.

Unknown Speaker: I take it your bottom line is if we... the Government's position really requires a decision on whether the rule is constitutional.

Mr. Tigar: If the--

Unknown Speaker: And it isn't, you would say?

Mr. Tigar: --If the Government's position is accepted, Justice White;--

Unknown Speaker: Yes.

Mr. Tigar: --if this adversarial fairness doctrine, which is routinely used is not invoked, it is unconstitutional.

Let me turn to that.

In Chambers against Mississippi--

Unknown Speaker: But no, that was never suggested, even in the court of appeals, was it, that it was unconstitutional?

Mr. Tigar: --Yes, it was, Chief Justice Rehnquist.

The court of appeals said that it didn't want to reach the constitutional issued posed by this very issue unless it had to, and so it resolved the issue based on the concept of adversarial fairness.

We briefed it in the court of appeals.

The court of appeals responded to it in its opinion.

And it is fairly presented by this record, sir.

In Chambers against Mississippi, the Court held that the ordinary rules of hearsay give way under certain circumstances.

Then in Ohio v. Roberts, the Court explained what it meant.

And then this term, in White v. Illinois it took the analysis a step further.

You remember, in Ohio v. Roberts, defense counsel, the hapless, poor fellow, went outside and he got Anita Isaacs in, and he put her on direct examination to try to wheedle exculpatory testimony out of her but it didn't work.

That happens to defense lawyers in preliminary examinations.

That derisory encounter on direct examination was held to be such a similar motive, that the confrontation clause was not violated.

Again, I contrast it with these 400 pages.

The Court then said some interesting things.

First, cross-examination/direct-examination doesn't matter.

I think that answers Justice Scalia's question.

The motive doesn't have to be very much, and it can be direct as well as cross.

And that's what the drafters of the rule thought.

Second, the district judge's opinion... Justice O'Connor, you had asked whether it was a decision of law or fact.

If you look at her opinion, she said a prosecutor doesn't have a motive.

She spoke in general.

And then in two paragraphs further on, she did something that gives it away.

She said I got some letters from the Government that say these people aren't reliable.

Well, in White against Illinois, and in Ohio v. Roberts, this Court said for Government hearsay, that doesn't matter.

We don't take letters over the transom or under the door that the hearsay declarant's not a nice person.

If the requirements of the rule are met... here, cross-examination and the development of the testimony... the most reliable, according to Wigmore and all of the commentators, or, if in White v. Illinois the excited utterance standard is met, that's the end of it.

We don't take a letter under the transom that says that the excited utterer declarant, you know, robbed a grocery store last week.

That can be shown under Rule 806 so that the Government has a fair opportunity to do, even without granting immunity, that which it says it didn't have the opportunity to do.

That's--

Unknown Speaker: Your position, Mr. Tigar, is that the Government opens the door when it begins cross-examination in the grand jury?

Mr. Tigar: --No, Justice Kennedy, we do not take that position.

Unknown Speaker: When does this door get opened?

Mr. Tigar: The door is opened, one... and the court of appeals went through this in Bahadar, so I'm not making it up as I go along.

It's in the record.

First, they went to Washington, D.C. and got an Assistant Attorney General to certify that this testimony was necessary in the public interest... not their private interest, the public interest.

They put the witnesses before the grand jury.

It very quickly turned out that the witnesses weren't going to tell the Government's story.

Ten document requests later, they let them go.

So the door opening, Justice Kennedy, was the grant of immunity, and the extensive cross-examination and document requests and the rest of it--

Unknown Speaker: But the doctrine about opening the door so that you don't take an inconsistent position before the same trier of the fact.

The jury never heard this testimony.

Mr. Tigar: --The inconsistent position, Justice Kennedy--

Unknown Speaker: The trial jury.

Mr. Tigar: --is that the Government indicted these defendants and said, members of the trial jury, there is a conspiracy here to rig bids.

Now, at the same time they're telling the jury that, in the back room, they have lit a candle... the candle of the exculpatory testimony of these witnesses.

And now they want from this Court the authority to put a basket over that candle, so the light doesn't shine in the dark corners.

That is--

Unknown Speaker: Well, I'm still having trouble opening the door.

I haven't gotten to the candle yet.

[Laughter]

Mr. Tigar: --I apologize for the... I apologize to the... for the metaphor, sir.

Unknown Speaker: I just... I'm aware of no doctrine of opening the door other than to avoid taking an inconsistent position before a trier of fact, which confuses the trier of fact.

That did not happen here.

Mr. Tigar: The door-opening concept... for example, in cases like Walder and Jones, the accused's statements are suppressed.

They're kept away.

The accused then says something which is inconsistent with the position.

Here the inconsistency is that the Government claims in its case that a crime occurred, and it's holding in the background, and keeping out of evidence the testimony or statements of others that it didn't occur.

That was the situation in Chambers v. Mississippi.

The constitutional concept there... and that rose to the level of a constitutional violation... was that McDonald's confession, which directly, as the Court found negated the theory on which they were prosecuting, was such that was required to come in.

In Andolschek, cited with approval by this Court; in Dennis v. United States, there were Treasury regulations that barred certain evidence, that kept it from being used.

And the Second Circuit, cited with approval, said look.

We... the Government's right to be let alone and to keep its secrets is fine.

But once you prosecute, there are certain prices that you have to pay.

And one of those prices is that you open the door to evidence that meets certain levels of reliability... just like the exclusionary rule.

The exclusionary rule is mine.

I can use it to bar the introduction of relevant evidence... the most... perhaps the most relevant.

But the bar comes down when I abuse that procedural right... not abuse it... when I press it to a certain distance.

Unknown Speaker: Well, your argument really boils down to the fact that the Government was obligated to immunize these people, doesn't it?

Mr. Tigar: No, Chief Justice Rehnquist, it does not.

As we point out in our brief, that's not the choice.

Chief Justice Rehnquist, the grant of immunity to DeMatteis, which is the only one that we have in the record... the other one's sealed... says that he was immunized for the grand jury and for any subsequent trial.

The Government didn't tell us that in the district court.

But they had already given him immunity.

So that on the specific facts of this case, they'd already crossed the immunity bridge.

But I will answer the Court's question straight out.

Are there circumstances in which the Government is compelled to set aside this executive prerogative... not a circumstance presented by this case?

Yes, there are.

In Lefkowitz v.--

Unknown Speaker: But you're not saying it was involved in this case, then?

Mr. Tigar: --That's right.

It's not necessary to the decision, but I want to make clear that I'm not running from it, Chief Justice Rehnquist.

In Lefkowitz v. Cunningham--

Unknown Speaker: Well, I'm trying to figure out... you're saying, then... if you're not saying that in this case the Government has to immunize the witness, you're saying then that you simply agree with the court of appeals' interpretation of the rule that we're talking about?

Mr. Tigar: --That's correct.

Unknown Speaker: That the similar motive requirement evaporates under certain circumstances?

Mr. Tigar: I'm saying three things:

First, I made my constitutional argument... that is to say that... Justice White, as usual, said it better than I did, formulating the issue, that the rule is unconstitutional as applied the way the Government wants.

Second, we support the Second Circuit's position.

In this case, given these transcripts, it's kind of hard to see how the Government could ask anything they didn't already get to ask.

So the question is hypothetical.

But there's a third point here.

And that is, the Government in its brief tells the Court... and it stands up here and tells the Court... that even looking at 804(b)(1), we don't think that grand jury testimony should come in hardly ever.

We won't say never, but hardly ever.

Sorry to mix the metaphor again.

Maybe Gilbert and Sullivan don't belong here.

But that is their position.

And I want to spend a couple of minutes talking about that.

This hearsay, this prior testimony is the strongest hearsay.

That is, Wigmore, and all the commentators have said it.

The rule drafters considered making it not hearsay at all.

Again, to return to Justice Scalia's question, the similar motive requirement does perhaps invoke a question of degree.

But there are so many cases about similar motive out there in the wake of the rules... many, many, many... that show that the motive can be relatively derisory.

And I'll tell you if I... I think after 25 years, if I showed up at a preliminary hearing and had a witness on the stand for 3 days and made 10 document requests to the witness, and then put another one on for a day with a subpoena duces tecum, I'd pretty well expect to see that testimony coming back against my client, if the witness turned up unavailable later on.

Unknown Speaker: I don't know what you mean by derisory, Mr. Tigar.

I--

Mr. Tigar: Oh, derisory... I am thinking of the Anita Isaacs episode in Ohio v. Roberts, Justice Scalia.

There is a witness out in the hall who lived with the defendant, Herschel Roberts.

Defense counsel... because I read the Court's opinion... gets a bright idea that maybe Ms. Isaacs will say that Mr. Roberts could have thought he had authority to use her parents' credit cards during the time they were living together.

So he... with no preparation, apparently... drags her in, puts her on the stand, and starts questioning her on direct.

She turns on him, and bites his hand.

She won't give him what he thinks he's going to get, and he doesn't even ask to have her declared a hostile witness.

He just quits.

She turns up missing.

This Court says, well, she's unavailable, the hearsay comes in.

We don't need to worry whether she's a nice person, not a nice person.

She was under oath and you had your chance, and that's it.

That's the derisory kind of encounter... I hope I'm using the right word... it's a relatively insignificant encounter that nonetheless satisfies the similar motive requirement.

Unknown Speaker: --I don't want to use derisory, but I think you're not using the right word.

[Laughter]

Mr. Tigar: I think, Justice Scalia--

Unknown Speaker: Cursory, I think.

Mr. Tigar: --I'm sorry.

I apologize to the Court.

I... and I accept that change.

The unremarkable nature of this opinion, considered as a question of 804(b)(1) is illustrated by the court of appeals' decision we cite in our brief.

The D.C. Circuit, in United States v. Miller, Judge Silberman for the Court, then Judge Thomas on the panel, said that the notion of letting in grand jury testimony under these circumstances is well accepted, well established in our jurisprudence, was the words that they used.

And I think that follows.

It follows.

The grand jury, as the Court has repeatedly held, is the Government's playground in the sense that the Court has been hesitant to impose restrictions on Government conduct that are going to interfere with the grand jury's ongoing function.

But once they have summoned a witness and elicited the testimony at such length, the purposes of Rule 804(b)(1) are met.

And again, this is the transcript.

This shows that the abstract concerns the Government raised in its petition for certiorari simply don't exist here.

And there is a final point about this.

As Saltzburg and Martin in their treatise on the law of evidence tell us what prosecutors do, and this Court has seen it in other cases, as Justice Frankfurter said in Watt v. Indiana, ought not as Justices to forget that's what you knew as men... and he would say as women, today.

That is that the prosecutor, knowing that there is a witness out there, doesn't know which way they're going to go.

Are they going to give testimony that inculpates the defendants... who they've already indicted, by the way... or they going to deny the existence of the conspiracy?

If the former, fine.

They'll get their testimony.

But if the latter, the prosecutor keeps him before the grand jury because you can develop impeachment material.

That way, when the defendant calls on the trial as witnesses, you've got this rucksack full of things that you developed in secret in the grand jury context.

To take the matter a step further... and in conclusion, if there are no more questions... Mr. Juliani was the United States attorney.

Would he believe for a minute, hypothetically, a prosecutor who said, oh, I had some of the major players in the New York concrete industry in the grand jury today.

I had them there in secret.

I had them there without their lawyers.

I had them there under grants of immunity that I got from the Assistant Attorney General of the United States, but I just decided that I wasn't going to ask them any questions.

I really didn't have a motive that day to ask them anything about the most significant bid-rigging conspiracy in the history of the City of New York.

Just as I could not... and no lawyer in this Court could argue with a straight face... the testimony developed under these circumstances now before the Court would come in at some subsequent proceeding.

I respectfully submit that doesn't pass the straight-face test.

If the Court has no--

Unknown Speaker: I have one other question, Mr. Tigar.

Mr. Tigar: --Yes, Justice Stevens.

Unknown Speaker: I don't know if you've responded to it or not, but the Government argues that the... their motive in maintaining the security of the grand jury proceeding is of sufficient importance to negate the similar-motive requirement.

I don't think you've commented on their emphasis on the importance of maintaining the integrity of the grand jury proceeding.

Mr. Tigar: Their... we would not say that in every case grand jury testimony comes in.

We would say that this hearsay, which is the most reliable kind of hearsay... developed before the grand jury, which is the public's body and not the prosecution's playground, ought presumptively to come in.

And that if the Government has a special reason, in terms of grand jury secrecy, to prevent it coming in... I think the flaw here, as suggested by some of the questions is that the defendants were forced to put a blindfold on to argue about it.

That is, they were necessarily dealing in hypotheticals because they didn't have the testimony.

So that to answer the question to begin with, procedurally, as you do under the Jencks Act, in what's called a Campbell hearing, there ought to be some disclosure.

As the Court said in Alderman v. United States, you could even put it under protective order.

And there the matters were the most sensitive wiretaps, bearing upon national security and espionage case, co-petitioner Ivanof.

So that adversary inquiry might illuminate the matter and show that under particular circumstances there was no motive.

But it's difficult to argue about in this case because there had already been one indictment in a related case; one indictment in this case; and in fact, looking here, they did disclose the name of every single major witness in the case, and the name of the most significant declarant, through one of these wiretaps.

Coming back to... this is not the case that was represented in the certiorari petition.

But generally speaking, I think the Court should be skeptical of the Government's assertions, just as it has been skeptical of the defense counsel who stands up here in the well of the Court and says well, it was just a preliminary hearing, I didn't really have the motive to do anything.

And all of us that had done preliminary hearings know that you don't have a motive to do anything.

Except that the Court has said, I'm sorry, your tactical considerations here are really not our concern, counsel.

You'd better understand that when you start asking questions you may see this coming back.

So that... that is my answer.

But at bottom, the question is, what is the grand jury.

It's not just their playground.

It is a body that gives them the power to investigate... the sole inquisitorial element in our accusatorial system of jurisprudence.

And as in Andolschek, when they then decide to indict somebody... as the Court has often recognized... these considerations evaporate.

The very case that they cite discussing grand jury secrecy shows why that's so.

All of the Court's decisions on grand jury secrecy... the list of factors that we cite in our brief are satisfied here in terms of there not being any reason for nondisclosure.

Unknown Speaker: Mr. Tigar, did the court of appeals reach the question of whether the district court was clearly erroneous in finding no similar motive?

It didn't reach that question, did it?

Mr. Tigar: What it said was it assumed, arguendo, that the... there was no similar motive to, quote, cross-examine, close quote.

So the district court... which, of course, is not the rule standard.

Moreover, the district judge... excuse me, I'm corrected by co-counsel... he says there may have been no motive... may have been.

Which is either a conditional or assuming arguendo.

But in any case, doesn't meet the requirement.

The decision they were reviewing, as I had said earlier, is not a factual finding by the district court.

It's a conclusion of law.

Unknown Speaker: Well, it doesn't meet the de novo requirement, but it meets enough of the requirement to say that the court of appeals did not find enough basis on the facts to reverse the district court.

They said--

Mr. Tigar: The court of appeals--

Unknown Speaker: --there may have been no motive, as the rule requires.

Mr. Tigar: --Justice Scalia, if the Court believes... now that the record has seen the light of day... that the court of appeals... if this Court believes the court of appeals' utterance is as delphic as is suggested by your question, then the proper course would be to remand, to ask the court of appeals what it would have done were all of this testimony now in the light of day so that it could really be argued about.

But given the fact that you don't have a fact-finding by the district judge, whose opinion is bereft of factual finding and entirely based on the law, and given the court of appeals' refusal to endorse the district judge... given its opinion as a whole, sharply critical of--

Unknown Speaker: So I take it you... you weren't... you don't think we're entitled to judge this case on the basis that there was no similar motive?

And I would think the court of appeals' reasoning would... would obtain, and they would have reached the same result if they came right out and says... there was no... we find there was no similar motive on the part of the Government.

But nevertheless, they've got the choice.

They're either immunizing or letting the testimony in.

That's what they eventually said.

You either immunize or let the evidence in and ignore the rule.

Mr. Tigar: --Justice White, it is our position that they did not say ignore the rule, that they said that the bar of the rule cannot be relied on by the Government under these circumstances, as often happens.

Unknown Speaker: All right.

Anyway, we are entitled, then, to judge this case on the basis that the Government had no similar motive.

Mr. Tigar: No, indeed, Justice White.

Unknown Speaker: Why?

Why?

Mr. Tigar: Because the record of this case contains the indisputable evidence of the way in which they developed the testimony.

Unknown Speaker: I know but we're reviewing a court of appeals' decision.

We don't spend our time correcting errors, here.

I mean Chief Justice Taft said two courts is enough for correcting errors.

We granted certiorari to consider an important question of law, not to revise the judgment in this particular case.

Mr. Tigar: And I respectfully suggest, Chief Justice Rehnquist, as I said in my brief, that the theoretical statements in the petition for certiorari about the interests of the Government turn out to evaporate when you look at this testimony.

And that the most appropriate disposition is to dismiss this case as improvidently granted because the facts brought to this Court by the Government fall so far short of what it has said they were, or suggested that they were... excuse me, let me be precise... suggested that they were in bringing the case here.

Yes, that is also our position.

Unknown Speaker: But to do that, we have to read that entire bundle of papers you've just thrown on your desk there.

Mr. Tigar: The Government--

Unknown Speaker: Right?

Yes.

Mr. Tigar: --I invite the Court to do so.

Unknown Speaker: Yes, I know you do.

Mr. Tigar: But the Government has not challenged my summary of it in my brief, and therefore I think that the Court can rely on what was said there.

After all, they also admitted, at page 11 of their reply brief that they did cross-examine enough to bring a perjury prosecution.

And I heard them say in oral argument that that would have been enough of a similar motive.

If there are no further questions--

Unknown Speaker: I have one more... you mentioned that one of the two witnesses was given immunity for future testimony as well.

Is that right?

Mr. Tigar: --The other... yes.

The other--

Unknown Speaker: Well, then why was... why was he unavailable?

Mr. Tigar: --Well, the Government admitted in oral argument in the Second Circuit that neither witness was unavailable.

That transcript has just been released, too.

I don't know why he is unavailable, Justice Scalia.

I didn't have the transcript of the grand jury testimony that contained the text of the immunity order at the time I argued in the Second Circuit.

I was compelled to feel around and make hypothetical arguments.

That's one of the problems with this case is that the more that gets revealed, the less there appears to be the cosmic legal issue that was tendered by the petitioner.

I don't know the answer to that.

I do know that that form of grant of immunity in the D.C. Circuit, given the express holding of the Miller case, would have been enough to carry through to trial.

That, the D.C. Circuit made clear in that case.

Whether it would be sufficient in other circuits is a question on which I don't think the circuits themselves have a consistent view.

But at any rate it shows why the Government's legal theory keeps getting tangled up with the facts.

Unknown Speaker: Well, I take it... were both witnesses called at the trial court and declined to testify?

Mr. Tigar: Yes, both witnesses were called an invoked their privilege against self-incrimination.

And at that time the Government didn't say a word about the terms of the earlier grants of immunity.

Now, maybe they put them under seal and gave them to the district judge.

But so far as the public record that was in the trial court, they weren't there.

Unknown Speaker: Well, was the immunity use immunity?

Mr. Tigar: Yes, it was for statutory immunity, approved by an Assistant Attorney General of the United States, as required by the statute.

And that's made clear in all these transcripts, Justice Kennedy.

Unknown Speaker: But was the use... do we know whether the use immunity was confined to the immunity... to the testimony that was developed before the grand jury?

Mr. Tigar: The terms of the immunity grant, as read to the witness, DeMatteis, include all proceedings resulting therefrom or ancillary thereto.

I don't have in the transcript of Bruno the text of the order.

In supplemental record number 1, in the court of appeals, there are three, handwritten notations of envelopes that were sealed.

That same record index is in this Court, and contains, I believe, the same material.

At page 117 of the Government's brief in the Second Circuit, that representation was made to that court.

So those are available.

Unknown Speaker: Thank you, Mr. Tiger.

Mr. Feldman, you have 8 minutes remaining.

Mr. Feldman, I want to be sure I get a chance to ask one question of you.

The first section... you have three parts of your brief.

And the first one you discuss is the Government did not have a similar motive to develop the grand jury testimony before the grand jury.

My question is why did you include that argument in your brief.

Rebuttal of James A. Feldman

Mr. Feldman: It was really just to... show the background of this... of the case--

Unknown Speaker: You didn't think that was an issue before the Court?

Mr. Feldman: --We did not think... moreover, the first point I actually was going to make is if you look at the... for instance, page 19A of the petition appendix, the court of appeals' exact statement, and they only, I think, say this is the only statement about whether the Government had similar motive: While we agree that the Government may have--

Unknown Speaker: Where are you reading from?

Mr. Feldman: --I'm sorry, it's page 19A of the petition appendix.

Unknown Speaker: Whereabouts on that page?

Mr. Feldman: At the very bottom of the page.

It's the very last paragraph, in the beginning of the last paragraph.

While we agree that the Government may have had no motive before the grand jury to impeach the allegedly-false testimony of Bruno and DeMatteis, we do not think that is sufficient to exclude the evidence at trial.

I think that's unambiguous.

And they never suggest, either here or in Bahadar or anywhere else, that they thought the Government did have a similar motive.

They actually... if you look at 24A, they make another statement that something... the same effect.

Unknown Speaker: No, I understand that's what the court of appeals said.

But you must have thought there was an issue here, or you wouldn't have argued it.

Mr. Feldman: Well, frankly, we thought that... we knew that this Court... it is possible that this Court could reach an issue that wasn't reached by the court of appeals, and we expected that respondents would raise that issue, and wanted to provide--

Unknown Speaker: And really, we don't reach the issue presented by the question in the certiorari petition, unless we're satisfied that there was, in fact, a similar motive... or that there was not a similar motive.

Mr. Feldman: --No, I don't think that's correct.

I think the question in this... that question can be... can be answered, and that will dispose of this case... if it's answered as we think it should be, which is that the Government... the similar motive requirement is relevant, and it's something that is required for admission of testimony under 804(b)(1), the Court can so decide, and the case would go back to the Second Circuit, and that would require reversal of the Second Circuit's judgment in the case.

So it's not at all necessary to reach any similar motive issue, although I think that the similar motive findings of the district court are well supported, and the court of appeals apparently agreed with that.

As far as the immunity... whether these witnesses had... the declarants had immunity at trial, I think the answer to that is very simple.

The district court... a pre-requisite for admitting the testimony under Rule 804(b)(1) was that the declarants be found to be unavailable.

And they were found to be unavailable because they had made a valid assertion of privilege.

And if... they had been immunized at the time, or if their immunity extended to trial testimony, they... the district court could not have made that finding.

So that's--

Unknown Speaker: Well, do you disagree with your opponent's representation that as to the witness DeMatteis that the immunity extended to trial?

Mr. Feldman: --Yes, we do.

And as a matter of fact he suggested that in the court of appeals we had somehow conceded something about that.

But that's, I think, incorrect.

That they... in the court of appeals, at oral argument, we did state that we were authorized, that we had the power, and that the trial attorneys had the power to grant immunity to them for trial testimony.

But that was never granted.

Unknown Speaker: Was there a grant of immunity to him for all future proceedings, or all further proceedings?

Mr. Feldman: The form of the immunity grant is, I think, is accurately set out, as he quote... as the respondents... as Mr. Tigar quoted it in the respondents' brief.

But that was not--

Unknown Speaker: Well, why isn't a trial a further proceeding in relation to the grand jury?

Mr. Feldman: --It could be a further proceeding.

And if the Government wanted to immunize them, and wanted to permit the immunity to carry over to trial it could have.

But at least in this case, it was... there was no issue--

Unknown Speaker: I thought it was a grant of immunity.

Mr. Feldman: --There was a grant of... there was a grant of--

Unknown Speaker: That included further proceedings, which included the trial.

So no further action by the Government was necessary to give this witness immunity.

Mr. Feldman: --I think... yeah, I think that's not correct.

I think it would be our position that we would have to authorize a continued use of that immunity for any of the future proceedings in which it was asserted.

The fact that the Government at one point immunized them for grand jury testimony and for using that grand jury testimony at a future proceeding does not mean that that automatically would carry over.

In any event, that was an issue that, I think, is... it was decided by the district court when the district court held that there was no... that they were unavailable, and therefore had made a valid assertion of privilege.

And that finding was not disturbed or even questioned by the court of appeals.

Unknown Speaker: And there was no counter-argument made by your opposing counsel to that conclusion.

Is that correct?

Mr. Feldman: I don't recall whether in the appellate briefs... I don't think that in the appellate briefs there was a specific... a specific argument that these declarants already were immunized.

But I don't... I'm reasonably certain of that, but I can't state it positively.

Unknown Speaker: Maybe it doesn't matter, but is it your position, then, that the reference in the original terms of the immunity to further proceedings is simply surplusage?

Mr. Feldman: Yes.

Unknown Speaker: Why is it there?

Who's--

Mr. Feldman: It would be--

Unknown Speaker: --Who's responsible for that?

I mean, this will betray my ignorance, I'm sure, but who is it who devises these terms?

Is it you or the district court, or the assistant attorney general?

Mr. Feldman: --Well, the district court enters an immunity order, but it has to be presented to the court.

The court... the Government has to move with an appropriate affidavit to the district court.

Unknown Speaker: But did an assistant attorney general of the United States approve a request for immunity on these terms?

Mr. Feldman: Yes.

Unknown Speaker: I.e., including the terms future proceedings?

Mr. Feldman: Yes.

I guess I'd like to just close by saying that Mr. Tigar suggested that where the Government goes to trial on a... after having indicted a defendant, it has to pay certain costs.

Unfortunately, one of those costs is not wholesale revision of the Federal Rules of Evidence.

The Government is as entitled to rely on the rules at trial as the defendant is.

Rule 804(b)(1), by its express terms, would render this testimony inadmissible.

And therefore we believe the decision of the court of appeals should be reversed.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Feldman.

The case is submitted.

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United States v. Williams - Oral Argument

Fri, 09 Jan 2009 14:49:32 +0000

Case:

United States v. Williams

Media File:

90-1972_19920122-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Kenneth W. Starr

Chief Justice Rehnquist: We'll hear argument first this morning in No. 90-1972, United States v. John H. Williams, Jr.--

General Starr.

Mr. Starr: Mr. Chief Justice, and may it please the Court:

This case brings before the Court an issue concerning the obligations of a prosecutor before a Federal grand jury.

The Tenth Circuit has held that a prosecutor is obligated, on pain of dismissal of the indictment, to put before the grand jury substantial exculpatory evidence.

As a result, the court of appeals upheld the dismissal of the seven-count indictment in this case.

That indictment charged in effect that the respondent had made false statements to four federally insured institutions.

The Tenth Circuit's rule in our view has no foundation in the history of the grand jury.

And if it is adopted, the Tenth Circuit's approach will have very high costs, with complicated preliminary trials on guilt or innocence prior to the trial itself.

This represents a change, and we believe it's a significant change, in the concept of the grand jury's function.

The grand jury is a screening mechanism.

It is there to determine whether probable cause exists.

It is not an adversary proceeding, and thus historically, has not been charged with evaluating defenses.

Indeed, the traditional role of the grand jury is quite limited.

As Justice O'Connor stated in her opinion in Mechanik, it is a group of citizens who are operating with a broad mandated and under a few clear rules.

Those rules are embodied in the Federal Rules of Criminal Procedure.

That structure, the interposition of the grand jury between the prosecutor and the citizen is itself a protection of individual liberty.

Unknown Speaker: Well, Mr.... General Starr, do you take the position that never would it be appropriate for a Federal district court judge, as a matter of exercise of supervisory power over the courts, to dismiss without prejudice a case in which there is a glaring failure of the Government to present some evidence to the grand jury that would have a direct bearing on whether the suspect is indeed appropriately charged?

Mr. Starr: Our position is no.

In terms of failure to adduce evidence, as opposed to what courts have, seen historically is quite problematic.

And that is the use of perjurious testimony or other forms of flagrant misconduct.

But at common law--

Unknown Speaker: Now, if the prosecutor offered known false testimony to the grand jury, do you think the court then can, in the exercise and supervisory power, dismiss?

Mr. Starr: --I think it can.

I think it does need to take the issue through a harmless error analysis to determine whether in fact, under the rules of this Court as articulated in Nova Scotia, that that was harmless error.

There are other mechanisms.

In short, if there's been wrongdoing of that kind, it may very well be difficult to establish that it was harmless error, but the court is--

Unknown Speaker: What is your authority, Mr. Starr, for answering Justice O'Connor's question that the use of perjurious would warrant the dismissal of the indictment?

Mr. Starr: --There is no authority in this Court that directly holds that.

Unknown Speaker: Then why does the Government concede that?

Mr. Starr: The Government has no quarrel, Mr. Chief Justice, with the holdings of a number of lower Federal courts that have concluded that the integrity of the grand jury would be compromised if the prosecutor knowingly uses material... I would insert the word material... perjurious testimony.

That is to say, we then at that point lack confidence in exactly what the grand jury was doing.

Unknown Speaker: And so that would be open to try... that would be open to a contested hearing as to whether the prosecutor did in fact use perjurious testimony?

Mr. Starr: It has been, and the system has not suffered as a result of that.

That, we view it, as being... although this Court has not spoken directly to it... the law in any number of circuits.

The new rule that the Tenth Circuit has now imposed would have enormous costs as well as view the grand jury in a very different light.

Unknown Speaker: But just before we leave this point where you admit or concede, I think, but there is some room for court intervention if there is flagrant misconduct, use of perjurious testimony.

But what is the reason why the indictment should be dismissed?

Because the grand jury right has not been accorded to the petitioner?

Or because we have the duty to supervise the Government in the prosecution of its cases?

Mr. Starr: Certainly not the latter.

We do believe, with all respect, that while action can be taken with respect to a particular prosecutor for conduct before the court in a particular case, we do have difficulty with a broad use of the idea of supervisory power to tell the prosecutor how do discharge his obligation.

If I may now return to what our reason would be for saying, yes, there is a problem in that grand jury testimony because essentially the nest has been befouled.

It has been befouled by the knowing use of testimony that is perjurious, and the grand jury may very well have acted on the basis of that.

In contrast, as Blackstone, as we note in footnote 3, Blackstone noted at common law it was unheard of to be adducing defenses before the grand jury.

That's not what grand juries are charged with doing.

They're not there to evaluation culpability in the sense of guilt or innocence.

They are simply there to make a determination of whether there is probable cause and not to evaluate defenses.

Unknown Speaker: A befouled nest is not a grand jury hearing?

I mean, is that the formula?

Mr. Starr: I use that to make the point that courts have been concerned about the integrity of the grand jury's function that is compromised in terms of the independence of the grand jury's judgement, if that judgment has been influenced materially by evidence that is perjurious or manufactured.

It goes to the idea of the integrity and independence of the grand jury.

That's what the Fifth Amendment--

Unknown Speaker: Have the lower courts that have got into this, as you've suggested they have, do they rely on the supervisory power?

Mr. Starr: --They typically don't lay this out, Justice White, carefully.

At times they speak in terms of due process, that it would be a violation of due process.

And not atypically, the analysis is in one or two sentences.

Other times they speak in terms of supervisory powers.

Unknown Speaker: They don't say that it's connected with the requirement of having a grand jury indict.

Mr. Starr: It has been suggested by authorities like Learned Hand and Henry Friendly that in fact you are getting at the core notion of what the founders had in mind, which is a grand jury whose integrity and independence is respected by the prosecutor, and the prosecutor fails to accord it that respect if it's using perjurious testimony.

Again, this issue is light years away from that.

Unknown Speaker: Well, no... no one in this... does anyone in this case suggest that there's a constitutional basis for--

Mr. Starr: No.

Unknown Speaker: --this rule?

Mr. Starr: The Tenth Circuit did not.

In fact, the Tenth Circuit, both in the Page case and in this case, did not set forth a foundation or basis for the use or exercise of this particular power.

And I do think it would be quite extreme to incorporate fundamental fairness due process notions into this, since as we know, under the well-settled holdings of this Court, there is no due process right to grand jury proceedings in many States, or a number of States... I shouldn't say many.

A number of States don't have grand--

Unknown Speaker: Haven't we had a grand jury case here?

Mr. Starr: --Yes, you've had grand jury cases here, but you've never held that's required as a matter of fundamental fairness, and this my point is this.

Unknown Speaker: Well, how did we get a grand jury case before us?

Mr. Starr: Oh, I'm sorry, this is a Federal case.

Unknown Speaker: Yes, I know.

Mr. Starr: And the point I'm making is in Hurtado v. California, there was a due process challenge to the failure to use a grand jury proceeding.

And this Court rejected the notion that it's fundamentally unfair, as we would say in modern due process analysis, to deprive a citizen of that.

And thus, in a number of the States, a prosecutor can sit in his or her offices and simply file the charging... write the charging materials, and not be taking into account any, quote, exculpatory evidence.

That's the limited due process point.

I do want to emphasize in terms of this proceeding that not only has the Tenth Circuit failed to adduce a constitutional basis, and clearly there's no Federal Rule of Criminal Procedure that speaks to this.

In her opinion, Justice O'Connor spoke about the few clear rules.

Prosecutors operate under the aegis of the Federal Rules of Criminal Procedure, and rule 6 has a number of provisions.

And we must scrupulously abide by those provisions.

This is new.

It is a new invention.

It is part of the reform effort to reform the grand jury.

But even persons and commentators who have viewed the grand jury as standing in need of reform have not gone this far.

Judge Frankel, in his book, says, yes, it's a good idea, but you certainly don't want to turn the process into a preliminary trial before--

Unknown Speaker: General Starr, I'm not sure I agree with you, this is light years away from what you acknowledge can be sanctioned.

Suppose a prosecutor reads a document or a deposition to the grand jury and just leaves out those passages that render innocuous what otherwise seems quite incriminating.

Now, is that... would that be something that courts could intervene about?

Mr. Starr: --No, I would draw the line.

A line has to be drawn, and I would draw the line... now, I don't think we can articulate it at general level of are you in any way misleading the grand jury.

The question is what--

Unknown Speaker: All right.

So suppose the prosecutor puts on testimony of eye witnesses who say they saw this person, but he knows that the person has an iron-clad alibi, iron clad, and he does not present that to the grand jury.

Is that really any difference... different--

Mr. Starr: --I think it is in--

Unknown Speaker: --in its effect from failing to read the totality of the document?

Mr. Starr: --I think it is.

I think conceptually it is.

That is a defense that comes on at trial.

And what courts have held is here... remember, the grand jury is not sitting there.

And if the Court reads the grand jury transcript in this case, they will see the grand jury wasn't just sitting there.

They were asking questions.

So they can ask questions and they can say... and that's where... and that's the line that has been drawn in the lower court cases.

Unknown Speaker: It's... it may be a line.

It's certainly not a light year.

It looks pretty close to me.

Mr. Starr: I will withdraw the light years, but it is a clear distinction that we think is fundamental in terms of what the function of the grand jury is.

You should not, in fact, use... you should not engage in what courts have come in a common law form of analysis, to characterize as flagrant misconduct.

The use--

Unknown Speaker: Well, what about the situation of the failure to come forward with the iron-clad alibi?

Mr. Starr: --Well, first all, I view that as distinct for reasons already stated, but here, I think, is a very important point, that this Court has noted in Calandra.

What is the rationale, what is the reasoning of a... what's the incentive for a prosecutor to do that?

It makes no sense.

He's going to have turn over Brady material, and he is also going to see his case fall apart at trial.

And if you look at our conviction rate, our cases don't fall apart at trial.

We have over a 90 percent conviction rate.

This is a very professional process in the Federal system.

And I say that by what--

Unknown Speaker: Well, maybe it's politically motivated or something in terms of timing: have somebody charged with something.

Is there a remedy there in the court's supervisory power for that sort of--

Mr. Starr: --Well, certainly this Court in Nova Scotia pointed to remedies such as referral to the office that Attorney General Levy established, the Office of Professional Responsibility in the Justice Department, which receives complaints of this nature.

Justice Kennedy, in Nova Scotia, suggested if a prosecutor is engaged in inappropriate or improper conduct, you can note that in a published opinion that has very powerful effects.

There was... in the Mechanik case, the district judge in that case was concerned about 6(d) violations in the grand jury room, and so the judge, the district judge said I want an occasional report from the prosecutor as to are you complying with 6(d).

I don't want to get this court into the situation of having to hear motions to dismiss and dismissing the indictments.

It's an inefficient way to do it.

But the basic point, as Justice Powell, in Calandra pointed out, is there's no incentive for this.

And we're talking about what should the system be.

Should there be a system that is clearly going to have enormous costs, and a double-header cost, both in terms of what the defense counsel is seeking to do to guide the grand jury to say here are my 10 exculpatory witnesses.

Unknown Speaker: --General Starr, let me... may I interrupt you?

You say there's no incentive to do this.

That's true if you have a professional prosecutor who's only interested in doing his job.

It's not necessarily true if you have a politically motivated prosecutor.

Mr. Starr: That's quite correct.

Unknown Speaker: So there is a possible incentive.

Mr. Starr: There is a possible incentive, but--

Unknown Speaker: My second question I'd like to--

Mr. Starr: --I'm sorry.

Unknown Speaker: --I'd like to ask you is, as I understand it, you could win this case on one of two theories: either that there's no duty whatsoever on the part of the prosecutor, or alternatively, that he didn't violate the duty in this case because the evidence isn't all that important.

Now is it not correct that in the lower court, the Government took the position there was a duty, and they complied with it?

Mr. Starr: Yes, because we were operating under Page, Justice Stevens.

That was the law--

Unknown Speaker: Did you challenge Page in the lower court?

Mr. Starr: --We did say... we have preserved this issue, as we indicated in our certiorari petition.

The question was passed on by the lower court.

We did not challenge Page directly in the lower court because that was the law of the circuit, and the Government won in Page, and certiorari was denied by this Court by Mr. Page.

Unknown Speaker: I understand.

But you did not raise the same question you're raising here in the lower court because you did not challenge Page.

Mr. Starr: We did say that there is absolutely no obligation on our part to do what we have been required to do under these circumstances.

When we--

Unknown Speaker: Yes, but you didn't say there was no obligation of the kind you're describing here.

Mr. Starr: --What we are taking issue with is the law of the Tenth Circuit that has now been applied to us in a case that we have lost.

And we ordinarily do not, Justice Stevens, go into a court of appeals when the law of the circuit is settled and say we don't like the law of the circuit.

Unknown Speaker: Even if you want review in this Court of that very point that you say is hamstringing your ability to bring cases and all the rest?

Mr. Starr: As long as... and I think this Court has said that, and in cases, with respect to have you passed upon the issue of whether in fact there was substantial evidence that was withheld.

If that has been, and that was ruled again... we were ruled against in that particular issue.

And we have now brought before this Court a question.

And that question fairly encompasses this rule.

The underlying duty that was articulated by the Tenth Circuit in Page, to say you must always adduce substantial exculpatory evidence.

Now our concern, Justice Stevens, picking up with your point, with the way... and I think it shows the perniciousness of the Tenth Circuit's approach... if the Court will look at page 8a of the petition appendix, it will see how loose and far reaching the substantial exculpatory standard is, as articulated by the Tenth Circuit.

It is very broad and sweeping, indeed.

Unknown Speaker: Yes, but it's quite different say the rule is too broad and acknowledge, as you did in your brief there, that you have certain responsibilities to produce evidence, which you did acknowledge in your brief.

Mr. Starr: Well, under the law of the circuit--

Unknown Speaker: Correct.

Mr. Starr: --the United States attorney was not challenging Page, per se, but he was saying the substantial exculpatory evidence duty is one that obviously we are going to have to seek to comply with, and we think that we have complied with it.

But the question was in fact passed on by this court, by the Tenth Circuit, is there a duty, what is the nature of that duty, and it has determined that we failed in that duty.

We--

Unknown Speaker: Well, it passed on in the sense of duty being there because the Government had conceded it had the duty.

Mr. Starr: --We did not... with all due respect, I think it is odd to suggest... and if we want to litigate aggressively everything in the circuits and challenge any particular case before each and every panel, I think that is not--

Unknown Speaker: If you intend to bring it here, yes.

Mr. Starr: --Well, I think that is not the approach this Court has traditionally used.

It is the question that that this Court has looked to is has the Court passed upon the issue.

And here, the Tenth Circuit passed upon the issue and resolved it against the Government.

Unknown Speaker: I suppose it would have been proper for you to challenge Page.

Mr. Starr: I'm sorry?

Unknown Speaker: I suppose it would have been proper for you to challenge Page in the Tenth Circuit and apply for an en banc hearing on it, wouldn't it?

It would have been proper.

You're just suggesting--

Mr. Starr: I don't think it's necessary.

And it's especially odd in Page when in fact, in Judge Logan's opinion he articulates the duty, and then he says, there's no problem with the duty here.

If the Court pleases, not to pass on this question would leave a very clear circuit conflict unresolved.

Unknown Speaker: --Well, you presented a petition for certiorari to the court embodying the question you're arguing.

The Court granted certiorari.

Mr. Starr: That is correct.

And the other side in its opposition took the position that we had failed to preserve it and the like for these reasons.

We responded to that in our reply brief, and the Court granted certiorari on the question presented.

Unknown Speaker: Of course, four votes don't necessarily decide whether that'll decide the case.

Mr. Starr: That is correct, but at least the Court was informed by the fact that we had presented this issue, that they were fully aware of the posture of the case before the Tenth Circuit.

On the assumption that the Court is here to address this issue, let me focus, in the brief moments that remain, on what we see as the practicality of this.

Here is what is happening, and it is what is going to happen.

Defense counsel will file a motion to dismiss.

Judges will then be called upon to analyze, for example, five volumes of a bankruptcy deposition and other allegedly exculpatory evidence.

There will be many disputes over that.

I commend to the Court's attention Judge Ellison's second opinion.

Note that when he first heard the evidence, he said, no.

This isn't a violation of the Page duty; they've done all that they need to do.

And again, if the Court reads the grand jury transcripts, they will see this was a very thorough-going grand jury investigation.

It then comes back to the judge on a motion for reconsideration.

In footnote 3 of his opinion granting the motion for reconsideration after having once denied it, he notes a number of items of allegedly substantially exculpatory evidence that were proffered to him, which he says, I still think those were not substantially exculpatory.

These are going to be difficult judgment calls.

It is going to be the exact sort of confusion-producing litigation... litigation producing confusion, I should say, that this Court should seek to avoid.

The criminal justice system need predictability and it needs certainty.

And this is a sure recipe for enormous uncertainty.

I'd like to reserve the balance of my time.

Unknown Speaker: Very well, General Starr.

Mr. Lang, we'll hear now from you.

Argument of James C. Lang

Mr. Lang: Mr. Chief Justice, and may it please the Court:

I think at the outset it's important to note the departmental policy of requiring the submission by prosecutors to the grand jury of substantial exculpatory evidence, which has been in effect for approximately 13 years, if my computation is correct.

And we've operated under that in this justice system, and the Government has operated under that as an internal policy for that period of time, without it wrecking havoc on the system.

So we have here a rather unique situation, whereby actually the Government has followed, apparently, their policy of submitting this evidence to the grand juries.

The system hasn't crumbled.

Unknown Speaker: Well, in the preceding years, Mr. Lang, have people tried to enforce the Government's obligation by motions to dismiss?

Mr. Lang: No, Your Honor, but I'm addressing again the argument or position that was made by counsel relative to the difficulty that would be incurred in the Government determining what was exculpatory and presenting it to the grand jury.

Unknown Speaker: I think I understand that, but I thought another part of counsel's argument, which there's no need for you to address unless you want to, is that this rule would generate a number of... contested motions to dismiss in the district court, which do not exist simply with the departmental policy in place.

Mr. Lang: Yes.

In regard to that aspect of the argument, the Government, under its Brady obligation at the commencement of the proceedings after the indictment, is going to have to marshal its exculpatory evidence in any event.

They're going to have to know what is exculpatory at that point in time, because they're going to have, assuming an indictment is returned, a Brady obligation.

So subsequently from the viewpoint again of the difficulty of submitting it and knowing what it is, it's going to have to be placed in the hands of the defendant at that point in time.

Now, as far as there being a rash of motions in regard to this proceeding, I think over the past... as cited in the reply brief of the Government, over the past 10 years, there have been fewer than 10 cases that ultimately a dismissal has resulted on some such basis.

So the impact, I submit, is not great.

Unknown Speaker: Do the statistics reflect how many such contested hearings there were, as well as how many resulted in dismissal?

Mr. Lang: I believe in a reply brief it refers to over 200,000 indictments... 204,000 indictments as opposed to the 10 cases that ultimately ended in that manner.

Unknown Speaker: Does it refer to the number of those cases in which there were hearings on a motion to dismiss which the Government... in which the defendant did not prevail?

Mr. Lang: No, Your Honor, because again that would not be a statistic gathered by the Government.

I might point out, because there was some question also earlier, in terms of the cumbersome nature of the five volumes of the testimony that were obtained from a parallel bankruptcy proceeding, sometimes, when we're talking about situations involving financial institutions and the element of intent, particularly when it gets to a situation of whether a bank was misled under 18 U.S.C. 1014, the idea gets to be... well, this is such a vague situation, how's anyone going to know whether this is actually exculpatory and goes to that issue.

In regard to this particular case, the trial court was quite specific, referring not only to specific items that were explained by the transcript of the testimony that went to the exact issue, the same transcript that was not given to the grand jury, the same transcript that in great detail, in five volumes, explained why the balance sheet and income statement was correct and why the defendant believed it was correct, his beliefs concerning the asset values that he placed on the assets that were the subject of the financial statements, and a very thorough discussion in this particular situation of the venture capital investments that this particular defendant had made and why he believed the numbers that he placed on those venture capital investments were accurate.

So we have here a situation where not only are there documents that are explained, but we have a lengthy explanation by the defendant as to why he felt and why he believed that his financial statements were accurate.

So even though this be, again, a case involving a bank violation, it is a case whereby the exculpatory nature of it is clear.

And it was not submitted, of course, to the grand jury, which very well could have reviewed the five volumes and determined that this man really felt that these values were the values that were correct.

Unknown Speaker: Mr. Lang, what do you mean, presented to the grand jury?

What if... would it have satisfied you if the Government had just walked in and dumped these five volumes before the grand jury and said, here it all is.

It's all there.

Has it fulfilled its obligation to present the exculpatory evidence?

Mr. Lang: Well, Your Honor, I appreciate that point, because actually--

Unknown Speaker: Well, it's one of the difficulties in evaluating what you're asking courts to evaluate all the time.

It's not just whether the evidence is there.

Mr. Lang: --That's correct.

Unknown Speaker: Depending on what your answer is.

If you say it's okay, then it's easy, I guess.

Mr. Lang: Assuming the rule... assuming the rule, obviously in certain complex criminal situations... to take that one or several steps further... when you bring in the 50 boxes, to have a meaningful rule, there has to be a meaningful ability to understand.

Unknown Speaker: So the Government has to go through those boxes and the court's going to have to evaluate the quality of the Government's investigation and presentation of the consequences of that to the grand jury.

Mr. Lang: In this case, Your Honor, confining it to this case, the--

Unknown Speaker: No, I'm concerned about a general rule.

I'm not concerned about this case.

I'm concerned about the rule you're asking us to adopt.

What do we do in the situation where there are 50 boxes and you say we would have to evaluate whether the Government did a good job of examining those 50 boxes.

Mr. Lang: --In order for it to be meaningful, Your Honor, and for there to be a meaningful rule, it would be our position that it would have to be a meaningful submission.

Unknown Speaker: And I think that's probably right.

I think that's probably right.

Mr. Lang: Now, in this particular case, of course we have the luxury of the 5 volumes, which could very well have been read by the grand jury, as opposed to the 40 boxes, which fully explain the particular aspects of the balance sheet.

I might point out also in this case, that the Government could have, as a matter of interest, simply following the decision of Judge Ellison, pointing out that there were certain items that the court felt were exculpatory and should have been viewed by the grand jury, simply turned around and submitted those items to the grand jury, or another grand jury.

However, rather than do this rather simple thing, we've gone through this appellate procedure.

The point, and my reason in mentioning that is that in respond... or as a rejoinder to the argument that this would create some massive problem in the criminal system, it's very easy for the Government, once the court finds there's some exculpatory evidence that should have been... or substantial exculpatory evidence, to simply turn around and present it.

There's no prohibition against that.

Unknown Speaker: You're not just saying once it finds; you're saying after it finds, as it is obliged to do.

I mean, you're saying the Government has to go through these 50 boxes, I presume... or not?

Mr. Lang: Well, the rule would in our view, Your Honor, be confined to a situation of evidence in the possession of the Government.

There'd be no duty to seek out.

Because in our case--

Unknown Speaker: No, but the Government has the 50 boxes.

You're saying in addition, the Government has some responsibility to go through those 50 boxes and extract the exculpatory evidence so that it could present them to the grand jury.

Mr. Lang: --If in the course of the investigation, and it had the 50 boxes in its possession, which were accumulated in the course of the investigation, it again would have the duty to go through the boxes, to find the... or the present the evidence in a circumstance.

Now, of course we can take this further down the road and determine how many boxes and how it got it, and what the circumstances were as to how they came by it.

But by the same token in... again, in this particular case, the Government knew it had the evidence in its possession.

It's not a question them having something in their investigation they really didn't know about.

Here it's confined to knowledge.

Unknown Speaker: Mr.--

Mr. Lang: Yes.

Unknown Speaker: --Mr. Lang, why should the rule with respect to exculpatory evidence, which is involved in this case, be any different than the rule with respect to hearsay evidence, which the Court said in the Costello case was not a ground for objecting to a grand jury indictment, or to evidence improperly seized in violation of the Fourth Amendment, which in Calandra, the Court said was not a basis for objecting to a grand jury indictment?

It seems to me this rule just goes against the grain of that line of cases from this Court.

Mr. Lang: That line of cases support the notion that the grand jury should have before it all possible evidence, even though it be inadmissible, even though it be seized in some manner that wouldn't be... where it... wouldn't be allowed in the trial of the case.

Those case enforce the original notion that the grand jury should have access to all evidence that can come within its scope in order to be fully informed.

Unknown Speaker: They also enforce the notion that the courts are not there to supervise the detailed operations of the grand jury.

Mr. Lang: That is correct, Your Honor, but again, assuming there are circumstances that create the supervisory duty of the courts under the Nova Scotia test.

Unknown Speaker: Yes, but in Nova Scotia, we were talking about a very specific part of rule 6 of the Rules of Criminal Procedure, as I recall it.

Here, there is no rule laying down this duty.

It just comes out of thin air.

Mr. Lang: Your Honor, Nova Scotia considered not only the rule 6(e) and 6(d) violations, but also considered conduct before the grand jury, such as the prosecutor yelling at a witness in the presence of a grand juror and also the prosecutor improperly summarizing some evidence.

So in the totality of that decision, there were some circumstances outside the rule 6 considered.

Unknown Speaker: But were any of them outside of these... some sort of specific provision of law governing the operation of either the grand jury or some other part of the Government?

Nothing was pulled out of thin air in Nova Scotia.

Mr. Lang: No.

Well, Your Honor, these two particular concerns were decided strictly under the... as part of the totality of the rule 6(e) and 6(t)... (d) violation, but they were considered as being important in making that determination.

So I don't think pulled out of the air is quite right, but by the same token, the Court looked at them to determine whether the prejudice standard was met.

And I think--

Unknown Speaker: Yes, but before you get to the prejudice question, you need to find a violation of some obligation.

Then you get to the prejudice question.

Mr. Lang: --I understand that, Your Honor, but again, assuming that the violation in this case would emanate from the same source as the consideration in Nova Scotia, then you would have the violation for the purpose of the prejudice problem... the sources that I mentioned as far as that consideration.

Unknown Speaker: Well, that's a rather substantial assumption.

Mr. Lang: Your Honor, I might mention--

Unknown Speaker: Suppose, counsel, that in the case that we were discussing with Justice Scalia a few minutes ago.

There's a series of boxes with exculpatory evidence, and the prosecution said... tells the grand jury, we haven't read these; they're here if you're interested.

And the grand jury says we're not interested.

And it contains substantial exculpatory evidence.

Is there a problem with that?

Mr. Lang: --Well, in this particular case, of course, under the Court's... hypothetical case, the documents would be before the grand jury.

And they would have the option--

Unknown Speaker: Well, what I'm asking is suppose the grand jury doesn't do its job.

It's very sloppy.

And the prosecution says if you've heard enough, tell us.

We have more if you're interested.

And the grand jury said, well, we don't really care.

We've heard enough.

Mr. Lang: --Well, the grand... again, the grand... assuming the grand jury felt that they had heard enough, I don't know what the prosecutor could do in terms of doing more than giving it to them.

Unknown Speaker: What my question is designed to elicit is whether... a discussion of whether or not there is a standard to which the grand jury must be held or a standard to which the prosecution must be held.

Mr. Lang: Well, and that's very correct, Your Honor.

Because again, the rule that's involved in this Tenth Circuit case has to do with the relationship between the prosecutor and the grand jury.

And the duty that we're speaking of here is the duty relative to the prosecutor to see that if there is in his possession in the course of his investigation certain substantial exculpatory evidence that it is provided to the grand jury.

Unknown Speaker: But so far as the defendant is concerned, if there's a defalcation, it's equally harmful in either case.

Mr. Lang: Equally harmful whether the grand jury doesn't accept the--

Unknown Speaker: Whether the grand jury is remiss on its own, or whether the prosecution is remiss.

It makes no difference from the standpoint of the defendant.

Mr. Lang: --That is correct.

But by the same token, the grand... the prosecutor generally in today's world is the sole source of all of the evidence that goes before the grand jury.

So the issue then is should some obligation be placed upon the prosecutor, who generally is the spoon feeder to the grand jury, to make sure that if he becomes in possession of substantial exculpatory evidence, that it then is conveyed to the grand jury.

Unknown Speaker: Well, Mr. Lang, what is the source of the rule that you would have the courts follow, the rule that would require a Federal court to review this and impose some sanction?

Is it the supervisory power of the Court, or do you look to some constitutional requirement.

And if so, what?

Mr. Lang: Supervisory power, Your Honor.

Unknown Speaker: Did the Tenth Circuit make clear that was what it was relying on, do you think?

Mr. Lang: I believe the Tenth Circuit did.

They followed the language of Nova Scotia in determining the prejudice and spoke of supervisory power, and made the finding or found that the findings of Judge Ellison were not clearly erroneous in that there was substantial exculpatory evidence in the possession of the prosecutor, and that it impacted, under the language of Nova Scotia.

Unknown Speaker: And is that what you think the district court relied on?

Mr. Lang: Yes, Your Honor, and that is part of the opinion of the district court.

So we actually have here, for the purpose of the consideration, a finding by the district court that has been found not to be clearly erroneous by the Tenth Circuit, that there was substantial exculpatory evidence, that it was in the possession of the prosecutor, and that it impacted on the decision of the grand jury to indict, following completely the logic and... of Nova Scotia, ultimately resulting in the dismissal.

And as I said, the upshot of the whole thing was the prosecutor had the option at that point simply to take what was considered to be substantially exculpatory, and take it back before another grand jury, and then to see if another indictment might be obtained.

If one was not returned, if one were not returned by another grand jury, then perhaps the basic reason why we would have the rule would be proved.

It may well be that they would take the deposition, read through it, find that the defendant in this case was a very intelligent and articulate gentleman, find that he was very educated, find that the tried to do what he thought was right in preparing his financial statements, and not indict.

Unknown Speaker: Is that--

Mr. Lang: And that's the whole reason behind the rule.

Unknown Speaker: --Mr. Lang, is that... the touchstone is substantial to be defined in terms of the grand jury function or the petty jury function?

In other words, is substantial evidence any evidence upon which a reasonable grand jury might conclude that they would not indict, or is it some such standard as any... as evidence upon which a reasonable petty jury might find reasonable doubt?

Mr. Lang: If I understand the question correctly, of course the grand jury--

Unknown Speaker: The question is what is substantial evidence.

How do you define substantial?

Mr. Lang: --Okay.

That issue was raised in the brief in terms of can the court determine what is substantial evidence, and there were cited in the briefs the other use or uses in other areas of the law--

Unknown Speaker: But what is your definition?

Mr. Lang: --In the trial court... and my definition would relate to whether ultimately there might be, or whether it is sufficient evidence which cumulatively or singularly would cause a jury to not be able to find guilt beyond a reasonable doubt.

And that's what the trial court in this court did.

And he mentions in the opinion that he didn't... that was his view of that.

Unknown Speaker: So it's a petty jury standard.

I mean, it looks to the trial jury's function in determining what is--

Mr. Lang: In this case, that's what was done.

Unknown Speaker: --Well, is that the rule, the definition, that you want us to adopt for all time?

Mr. Lang: Yes, Your Honor, that would be the definition that we would urge on the Court since that was what was done in this case.

And that was the view after the judge looked at the evidence in this case and submitted... tested it in connection with the Nova Scotia analysis to find that there was substantial exculpatory evidence.

Unknown Speaker: Why don't you key it to the grand jury's responsibility rather than to the trial jury's responsibility?

Why don't you define substantiality in terms of what you would posit a reasonable grand jury would find as a basis in the totality of the evidence not to indict?

Mr. Lang: I'm sorry.

I didn't hear the last part of--

Unknown Speaker: Why don't you define substantiality in terms of what a reasonable grand jury would do, if we could figure out what that is, as opposed to what a reasonable trial jury would do?

Mr. Lang: --Well, I think the logic behind the rule has been that if there's not sufficient evidence before the grand jury, or if the evidence is before the grand jury and is substantially exculpatory, that might be sufficient to cause them not to be able to find ultimately beyond a reasonable doubt that the efficiencies involved in ultimately them not returning the indictment and also the protection of the defendant in not being indicted is the focus.

Unknown Speaker: But that implies a fairly radical transformation of the grand jury's function, doesn't it?

Mr. Lang: Well, the grand jury's function, of course, is only to find probable cause.

And if--

Unknown Speaker: And on your theory that will no longer be the case.

Mr. Lang: --Well... and again, I think the focus here is on how we're defining substantial exculpatory evidence, and whether it's entitled to before the grand... before the grand jury, as opposed to the situation--

Unknown Speaker: Well, anything can be before it.

I mean, I suppose the prosecutor can throw in anything he wants to, and the grand jury can call for anything it wants to.

Mr. Lang: --Correct.

But there seems to be two different things we're speaking about here.

One is the issue of the standard before the grand jury as far as the proof and regard to probable cause.

And another seems to be the issue of what the definition of substantial exculpatory evidence is, and whether that should be submitted to the grand jury.

That is, what... when is the evidence... the... when does the exculpatory evidence reach a point of becoming substantial.

Which seems to be, again, two different, almost an apples-and-oranges analysis in the sense that one has to do with when the evidence has to be presented.

The other has to do with what the standard is in regard to the grand jury and in regard to this trial.

So, I may have misunderstood the question, but there seems to be two different analyses involved in that.

The... in this particular case, and I want to emphasize the difference in what the grand jury is today and get back on a point I made a minute ago in regard to what it was some years ago.

Today, the grand jury relies 100 percent, in reality, on the prosecutor.

In times past, grand juries were members of the community, they had a good deal of knowledge of what was going on.

Today, that's simply not the case, as certain... certainly experience would tell us.

Today, the grand jury is the recipient of evidence subpoenaed, obtained, acquired by the prosecutor.

They have literally no independent source of the evidence.

The agencies collect the evidence by either investigation or subpoena, and they're provided to the grand jury through the offices of the prosecutor.

The grand jury then looks at the evidence and makes a determination as far as the indictment is concerned.

But the law in all of the cases are clear that in order to make a decision, that the grand jury must be fully informed.

They must in all instances, whether they receive the evidence... excuse me... whether they receive the evidence that might not be admissible in court, whether they receive the evidence that's substantial exculpatory evidence, the policy is to get before the grand jury all possible evidence.

And this rule that was laid down by the Tenth Circuit would effectuate the same policy as I mentioned a moment ago of getting before the grand jury all possible evidence relative to the particular case.

Unknown Speaker: They don't have to be fully informed.

You say that the policy is that they have to be fully informed.

I take it... as I understood your response to Justice Kennedy earlier, you would not argue that an indictment could be set aside if the prosecutor came in with the exculpatory... after producing considerable incriminating evidence, overwhelming, he then comes in with some exculpatory evidence, but the form that the grand jury discussing it with the other members says never mind, we've heard enough, don't waste our time; we don't want to hear... this incriminating evidence is so condemning that we've heard enough.

That's okay, isn't it?

Mr. Lang: Well, if the rule, again, is that they should have available to them all possible evidence, and there is substantial exculpatory evidence--

Unknown Speaker: They've turned it down.

He tries to give it to them, they say, no, we've heard enough.

Mr. Lang: --That's tendered to them, and they say, stop, we're drowning in boxes, we don't want any more of this.

Unknown Speaker: Right.

This fellow should be tried.

Take it to a jury.

Mr. Lang: A circumstance, again, that we don't have in this case.

Unknown Speaker: Well, I know that.

Mr. Lang: I would certainly agree with you on that.

Unknown Speaker: So there is really no rule that the grand jury has to be fully informed.

Mr. Lang: Well, fully informed, Your Honor, in the sense of--

Unknown Speaker: You're arguing for a narrower rule that to the extent the prosecutor can assist in fully informing them, he must, even though they may themselves choose not to be fully informed.

Mr. Lang: --Well, again, fully informed is a term that means they're going to have to have everything in the world.

Actually, I think the focus is on a balanced presentation in the sense--

Unknown Speaker: They don't even have to be balanced informed if they don't want to be.

Mr. Lang: --But again, we get back to the situation what was raised earlier, and that is when we have some kind of misdirection or some type of a--

Unknown Speaker: No misdirection.

They just don't want to be balanced informed.

The court would not set that aside because it had a grand jury said we've heard enough on one side, we don't want to hear the other side.

Would a court set that aside?

Mr. Lang: --Certainly not, Your Honor.

Unknown Speaker: All right.

Mr. Lang: Thank you.

Unknown Speaker: Thank you, Mr. Lang.

General Starr, you have 8 minutes remaining.

Mr. Starr, could I ask you a question before you start?

In your brief, you state that internal Department of Justice policies are sufficient to compel prosecutors to disclose substantial known exculpatory evidence to the grand jury.

Was anything along that line done in this case?

Rebuttal of Kenneth W. Starr

Mr. Starr: Yes, it was.

Two individuals were called before the grand jury to testify about the joint venture investments in which Mr. Williams had invested very heavily and in which he, according to his bankruptcy testimony, had confidence, into the efficacy of that.

I won't characterize the testimony.

This is obviously protected by grand jury secrecy, but this is in the record.

Secondly, he... the United States Attorney who personally conducted this grand jury investigation, called before the grand jury two representatives from the accounting firm, the in-house accounting firm that handles the Williams' family accounts.

And in fact, that had been suggested that that be done.

And so they testified with respect to what the accounting techniques were.

I commend that testimony as well.

What was also before the grand jury here was a criminal referral from the Office of the Comptroller of the Currency and statements by a number of bank officers, who testified not only about his financial statements, and how... and I don't think there's any dispute here that the financial statements do not conform to GAP.

But more than that, what he was saying to the bank presidents when he was seeking these loans.

The grand jury had a very full picture before it.

With respect to the bankruptcy proceeding, transcript itself, that is classic hearsay, self-serving testimony.

It was not subject, by definition, to cross-examination by the Government.

And frankly, although I'm sensitive to revealing anything before the grand jury, I think that a review of the grand jury transcript will satisfy the Court in this case that the grand jury had before it the fact that Mr. Williams had the sense of optimism.

In fact, the United States Attorney put before the grand jury testimony about his character, his character in a very positive sense.

The United States Attorney did not seek to cut this off.

When witnesses would say, I wish we could have done better with these investments, he didn't cut him off.

The grand jury transcript shows a very moral prosecution conducted with integrity.

With respect to the rule, now, that is being urged upon this Court, the Department of Justice policy speaks in terms of substantial evidence that directly negates guilt.

For starters, that's not the Tenth Circuit's standard, either at Page or in this case.

Secondly--

Unknown Speaker: Well, are you suggesting that it be all right to have a rule, a supervisory rule, that just tracks your manual?

Mr. Starr: --I am not.

And that brings me to my second point, Justice White.

That is Department of Justice policy.

It has historically been the policy.

It is not, however, legal error.

Unknown Speaker: Suppose there's a motion to dismiss the indictment, and the allegation is that the Government had in its... had in its possession information that it knew would necessarily bar an indictment.

For instance, they knew that this person was a minor and couldn't... just couldn't be indicted.

And they just withheld it.

And they were going to withhold it all though the trial, apparently.

But there's a motion that says... and there's a... do you suppose that the district court should just dismiss the motion?

I have no power to do anything about it?

I guess you would.

Mr. Starr: Well, he has power to do something about it, but he should not dismiss the indictment.

No.

Even under those circumstances, if there was not flagrant misconduct in the use of perjurious testimony and the like, then no.

Unknown Speaker: Well, there's flagrant misconduct.

The Government knew he wasn't subject to indictment.

Mr. Starr: But again, what is being urged here is a rule that goes against what is a pathological case.

To trap that pathological prosecutor, what the Tenth Circuit is urging essentially upon the system is a very costly rule when the incentives are entirely to the contrary.

Unknown Speaker: Well, that may be true, but there may be a valid narrow... much narrower rule than the Tenth Circuit.

Mr. Starr: But there are also narrower remedies than dismissal of the indictment.

If there is in fact a bad apple in the prosecutorial barrel, there is hardly anything more effective than sanctioning that attorney for contempt of court, for singling him out, or her out, for criticism in a published opinion, which again, this Court has emphasized as a remedy.

That is a powerful remedy.

It is not easy simply to go back to the grand jury, Justice White, as my colleague has suggested.

These issues, by the way, arise in white collar crime cases.

They don't arise in other kinds of cases, typically, where the issue is intent.

These are complicated proceedings.

These financial fraud investigations are enormously complex.

You don't simply go back at almost zero cost and get an indictment.

You've got to present this elaborate case once again.

Unknown Speaker: General Starr, has the statute run in this case?

If we affirm the court below, does the prosecution still--

Mr. Starr: This prosecution can go forward because this case still lives and the statute is tolled while this issue is being litigated.

But again, one of the things in terms of the presentation before the district court is the district court did not have the benefit of testimony of bank presidents who will talk about oral representations.

That's a part of this indictment.

And that has not been before the district court at all.

I thank the Court.

Chief Justice Rehnquist: Thank you, General Starr.

The case is submitted.

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The OYEZ Project

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Carchman v. Nash - Oral Argument (No. 84-835)

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Case:

Carchman v. Nash

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transcript.xml

Transcript:

ORAL ARGUMENT OF PHILIP S. CARCHMAN, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in New Jersey Department of Corrections against Nash and the related case.

Mr. Carchman, I think you may proceed whenever you are ready.

Mr. Carchman: Mr. Chief Justice, and may it please the Court, the issue presented in the case today is whether the Interstate Agreement on Detainers, a uniform statute adopted by 48 states, the District of Columbia, and the federal government, applies to detainers based on probation and parole violations.

The facts before the Court are quite simple and brief.

Respondent Nash--

Unidentified Justice: You raised two questions in your petition for certiorari, didn't you?

The first one you have just stated, and the second one was whether the state of New Jersey complied with Article III of the IAD.

Mr. Carchman: --That is correct.

The Court certified as to the first question only.

Unidentified Justice: We granted only as to the first question?

Mr. Carchman: That is correct, Justice.

The respondent Nash was charged and convicted in New Jersey of various criminal offenses, and as part of his sentence he was sentenced to a jail term.

Part of the sentence was suspended, and he was placed on probation for a period of two years.

While on probation, Nash was charged and convicted in the state of Pennsylvani for various criminal offenses, and was sentenced to a term of five to ten years.

The Mercer County probation department issued a warrant of a parole violation, and lodged that warrant as a detainer with the appropriate Pennsylvania corrections authorities.

Nash sought to resolve the detainer using the IAD.

Nash proceeded to file a habeas petition in the United States District Court, and the court suspended the habeas proceeding until state remedies were exhausted.

A state trial judge heard the probation revocation proceeding, found the defendant was in fact in violation of probation, and sentenced the defendant to an aggregate term of three years to be served consecutive to the Pennsylvania sentence.

The United States District Court found that the IAD did in fact apply to probation violations, and further determined that since the state had failed to bring Nash back to the state of New Jersey within 180 days as required by the statute, the state in fact violated the IAD, and the violation of probation was declared a nullity.

The Court of Appeals for the Third Circuit affirmed and determined that the IAD did in fact apply to probation violations, and thus became the first court in the United States, including the federal and state courts which have decided the issue, to so hold.

It is the position of the petitioners that detainers based on probation and parole violations do not fall within the scope of the IAD.

The first and most obvious avenue of inquiry is to look at what we submit is the plain and clear language of the IAD.

The critical language is found in Article III and elsewhere, but Article III applies to the facts of this case.

The key language is the phrase, and I quote,

"untried indictment, information, and complaint."

Unidentified Justice: Incidentally, Mr. Carchman, does New Jersey have any complaint procedure for criminal cases?

Mr. Carchman: New Jersey has a sur complaint procedure.

The initial--

Unidentified Justice: I am sorry.

I didn't hear that.

Mr. Carchman: --The initial filing is a sur complaint, which then proceeds before the grand jury, where if a grand jury makes a determination--

Unidentified Justice: There is no information--

Mr. Carchman: --There is no information.

There is an accusation proceeding, but there is no information.

The information is perhaps akin to New Jersey's accusation proceeding.

Unidentified Justice: --Do you think the accusation proceeding would come within the Detainer Act?

Mr. Carchman: Yes, because I don't think that the--

Unidentified Justice: What is it?

It is not an indictment, an information, what is it, a complaint?

Mr. Carchman: --It is akin to an information.

The accusation is a waiver of grand jury proceedings by the defendant and a plea to an accusation.

It is prior to the matter being submitted to a grand jury.

The words--

Unidentified Justice: I think basically the state's position is, at least the probation one is not either indictment, information, or complaint.

Mr. Carchman: --That is correct.

Unidentified Justice: And yet an accusation would be neither indictment, information, or complaint, but you say akin to information.

Mr. Carchman: We do not feel that the determination should rest on the actual nomenclature used.

It is specifically designed to deal with the nature of the proceeding.

The terms "indictment", "information", and "complaint" refer to the initial stages in the bringing of criminal proceedings, and we contrast this with the probation violation, which is in the nature of a warrant issued by a judicial body as opposed to the executive, being the prosecuting agency, or a parole revocation which is issued by an administrative agency completely divorced from the prosecution.

Unidentified Justice: Well, may I ask, do you think the word "complaint" is something unknown to New Jersey procedures and therefore not within that word--

Mr. Carchman: Oh, no, "complaint" is well known in New Jersey procedures, and as I have indicated, is the initial filing which generates a new criminal charge.

It later becomes transformed through the process into an indictment if the grand jury makes a determination.

As I have indicated, the words "indictment", "information, and" complaint

"are words of art."

"They have a specific meaning in law, and they do in fact refer to the initiation of criminal proceedings."

When these words are viewed in the totality of the statute, I think it is clear that the framers of the statute were speaking about criminal proceedings and criminal trials.

I refer to the three words.

If we look further we see the word "untried" is used.

And the word "trial" is used.

And these are words which refer to a plenary adjudication of criminal charges, and these are the words that the framers of the statute use.

I contrast that with the hearing procedures which this Court discussed in Gagnon versus Scarpelli when it differentiated between a plenary trial and a probation hearing, and the rights which attach to a trial are significantly different from the rights which attach to a hearing.

There is the issue of uncertainty as a result, again, the phrase "uncertainty" being used in the statute, and as I will discuss later when we discuss the legislative history, the framers were talking about uncertainty in the first instance as to guilt or innocence, and this is not an issue which will be involved on a probation or parole violation which is based on a subsequent conviction.

The statute talks about notice, and as we examine the notice provisions, we see that notice refers to notice to the prosecuting attorney and to the court.

If we take first the example of the parole violation, neither the court nor the prosecuting official is involved in that notice procedure.

In fact, that is a separate administrative agency who under the terms of the statute will receive no notice.

In the probation area, the issue is less clearly defined, but we are talking about notification to a court and a prosecutor who may or may not, depending on the particular state's practices, be involved in the revocation proceedings.

And lastly, the statute talks about speedy trial, and that is a phrase which has been dealt with by this Court on many occasions, and it is a phrase which has specific meaning, not in terms of hearing, but in terms of plenary adjudication.

We submit that a reasonable interpretation of this particular statute does not allow for construction which will include a probation revocation hearing on a parole hearing within its scope.

The inquiry as to what this statute means, we submit, could end here, but the legislative history of this statute supports our position.

The commentators have recognized three types of detainers.

The first is a detainer based on a criminal charge.

The second is a detainer based on a sentence, be it consecutive or concurrent.

And the third is a detainer based on a probation or parole violation.

We submit that only the first applies here.

As the legislative history indicates--

Unidentified Justice: --Tell me, Mr. Carchman, there is an amicus brief here which says that at least in Virginia criminal charges may be lodged by way of a presentment.

Would a presentment, do you think, fall within the detainer statute?

Mr. Carchman: --That apparently is a unique procedure whereby the executive was not involved in--

Unidentified Justice: Do you think it would fall within the detainer statute?

Mr. Carchman: --We do not feel that that presentment would fall within the detainer statute.

If the Court... If the Court--

Unidentified Justice: Well, the effect on the accused is no different, is it?

Mr. Carchman: --Well, it is in the nature of a somewhat hybrid criminal proceeding brought by the judiciary through the grand jury rather than the executive.

If it initiates a new--

Unidentified Justice: New Jersey has a presentment practice, too, doesn't it?

Mr. Carchman: --Yes, but that does not involve... specifically does not involve criminal proceedings.

If the presentment generates a form of a criminal charge against the accused, then it may well fall within the scope.

However, I think that this is a procedure somewhat unique to the state of Virginia rather than to the other signatories.

Unidentified Justice: Well, incidentally, in Mauro, didn't we say that where the policies underlying the detainer agreement are involved, there is no reason to give an unduly restrictive meaning to the words?

Mr. Carchman: Yes, and Mauro--

Unidentified Justice: What are you going to do with that in this case?

Mr. Carchman: --Well, in Mauro this Court pointed out--

Unidentified Justice: We did say that, didn't we, in Mauro?

Mr. Carchman: --Yes, you did, and Mauro pointed out the significant legislative history on which that statement was based, which would support the position that the framers of this statute were concerned with something that is not involved with probation and parole violations.

In untried indictment, indictment, information, and complaint, the basic issue which is not resolved is the issue of guilt or innocence.

When we are dealing with a probation or parole violation based on a subsequent conviction, we are dealing with something that this Court has recognized is factually conclusive.

In fact, language has been used by this Court that the result of these hearings will essentially be predictive or probable.

We are talking about a fact which is established not by the testimony of witnesses or by plenary proceedings, but by the simple presentation of a subsequent conviction, a certified judgment of conviction which will in essence prove the fact without more.

We don't feel that we are urging a restrictive view.

We feel that we are urging a view which frankly was the prime concern of the framers of this statute.

In Mauro this Court cited the findings of the Joint Committee on Detainers, and they set forth essentially five guidelines, four of which are relevant for this Court and for this determination.

And in each of those four guidelines save one, they were concerned about the validity of the detainer initially, detainers... they used language "detainers based on suspicion".

They used language about the validity of the charge.

They used language which in essence said we cannot have detainers which may not be valid affecting prisoners.

So, their primary concern was to eliminate detainers or to establish the validity of the detainers, and that is not implicated by probation or parole violations based on subsequent convictions.

That issue has essentially been determined by the subsequent conviction.

That is the theme that runs through the joint committee's concerns which later become relevant to the Council on State Governments when they actually draft the statute.

In fact, turning to the Council on State Governments, we see language there that their concern is uncertainy, anxiety, apprehension on the part of the various prisoners involved, and in the first instance it is the issue of validity of the detainer.

The effect on the prisoners only becomes relevant when the validity cannot be established.

Once the validity is established, then we have certainly reduced, if not eliminated uncertainty.

The anxiety is certainly eliminated.

The apprehension is eliminated.

The validity has in fact been established.

In fact, this Court in Moody versus Daggett went to some lengths to discuss the practical impact of having a speedy adjudication of probation and parole violations.

The prisoner who is involved with a probation or parole violation will not be benefitted by a speedy adjudication of the violation, because since we are talking about subsequent convictions, what is most critical to the prisoner involved is to have a record which will justify a finding by the appropriate agency that they can live in society crime-free or not involved with criminal activity, that they have in fact been rehabilitated.

And certainly if they had a quick adjudication of the subsequent conviction, what the parole board will have before it or the judge hearing the probation violation is a subsequent conviction which will in effect establish that they cannot live in society without the element of crime involved.

We feel that the testing issue, the issue of validity was of prime concern to the joint committee in the first instance, and certainly the counsel as well, and what must not be forgotten is that if there is a quick adjudication of the parole violation or the probation violation, the defendant will return to the prison system with a detainer.

It will be the second of the three detainers which I alluded to earlier.

It will be a detainer based on a sentence.

So if it is a consecutive sentence, there will be a detainer.

If there is a concurrent sentence, there will be a detainer, and the respondent's brief makes no distinction between these various detainers, and we must assume whatever impact a detainer may have on this particular prisoner will continue.

We look lastly to the Congressional legislative history, and I recognize that this Court has indicated that this is history after the fact, if you will, because this history is generated by Congress in 1970, some 13 years after the statute was passed, but it is relevant to examine what Congress's concerns were as they enacted this statute, and the issue that they addressed directly is the issue of speedy trial.

And it is the issue that was generated by this Court's decision in Smith versus Huey as we examine the Senate proceedings, as we examine the House proceedings, as we examine Senator Pruska's comments.

We notice that at the forefront of all of the commentary is the issue of speedy trial, and that was the preliminary issue that Congress was concerned with, a speedy adjudication of the outstanding criminal charges pending against the defendant, and what is not implicated when we deal with parole and probation violations is speedy trial.

Where there is a subsequent conviction, as I have indicated earlier, the matter is predictive and probable.

There is no issue of witnesses dying or becoming unavailable to the defendant.

There is no issue of memories fading.

There is no issue of changed perceptions.

There is no issue of defendant's access to witnesses.

There is in fact no issue of prejudice to the defendant in a speedy trial context.

What is required is a simple five-minute hearing and the presentation of a certified judgment of conviction, and I note further that the language that this Court used in its decision in Smith versus Huey talks about the issue of anxiety, apprehension, and uncertainty, and it was directed to the issue of speedy trial.

The statute was not intended to grant a new speedy trial right based on probation and parole violations.

In fact, the explicit language of the statute adopted by the states was that the statute shall not create any new substantive rights, and by determining that this statute does in fact apply to probation violations or parole violations, as was the Third Circuit's decision, it created a new right, not yet known.

There was a concern in the Third Circuit's opinion about technical violations.

In fact, the Third Circuit went to some lengths to discuss the issue of technical violations, yet technical violations are not involved here.

In two cases decided in the various states, there is in fact a technical violation, in both cases, its failure to report, and yet as you closely examine those decisions, you will find that the failure to report is a failure to report based on the subsequent conviction.

Again, since the IAD is only triggered when there is a conviction and there is a sentence in another state, there will always be available to the violating agency a subsequent conviction which will generate a probation or parole violation.

There has been a great deal raised certainly in the Third Circut opinion which the Third Circuit candidly indicated was based solely on policy, that the effect on prisoners is the key area of focus.

We submit it is not.

In fact, as you can see from the appendix which was filed on behalf of the Department of Corrections, the effect of detainers on various Prisoners becomes a matter of prison administration rather than some of the areas that were referred to in Cooper versus Lockhart.

And there is one area that cannot be left without some discussion, and that is the area of the effect of holding that probation or parole violations apply to the states, and that is the area of cost.

As the amicus brief filed by the 38 Attorneys Generals, the 38 states in support of our position indicates, there are approximately 15,000 parole warrants now listed on the National Crime Information Center.

There are 27,000 probation warrants listed on the NCIC.

Now, we are not indicating that all of these warrants will be involved in subsequent convictions and be directly applicable here.

However, as the appendix and the affidavit file by the State of New Jersey indicates, the cost may range in excess of $2,000 to bring these prisoners back, and that is a serious consideration, and it obviously was a serious consideration when the various legislators throughout the United States passed this statute.

We urge that upon a clear reading of the language in the statute, combined with an analysis of the legislative history, that the position that is espoused by the state of New Jersey that this statute does not apply to probation and parole violations is the correct one.

We would urge that this Court reverse the determination of the United States Court of Appeals for the Third Circuit.

Thank you.

Chief Justice Burger: Mr. Burke.

ORAL ARGUMENT OF JOHN BURKE, III, ESQ., PRO HAC VICE, ON BEHALF OF THE RESPONDENT

Mr. Burke: Mr. Chief Justice Burger, and may it please the Court, the first remark I would like to make is that I believe the prosecutor has mischaracterized the question that is presently pending before the Court.

He seems to think that this Court needs to decide whether probation and parole violation detainers come within the scope of the Act.

That is simply not true.

The Third Circuit decision upon which certiorari was granted specifically limited its holding to probation violation complaint because of the unique characteristics of a probation violation complaint when compared with the policies and terms of the Act.

The split in the circuit of decision upon which certiorari was granted in this case between the Ninth and the Third Circuit therefore is merely based upon the decision to hold a probation violation complaint comes within the terms of the Act, so in construing this case, this Court need not consider probation and parole violations taken together.

Even though this Court has recognized that there isn't a constitutional significance between the two when the Court is determining a legal issue for purposes of deciding this case, there are practical distinctions between the two that make one much more amenable to applications of the Act than the other.

This case juxtaposes the prisoner's interest in the opportunity to participate in rehabilitation programs while serving the prison sentence against the state's interest in depriving the prisoner of those opportunities because it has lodged a detainer against him.

More specifically, it requires the question of whether a prisoner against whom a probation violation detainer has been lodged can demand a prompt probation revocation hearing under Article III of the Interstate Agreement on Detainers.

That question turns on whether a probation violation complaint can be considered an untried complaint within the meaning of the operative phrase of Article III.

A review of the statutory language itself, the legislative policies, and the legislative history compel the conclusion that a probation violation complaint is an untried complaint within the intentment of Article III, and that a prisoner has a statutory right to a prompt revocation hearing.

It is a fundamental canon of statutory construction that a statute must be read as a whole, and that no individual part of a statute can be read in isolation.

When Article III is read against the other relevant provisions of the statute, it is absolutely clear that a probation violation complaint is an untried complaint within the meaning of Article III.

Article I, which sets out the agreement's very broad purposes explicitly applies the agreement to all charges outstanding against a prisoner, since a violation of probation... since a charge based upon a violation of probation is a charge outstanding against a prisoner in the purest sense, it is encompassed within Article I of the agreement.

Furthermore, Article IX of the agreement mandates that the terms of the statute be construed liberally to effectuate its purposes.

The main purpose of this agreement which is evident in the decisions of this Court and in the legislative history is to dissipate the adverse effects of detainers upon prisoners and upon correction officials.

Since a detainer base upon a probation violation charge causes the same adverse effects as a detainer based upon any other charge, it must come within the terms of the agreement.

Any other statutory construction leads to absurd results, completely disregards the governing articles, Article I and Article IX, and defeats the very purposes for which the statute was drawn.

Also, a complaint, unlike an indictment or information, doesn't have a static, fixed meaning.

A complaint is simply--

Unidentified Justice: Mr. Burke, I notice you use the phrase or term "complaint" in describing these documents that are filed to revoke probation.

Mr. Burke: --Yes.

Unidentified Justice: I am not sure what all states use by way of terminology, but it appears that many of them refer to it as a warrant or a motion and don't call it a complaint to revoke probation.

Does your use of that term reflect some broad utilization across the country?

Mr. Burke: Well, all of the cases that I have read have indicated that the courts generally do file a complaint against the probationer.

I think--

Unidentified Justice: I just have never heard the term used before, and I didn't know how broadly--

Mr. Burke: --Well, the term was used... the term "warrant" was used in Hopper, which is a parole revocation case, not a probation revocation case.

All of the cases that have been decided in the state courts, the district levels and circuit levels have unanimously used the word complaint, and a complaint is simply a statement of charges against an accused.

In that sense, a complaint based upon a charge of a violation of probation is a complaint within the general definition of the word.

It is untried because a final judgment has not yet been entered, and the underlying charge has not yet been tested.

Unidentified Justice: --In these cases you refer to, who has filed the complaint, the prosecutor?

Mr. Burke: Well, the prosecutor, the prosecutor files the complaint, but the proceeding is a judicial matter.

Unidentified Justice: Yes.

Mr. Burke: The proceeding is handled by a court which makes application of Article III of a probation violation detainer amenable to the provisions of the Act.

I am specifically referring to the notice requirements, where the prisoner is required to notify both the prosecutor and the court in a jurisdiction where the charge is pending.

Unidentified Justice: Was there a complaint in this case?

Mr. Burke: Yes, there was.

There was a complaint based upon the arrest in--

Unidentified Justice: Something called a complaint.

Something called a complaint.

Mr. Burke: --Yes, probation violation detainer.

Underlying that is a complaint that the probationer had violated the conditions of his probation in this case by being arrested in Pennsylvania.

Unidentified Justice: Is that complaint in the record?

Mr. Burke: Excuse me?

Unidentified Justice: Is that complaint in the record?

Mr. Burke: It is in the record, but it is not in the papers before this Court.

Unidentified Justice: Was it a formally styled complaint?

Mr. Burke: What do you mean by a formally styled complaint?

Unidentified Justice: Was it labeled "Complaint"?

Mr. Burke: Yes, they are labeled complaints.

Unidentified Justice: Was it in this case?

It was labeled a complaint.

Mr. Burke: I believe it was labeled a complaint.

Unidentified Justice: Well, can you say for sure that it was?

Mr. Burke: I can't... I would have--

Unidentified Justice: Isn't the entire record up here?

Mr. Burke: --I don't believe that the initial complaint was reproduced in the appendix.

Unidentified Justice: Well, maybe not in the appendix, but the--

Mr. Burke: Or in the papers that are before this Court.

I do not have a copy of the complaint in my papers.

Unidentified Justice: --Do you want us to rely on the complaint?

Mr. Burke: Well, the... I really--

Unidentified Justice: Do you want us to rely on it?

Mr. Burke: --Do I want you to rely on the representation that the prosecutor filed a complaint against the defendant in this case?

Yes, sir.

Unidentified Justice: Well, shouldn't you let us see it?

Mr. Burke: I will provide the Court with a copy of it as soon as I get it, but I can't--

Unidentified Justice: Provided the other side agrees.

Mr. Burke: --Well, if the Court feels it is necessary for its decision--

Unidentified Justice: I am not... you are handling your own case.

I want to know, do you think I can rule on whether this is a complaint or not without seeing it?

I guess, take your word.

Mr. Burke: --I will provide a copy of the original paper with the Court.

I can't provide the Court with it now because I don't have it.

But I am representing to you that the original charge was filed within the term of a complaint, and the complaint charged that the probationer, Richard Nash in this case, had violated a term by being arrested in Pennsylvania.

Unidentified Justice: Mr. Burke, would your position as you view it be seriously impaired if it turned out that the revocation proceeding was instituted by a document that was not labeled complaint but was labeled something else?

Mr. Burke: No, I don't feel that that is critical to the case.

I do believe that it was called a complaint in this case, but if it wasn't so labeled, it would be the functional equivalent, and I still think that would bring it within the statutory language, because it implicates all of the policies of the Act.

Unidentified Justice: You think that what was filed here was called a warrant?

Mr. Burke: No, I don't.

I believe it was called a complaint, and that is the ordinary manner in which probationers are notified of a violation within the state of New Jersey.

Although I can't produce the document for the Court now, I can safely represent to the Court that it was a complaint, a narrowly--

Unidentified Justice: Mr. Burke, may I ask you one other question?

You referred to Article I, which uses the language, "charges outstanding against a prisoner".

Mr. Burke: --Yes.

Unidentified Justice: And it goes on,

"detainers based on untried indictments, informations, or complaints."

Do you equate the words "charges outstanding" with the words

"indictments, informations, or complaints?"

Mr. Burke: I don't identify the two as referring to identical instruments.

Unidentified Justice: Which is the broader concept?

Mr. Burke: The broader concept is all charges outstanding against a prisoner.

Unidentified Justice: But Article III then uses the narrower concept.

Mr. Burke: Yes, but you can't subordinate the rest of the statute to Article III.

Unidentified Justice: But what is relevant about what is in Article I if you say it has a different meaning from the words in Article III?

Mr. Burke: I don't believe that it does have a different meaning.

I believe that the meaning evident in Article I is incorporated in Article III.

Unidentified Justice: Let me go through it again.

Do you contend the words "charges outstanding" are equivalent to the other three terms or broader than the other three terms?

Mr. Burke: I believe that the two phrases are self-evident.

I believe that--

Unidentified Justice: Well, which... do you think they are equivalent, or is one broader than the other?

Mr. Burke: --I believe that one is broader than the other.

Unidentified Justice: "Charges" is broader than the other three?

Mr. Burke: But I also believe that you cannot interpret this statute by looking only to the provision of the statute which is used to execute its purposes.

Article I sets out--

Unidentified Justice: I am looking at Article I.

What enlightenment should I get out of Article I then?

Mr. Burke: --I think Article I explains that the legislative intent is to have the Act apply to all charges outstanding against a prisoner.

I don't think you can therefore look to th executing provision of the statute to determine the entire scope of the agreement.

I mean, I think it is self-evident that Article III was intended to be subordinate of Article I and Article IX.

Also, if you were going to strictly construe the statute, and hold that it only applies to untried indictments, informations, or complaint, you are excluding presentments and accusations, which are the functional equivalents of indictments and informations.

So, even an advocate of the strict position would not countenance that result, because in effect you would be excluding from the scope of the Act the same charges which essentially underlie an indictment or information but happened to--

Unidentified Justice: But does that really follow?

Couldn't you say those three words and their functional equivalents are covered by Article III, but a probation violation charge is not a functional equivalent?

Mr. Burke: --I don't think it is necessary to do that.

Unidentified Justice: It is not necessary, but one could logically do it.

Mr. Burke: Yes, but I think the term "complaint" is broad enough to encompass a probation violation complaint, especially when it implicates all of the policies of the Act and would attain all of the benefits to be conferred upon both the prisoner and the correction official, the prosecutor and society.

I don't see why one needs to make that fine a distinction.

Unidentified Justice: The complaint is also the way you institute a civil proceeding in many states.

I would think it is something of a mistake to start getting bogged down in the procedural name that various states give to the institution of a particular phase of a criminal proceeding, because certainly if one particular state used something in a parole revocation or probation revocation that was neither a complaint or an indictment or anything mentioned in the statute, if we concluded that those were covered by the statute, certainly that state wouldn't be immune just because it gave the proceeding a different name.

By the same token, I would think that the fact that this was a complaint and New Jersey uses a complaint to revoke... what was it, probation?

Mr. Burke: Probation.

Unidentified Justice: Probation, doesn't mean you are home free.

The basic question is, are we talking about criminal offenses triable by a jury, or are we talking about other sort of proceedings that could have an effect on a person's record?

Mr. Burke: I think we are talking about... we are talking about resolving those detainers which implicate the policy of the acts and cause the adverse effects to be placed upon the prisoner, and those charges which are open and pending against the prisoner are the ones encompassed by the statute.

So, I don't think you need refer to the idiosyncratic language that may be used by the various states, and again, I reiterate that the term "complaint" is extremely broad, and under that definition of complaint the only one that could possibly be given to it, it must encompass a probation violation complaint.

Unidentified Justice: But I don't understand your opponents to say that a complaint couldn't possibly embrace this sort of thing.

I understand them to say that perhaps that is one of their arguments, but the other arguments are that it is basically... the IAD deals with the disposition of outstanding criminal charges and need to be tried the way an ordinary criminal case is tried.

Mr. Burke: No, that is an incorrect characterization of the statute.

Unidentified Justice: I realize that, but I think... I don't doubt you have a response to it.

But I think it would be desirable to hear the response as well as deal with all the idiosyncracies as you mentioned.

Mr. Burke: Well, that question, statement, observation you made assumes that the sole function of the statute is to effectuate speedy trial rights and an analysis of the legislative history, and an analysis of the constitutional right to a speedy trial shows that that is not the case at all.

At the time this statute was drafted, this Court had not yet recognized an application of the federal constitutional right to a speedy trial to the states.

That did not occur until 1967 in Klopfer versus North Carolina.

In the same respect, this Court did not apply the principle in Klopfer to incarcerated stated prisoners until 1970 in Smith versus Huey.

This statute was written in the early 1950's.

Although there is an indication in the legislative history that speedy trial rights were of some concern to the drafters, the overwhelming evidence indicates that the sole purpose of this agreement was to reduce the adverse effects of detainers upon the prisoner and prison officials.

I don't read the legislative analysis in Mauro to reach a different conclusion.

In Mauro, this case essentially held that the primary purpose of the detainer act was to remove the onerous conditions that the detainer imposed upon the prisoner.

So, therefore the argument that the statute was enacted to effectuate speedy trial rights has no basis in historical reality.

Also, four years after the federal government adopted this agreement, it also adopted the Speedy Trial Act of 1974.

If Congress thought that this statute had in effect protected the speedy trial right considerations of the prisoner, it wouldn't have passed that Act four years later.

Also, the Congressional legislative history in this statute--

Unidentified Justice: The Speedy Trial Act passed by Congress covered federal proceedings, didn't it?

Mr. Burke: --Yes, but the federal government is a party to this agreement.

Also, one last remark on the speedy trial rights argument.

The statute does not place an affirmative duty on the prosecutor to bring the charge to a conclusion.

The statute would permit the prosecutor to have the detainer languish throughout the duration of the prisoner's sentence.

That can be for as long as 10 to 20 years, so that undercuts any sort of argument that this statute, it protects speedy trial rights.

It doesn't protect them at all.

Rather, it is a mechanism by which to transfer prisoners from one jurisdiction to another for resolution of detainers, and it implicates all of those detainers that give rise to the adverse effects which were recognized by the drafters at the time the Act was written.

Those adverse effects were that it effectively denied the prisoner an opportunity for a concurrent sentence, that it generally resulted in a classification as a maximum security risk, that it left him ineligible for work release and study release programs for preferred living quarters, for preferred work assignments.

In addition, it induced within the prisoner--

Unidentified Justice: Mr. Burke, may I just interrupt you with regard to the policy?

That is, of course, true with regard to untried charges where you don't know whether the man is guilty or not because the facts haven't been developed.

Do those policy considerations have the same force in the case which your opponent says is typical... I don't know if that is right or not... but in which there has already been a conviction of the basic finding of whether he performed the harmful act or not.

The only question in most cases is whether it is going to be used to justify revocation of his probation.

But when you know what the facts are, are the policy considerations quite the same as with regard to untried charges?

Mr. Burke: --Absolutely.

The policy considerations are not based upon an adjudication of innocence or guilt.

They are based upon the fact that there is uncertainty as to the prisoner's future release date.

That is the entire underlying rationale for imposing the restrictions upon the prisoner.

It is not because one has not yet adjudicated factual innocence or guilt.

So therefore that concern, the fact that there is uncertainty about the prisoner's future release date, is as applicable to probation violation detainers as to those based upon completely untried charges.

The rationale is, not knowing the eventual release date of the prisoner, the prison administrator is in no position to design a program of treatment which would effectively address that particular prisoner's needs.

So, once a probation revocation hearing was held and either probation was not revoked because there is nothing to inhibit the discretion and report in spite of a presumption in the face of a--

Unidentified Justice: What do you say to their argument that if it is done properly, the probability in most cases would be a revocation.

It is established as a matter of fact since he has been convicted in the jurisdiction which is being detained that he did commit the crime, and so the only question is a matter of discretion, shall I decide not to--

Mr. Burke: --There is partial truth to that statement.

I believe that the presumption in many cases would lead to a revocation, but that is not the only issue involved here.

It is also a disposition, and there is absolutely no--

Unidentified Justice: --If you had a prompt revocation, would they not also a as matter of precaution impose some kind of a sentence on the original charge, presumably, which would at least make uncertain the eventual release date?

Mr. Burke: --They may impose, for example, a concurrent charge... concurrent sentence, which would obviate the need for imposing the restrictions based upon the information I just discussed.

Unidentified Justice: Except that what they are sentencing him on is the underlying charge rather than the second violation.

In other words, if the underlying charge was quite a serious charge, and then a rather minor matter led to the revocation, they aren't necessary equivalent by any means.

Mr. Burke: Well, the sentencing is upon the original charge for which the probation was eventually given, yet I don't see how that is dispositive of the issue in this case at all, but rather the sentence that would be imposed by the court even in the event of revocation could in many instances lead to a disposition that would under the terms of this Act be favorable to the prisoner.

So, in most cases that is going to be the interest of the prisoner most at stake.

If the prisoner were given a concurrent sentence, obviously it establishes a certain release date for the prisoner and undercuts all the reasons why he is not getting the opportunity to participate in rehabilitative programs and the other amenities and privileges which are accorded other inmates.

Also, if a consecutive sentence--

Unidentified Justice: Well, the fact that it is concurrent doesn't necessarily mean the two sentences expire on the same day.

The first crime may have been a more serious crime or less serious, either way, and the fact they are running concurrently I don't think necessarily tells you when he is going to be eligible for release on the other charge.

Mr. Burke: --Well, but it would establish a release date when both charges are taken together and sentences are aggregated.

Unidentified Justice: Suppose after probation is revoked he gets a sentence on the other charge of from five to ten years, something like that.

You just have a range of dates when he may be released.

You don't have a certain date necessarily.

Mr. Burke: Well, I believe that would establish enough certainty to persuade prison officials not to impose some of the restrictions that it does, and also there is no reason to assume that in all cases the sentence imposed will be for a range.

You might in some instances receive a specific determinant sentence which would definitely establish a certain release date.

Even were the sentence on the probation revocation charge to be imposed consecutive to the out-of-state term, if it were of such a short duration, nonetheless the prison officials where the prisoner is serving his out-of-state sentence might nonetheless under those circumstances, knowing the nature of the sentence, remove the restrictions against the prisoner and thus attain all of the legislative policies to be accomplished by the Act.

The relevant legislative history is contained in documents prepared by the Council of State Governments.

The most telling piece of legislative history is the 1948 report issued by the Joint Committee on Detainers.

That report can only be described as absolutely sweeping.

It encompasses every detainer, every charge pending against a prison based upon a detainer.

It was the thinking of that Committee that all charges pending against a prisoner should be resolved promptly.

That same committee, although reconstituted under the Council of State Governments, was later responsible for actually drafting the Act.

There is nothing in the legislative history to suggest that they meant to limit in the drafting of the agreement itself the purposes which were set out in its earlier report.

Unidentified Justice: You made the comment earlier, Mr. Burke, that a lot of things had changed in the field of constitutional law since the adoption of the IAD.

Certainly in the field of probation revocation, a lot has changed, too, has it not?

Would the people who made this legislative history back in 1948 necessarily have contemplated the sort of structured revocation hearing with personal presence and so forth that we now have because of cases from this Court?

Mr. Burke: They might not have, but that still is no reason to presume that they would not have intended the Act to apply to probation violation detainers.

Their primary concern was with the disposition of the detainer and the dissipation of the adverse effects.

I don't think that because of this Court's decision, for example, in Gagnon, which establishes the structure of the hearing to be given a probation violator, that that in any way is not compatible with an application of Article III to probation violation detainers.

It seems to me that the state's argument is basically an attempt to eschew its responsibilities under the agreement.

The state never needs to impose a probation violation detainer in the first place.

It can always use extradition to get custody of the prisoner to prosecute its charge.

But once it files the detainer against the prisoner, knowing full well the adverse negative effects that the detainer has upon the prisoner, upon the correction official, it should not be able to escape its obligations and deny the prisoner a prompt revocation hearing in these cases where the prisoner would want one.

Such an argument was rejected by this Court in Mauro.

Also, in Mauro, under the test used to define a detainer, a detainer based upon a probation violation complaint falls within the parameters of the definition used in Mauro because it has the property of being able to linger against the prisoner for the duration of the term and implicates all of the policies of the Act.

To decide in this case that the detainer is not a detainer recognizable under the Act would be rejecting the underlying rationale and system of thought which supported Mauro.

Lastly, the application of Article III to a probation violation detainer should not be seen as a loophole for the prisoner, but rather it confers a benefit upon the prisoner, upon the prosecutor, and upon society.

I have explained the benefits to be received by the prisoner.

The benefits to be enjoyed by the prosecutor are improvements in the efficiency of prosecuting its charges and facilitating its affirmative duty not to allow state charges to linger unresolved against an out-of-state accused.

Unidentified Justice: Mr. Burke, may I ask you just one other question?

At the beginning of your argument, you emphasized the point that this is a probation case and not a parole case.

Mr. Burke: Yes.

Unidentified Justice: And I notice the legislative history that you call our attention to, you have italicized in your brief, refers to parole violations but doesn't mention probation.

Mr. Burke: The legislative--

Unidentified Justice: I wonder why you distinguish between the two so emphatically.

Mr. Burke: --Yes, but the legislative history of the 1948 report applies to all charges.

Unidentified Justice: You refer to a local prosecutor, a state prison, a parole board, or a federal official.

Mr. Burke: Well, a local prosecutor is the one who files the probation violation complaint.

Unidentified Justice: And prison and parole authorities.

But do you think... I am just not quite clear on why you emphasize the distinction between parole and probation.

Do you think they are different, or do you think they are both--

Mr. Burke: I think they are different for resolution of this case in two respects.

The notice requirements of the statute aptly apply to probation violation detainer.

That is, the prisoner notifies the prosecutor and the court that he wants his probation revocation hearing.

In most states the officials in charge of adjudicating parole revocation proceedings are not the court or the prosecutor.

It is generally a state parole board.

Therefore, the statute does not apply so readily in that context.

I am saying that this Court need not also... the discretion that can be exercised by a court is much broader than that which can be exercised by a parole board, which is generally governed by statutory law.

The same is not true of the discretion of a court.

Lastly, as--

Chief Justice Burger: Your time has expired, counsel.

Your time has expired.

Do you have anything further, Mr. Carchman?

ORAL ARGUMENT OF PHILIP S. CARCHMAN, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Carchman: Mr. Chief Justice, I will be very brief.

The record is in fact complete, Justice Marshall.

Page 55 of the appendix does indicate that first of all the document which was used in this case was found by the trial judge to be designated a probation violation complaint.

We urge, however, that this case does not turn on the particular terminology used by a jurisdiction as to how the matters are started.

Secondly, and perhaps more important, Page 55 of the appendix indicates that it was not the prosector that commenced this action, and that is critical.

It was the Mercer County Probation Department, an arm of the court, which initiated these proceedings.

Secondly, in reference to--

Unidentified Justice: May I ask on that, just to follow up on the thought with your opponent, the material he quotes at Page 17 of his brief, which does say prison and parole authorities should take prompt action to settle detainers... this was back in '48... isn't that persuasive against you, the fact that they were thinking about parole violations and probably a fortiori, it would seem, probation violations?

Mr. Carchman: --There is reference in that guideline to parole violations.

There is, however, contained in the next sentence in that guideline or the next two sentences references to notice should be made as to whether the parole officer will allow current, et cetera.

That was something that, as you will see as you examine the counsel history, and the language of the statute was never adopted, and there was concern initially with the joint committee on the issue of... or they did mention parole, but again, what is thematic about that joint committee history is the constant repetition of validity, the constant concern that these detainers have some validity, and that is an issue which is resolved in this particular case.

Justice Stevens, there was a question that you inquired about in the term "outstanding charges".

My colleague refers to the expression "all outstanding charges".

As you examine Article I, you will not find the word "all" contained in that article.

The assumption or the insertion of the word "all" is something which is beyond the scope of Article I.

Article I was merely a statement.

It does not amount to a definition.

The last point which I indicated earlier must be mentioned in response to Mr. Burke's comments is the fact that whatever sentence is imposed, and I just note for the Court that under New Jersey state law a parole revocation involves a presumption of a consecutive sentence as opposed to a concurrent sentence, and moreover, in response to the issue as to whether the parole board or the probation department must file a revocation proceeding, it might be considered a breach of duty if they failed to do so and file the appropriate warrant and lodge a detainer.

The prisoner will return to the jurisdiction with a detainer, and whatever negative implications follow from a filed detainer with prison authorities, those implications will follow the prisoner back to the sending state after the adjudication of a parole or probation violation.

I think that is a key reason why the states and the Congress did not intend that these matters be adjudicated in the manner suggested by the respondent.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Cuyler v. Adams - Oral Argument

Wed, 18 Feb 2009 06:13:05 +0000

Case:

Cuyler v. Adams

Media File:

78-1841_19801007-argument.mp3

Related Transcript:

78-1841_19801007-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF MS. MARIA PARISI VICKERS ON BEHALF OF THE PETITIONERS

Chief Justice Burger: Ms. Vickers, you may proceed whenever you're ready.

Mr. Vickers: Mr. Chief Justice, may it please the Court:

This case arises in the context of the Uniform Extradition Act and the Interstate Agreement on Detainers, both interstate compacts which have been adopted by the overwhelming majority of the states.

The issue before the Court involves the interrelationship of these two important compacts as they affect the interstate transfer of a prisoner who has a detainer lodged against him and who is sought for trial on criminal charges in another state.

Unidentified Justice: Ms. Vickers, isn't there some question as to whether this is actually a compact or not?

Mr. Vickers: The detainer agreement, Your Honor?

Unidentified Justice: Yes.

In view of the language in the Multistate Tax Commission case saying that unless the agreement between the states is one which would alter the balance of power within the Union, it may not be a compact.

Mr. Vickers: Your Honor, I believe that this is a compact, rather an agreement entered into by party states.

Unidentified Justice: But is any agreement entered into by party states necessarily a compact?

In the Multistate Tax Commission case, there was certainly an agreement entered into by a number of states, and I believe it was held it was not a compact.

Mr. Vickers: Your Honor, I must say that I have not focused on that issue and I apologize.

Unidentified Justice: If it isn't, I suppose it would follow that there is some considerable question about whether or not there is a federal question here.

Mr. Vickers: Your Honor, the 3rd Circuit relying on this Court's decisions found that there was a question of federal law and that it is a--

Unidentified Justice: I know.

The Court of Appeals of the 3rd Circuit did so.

The case is now here.

Mr. Vickers: --And it is a compact.

They found it to be a compact.

Your Honor, I don't believe that this Court has ever passed on this specific issue as far as the Agreement is concerned.

Unidentified Justice: Certainly a uniform state act, even though the same act has been enacted by the legislatures of 50 states, is not a federal question.

That's still a question of state law, even though the law is identical in each of the 50 states, isn't it?

Mr. Vickers: Your Honor, it might be a question of state law.

However, a federal interpretation would govern because it is a compact.

Unidentified Justice: Even though... let's assume that there's an identical federal law.

If you apply it within a state, it's still a matter of state law, isn't it?

Mr. Vickers: I would agree that simply because the United States has adopted the agreement doesn't automatically make it a federal law.

However, if the agreement is one which has been sanctioned by Congress... and here I believe the sanction by Congress was given prior to the enactment of this agreement... then I believe that federal interpretation would be binding on the states.

Unidentified Justice: The Court of Appeals certainly held that.

Mr. Vickers: Yes, Your Honor.

Unidentified Justice: So you have support for your position.

Mr. Vickers: I do not differ with that position, Your Honor.

Your Honor, the factual and procedural posture of the case is briefly summarized.

Respondent is a inmate confined in a Pennsylvania prison who was wanted for trial on criminal charges in the State of New Jersey.

He was being sought pursuant to the interstate agreement on detainers, and he alleges that this transfer under the Agreement rather than under the Uniform Extradition Act violated his constitutionally protected rights in two ways.

One, the failure to advise him of his right to petition the Governor of the sending state to review the custody request, and secondly, the absence of a pretransfer hearing violated his right to due process.

And secondly, the fact that the state did not provide him with a pretransfer hearing as in the case of a transfer under the Extradition Act deprived him of the equal protection of the laws.

The district court dismissed the complaint for failure to state a claim upon which relief could be granted.

An appeal was taken to the 3rd Circuit and that court held as a matter of statutory construction, never reaching the federal issues, that Article IV(d) of the Agreement preserves a prisoner's existing procedural rights under the Extradition Act, Section 10 more specifically.

Unidentified Justice: Which was exactly contrary to the interpretation of the Pennsylvania state court, wasn't it?

Mr. Vickers: That's right, Your Honor.

Your Honor, in reaching their decision the appellate court relied on the language of Article IV(d) which states that the Agreement does not deprive a prisoner of any right which he may have to contest the legality of his delivery, as provided in paragraph (a) hereof.

However, nothing in the Agreement suggests that any right includes Extradition Act procedures, and it is our position that the language which I have just quoted refers only to the right to petition the Governor to disapprove the request of the prosecutor for temporary custody.

Similarly, the Court of Appeals relied on the commentary by the Council of State Governments to Article IV(d).

And here again they relied on language concerning extradition.

But here extradition was not defined in terms of the Extradition Act.

Therefore they relied on a commentary which was in itself ambiguous and unenlightening.

They also pointed to language in Article III(e) to the effect that a prisoner who himself requests final disposition on outstanding charges waives extradition.

Again, Article III does not define extradition, and there was no necessity for the framers of the Agreement to define extradition here since extradition was being waived.

So reference to Article III(e) language is also unenlightening.

Your Honor, this Court has defined extradition in its cases, and the Extradition Clause of the U. S. Constitution and its implementing legislation do not define extradition in terms of a pretransfer hearing.

So it would seem to us that it is unreasonable to assume that every time the word extradition is used a pretransfer hearing is implied.

Neither the Extradition Clause nor the federal implementing legislation nor the definition of this Court of the term "extradition" would imply a pretransfer hearing.

Your Honor, we would submit that the Court of Appeals' interpretation of Article IV(d) is not only against the clear and literal reading of the statute itself but it goes against the purpose of the Agreement.

And Article I, the last sentence of Article I, states that it is the purpose of the Agreement to provide cooperative procedures.

The Article had been talking of the need to have cooperative procedures when there is an interstate transfer of prisoners and the framers clearly said,

"It is the purpose of the Agreement to provide such cooperative procedures. "

This language indicates that the framers intended to provide specific mechanism for these transfers; it was an affirmative statement that they were to provide certain procedures to accomplish what was to be the expeditious and orderly disposition of outstanding charges.

If the framers had not intended to set out a complete self-contained system, a complete procedure within the four corners of the Agreement, I think that they would have so specified.

They would have set out a particular procedure and they would not have stated in Article I that it is the purpose of the Agreement to provide the procedures.

So I believe that the interpretation of the Court of Appeals for the 3rd Circuit goes against the clear intent set out in Article I of the Agreement.

Unidentified Justice: Ms. Vickers, could you help me with one question?

Under your view of the Interstate Agreement on Detainers, how does the prisoner know that he has a right to file a motion with the Governor within that 30-day period asking that he not be transferred?

Mr. Vickers: Your Honor, the statute itself does not provide that he be advised.

However, the forms which have been adopted by all of the states for the promulgation of the procedures within the Agreement advises the prisoner when a detainer is lodged against him that he has several options.

A detainer has been lodged against him and he may under Article III proceed to seek final resolution of the detainer, or under Article IV... and they give the procedures to be followed.

Unidentified Justice: Was this particular respondent given that form?

Mr. Vickers: Your Honor, the record does not show either way.

Unidentified Justice: Because he alleges he did not know about his right to filing.

Mr. Vickers: Your Honor, he alleges, he discussed only the time frame from when the custody request was received by the state.

There is no discussion as to the detainer, when the detainer was first filed.

And I would submit, therefore, that the record is unclear as to whether he received notice of the filing of the detainer or Form 1.

Unidentified Justice: Whose burden would it be to show that he received a piece of paper that would tell him what his rights were?

Mr. Vickers: Your Honor, I think that the way the record stands at this point it's incomplete on that issue.

Unidentified Justice: But then don't we have to accept his claim that he didn't know about this right as probably a valid claim?

Mr. Vickers: Your Honor, normally I would agree with you but in this particular case I think that there is a lack of information on that point.

He speaks only of when the custody request was lodged.

He does not speak of any prior period of time.

He does not say specifically that he did not receive notice of a detainer.

The complaint doesn't say that.

Unidentified Justice: Well, but even if he had notice of the detainer, it wouldn't necessarily mean that he had notice of his right to make a request with the Governor within that 30-day period.

Mr. Vickers: Your Honor, as I was stating, when the prisoner receives notice of the detainer, he receives it through a form, Form 1.

Unidentified Justice: How do we know that?

Not that I don't have confidence in what you're telling me.

Is there anything in the record that explains that procedure to us?

Mr. Vickers: No, Your Honor.

Your Honor, to continue on the issue of the interpretation of the Article IV(d) by the 3rd Circuit, it appears that the 3rd Circuit interpretation would have us assume that every state which adopts the Interstate Agreement on Detainers has a Uniform Extradition Act.

And this is just not so.

There are still states which do not have that Act.

Therefore, it would be incongruous for a court to conclude that a prisoner has rights derivative from a statute which may not exist in a particular state.

On the other hand, the Court of Appeals decision may be construed as to mean that whatever statute on extradition exists in that state should be applied.

Well, Your Honors, if it please the Court, I would submit that that is an equally irrational result, because the Uniform Agreement on Detainers is supposed to be a uniform statute with uniform procedures throughout the country.

This is the intent of the framers, this is what is going to facilitate transfers.

And to have the result that the procedures are going to differ depending on the particular extradition statute in each state is simply absurd.

It defeats both the character of the statute in its uniformity, and it defeats the purpose of the Agreement itself.

Unidentified Justice: Yet, in the Uniform Commercial Code, in its early days, which was also adopted by a large majority of the states, the highest courts of various states interpreted various provisions differently.

Which were generally corrected, I think, by recommendations of the Uniform Conference on, Commissioners of Uniform State Laws.

But those were never treated as federal questions.

Mr. Vickers: Well, Your Honor, I think that the uniformity of the procedure here is strongly supported by the purpose enunciated in Article I of the Agreement, which is to provide the procedures to be followed.

Unidentified Justice: All uniform laws are supposed to be interpreted uniformly but lots of state courts just have come to different conclusions on rather difficult questions of statutory construction.

Mr. Vickers: Well, Your Honor, I think that the purpose of this Agreement, the enunciation by the framers, specifically states in Article I that cooperative procedures are going to be provided.

I think that that implies that they're going to be the same procedures.

Unidentified Justice: At some point, Ms. Vickers, before you complete, do you intend to address yourself to the question of mootness?

Mr. Vickers: Yes, Your Honor, we have--

Unidentified Justice: Do it in your own time.

Mr. Vickers: --Yes.

Thank you, Your Honor.

Your Honor, we believe also that the reliance placed by the Court of Appeals on legislative history is misplaced here.

However, we agree that legislative history may be consulted by the court when the language of the statute is unclear and when the legislative history would clarify the question.

Here that is just simply not so.

In fact, the interpretation given to IV(d) defeats the very purpose of the agreement, which is the expeditious and orderly disposition of detainers.

Unidentified Justice: But, Ms. Vickers, I'm a little puzzled on how you read IV(d).

What do you think IV(d) means?

Mr. Vickers: Your Honor, I think it means that the prisoner has those rights enumerated in Paragraph (a).

Unidentified Justice: Why do you have to say that?

I mean, if Paragraph (a) gives him those rights, do you have to put in another paragraph that says, this article doesn't take away the rights we just gave you?

Mr. Vickers: I think, Your Honor, that was... that is a clarifying reference and I think that it is not unusual in statutes to find--

Unidentified Justice: What are the rights that the prisoner gets in Paragraph (a)?

I don't find that he gets any rights in that--

Mr. Vickers: --Well, Your Honor, he has the right to petition the Governor.

He has the 30-day--

Unidentified Justice: --That's right.

That isn't spelled out here, is it?

There's nothing in here that says he has the right to do that.

It says the Governor has the right to withhold the transfer if he petitions.

Mr. Vickers: --That's right, if the prisoner petitions.

Unidentified Justice: But you say, you think Paragraph (d) was intended to preserve his right to petition the Governor?

Mr. Vickers: Both that and to give him an opportunity during the 30-day period to take whatever other action he might deem appropriate.

For example, the petition for writ of habeas corpus.

Unidentified Justice: Was that right given by Article IV(a)?

Mr. Vickers: No, it is not.

Unidentified Justice: That's a right that, if it exists, exists independently of IV(a).

Mr. Vickers: That's right.

Unidentified Justice: So as soon as you admit that that was intended to preserve that right, you're saying that Paragraph IV(d) is preserving things not granted by IV(a).

Mr. Vickers: Your Honor, I believe the right to petition for writ of habeas corpus is a right which cannot be abrogated by particular statute.

Unidentified Justice: You wouldn't need to put in Subparagraph (d) in order to preserve that right is what you're saying, then--

Mr. Vickers: That's right.

Unidentified Justice: --Then I find it difficult to understand what IV(d) accomplishes if it does not preserve rights that exist independently of the interstate Agreement on Detainers.

Mr. Vickers: Your Honor, I would agree that it preserves a right which is a fundamental right, a right which is not a matter of state law such as uniform extradition procedures would be.

But it would be a right which belongs to the prisoner because of constitutional provisions.

Unidentified Justice: Well, just to make it explicit, you then concede that Paragraph IV(d) preserves rights beyond rights which are granted in Paragraph (a)?

Mr. Vickers: Your Honor, within the framework of this statute, the only right which this particular statutory provision gives him is a right to petition the Governor, we believe.

However, this statute, taken as a whole, does not obligate the prisoner's rights that he may have to file a petition for writ of habeas corpus.

For any other--

Unidentified Justice: Or that right that he had before this agreement was adopted to have certain procedural protections in connection with extradition.

Mr. Vickers: --Well, Your Honor, I think at that point we are getting into reliance on another statute and then we have to look at the interrelationship between the Extradition Act and the Detainer Agreement.

And it is our position that the Extradition Act is a general statute which addresses the subject of extradition of any persons, and it focuses on the extradition of prisoners in a particular section but that focuses on both sentenced and unsentenced prisoners, whereas the Detainer Agreement specifically--

Unidentified Justice: I understand that, but would you agree that before the Agreement on Detainers was adopted, the prisoner had certain protections under the Extradition Act?

Mr. Vickers: --Yes, Your Honor, he did.

However, the protections that he had were possibly subject to modification by the executive authority under Section 5, Your Honor.

The executive authority of the state was free to enter into agreements for the transfer of prisoners, and I think there there's a possibility that under Section 5... I suggested that in my brief... the executive authority might enter into an agreement which would differ from the Extradition Act procedures themselves when dealing with a prisoner.

Unidentified Justice: May I ask whether the language... any right that the prisoner may have... couldn't refer to just any right under state law?

Mr. Vickers: Yes, Your Honor.

Unidentified Justice: It's not limited.

Mr. Vickers: Yes, Your Honor, it may.

However, when you have the general statute such as the Extradition Act and then the enactment of a specific statute such as the Detainer Agreement which focuses specifically on sentenced prisoners who have a detainer lodged against them, then I think the terms of the specific statute must control.

Unidentified Justice: Well, I'm not debating that point at the moment; there's not a word in the Detainer Act that refers to the Extradition Act, is there?

Mr. Vickers: I'm sorry, Your Honor?

Unidentified Justice: There's nothing in the Detainer Act, no specific reference, to the Extradition Act?

Mr. Vickers: No, Your Honor.

Unidentified Justice: So my question was whether or not the language that you have been discussing with Justice Stevens couldn't be construed simply as applying to whatever rights may exist under Pennsylvania law.

Mr. Vickers: Yes, Your Honor, that would be correct, except for the fact that the Detainer Agreement is a specific statute which deals--

Unidentified Justice: Well, I understand that.

Mr. Vickers: --And once, I think, you have the enactment of a specific statute which deals with the procedures to be had when a prisoner is transferred, those are the procedures which control.

And I believe that the language 30-day waiting period and the opportunity that the prisoner has to petition the Governor.

Unidentified Justice: There are really three ways to construe that language.

One is, it refers to Paragraph (a), the 30-day right.

That's your view.

Secondly, it could refer to any right given by state law except the Extradition Act.

And, thirdly, it could refer to any right given by other laws including the extradition right.

Those are the three alternatives.

Mr. Vickers: Your Honor--

Unidentified Justice: Your view, as I understand your brief, is it refers just to Paragraph (a).

Justice Powell has just suggested, well, maybe it refers to any right given by state law except the Extradition Act.

And your opponent argues the third alternative.

Mr. Vickers: --Your Honor, I believe that the interrelationship of the two Acts... and I apologize for repeating myself, but I do think that that, in my mind, that is the issue, the interrelationship of these two Acts, the purpose of the Extradition Act, the purpose of the Agreement on Detainers.

There's a general statute which gives particular rights to a class, and then there's a more specific statute which refines the class and mandates a certain procedure for that class.

Unidentified Justice: Then your view is that this language is so perfectly clear that we should not look at the legislative history that says it's not intended to waive the rights under the extradition statute?

Which the legislative history does say rather clearly.

Mr. Vickers: Well, Your Honor, the commentary does not say, under the extradition statute.

Unidentified Justice: Well, the extradition process, which are designed for the protection of prisoners.

Mr. Vickers: Right, Your Honor.

I don't believe that the extradition process clearly includes a pretransfer hearing.

The extradition clause in the federal implementing legislation certainly doesn't require a pretransfer hearing.

And there may be valid state laws which would not require a pretransfer hearing.

So I don't think that it's logical to assume that extradition process means a hearing.

That is our position.

Your Honor, if it please the Court, the consequences of the decision of the 3rd Circuit have some very, what we believe to be some unreasonable effects and consequences.

First of all, the decision provides greater procedural protections to a prisoner who is wanted for trial in another state than to the man on the street who is arrested on a Governor's warrant and is transferred to another state.

Because now you have in effect the procedures of both the Detainer Agreement and the Extradition Act which accrue to a prisoner, whereas the man in the street is simply protected by the Extradition Act.

I would submit that if there's a class of people, of the two, that needs greater protection because of the basic interest involved, I would say that the man on the street has a great deal more to lose by what could be a permanent transfer to another jurisdiction than a prisoner who is being transferred for a 120-day period.

The prisoner's transfer under the Detainer Act is temporary.

The prisoner receives substantial benefits under that Act.

He may... any charges outstanding in a receiving jurisdiction which are not acted upon in the 120-day period will be dismissed.

This is a great bonus to an inmate.

Also, while he's serving the time in the demanding jurisdiction, his sentence which he was serving in the asylum state continues to be served.

He is not losing anything.

There might be interruption in his programs, perhaps he loses his job, he's away from his family, but these are minor considerations when compared to the loss suffered, the liberty loss suffered by the man on the street when he's arrested and transferred.

So it is an absurd result which the 3rd Circuit decision requires, and respondent has argued in his brief that because of the evils of the detainers lodged against an inmate the prisoner requires greater procedural protections.

Well, I would submit that that is on its face a meritless conclusion.

And secondly, here it's not the detainer which is being attacked but the transfer itself.

Furthermore, there's the matter of the 30-day waiting period.

This defeats one of the primary purposes of the Agreement and that is to expeditiously try the underlying specific detainer.

This 30-day period must elapse before any procedure in court is begun, because during that 30-day period the Governor of the state may sua sponte disapprove the request.

So therefore we must wait... now, in Pennsylvania, this is the procedure we're using... we must wait for the 30-day period to elapse, then take the prisoner before a court of record and at that point he can require a habeas corpus hearing.

So that there's a great deal of delay which has been built in to the Agreement.

Unidentified Justice: Are you coming to the mootness point at some?

Mr. Vickers: Yes, Your Honor, I will address that now.

This case was filed as a class action.

The class was never certified, however.

The prisoner was transferred to New Jersey.

He was tried, convicted, and returned to Pennsylvania.

Therefore I believe the injunctive relief sought is mooted, but there's a damage claim and I believe for that reason the case is still a live case and properly before this Court.

Unidentified Justice: Could he recover any more than nominal damages, assuming any recovery?

Mr. Vickers: No, Your Honor, I think that's... one dollar under your decisions is what he could recover, but that still keeps the case live, and therefore you must pass upon it.

Unidentified Justice: Perhaps your friend will have something to say about the mootness question too.

Mr. Vickers: Your Honor, I would conclude by saying that the Agreement was fashioned to achieve several purposes.

There are several converging interests here.

There's the interest of the demanding state in trying prisoners who have outstanding criminal charges against them.

There's the interest of the asylum state in seeing that the rehabilitation of the prisoner is not interrupted by multiple trips to varying jurisdictions.

And finally, there's the interest of the prisoner himself in his rehabilitation and therefore all three interests must be taken into consideration.

This statute is not a statute for the benefit of the prisoner, as alleged by Respondent.

It is a statute which considers the sovereign powers of the states, both the demanding and the asylum state, and their relationship to the prisoner.

Unidentified Justice: Now, which statute?

Which statute are you talking about?

There are two.

Mr. Vickers: The Agreement--

Unidentified Justice: There's the Extradition Act, which is a state law, and then there's a Uniform... there's an Agreement on--

Mr. Vickers: --Detainers.

Your Honor, the Agreement I'm talking about.

I'm referring to the Agreement.

Unidentified Justice: --The court held, the Court of Appeals for the 3rd Circuit held that the state laws, the protections extended by the state law, were extended in this case even though it was also governed by the Interstate Agreement on Detainers.

Isn't that correct?

Mr. Vickers: Yes, Your Honor.

That was the holding.

Unidentified Justice: Well, I'm left with the question that Brother Rehnquist asked you.

What's the question of federal law?

Mr. Vickers: Your Honor, the interpretation.

I believe that even though it is a matter of individual state law, the Agreement itself is a matter of state law because it has been enacted in a particular state.

Unidentified Justice: All right, but all that the Court of Appeals held was that the law of Pennsylvania extended certain rights--

Mr. Vickers: That's right.

Unidentified Justice: --to the respondent.

Mr. Vickers: Yes, Your Honor.

Unidentified Justice: And that holding was exactly contrary to the Commonwealth court's holding?

Mr. Vickers: That's right, Your Honor.

Your Honor, if it please the Court, I would like to reserve remaining time for rebuttal.

Thank you.

Chief Justice Burger: Very well.

Mr. Crawford.

ORAL ARGUMENT OF JAMES D. CRAWFORD ON BEHALF OF THE RESPONDENT

Mr. Crawford: Mr. Chief Justice, and may it please the Court:

I'd like to begin by addressing myself to the question posed by Mr. Justice Rehnquist and echoed by Mr. Justice Stewart concerning whether this is a federal question case at all.

It was very clear to the people who adopted the interstate compact on detainers that they were adopting... or the Interstate Agreement on Detainers; I have tried to put my rabbit in my hat too far but... they enacted the Interstate Agreement on Detainers but they did so very clearly under the provisions of the Crime Control Consent Act of 1934.

All of the material that went out about it said, this is the basis on which this interstate compact is permitted.

So that, to the degree that the people who adopted it could control whether this was an interstate compact, they plainly meant it to be one.

Unidentified Justice: Yes, but the Court of Appeals for the 3rd Circuit decided this case on the ground of what was extended to your client by the state law.

Mr. Crawford: Yes, Mr. Justice Stewart, because--

Unidentified Justice: Not by the Agreement or the compact but by the state law.

Mr. Crawford: --That is correct.

The compact, as a federal law may do, the compact recognizes certain rights provided by state law.

Unidentified Justice: Which may vary from state to state.

Mr. Crawford: Which may vary from state to state, but an interstate--

Unidentified Justice: And the Court of Appeals simply held on this that in the State of Pennsylvania state law accorded your client certain protections and rights, and that's the end of it, and isn't that a state law decision?

Mr. Crawford: --No, Mr. Justice Stewart.

Unidentified Justice: Well, why isn't it?

Mr. Crawford: Because state law accords everyone under the extradition process certain rights.

Unidentified Justice: Yes, but Mr. Crawford, this is a 1983 suit, is that right?

Mr. Crawford: That is correct, Mr. Justice Brennan.

Unidentified Justice: And therefore you had to allege causes of action either for violation of the Federal Constitution--

Mr. Crawford: Right.

Unidentified Justice: --or for violation federal laws.

Now I read your complaint and you do allege the violations of the Federal Constitution, but where do you allege violations of federal law?

Mr. Crawford: Mr. Justice Brennan, this case is a prisoner complaint.

The prisoner did not allege any federal law violations because he had not thought of the question which obviously was later posed, I think properly, by the Court of Appeals.

He raised serious constitutional questions which the Court of Appeals did not reach and which this Court therefore should not reach, because the Court of Appeals under Hagans v. Lavine said, if there is a federal statute which can be interpreted--

Unidentified Justice: That's it.

If there was a federal statute.

That's my problem.

Where is it?

Mr. Crawford: --The federal statute, as I see it, Mr. Justice Brennan, is the Interstate Agreement on Detainers.

Unidentified Justice: What precisely did the Congress, besides adopting this as a matter of controlling federal detainers and such, what process does the Compact Clause require before an interstate agreement becomes a federal compact?

Mr. Crawford: I think an interstate agreement becomes a federal compact if it is adopted under the authority of a congressional resolution permitting an interstate compact.

And in this case the fact that it is a federal law question, the Court of Appeals for the 3rd Circuit fudged a little on this.

They said, we don't know whether every interstate compact presents a federal question but this interstate compact plainly has been adopted in haec verba by the--

Unidentified Justice: Mr. Crawford, what was the 1934 statute that you said authorized specifically the adoption system?

Mr. Crawford: --The 1934 statute was a general statute--

Unidentified Justice: Is that cited?

4 U.S.C. 112, is it not?

Mr. Crawford: --That's correct, Mr. Justice Rehnquist.

Unidentified Justice: And doesn't it say that the consent of Congress is hereby given to any two or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime?

Mr. Crawford: It goes, I think, a little broader than that, Mr. Justice Rehnquist, as I remember it.

Or perhaps it's only been interpreted somewhat more broadly.

But that includes the punishment of crime or the other pieces of the crime control mechanisms, and plainly this has to do with the ability to prosecute crime and as such falls within the crime control authorization.

I had hoped to find, by the way--

Unidentified Justice: And the states in adopting the detainers Agreement referred to it as an agreement.

They entered into an agreement as well, and that's the way legislatures join agreements, make agreements.

Mr. Crawford: --That is correct, Mr. Justice White.

Unidentified Justice: Quite different from the extradition, Uniform Extradition Act.

Mr. Crawford: That is correct.

The Uniform Extradition Act is plainly state law.

It's a uniform act although it may be hopefully interpreted the same way in varying states, that's a state law question.

Unidentified Justice: Of course, if it's the case that an interstate compact... the interpretation of an interstate compact, something that's admittedly a compact is a matter of state law; that's something else again, but you think you have the best of it on that.

Mr. Crawford: Mr. Justice White, certainly the states when they adopted it believed they were entering into an interstate compact.

Unidentified Justice: Oh, yes.

But what is the authority for an admitted interstate compact being a federal question?

Mr. Crawford: I think Petty vs. Tennessee-Missouri Bridge would be the leading case on the point and it seems to me very clear.

Common sense tells you that this Court was correct in that case... whatever you may do in an area where you have no control.

The uniform act would be wonderful if you could bring uniform acts to some court somewhere and get uniform interpretations.

There's no constitutional basis for it.

Where... and the Court found in Petty, for example... that an interstate compact being authorized specifically by the Constitution and by Act of Congress presents a federal question, then the great wisdom that permits such a compact to be interpreted by this Court, or initially by the lower federal courts, brings a uniformity which is not only desirable, as in the uniform acts, but also achievable, because there's a constitutional framework.

Unidentified Justice: But 112 provides for the execution of agreements or compacts, does it not?

Mr. Crawford: I'm sorry, Justice Rehnquist, I don't remember that but--

Unidentified Justice: It's to be found in footnote 1 of the Court of Appeals' opinion, on page 3a of the Petition for Certiorari.

"Consent of Congress is hereby given to any two or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and to establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts. "

That's the extent of the statute.

Mr. Crawford: --Well, plainly, Justice Stewart, if consent of Congress is needed for these agreements or compacts, then they're both compacts for the purpose of the Compact Clause.

If these are agreements of some other sort, congressional consent wasn't needed, so the fact that Congress used the word "agreement" and that the framers of this compact used the word "agreement" I think is immaterial to the interpretation in this case.

Unidentified Justice: Well, what do you do with the Multistate Tax Commission then?

The case that this Court handed down two or three years ago, where the thing had been submitted to Congress and Congress had refused to approve it?

Mr. Crawford: Mr. Justice Rehnquist, it seems to me a very different situation when you say, you didn't need a compact in order to reach this agreement.

It's a very different situation from the case in which the states choose to follow Congress and the states choose to follow the Compact Clause.

I don't see Multistate Tax Commission as saying, you can't make a compact about anything but this very narrow area.

I understand the case to say it is unnecessary to get congressional approval outside the narrow area.

Unidentified Justice: Well, but could Congress by writing a broad, blanket, general approval of all sorts of agreements between the states make all such agreements federal questions?

Mr. Crawford: I don't know the answer to that, Mr. Justice Rehnquist.

I think they did in this case.

It may be that there's some limit as to how broadly they can go.

But I think this is the sort of concern which is at worst on the edge of the area where compacts are needed and certainly not one where, if the Congress authorized it and the states accept that authorization, this Court should now say, you thought you had a compact and an agreement under the Compact Clause, but you didn't.

I don't see that that's appropriate in this case.

Unidentified Justice: Mr. Crawford, let me put it to you this way.

Supposing after the 3rd Circuit decision in this case the Governor of Pennsylvania and the Governor of New Jersey got together and said, we really intended the result that the Pennsylvania Supreme Court holding would allow; we don't want to have extradition procedures apply in detainer areas, therefore let's adopt an amendment to the agreement between these two states which specifically says, no extradition-type hearings in the detainer area.

Would there need to be the approval of Congress for such an agreement?

And if, on the second question, would that agreement be subject to construction by us?

Mr. Crawford: To back in, Justice Stevens, first off, obviously that agreement would not be subject to construction by you unless it were a compact.

Unidentified Justice: Right.

Mr. Crawford: I believe this is an area--

Unidentified Justice: Suppose that agreement is authorized by just broad, general language in Section 112:

"Any agreements relating to the enforcement of criminal law? "

Mr. Crawford: --Then it is a compact and then it is subject to interpretation by this Court.

But interpretation would approve that agreement, because the whole focus of this case and the whole misguided argument against the decision of the Court of Appeals, as I see it, is this Interstate Agreement on Detainers did not create the rights about which we are talking.

It federalized those rights in the sense that when the Interstate Agreement was written, they said, we choose to preserve all those rights which existed; we don't want to meddle with these rights and we thereby federalize them.

If Pennsylvania chose to repeal the Uniform Extradition Act, which it has a perfect right to do, and to go down to what two states... there are still two left that have no uniform act on this... have and have simply the right to use governors' warrants, no habeas corpus, no hearings, then there will be a question of whether there is some kind of inherent law to protect a person being extradited... the cases as I read them say there is very little if any... and you would remove these rights.

But you remove these rights by changing state law.

And I would point out last, the Supreme Court of Pennsylvania has never decided this case.

The Superior Court of Pennsylvania merely decided that the interstate compact as they had interpreted it... an interpretation was never argued to them... wasn't unconstitutional.

That's all that's been decided.

Unidentified Justice: Would it be within the authority of the two governors to say that with respect to the questions of interpreting the agreement for prisoners who are in custody in Pennsylvania, decisions of the Pennsylvania courts shall control whereas with respect to prisoners in custody in New Jersey, the decisions of the New Jersey state courts shall control, and in no event shall the federal courts depart from those instructions?

Mr. Crawford: I hesitate to think about what people can do to rip jurisdictions from federal courts.

I have watched so many tough questions in the area.

I don't think that works, Mr. Justice Stevens, but I probably should have to think it out more.

It seems to me that the analogous situation in which for example the legislatures of the two states modified the Extradition Act to remove these rights only from people who are serving terms in prison would be subject to a substantial constitutional argument on equal protection grounds.

I think the prisoners would win it.

I don't know.

But in any case there'd be a substantial constitutional question, whether there isn't a similar substantial constitutional question when the governors get together and say, we're going to let our highest state courts provide the "rippers" instead of our Legislature.

I don't know the answer to that; we'd have to find out what the state courts did, but they haven't done that here.

At present we have the uniform agreement in exactly the terms in which it was entered.

I wonder if I could spend a minute on the statutory construction, although I think that some questions from Mr. Justice Powell and Mr. Justice Stevens pretty much construed it as I see it.

Unidentified Justice: Save a minute or two for mootness also.

Mr. Crawford: I will do so, Mr. Chief Justice.

This is a statute which... I was going to open my argument... a few things that everyone agrees here, and one is, this is a statute for the protection of prisoners.

All of the legislative history and material says so.

The reason states get a chance to move cases faster is because, said the framers, the Council on State Government, this is for the benefit of prisoners.

They are better off if their cases are disposed of promptly.

I can no longer say we all agree it's for the benefit of prisoners, but I suggest that if you look at all the legislative history... and this legislative history is different from some places because this uniform agreement was circulated with an attached piece of history right with it... everybody who adopted it knew what they were getting.

This is an Act for the protection of prisoners and it's being interpreted by the State here to have taken substantial rights away from prisoners.

And I suggest, if that's what the Act was going to do, it would have done so very explicitly.

There is no language which says there are any rights which prisoners previously had under state law that are being taken away from them.

Instead, there is Section IV(d) which says, any rights you have are preserved.

Secondly, the construction of the detainer agreement within itself plainly supports this.

You have the contrast with Article III, the prisoner-initiated transfer, in which the prisoner waives extradition... precisely the term, by the way, that's used in the Extradition Act.

Section 26 of the Uniform Act says, if you don't want to go through all these procedures, you waive extradition, you don't waive Extradition Act.

And the Extradition Act was the law of the vast majority of the states when the compact or the Agreement was drawn up.

So they're obviously thinking in precisely those terms.

They say, if you want to go to another state, you can't also ask for a bunch of rights which you may have.

Whatever you've got, you give up.

But by clear contrast, if a prosecutor somewhere else wants to take you across the state lines, you keep any rights you had.

The framers sent out just a couple of pages of legislative history to go with it, and one of the things they said is, we have some questions whether we constitutionally can take away those rights or whether it's proper to take away those rights, but in any case we have clearly not done so; we've preserved whatever rights existed... not Extradition Act rights; some states didn't have an Extradition Act; then there were no Extradition Act rights to preserve; but we've preserved whatever is there.

Finally, interpreting the Extradition Act this way has the great benefit of avoiding some tough constitutional questions.

I'm assuming... and I do assume this... that this is an interstate compact and that it's subject to interpretation by this Court; then this Court has ample... the worst that could be said about the position that I'm taking is that perhaps the Act has an ambiguity.

I don't think there are any ambiguities.

Unidentified Justice: But who brought... do state court interpretations?

What weight should we give that?

What consideration should we give?

Mr. Crawford: You give, Mr. Justice Brennan, you give them weight when deserved on straight federal constitutional questions.

There have been some notable decisions from state courts--

Unidentified Justice: No, but on statutory interpretations?

Mr. Crawford: --There have been state courts which have interpreted federal statutes.

They have a right to under the whole federal system, and this Court reads them, and if they're well reasoned, it follows them.

But there is no more reason to follow a state court decision in this case than there would be to follow it in an interpretation of the Social Security Act.

Unidentified Justice: Well, the 3rd Circuit didn't avoid any constitutional question here.

It decided a constitutional question.

Mr. Crawford: I think it didn't even realize, Mr. Justice Rehnquist, that there was any question but that this was an agreement under the Compact Clause, and therefore it was free to interpret it.

And then there's no constitutional question.

Unidentified Justice: Well, but the reason that it's free to interpret it is because it's an agreement under the Interstate Commerce Compact Clause, according to you, and that gives rise under the Petty case to a body of constitutional law.

Mr. Crawford: But I would have said federal common law, once you get to it.

Once you've gotten there under the interstate compact, then you probably use federal common law, and in this case common sense in statutory construction.

No question, there's a basic constitutional question, do you get here under the Compact Clause?

I am assuming that we're here and obviously if we're not, then the case may have to go back to the 3rd Circuit, they may have to decide the constitutional questions they thought were avoided.

I do want to make a couple of points more.

I think that the Court should be aware, as it probably is, because its Extradition Act cases recognized precisely the breadth of... or, its extradition cases which have interpreted the Extradition Act recognized the very narrow rights which that Act gives.

You have four rights; they are all fairly pro forma rights, but on occasion extremely important rights.

You have a right to find out that the documents are in order, that you've been charged with a crime in the demanding state, that you're the person named in the papers, and that you're a fugitive... or on occasion, because you may have, under another section of the Act, committed the crime from outside the state, whether you come within the Act.

Very narrow rights, but they are rights you have to be heard.

I suggest that for that reason there is no need to have delay.

I think that Ms. Vickers is quite right, this agreement contemplates prompt transfer and that delay would go against the interpretation of the Agreement, although if the Agreement plainly calls for certain delays, and the 30-day delay, for instance, is in there... this question plagued the Court somewhat in the Mauro case where, unfortunately, Mr. Justice White doesn't say whether this is an interstate compact or not--

Unidentified Justice: Well, that was a federal statute.

Mr. Crawford: --It was a federal statute in that case; that's correct.

Unidentified Justice: Not quite the problem in that case.

Mr. Crawford: I had hoped for better--

Unidentified Justice: But they obtained the prisoners from a state.

Mr. Crawford: --They obtained it from a state but it was--

Unidentified Justice: --under a federal statute.

Mr. Crawford: --under a federal statute; that's correct.

Unidentified Justice: And the question was whether what the Government filed with the state authority--

Mr. Crawford: --was a detainer.

Unidentified Justice: --Exactly.

Mr. Crawford: In any case, the delays... as this Court recognized in Michigan v. Doran and other cases, as the Extradition Act shows... are very limited delays.

There is no reason in the world why the Commonwealth of Pennsylvania or anybody else has to wait the 30 days while you're waiting for the Governor not to disapprove.

Because, remember, there is no need for the Governor to send any paper that says, you may now transfer this prisoner, as there is in the Extradition Act.

In this case, or in fact, under extradition practice in general... in this case the Governor has 30 days in which he may, if there is a public policy reason to do so, say the framers... he may decide to disapprove.

There are always those rare cases where you don't want to send your state's prisoner to another state which you think will stomp on his rights, however evil we may think him and however much we may want him in prison, we don't like what some other state's doing.

The Governor has 30 days in which to say, not this one.

That's all he can do.

There's no reason why those 30 days shouldn't be used to have this very limited hearing of the same sort that a person is guaranteed under the Extradition Act.

So there's no delay involved.

There are very limited rights involved, and it's no question of whether this Court is going to be giving rights to prisoners even that they didn't have before, because a state which doesn't have these rights for its citizens generally doesn't give them to prisoners through this case.

So that it's a very narrow case of very clear interpretation, and it's a case that isn't moot.

I would like to end on that point.

It's not moot for two reasons.

First, we don't know how much Mr. Adams may be entitled to in the way of damages.

He began with allegations which have never been dealt with because this isn't a 12(b) dismissal, this is simply an answer to the complaint which denied some allegations and then said, and the case should be dismissed for failure to state a federal claim.

He alleges that he had an alibi witness, his mother, who would have spoken up for him, and that the New Jersey authorities carefully waited until her death and as soon as she died they filed these papers.

It's conceivable that he pleaded guilty in New Jersey, maintaining his innocence to the end but saying, my only witnesses who could have defended me are dead.

There are a lot of things that are conceivably proven in this case.

I don't assume large damages, but we don't know that the damages may be nominal; under Carey vs. Piphus, whether they may be of modest substance; whether he may have suffered the destruction of a program which would have enabled him to get a prison job on which he could have made a little bit of money; you don't know what kinds of damages might be involved.

He also has--

Unidentified Justice: That really doesn't make any difference to the question of mootness.

Mr. Crawford: --If he has damages?

Unidentified Justice: Even if nominal.

Mr. Crawford: That's correct.

In addition--

Unidentified Justice: That's not moot, is it?

Mr. Crawford: --I trust that under this generally framed complaint written by a prisoner, that the Court will consider it as a request for declaratory judgment.

Assuming it's not moot for his damage claim, this is a proper time for a court to declare, this statute means this.

And that would be the other grounds on which it is not moot.

I see no mootness here.

Unless there are any questions from the Court, I think I have covered the points which I feel need to be made.

Unidentified Justice: I have two questions.

First, there are 40-some-odd states that have adopted the Agreement.

Are the terms of the Agreement precisely the same for everybody who signs up?

Mr. Crawford: Unlike the Uniform Act, the Agreement has been adopted in exactly the same words by, I believe, 47 states.

We counted wrong in the brief.

Mississippi has adopted neither of these Acts and we missed it when we counted, as I think the Court below did.

But 47 states and a number of federal jurisdictions, Puerto Rico and the like, have adopted it in exact words.

Unidentified Justice: But there are no--

Mr. Crawford: Exact words.

Unidentified Justice: --separate amendments such as I discussed with you before?

Mr. Crawford: None.

Unidentified Justice: And secondly, I take it it's your view that if we don't construe the statute we also do not reach any constitutional question that's been argued in the briefs?

Mr. Crawford: I've argued them in the brief... and at that time I had argued them in the court below; they are plainly posed in the case, they plainly had to be argued here to show that there are substantial constitutional reasons for this interpretation... but it seems to me, Mr. Justice Stevens, that since the 3rd Circuit has never spoken on those questions, if you have to reach the constitutional questions, they're the people who have to do it.

Unidentified Justice: So then the disposition, if we disagree with you on whether or not there's a federal question, your proposed disposition would be to remand for consideration of those constitutional questions?

Mr. Crawford: That is correct.

Unidentified Justice: Those other constitutional questions.

Mr. Crawford: Those other constitutional questions.

That's right, Mr. Justice Rehnquist.

Thank you very much.

Chief Justice Burger: You have one minute remaining, Ms. Vickers.

Mr. Vickers: Thank you.

Chief Justice Burger: Do you have anything further?

Mr. Vickers: Thank you, Mr. Chief Justice.

I would just like to point out that the 30-day delay which Mr. Crawford seems to feel is not a real delay is a very substantial one, because in the event that we do take a prisoner before a court of record and there is a disapproval for the request for custody by the Governor, you have dissipation of court time.

You have... this is repeated across the land, and I think that's a very real consideration.

The 30-day delay is a real one.

We have to wait until the 31st day before we can petition the courts for a hearing and then possibly a second hearing on a writ of habeas corpus.

So that I think that is a very substantial handicap and a very debilitating consequence of this interpretation.

Thank you.

ORAL ARGUMENT OF MS. MARIA PARISI VICKERS ON BEHALF OF THE PETITIONERS -- REBUTTAL

Chief Justice Burger: Thank you, counsel.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Rogers v. United States - Oral Argument

Thu, 23 Aug 2012 18:27:06 +0000

Case:

Rogers v. United States

Media File:

73-6336_19750414-argument.mp3

Related Transcript:

73-6336_19750414-argument

Transcript:

Argument of Ralph W. Parnell, Jr.

Chief Justice Warren E. Burger: We'll hear arguments first this morning in Number 73-6336, Rogers against the United States.

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

Mr. Ralph W. Parnell, Jr.: Mr. Chief Justice and may it please the Court.

This is a cause which arose in the District Court in Louisiana as result of a statement that was made by one George Herman Rogers on March 23, 1972.

At the time the statement was made, Mr. Rogers was in a Holiday Inn in Shreveport, Louisiana at approximately six o'clock in the morning.

As result of the statement, Mr. Rogers was charged with a violation of 18 U.S.C. (a) 871 (a) which reads as follows:

“Whoever knowingly and willfully deposits for conveyance in the mail or for delivery from any post office or by any letter carrier of any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President elect, the Vice President or other officer next in order of succession to the Office of President of the United States or the Vice President elect or knowingly and willfully otherwise makes any such threat against the President, President elect, Vice President or other next officer in succession to the Office of President or Vice President shall be fined not more than $1,000.00 or imprisoned not more than five years above.”

The statement or statements that Mr. Rogers has been charged to have made as I said were made at six o'clock in the morning, initially made in the presence of three waitresses at this particular Holiday Inn.

The reaction of the three ladies that heard the statement, they're all describing as being odd, irrational, something wrong within.

The statements that were charged in the indictment were taken out of context, they were taken out of a discussion that Mr. Rogers was trying to have with the three waitresses.

Mr. Rogers had expressed to all three that he was very much upset about at the time President Nixon's trip to China.

This event took place immediately after President Nixon's trip to China.

Mr. Rogers in his comments said that he disagreed with President Nixon being in China, that the President was consorting with our enemy.

He did not like the communist, he did not like the red Chinese, he was very upset with our President selling us out and for that he was going to Washington to beat his ass.

This in essence is what Mr. Rogers is charged with.

He said these allegedly on five occasions, the words being the same.

Justice Potter Stewart: In five occasions, three of them on that morning in the Holiday Inn resident dining room and that two were later to the police officers, isn't it?

Mr. Ralph W. Parnell, Jr.: That's correct.

That is correct.

Justice Potter Stewart: Substantially the same statement each time?

Mr. Ralph W. Parnell, Jr.: Substantially, the same statement, also substantially the same conversation each time.

Chief Justice Warren E. Burger: Was there something said about killing the President?

Mr. Ralph W. Parnell, Jr.: This was said I believe, Your Honor, to the police officers.

That is correct.

Each time that Mr. Rogers tried to engage in a conversation or discussion of the political topic of the day which was President Nixon's trip to China.

He was rebuffed.

Nobody was really looking and listening to him.

One of the witnesses -- one of the gentlemen that heard the statement said that he was somewhat irritated by Mr. Rogers' disturbance.

He was disturbing, this man was a businessman.

He was trying to get ready for his day's work and Mr. Rogers was disturbing him from thinking about his business of the day.

All witnesses said that they initially thought that Mr. Rogers was intoxicated.

One witness, one of the waitresses said that she smell the faint odor of alcohol on Mr. Rogers' breath.

She also said that in her conversation with Mr. Rogers, that it was raining and that she said that she wished that it would stop raining.

And at this point, Mr. Rogers informed her that he could make it stop raining.

And she said that she laughed at this and thought that maybe we have to leave that to higher power, and Mr. Rogers informed her that he was that higher power that he was Jesus Christ.

These statements taken in this context we feel like are not and cannot be prosecuted under the statute that I read under 18 U.S.C. (a) 871 (a).

This statute is a good statute.

Certainly, the United States has a paramount right and duty to protect its highest officer, the President of the United States.

It would not -- if we do not protect our highest officer from a serious or true threat and we would certainly be jeopardizing not only his life but his enforcement or his duties or keying out his duties.

The purpose of the statute or at least the history of it -- the legislative history of it indicates that in 1916, at the time the statute, was passed that the President was having some difficulty with written threats.

Mr. Webb in arguing for passage of the legislation stated that the written documents that the President was receiving was annoying to him, was irritating to him, was causing the President to trouble.

So, they -- he said, “We need to enact this law to prevent people from writing to the President and threatening him.”

I do not believe that at the time this law was passed that the legislators intended for it to be carried as far as it's being carried today particularly to Mr. George Herman Rogers.

The law was passed in a tranquil period of time.

It was first interpreted during World War I when the atmosphere of the country was somewhat storming.

The early cases are all very similar in the utterances which were prosecuted to the ones that Mr. George Herman Rogers made.

I truly believe that had those three men -- or had the people or the men in the early cases have they've been tried today that they certainly would not be convicted under the statute for the statements they made.

I think this -- their utterances towards President at the time Wilson in no way under today's interpretations of the law would be considered a true threat against the President of the United States.

This Court has expressed its views on threats or statements or utterances against the President of United States in only one occasion and that was in the case of Watts versus United States.

And in that case, this Court said that, first of all, there must be a true threat made before it can be threat against the President of United States.

I believe that we we're here this morning to try to define what a true threat is.

I think that this Court must lay down now guidelines for the fact finders to determine what a true threat is within the meaning of the statute.

The statute was passed to at that time what was I suppose a true threat against the country and that was that anybody the theory was that anybody that spoke out against the President or against the man in authority was in someway being disloyal to the United States, was trying to incite others to maybe carry out the Act.

And we don't believe that under the First Amendment of the United States that this law can be applied to the facts before the Court.

The First Amendment --

Justice William J. Brennan: Mr. Parnell, are you going to deal with the suggestion of the Solicitor General we ought not reach this question?

Mr. Ralph W. Parnell, Jr.: No Your Honor, I'm not.

Justice William J. Brennan: So what your reaction to it? Apparently, the Government is saying, they don't want to retry this man and that this conviction ought to be set aside.

Mr. Ralph W. Parnell, Jr.: Certainly, Your Honor as defense counsel I would adopt any argument that the Solicitor General may have towards releasing my client or acquitting him on any basis, I certainly would.

Chief Justice Warren E. Burger: He's given you a very good opening on the subject suppose you address yourself to that question briefly.

Justice William H. Rehnquist: You didn't ever raise that question yourself did you in the Court of Appeals or feel it was sufficient to call either to the attention of the Court of Appeals or to this Court?

Mr. Ralph W. Parnell, Jr.: No, we did not raise that issue.

It's before -- it has been raised for the first time before this Court.

Justice Byron R. White: Mr. Parnell, out of -- is it incarcerated now or is he out on bail?

And has he served anytime at all?

Mr. Ralph W. Parnell, Jr.: Your Honor he was sentenced to five years, he -- the Fifth Circuit expressed some concern about the sentence.

The District Court then cuts the sentence back to three years, he has served some two years of that sentence.

Presently, Mr. Rogers is in the hospital being treated for alcoholism.

As the brief states, Mr. Rogers has a serious history of chronic alcoholism.

He has over 100 arrests in the past 10 years for being simply drunk.

Your Honor, as far as your inquiry as to our position on releasing Mr. Rogers due to the communication that was directed from the jury to the Court and back to the jury.

Again, I would say that of course we would have no objection whatsoever this case turned on that.

However, we feel like --I would suppose you support it.Sir.

Justice William J. Brennan: I would support -- suppose you would support.

Mr. Ralph W. Parnell, Jr.: Yes very definitely, we would support it anyway.

Justice William H. Rehnquist: Well, if you would support it and thought it was of any importance at all?

Why didn't you raise it either to the District Court when you found out about it or to the Court of Appeals?

Mr. Ralph W. Parnell, Jr.: Because we did not find that about it until -- I would assume until we got to the Court of Appeals or even after that.

Justice William H. Rehnquist: Well, if you find out about when you got the Court of Appeals, why didn't you press that there?

Mr. Ralph W. Parnell, Jr.: To be honest with you, we felt like that the issues involved as far as Mr. Rogers was concerned we thought that we had a better argument on the law than with this technical violation of the other law.

We didn't know about it to be honest with you.

We did not know that the Court had talked to the jury.

We didn't know it.

Justice William H. Rehnquist: I know but on the Court -- when the Court pulled the jury you had some implication of it, didn't you?

Mr. Ralph W. Parnell, Jr.: We had some indication in, yes we did.

Justice William H. Rehnquist: And you still did nothing about it?

Mr. Ralph W. Parnell, Jr.: No.

Chief Justice Warren E. Burger: But, counsel suppose we hear from your friend and you can reserve some time for rebuttal if that's seems desirable to you?

Mr. Tuttle.

Argument of Allan A. Tuttle

Mr. Allan A. Tuttle: Mr. Chief Justice, may it please the Court.

As counsel has indicated this is a prosecution under 18 U.S.C. 871, threatening a life of the President.

The arguments of counsel on appeal have been principally that the threats uttered were not true threats or that the trial court misconceived the statute or finally that if the trial court did not misconceived the statute, the statute as applied violated the First Amendment.

We disagree with all of these contentions.

We believe that the threat was true threat.

We believe the trial court's instruction was correct and we believe that the statute as applied did not offend the First Amendment.

However, as the Court has raise in questions now, there are some procedural difficulties with this conviction which might justify this Court in reversing the conviction.

However, I would stress that these procedural problems have nothing to do with the facts of the case, the evidence before the jury, the instructions or the law on the merits.

In order to understand the facts of the case and the procedural problem that arose, I would like to elaborate in just a few words some of the facts of the circumstances and the evidence introduced at the trial.

I want to elaborate on that because I think it's important to realize that although for instance it is true that Mr. Rogers had a history of alcoholism, every witness testifying on the matter at trial with respect today in question testified that Mr. Rogers was not drunk at the time he made the statements in question.

Moreover, there was expert testimony at trial from a qualified psychiatrist as to the competence of Mr. Rogers at the time he made the statements.

I'd also like to stress that the record is replete with threats to kill the President, to take the life of the President.

There are counts in which Mr. Rogers --

Justice Thurgood Marshall: Well, are those threats made to any private individual or were they're made to the police?

Mr. Allan A. Tuttle: They were made to both, Mr. Justice.

I can give you record citations for killings as for threats of killing as they were made to private individuals.

Justice Thurgood Marshall: Now that I've interrupted you.

You interpreted, when is he going to kill the President?

Mr. Allan A. Tuttle: He said he was going to do that in Washington DC.

Justice Thurgood Marshall: And he was in Shreveport which is a little ways away?

Mr. Allan A. Tuttle: He was in Shreveport.

Justice Thurgood Marshall: It's a little ways from Washington.

Mr. Allan A. Tuttle: That's no question, it's a little way.

On the other hand, it's also true that the President travels in many directions and goes to many states.

Justice Thurgood Marshall: Is it also true that when he goes in those direction they lockup and that's like him.

Mr. Allan A. Tuttle: If there is a knowledge of the threat and if the Secret service has adequate advanced information they would take precautions.

But I do suggest that the President travels widely.

I suggest for instance that Shreveport is not very far from Dallas.

Justice Lewis F. Powell: Did Mr. Rogers say he was going to walk to Washington?

Mr. Allan A. Tuttle: He said that and I construe that as meaning that he was going to hitchhike because in the statement to the police officer.

He said that he was going to hitchhike to Washington and later on the same officer testified he said he was going to walk.

In his conversations with a customer Mr. Buchanan, he asked about hitchhiking and I construe those words to mean hitchhiking.

Although, in fact, he did say he was going to walk.

Justice Lewis F. Powell: And the police did not elect to arrest him or take him in custody?

Mr. Allan A. Tuttle: The police did in fact take him into custody, Mr. Justice.

Justice Lewis F. Powell: But didn't they release him or that any bond?

Mr. Allan A. Tuttle: The record is not entirely clear on that.

The testimony of the arresting officer is somewhat at variance with the testimony of the detective at the police station.

The arresting officer testified that he was taken to the Veterans Administration Hospital and had a pull placed on him which merely means that the hospital attendants would notify the police at the time he was to be released.

Justice Lewis F. Powell: Was there any charge lodged against him by the Shreveport police?

Mr. Allan A. Tuttle: No charge was lodged against him although the Shreveport police did notify the Secret Service of the fact of this threat and it was on at the behalf of the Secret Service that Mr. Rogers was then arrested.

Justice Thurgood Marshall: Was it agreed that he hadn't violated any Louisiana law?

Mr. Allan A. Tuttle: I can only testify -- I can only recount what the record states.

The record states that no charge was lodged against him.

Now, that may have been an inference on the part of the police that no Louisiana law was violated or it may have been a feeling on the part of Louisiana police that the crime if any was not a crime against the State of Louisiana and if it was to be punished, it should be punish by the federal authorities.

Again, I wish to stress that in many -- in several of these conversations there were in fact threats to kill the President and they were unconditional threats at least in the words given.

When the police officer inquired about the question whether there have been threats, the defendant Rogers again made a threat to kill the President saying, “I'm going to Washington, I'm going to beat his ass off better yet I'm going to kill him.”

The police officer testified that he was not scared by these remarks but he said he was shook up because he said we had presidential assassinations and we've attempted assassinations and I didn't know whether he was mad or whether he was serious.

All of the witnesses testified that the defendant appeared serious when he made the statements he made.

Justice Potter Stewart: By mad, do you think he meant angry or crazy?

Mr. Allan A. Tuttle: I think that would be an inference on my part but I would assume he meant crazy.

Of course, a person being crazy does not necessarily mean that he is not a threat to the lives of other people.

Justice William J. Brennan: Mr. Tuttle, your suggestion that this conviction we set aside be accompanied where the statement that if it is set aside, the Government will not retry him some of the things you were saying seem however inconsistent with that determination.

Why is it you would retry him if you set aside?

Mr. Allan A. Tuttle: Well, that judgment has been made on reflection on the facts of the case, on the --

Justice William J. Brennan: Well, this is what the Government also thinks, did it not?

Not a real threat.

Chief Justice Warren E. Burger: I suppose --

Mr. Allan A. Tuttle: I didn't -- Mr. Justice, I didn't say that anybody thought it was not a real threat.

That -- that matter was submitted to the --

Justice William J. Brennan: I know you didn't.

I'm suggesting that -- is that -- if you're not going to retry him there must be some element of a judgment that it is in fact and not -- not a real threat.

Chief Justice Warren E. Burger: I suppose also the Government is taking into account that he is been in prison for two years or more already.

Mr. Allan A. Tuttle: He has been imprisoned for more than two years.

He served his sentence under the original judgment of the conviction.

And that is a consideration that the Government has taken into account.

Justice William H. Rehnquist: Was he still being confined other than separately for some alcoholic problem?

Mr. Allan A. Tuttle: Well, he is on -- the sentence to included a five-year condition of sentence of probation which included as a condition thereof participation in the Alcoholics Anonymous Program.

So, the case is not moot.

He has that constraint.

Justice Thurgood Marshall: Well, why would a man who was not under the influence of alcohol wasn't drunkard, why was his probation put on Alcoholics Anonymous?

Mr. Allan A. Tuttle: Because the man has a history -- a chronic history of alcoholism.

The question --

Justice Thurgood Marshall: But I mean he is a chronic alcoholic.

Mr. Allan A. Tuttle: There is evidence to that effect.

Justice Thurgood Marshall: And --

Mr. Allan A. Tuttle: And yet there is evidence that he didn't --

Justice Thurgood Marshall: Well, there must be something wrong with anybody to goes into it jail -- I mean, a precinct, the station of police and confesses to a crime that the only way he could commit it was by confessing to it.

Mr. Allan A. Tuttle: But the crime we're dealing with -- the crime that presents the background to all of these law and in our concern is the crime of presidential assassination and I would assume we would all agree that any one who -- would even contemplate such a crime would be in some sense unstable and then some sense are not.

Justice Thurgood Marshall: Well, he doesn't been offered not to go in and then confess, wouldn't he?

Would he be a great aim that to just go in and say, “I insist” and you emphasize the factors that overrule here, I'm going to kill him, I going to kill him, I going to kill him.

He say, “Please lock me up and put me some place” isn't it?

I don't understand how you can do that and come here to say you're not going to retry him.

Mr. Allan A. Tuttle: We are not going to retry him because of all of the circumstances of the case.

There are circumstances, Mr. Justice, which I haven't get to mention which include the fact that there is a question in this case as to whether the jury returned an unconditional verdict.

Thus, we're not even absolutely sure that we have a fact finding by a jury that these were serious threats.

That is another considerations and addition to the ones I've already mentioned.

I would like to, if I may, turn to those particular circumstances because they color the question that the Court is asking and I think the Court should be aware of the circumstances which lead us to believe that the conviction in this case may in fact not have been an unqualified conviction.

After the trial judge instructed the jury, we believe, correctly instructed the jury, the jury deliberated for two hours and then sent the trial judge a note.

The note asked the Court whether the Court would accept a verdict of “guilty as charged with extreme mercy of the Court.”

Upon receiving that note, the trial court without consulting counsel instructed the marshal that the Court's answer was in the affirmative.

This note in the Court's answer appears at page 52 of the appendix.

Five minutes after receiving the Court's answer, the jury returned the verdict of guilty in the form I've just discussed, guilty as charged with extreme mercy of the Court.

Ordinarily, it would be the Government's view that a recommendation of mercy of this kind is mere surplusage could be discounted and would not affect the validity of the verdict.

Here however, we have in addition to the form of the verdict the fact that it was arrived at by a unilateral communication from the District Court to the jury.

In our view, the jury's question about whether the Court would accept such a verdict was in effect a request for further instruction and we think that the proper instructions to be given under those circumstances would have been that the jury has no sentencing function that it must reach its verdict without consideration of the matter of sentence and that any recommendation it did make would not be binding upon the trial court at the time of sentencing.

Moreover, we believe that before any response is made, counsel should be informed and counsel should be heard from.

Chief Justice Warren E. Burger: I suppose you're suggesting that any alert defense counsel in those circumstances would have insisted on an unqualified verdict in order as he would hope that this would force a verdict of not guilty?

Mr. Allan A. Tuttle: I would assume so, Mr. Chief Justice, because if the jury is talking about mercy, he may feel that they are taking the possibility of punishment into the account to break a deadlock or to resolve a question in favor of guilt.

And that's why we think it's important that counsel should be heard from and we feel as a textural matter that a response without informing counsel arguably will in fact does deprive the defendant of the right to be present at every stage of the trial as is guaranteed by Rule 43 of he federal rules of criminal procedure.

Justice William J. Brennan: So, I gather Mr. Tuttle your view is that this falls within the category of plain error which maybe addressed even though objection was not made.

Mr. Allan A. Tuttle: And that is our view, Mr. Justice, and for the reason that precisely because this was a unilateral communication to the jury which counsel was not informed about, they were not in the position to object to it and not knowing about it, it is hard for us to say that they knowingly waived any objection that they might have to this circumstance.

We pointed out in our original papers on the petition the form of the verdict as raising a question all by itself and suggested that arguably it was waived.

It was in the preparation of the brief on the merits that we discovered that in addition to the form of the verdict.

There was the fact that it have been arrived at by a unilateral communication from the judge and those two things taken together raised in our mind a substantial question is to whether the verdict was in fact unqualified.

And we offer those facts for the Court's consideration.

I am prepared if the Court desires to discuss the Court's trial instructions.

The elements of the offense as we believe them to be, because we believe that Court correctly instructed the jury, and I am prepared if the Court desires to discuss the First Amendment implications of the case.

I would ask the Court whether it has any questions in any of these areas or desires to hear from the Government further.

Chief Justice Warren E. Burger: You're free to submit on briefs on those questions counsel unless there are any questions from the bench.

Justice William H. Rehnquist: Well, I have a good deal of question Mr. Chief Justice.

I take it that you're here arguing in support of affirmance and that there have been First Amendment questions raised I would like to hear your presentation of them.

Mr. Allan A. Tuttle: Well, very well Mr. Justice, I'm prepared to proceed with that.

Justice Byron R. White: Well, why wouldn't you -- I think we heard the government more effective condition (Inaudible)?

Mr. Allan A. Tuttle: I don't understand your question Mr. Justice, excuse me.

Justice Byron R. White: Well, I've just remarked you, I've never heard the Solicitor General's office take position like this in this Court asking the Court if it has any questions and otherwise we won't argue the case.

Mr. Allan A. Tuttle: Well, Mr. Justice --

Justice Byron R. White: Have you -- have you heard it before?

Mr. Allan A. Tuttle: Mr. Justice, I apologize if my suggestion is an inappropriate one to the Court.

Justice Byron R. White: You don't use the -- except the cases on briefs.

Mr. Allan A. Tuttle: I -- the reason why I made the suggestion was merely because we thought the case would probably be disposed of on the ground that we had raised.

Justice Byron R. White: Well, it wasn't.

Mr. Allan A. Tuttle: It was not and therefore, I suggested that I was prepared to proceed and I apologize for putting it in the form of a question rather than a continuing presentation.

The trial court instructed the jury that the -- on the elements of offense in stating to the Court inconsistent with the -- stating to the jury consistent with the Watts decision that only a true threat would be a threat within the contemplation of the statute and that a political argument or idle talk or a jest would not violate the statute.

On the question of intent which is the central question in the case, the Court instructed the jury that a threat is a willful if the maker voluntarily and intentionally other's words is a declaration of an apparent intention to carry out the threat.

The Court also used the words and I'm leaving out a few words here that the defendant intentionally made the threat that a reasonable person would foresee would be interpreted as a serious expression of intent.

The Court instructed the jury that actual intent to harm was not an element of the offense.

In our view, these are correct instructions.

As we have seen the issue in this case, the issue particularly in the light of the verbal conflict amongst the Circuits given circulation by the Patillo decision.

The issue was whether the statute requires a subjective intent to harm the President or whether the statute prescribes words which objectively considered would appear to be serious.

Petitioner's reply brief, however, does not urge this distinction and does not urge that actual harm to the President ought to be an element of the offense.

Rather, they urged that the specific intent required has specific intent that the threat be communicated to the President.

We don't think that either of these elements are in the statute either by congressional intention ought to construed as a matter of constitutional limitation.

We begin with the words of the statute, the words “punishes a person who knowingly and willfully makes a threat to take a life favor and flick bodily harm upon the President of the United States”.

The words “knowingly and willfully” these adverbs modify and refer to the act of making the threat and textually in any event do not require that the maker have an inward desire either to harm the President or to have the threat communicated.

We believe that the harm caused by a threat is caused by the mere utterance of the threat in circumstances where it would generally be considered serious.

If two persons are similarly situated then utter the same words which are apparently serious threats, the effect of these words are the same even if one of them harbors an inward desire to harm the President and the other does not.

Where a threat is objectively serious it can't be ignore and requires a responds from those charges with the protection of the President.

In fact, it could endanger the President by diverting those resources.

If we -- we don't think that the sole purpose of the statute was to prevent harm to the President by convicting people who threaten to kill the President with an intention to carry it out.

The House Report on a 1916 Bill which became the law states the purpose of the President -- states the purpose of the statute as protecting the President from threats or violence which would restrain or coerce him in the performance of his duties.

That restraint or coercion to the extent that it occurs, occurs whenever the words are objectively serious and that restraint and coercion is neither augmented nor diminished by the subjective intent of the speaker.

Where the threat is apparently serious, the secret service has to investigate and to the extent that it is sidetracked by a bluff is diverted from the supremely serious business of defending and protecting the life of the President of the United States.

Our view that the term “willful” refers to the intent to make the threat rather than an intent to harm the President is we believe supported by the legislative debate on the Bill which became the law which is the predecessor to 871.

Among the things you will find in that legislative debate is a discussion of an example of an individual who finds a document containing a threat and mails it to someone as a matter of news.

Congressman Volstead urged that the word “willful” be retained in the statute in order to assure that such a person sending -- knowingly sending such words but not intending a threat would be beyond the scope of the statute.

In our view, therefore, Congress' intent was to punish one who knowingly and intentionally makes a threat under circumstances which objectively viewed would be considered serious and sincere.

Chief Justice Warren E. Burger: I suppose that provision that Mr. Volstead request on the Congress would also protect the newspaper or that in these days a radio or television commentator who repeated the --

Mr. Allan A. Tuttle: As a matter of news, I think that would fall precisely within that discussion and that shows the point of having the word “knowingly and willfully” in the statute in our construction of the statute.

Of course, the statute does punish the utterance of mere words and therefore has to be waived against the First Amendment's guarantee of freedom of speech.

Justice Thurgood Marshall: Well, before you get there Mr. Tuttle, during the two years he was in jail, suppose he made the same threat, will he violate the statute?

Mr. Allan A. Tuttle: I would have to -- before I could answer that question, know the circumstances under which they were made.

If the statement was, “As soon as I get out of here, I'm going straight to Washington.”

Justice Thurgood Marshall: The exact same statements you made here.

Mr. Allan A. Tuttle: I'm going to Washington.

Justice Thurgood Marshall: No sir.

The exact same statements he's charged with making.

He repeated that in the jail.

Mr. Allan A. Tuttle: If he repeated them as a matter of saying, “I was convicted for the following words" or in circumstances which led -- which the fact finder --

Justice Thurgood Marshall: Mr. Tuttle, I said he says the exact same words and nothing else.

Now, can I get an answer?

Mr. Allan A. Tuttle: I would think that those would probably be words of repetition of explanation of what he had said before and would not constitute a true threat.

But I do believe that a person who was in custody and under restraint could in fact make a true threat.

In the hypothetical you put, my judgment would be that that would probably not being a threat.

Justice Thurgood Marshall: How about now where he is now in a place as nicely called an alcoholic place, suppose he repeats in there and when you leave there I'm going to take you to the cell and so.

Some place I think he can say it's not a threat, am I right?

Mr. Allan A. Tuttle: That's correct.

The example I gave -- you gave I suggest that it was probably not a true threat under the circumstances that you have hypothesized.

Returning for the brief for moment to the First Amendment issue in the case which we do not consider a serious one.

It has long been clear that the First Amendment does not confer absolute protection for all utterances in all circumstances and at all times.

Some words by their very utterance create an evil against which the legislature can act.

A classic example and one that shows that the subjective intent of the maker is not always relevant to the consequences of speech is Justice Holmes's example of a man who falsely shots fire in the theater and causes a panic.

This Court said the Chaplinsky case, there are certain well defined and narrowly limited classes of speech the prevention and punishment of which have never been thought to raise serious constitutional problems.

In our view, if there is any such class of speech, it includes true threats to kill the President of the United States.

A true threat is not advocacy, it's no part of the exposition of ideas, it doesn't seek to persuade and is not neutralized by a verbal response.

It thus does not implicate the central policy of the First Amendment which is that speech can rebut speech and propaganda answer propaganda.

A true threat is punishable because it creates an evil which Congress can prevent.

As I've indicated, a threat demands a response from those charge with the President's protection.

It diverts the resources of that agency and the process tends to limit the President's activities or in the words of the House Report “restrain or coerce him in the exercise of his constitutional duties.”

There is a perhaps another consideration.

The federal laws concerning threats are not limited to threats against the President of the United States.

18 U.S.C. Section 875 and 876 for instance forbids the interstate communication in mailing of threats to do bodily injury.

Threats of this kind and I would submit a fortiori threats to do bodily harm to or kill the President of the United States are punishable because of the anxiety, the fear, the turmoil and the potential for violence that they create whether or not they are heard by the intended victim.

Advocacy is wholly different in our view.

Advocacy is protected by the Constitution even when it creates anger or resentment or uncertainty or unrest.

But threats are different in their consequences.

Threats are different in the emotions they evoke and in the anxiety that they create.

Justice Potter Stewart: As that well that would be true about threat they communicated to the target of the threat but is it going to be true of a threat against acts when made to A, B and C?

Mr. Allan A. Tuttle: I believe it is.

In fact, we cite in our brief some cases which have been decided under the statutes I've just mentioned where the threats have been communicated to third parties.

One in the case of threat to a mother to harm her son and another case they call to the FBI with a threat to kill some third party.

I think that these threats do create a climate of anxiety particularly a threat to kill the President of the United States in mind just speaking of a true --

Chief Justice Warren E. Burger: You're speaking of an established procedure that whenever such threats come to the notice of local police they are required -- refer them to the FBI and the Secret Service?

Isn't there something in the report of the Warren Commission on President Kennedy's assassination to that effect?

Mr. Allan A. Tuttle: The Warren Commission report does indicate that threats to the President constitute a serious drain on the resources of the commission.

And we feel -- I beg your pardon, I simply misspoke.

A serious drain on the resources of the secret service in responding to these threats and investigating them and trying to determine whether they're serious and of course in most instances the answer is you cannot tell whether they're serious or not.

In our view, threats are simply not part of the area of protected speech.

The Constitution requires that the public debate be robust and uninhibited and wide open as this Court said in the New York Times case.

But there is no place in the public debate for true threats to commit murder.

The evil against which the statute is aimed is truly a grave one and the restrictions which the statute imposes on speech are quite minor to the extent that the statute causes people to avoid language which might be objectively considered a threat.

We submit that the incursion on protected speech is minor and permissible.

I've already indicate --

Justice Potter Stewart: Has any court ever taken the view in construing this statute that it applies only to communications directed to the President or the other --

Mr. Allan A. Tuttle: No, very early on in the very earliest cases on rulings on demurs to the indictment.

It was established that there was no requirement of communication to the President and no court has so required to the extent that my research has developed.

I thank the Court.

Chief Justice Warren E. Burger: Do you have anything further Mr. Parnell?

Rebuttal of Ralph W. Parnell, Jr.

Mr. Ralph W. Parnell, Jr.: Yes, Mr. Chief Justice very brief in reply to counsel as to he inferred that the facts are going to speak for themselves the record will speak for themselves.

He inferred that Mr. Rogers was hitchhiking to Washington when in fact he was trying to hitchhike to Texarkana which is where the man resided at the time.

He was not arrested by the local police department in Shreveport.

Chief Justice Warren E. Burger: What crime could he have been arrested for in Shreveport?

Mr. Ralph W. Parnell, Jr.: Disturbing the peace is as close as we could pen it down.

Chief Justice Warren E. Burger: Until after Mr. Kennedy was assassinated, was there any federal statute making at federal crime to kill a president?

Mr. Ralph W. Parnell, Jr.: Until --

Chief Justice Warren E. Burger: Until after Mr. Kennedy was killed?

Mr. Ralph W. Parnell, Jr.: To actually kill a president?

Chief Justice Warren E. Burger: -- yes.

Mr. Ralph W. Parnell, Jr.: I believe that's correct, Your Honor.

Further, counsel would have this class of speech in its purest form, the words “I will kill the President” thrown out from under the umbrella of the protection of the First Amendment wherein his brief on page 19.

He says that a declaration or announcement for example that “the President must be killed and I will do it” may take on a different character when made during the political speech.

It is to be sure accrued offensive way for the speaker to make his point of political opposition.

We feel like that Mr. Rogers own this particular raining morning in March three years ago was doing no more than very crudely chastising President Nixon for his trip to red China and that under the situation -- under the circumstances that he was not a true threat to the President of United States.

He did not utter a true threat to the President of the United States and certainly should not be convicted under the statute.

I thank the Court.

Justice William H. Rehnquist: Mr. Parnell, would you turn to page 52 of the brown appendix if you have that in front of you that has that entry entitled handwritten note then apparently the foreman's signature and then below that what appears to be Judge Dawkins response to it.

Now, I take it as the appellant from the District Court's judgment of conviction you were responsible for preparing the record in the Fifth Circuit, were you not?

Mr. Ralph W. Parnell, Jr.: That's correct, Your Honor.

Justice William H. Rehnquist: And I presume this was a part of the record that you've prepared for the Fifth Circuit?

Mr. Ralph W. Parnell, Jr.: Your Honor, I don't believe it was in the record at the Fifth Circuit.

Justice William H. Rehnquist: Well, how did it get into the record then?

Mr. Ralph W. Parnell, Jr.: I never knew that this note existed.

In fact, I only saw this note for the first time when we were preparing this brief here.

It's the first time I saw it.

Justice William H. Rehnquist: How are records prepared on appeal from the District Court to the Fifth Circuit?

Mr. Ralph W. Parnell, Jr.: Your Honor, we had a problem with that -- with what you're brining up right now.

The procedure was somewhat confused.

In fact, at one point we had a problem in locating part of the record.

Justice William H. Rehnquist: Just couldn't find it?

Mr. Ralph W. Parnell, Jr.: Couldn't find it.

Justice William H. Rehnquist: So far as you know, you did not designate this is a part of the record.

Mr. Ralph W. Parnell, Jr.: No.

Justice William H. Rehnquist: And you have no idea how it got --

Mr. Ralph W. Parnell, Jr.: To the Fifth Circuit.

Justice William H. Rehnquist: Yes.

Mr. Ralph W. Parnell, Jr.: No.

Justice William H. Rehnquist: And you have no idea how it got to be here?

Mr. Ralph W. Parnell, Jr.: No, I do not.

Justice William H. Rehnquist: And for that matter, you're not sure that really is genuine, I suppose?

Mr. Ralph W. Parnell, Jr.: I would not doubt the genuineness of it, no.

Justice William H. Rehnquist: Why not if you never seen it before?

Mr. Ralph W. Parnell, Jr.: I have seen it.

The first time I saw it was when we begin preparation of our brief to the United States Supreme Court.

And it was at that time a part of the exhibits that were introduced, and that's where I found it.

Justice William H. Rehnquist: The exhibits introduced where?

Mr. Ralph W. Parnell, Jr.: At trial.

Justice William H. Rehnquist: Well, but I would thought this would've occurred after the trial?

Mr. Ralph W. Parnell, Jr.: Yes, Your Honor.

We had two separate if I may -- we had two separate files.

We had the actual record which was the printed word or the transcript of what transpired.

And then we had another file that had exhibits in it that were introduced in the file such as I believe we introduced the psychiatrist report.

We introduced the --

Justice William H. Rehnquist: You offered to the judge and goes to the jury and submit them.

Mr. Ralph W. Parnell, Jr.: Right, evidence.

That's correct.

And it was in this file that I found the note for the first time.

Justice Harry A. Blackmun: Mr. Parnell, were you present at the time the guilty verdict was brought in?

Mr. Ralph W. Parnell, Jr.: Yes.

Justice Harry A. Blackmun: On page 3 of the appendix is the list of relevant docket entries and it recites the return of the verdict and then says this.

“The jury ordered told verdict ordered entered and so forth” the Court ordered the note from the jurors signed by the foreman regarding the verdict to be rendered ordered file in the record.

The defendant released on his present bond.

You have no recollection of that?

Mr. Ralph W. Parnell, Jr.: Your Honor, I do not.

Justice Harry A. Blackmun: And you have -- you didn't examine the Court's, these docket entries in your preparation for appeal to the Fifth Circuit?

Mr. Ralph W. Parnell, Jr.: Yes, I did.

Justice Harry A. Blackmun: But you didn't see this?

I do not see that.

I thank the Court.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

United States v. Pennsylvania Chem. Corp. - Oral Argument

Thu, 23 Aug 2012 18:24:52 +0000

Case:

United States v. Pennsylvania Chem. Corp.

Media File:

72-624_19730327-argument.mp3

Related Transcript:

72-624_19730327-argument

Transcript:

Argument of William Bradford Reynolds

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-624, United States against Pennsylvania Industrial Chemical Corporation.

Mr. Reynolds, you may proceed.

Mr. William Bradford Reynolds: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Third Circuit.

To review that court’s judgment, reversing the judgment of conviction by the District Court in remanding to further proceedings.

The action was commenced by criminal information in April 1971 against respondent, Pennsylvania Industrial Chemical Corporation, hereafter referred to as PICCO.

The Company was charged in four counts with violating Section 13 of the Rivers and Harbors Act of 1899, the so-called Refuse Act, which in relevant part makes it unlawful without first obtaining permission from the Secretary of the Army to discharge into any navigable water of the United States.

“Any refuse matter of any kind or description whatever, other than that flowing from streets and sewers and passing therefrom in a liquid state.”

Justice Harry A. Blackmun: Mr. Reynolds what was the date of the alleged offense here charged?

Mr. William Bradford Reynolds: The date were -- there were two dates.

August 7 and August 19, 1970.

Justice Harry A. Blackmun: Do you know why though why the complaint, I think it was by complaint here, didn’t zero in on a post December date?

Mr. William Bradford Reynolds: No, Your Honor, I don’t know why they --

Justice Harry A. Blackmun: Would it simplify the case somewhat --

Mr. William Bradford Reynolds: It certainly would’ve made a much different --

Justice William H. Rehnquist: I suppose they weren’t anybody canoeing on the Monongahela in December?

Mr. William Bradford Reynolds: Well, at least nobody apparently was sampling the discharges on the Monongahela after that date, but the date of the offenses though were August 7 and August 19, 1970.

Now, the discharges involved here flowed into the Monongahela River admittedly a navigable water from two pipes owned by PICCO and used by the Company to carry off treated waste matter left in the manufacture of chemical compounds used in Industry.

One of the pipes, an iron pipe, served only PICCO’s plant.

The other, a concrete pipe, served the plant primarily, but was also used by six private residences nearby essentially to discard used laundry water.

On August 7 and again on August 19, 1970, the discharges from the two pipes were sampled by private citizens, and the samples were turned over to the Allegheny County Bureau of Test for chemical analysis.

This analysis revealed that the effluent flowing from PICCO’s pipe contained a disproportionably high amount of aluminum, some iron, chloride, phosphate and other chemicals all in greater amounts than were found in the midstream waters of the river, and an unusually high quantity of suspended solids.

At trial, PICCO took the position that the industrial waste it was discharging into the Monongahela River did not constitute prohibited refuse matter under the Act.

First it argued that the Refuse Act covers only river deposits that impede navigation, not non-impeding liquid solutions of the sort involved here.

In the alternative it urged that the discharge from its plant was nothing more than sewage, and thus came within the explicit statutory exception.

Both of these contentions were rejected by the District Court.

They were renewed in the Court of Appeals and also rejected.

No cross petition was filed by respondent in this Court seeking further review of those rulings.

And thus the application of the Refuse Act to discharges of the type involved in this case is not at issue here, because the judgment under review is based on the premise that the act apply to these discharges.

Rather, the issues before the Court relate essentially to the second proviso in the act which provides that the Secretary of the Army “may permit” the deposit of otherwise prohibited material in navigable waters if navigation will not be adversely affected thereby, provided that application is made to the Secretary prior to depositing such material.

Justice Byron R. White: You’re suggesting that the navigable water are irrelevant whether these discharges would mean --- would passed or must under existing regulation Act or under the State Act?

Mr. William Bradford Reynolds: I’m suggesting that that is irrelevant for purposes of this case.

We don’t know it but whether they would or would not satisfy state water quality standards, I say is not relevant for --

Justice Byron R. White: With the state water quality standards approved by the federal authority?

Mr. William Bradford Reynolds: The 1967 state quality standards for the Commonwealth of Pennsylvania had been approved.

The records --

Justice Byron R. White: Assume for the moment that those regulations approved by the federal authorities, these discharges could continue to be made?

Mr. William Bradford Reynolds: Assume that I still think --

Justice Byron R. White: Wouldn’t that have some significance for whether or not a criminal prosecution under another Act to go forward for making these very discharges?

Mr. William Bradford Reynolds: It would have significance, Your Honor, to the extent that the plant sought permission from the federal government also to discharge.

The 1970 water pollution statutes require that the in order to get permission from the federal government, a certification has to be presented that you do meet state quality standards, so --

Justice Byron R. White: So for this prosecution we’re not getting a permit, not whether or not you could get one if you apply?

Mr. William Bradford Reynolds: For discharging without getting a permit, without getting a federal permit, or without getting any permission from the federal government.

It does not concern whether if application had been made, this plant could have gotten a permit.

We don’t know on this record or on the base of the operative proof whether they even had a state permit that the state certification that they met the 1967 standards.

Justice William H. Rehnquist: If that sort of thing were relevant if the Government lose its case here since they did make an offer of proof, wouldn’t they?

You’ve got -- you say it's irrelevant that trial judge was properly included that--

Mr. William Bradford Reynolds: That’s right, but it’s irrelevant because they never, in any event, they never presented that certification, even if they did have it to the federal government, and therefore, sought a federal permit.

It’s irrelevant if they just hold it and keep it in their office which will be all that they offer proof in any event would’ve shown had it incorporated such a permit.

Unknown Speaker: Mr. Reynolds, how significant is the decision in this case?

I gather there are pending other criminal prosecutions pending, but how about for the future?

Mr. William Bradford Reynolds: Well, Your Honor, I think it’s relatively insignificant for the future.

It does have significance with respect to the pending criminal and civil --

Unknown Speaker: How many of them are there?

Mr. William Bradford Reynolds: There are now 115.

I believe 115 pending criminal actions and 70 pending civil injunctive suits under the Act, but the 1972 Water Pollution Control Act which does require setup statutory permit program and provides a moratorium in essence on Refuse Act prosecutions until after implementation of that permit plan really makes this particular case insignificant in the future.

Unknown Speaker: With respect in the future, once those -- that program is implemented.

People are still going to have to get a permit, aren’t they?

Mr. William Bradford Reynolds: People will still have to get a permit, but --

Unknown Speaker: But maybe they could get one on these circumstances, but if they don’t get one, they may be criminally prosecuted?

Mr. William Bradford Reynolds: That’s correct Your Honor, but I believe they will be criminally prosecuted under another statute.

Unknown Speaker: Not on the --

Mr. William Bradford Reynolds: I believe it would not be under this statute it would rather be under the new 1972 Water Pollution Control Act Amendment.

Unknown Speaker: But because of that Act modifies this one?

Mr. William Bradford Reynolds: Well, that Act has transferred the permit authority that was vested under this Act and the Secretary has transferred it to the Environmental Protection Agency, and it requires now that you get your permit from that agency and I think that --

Unknown Speaker: But you have to get a permit -- the reason -- one of the reasons you have to get a permit is to satisfy the Refuse Act.

Mr. William Bradford Reynolds: Well, I believe that the Refuse Act that the prosecution will proceed.

There are criminal penalties now under the 1972 Act.

I think that the Refuse Act could well still be viable for non-point source emissions because the 1972 Act really pertains to point source that is emissions coming from pipes directly into the river.

Where your Refuse Act prosecutions in the future rely is essentially with respect to matter that’s placed on the bank where --

Unknown Speaker: Maybe someone tracks it in and dumps it?

Mr. William Bradford Reynolds: Or that type of situation.

Unknown Speaker: Or an accident?

Mr. William Bradford Reynolds: Or an accident, that’s correct.

Unknown Speaker: Mr. Reynolds, I think you mentioned that there’re now more than a hundred prosecutions pending under the 1899 Act.

How many prosecutions were there between 1899 and 1970 when this prosecution was brought?

Mr. William Bradford Reynolds: Well --

Unknown Speaker: Footnote in --

Mr. William Bradford Reynolds: I don’t -- I think that before 1968 Your Honor, that there were relatively few prosecutions brought.

That in 1968 I believe that there were something like 30 or 40, and then in 1969 that is when the Government really began to use this particular statute to reach the activity that we’re talking about in this case, so that most of the prosecutions that are set forth in that footnote were prosecutions that they were commenced in 1960, perhaps late ‘68, but generally 1969, ‘70 and ‘71.

Unknown Speaker: Footnote on page 15 (a) of the opinion below which as I read it states that there was only one case in the ‘70 year period where the prosecuting authorities pressed criminal charges under comparable condition.

That conviction was overturned, page 15 (a) of your petition for certiorari.

I don’t want to interrupt your argument, I just wondered what about you challenged that statement in the opinion below, but if you don’t recall it --

Justice Potter Stewart: That’s a Texas case, and it says tax criminal.

I think it means it is a Texas case and it involves I think the principle that the court’s talking about there.

Mr. William Bradford Reynolds: That’s right.

That is not a -- that case, in fact those two cases do not involve the Refuse Act.

They involve statutes requiring plumbers to get a license before they could operate in the State of Texas.

There were more than one criminal prosecution.

There was more than one prosecution under this Act before this particular action was brought.

There was the La Merced case in 1936.

There were a couple of cases prior to that.

There was the Ballard Oil case, of course we have the two cases that were in this Court, Republic Steel and Standard Oil.

There was --

Justice William H. Rehnquist: Were they both criminal?

Mr. William Bradford Reynolds: The Standard Oil case was a criminal case.

The Republic Steel case was not.

There was a decision in the Third Circuit and there were a number of others.

So it was certainly more than one.

Justice Potter Stewart: These two cases cited in footnote 8 of the court’s opinion have to do with the principle of imposing criminal penalties for people who fairly comply with a non-existent regulatory program -- as I understand it?

Mr. William Bradford Reynolds: That’s correct, yes Your Honor.

Let me look just briefly to the language of the Refuse Act and this second proviso.

The Act itself speaks in broad terms.

It bans all discharges of refuse matter into navigable rivers, or into navigable waters except sewage.

But under the second proviso, the Secretary of the Army “may permit” certain forbidden discharges “provided application is made to him prior to depositing such material.”

Now, this proviso does not speak in terms of the formal regulatory program.

What Congress did in 1899 was to vest in the Secretary discretionary authority, in those instances where a prior application is made, discretionary authority to immunize from criminal prosecution discharges that would otherwise being unlawful.

How, when and in what circumstances he might exercise that authority were left to him.

In this regard, the 1899 Refuse Act was no different from the predecessor statutes on which it was based, neither the Act of 1890 nor the Act of 1894, both of which imposed a flat ban on the discharge of enumerated substances in the navigable waters.

Neither of those statutes called for the establishment of a formal regulatory program under which permission to discharge would be given.

Instead, the decision whether to permit a forbidden discharge was left in those earlier statutes to the discretion of the Secretary of War, he could act or not as he saw fit to accept particular discharges from the general statutory prohibition.

And this we think is what Congress intended by the second proviso in the Refuse Act.

If the Secretary wish to establish a formal regulatory program, it certainly was within his authority to do so under this proviso, but for some 70 years, he chose not to operate on that basis, rather he chose to act informally passing on applications only when and as submitted.

Justice William H. Rehnquist: Would it really make much difference in your argument if Congress had contemplated the establishment of a formal regulatory program?

Mr. William Bradford Reynolds: I believe that if Congress had contemplated that and it contemplated that the violation of the statute turned on compliance with that program, it would make a difference, Your Honor.

Justice William H. Rehnquist: But if the language were still the same that you’re guilty of doing this unless you get a permit.

Does it make any difference how formalized the procedure for getting the permit?

Mr. William Bradford Reynolds: I thought you meant if the language had required, the statute required.

No, I think it would not make any difference under this language that whether there was a program set out, form a program set up or not would make no difference.

I think what the proviso does is it provides a limited defense to a Refuse Act prosecution for discharges which the Secretary in his discretion may permit.

Now, under the Court of Appeals decision that limited defense based on affirmative action taken by the Secretary is converted to an absolute defense through a formal permit -- because the Secretary fails to exercise his discretion through a formal permit program, what the Court of Appeals decision does is turn the statute on its head.

That which Congress in 1899 declared to be generally prohibited that is the continuous discharge of industrial waste into our nation’s waters becomes generally permissible in the absence of a formal regulatory scheme which Congress did not prescribe.

Now, apparently the Court of Appeals reached this result, not so much on the basis of the language or the history of the Refuse Act, but rather on the basis of its reading of later Congressional enactments in the water quality field, particularly the Water Pollution Control Act of 1948 as amended through 1970 but not the 1972 Amendments which have alluded to and which were enacted after this decision.

But this water quality legislation, the Court of Appeals suggest can’t be reconciled with the 1899 prohibition, unless we read enforcement of that prohibition is turning on the existence of a formal regulatory program.

I might just interject that this problem of reconciliation, whatever it might be has been in large part resolved by the 1972 Amendments where Congress itself incorporated the two acts in essence and certainly reconciled them in that legislation.

But before that in the earlier water quality legislation, Congress provided explicitly that that water quality legislation was not to be construed as impairing or affecting the prohibition of the Refuse Act.

Moreover, the water quality legislation and the Refuse Act don’t across purposes as the Court of Appeals seemed to suggest.

Both arraigned that the same end, the cleaning up the nation’s waters, but they used different means to do it.

Now, we’ve spelled out in our brief the structure of the Water Pollution Control Act.

Essentially that legislation contemplates a cooperative effort by the states and the federal government in establishing and enforcing water quality standards.

But prior to 1972, that is the new amendment in 1972 to this water quality legislation, prior to that time the water quality legislation contained no penalty provisions.

Discharges which reduced the quality of the receiving body of water below the set standards was subject only to lengthy proceedings which could possibly ended in a abatement order.

Thus, the Refuse Act which was saved by Congress, the Refuse Act of 1899 essentially provided the teeth to the clean water program.

Justice Potter Stewart: Were this just discharge have violated the water quality legislation?

Mr. William Bradford Reynolds: We don’t know, it just can’t be determined Your Honor on this record or on the base of the offers of proof.

We have a permit that’s in the appendix I believe the respondent’s brief, state permit issued in 1956 which permitted the construction of the plant and discharge at that time.

The State of Pennsylvania’s Water Quality Standards were approved in 1967 by the federal government and there’s no indication that the Company has gotten a permit -- a certification from the State that it was inline with the 1967 water quality standards, but --

Justice Potter Stewart: If it is your submission that the Refuse Act did no more than provide the teeth for enforcement of the Water Quality Standards Act, I should suppose the first inquiry in this case, if you’re right, would be whether or not this discharge violated the water quality legislation, wouldn’t it?

Mr. William Bradford Reynolds: Well, I think that would be first inquiry to be made on submission of an application to the federal government for a permit, but the point that we’re making in this case is that the Refuse Act precludes those discharges which fail to meet the water quality standards, and also even those that arguably do meet them until you first go to the federal government and get permission.

Now, the 1970 water quality legislation that’s the earlier amendments required that these companies submit to the federal government certification that it met the water quality standards in its efforts to obtain a permit.

And the Refuse Act would -- it would be no violation if they’d gone to the federal government and they’d submitted a certification that they did in fact comply and then they’d been permitted by the federal government to discharge.

But in this case, we don’t have any inquiry made by the Company whatsoever to the federal government with respect to a permit for these particular discharges.

Now, the Company’s argument is that they were affirmatively misled by the Corps of Engineers into believing that a permit wasn’t required in this situation since its discharges did not impede navigation.

And principal reliance with this argument is placed on the Corps of Engineers early regulations, which in 1968 or until 1968 indicated that the Corps reviewed its responsibility under the Refuse Act as I am quoting from those 1968 regulations, as “directed principally against the discharges of those materials that are obstructive or injurious to navigation.”

Now, in view of these earlier regulations and the fact that there were many industrial plants up and down the river that were discharging industrial waste in the same manner, PICCO argues that it could properly assume, and I use that word advisably, it did not go to the Corps of Engineers and asked about these discharges, it didn’t make any inquiry.

It says that it could properly assume that it needed no federal authorization for its non-impeding discharge.

Well, I think this Court in 1966 made it clear in the Standard Oil case that the Refuse Act proscribes discharges of refuse matter having no adverse effect on navigation to the same extent as it prescribes those discharges that in fact impede navigation.

And the fact that the 1899 statute had not for many years been enforced as vigorously with respect to the non-impeding discharges cannot be held to diminish its force today.

We think the essential point here is that following the Standard Oil decision, the Corps of Engineers changed its view of its responsibilities under the Refuse Act with the respect to administering activities in navigable waterways.

And as we spelled out in our brief, the regulations issued -- no, the regulations on which PICCO relies were withdrawn in 1968.

New regulations were issued by the Corps and they were published in the federal register, and they served notice that the Corps will consider pollution and conservation factors in passing on applications for permission to use navigable waters.

In addition, and this Mr. Justice Powell goes to I guess your earlier question, in addition a number of actions both criminal and civil were commenced in 1968 and in 1970, a large number of actions under the Refuse Act against companies that were discharging non-impeding industrial waste into the rivers.

In fact, as early as 1967 the Third Circuit, the same court that rendered the decisions below.

The Third Circuit held that that activity, that’s the non-impeding discharges that that was unlawful in or like Steel which is perhaps the case most often cited in this area at lower federal court case most often to cite in this area, was to the same effect.

It was decided in 1969, and indeed there’s no court decision that we’ve been able to find prior to the offenses here that held that the Refuse Act was not, was limited to, just to discharges that impede navigation.

In short, the scope of the criminal prohibition had been authoritatively settled well before PICCO made the present illegal discharges into the Monongahela River.

Moreover, the Corps announced in the summer of 1970 sweeping changes in its regulations pertaining to permits for work in navigable waters.

We have set forth that announcement in our appendix to our main brief, with specific reference to the Refuse Act, it also announced in July 1970 and this announcement is in both our main brief and our reply brief, but there is a misprint in the main brief and that’s why we incorporated it in our reply brief.

In July of 1970, it made the following -- issued the following announcement and let me just read quickly the first paragraph of that.

It says “the Corps of Engineers today announced new permit requirements under the Refuse Act concerning all discharges into navigable waters.

Permits will be required for all industrial discharges into navigable waters and their tributaries.

New permits will be required where existing permits were granted without adequate consideration of the quality of the effluent.

Permits will also be required for current discharges into navigable waters where no permits have been granted.”

Now, we believe that it’s clear that if PICCO had made even the most superficial inquiry after 1968, it would have known that it needed a permit to discharge this kind of industrial waste into the waterways.

It made no such inquiry, and we think that without such an inquiry in the face of the change in the regulations, the clear pronouncements by this Court and other lower courts, and the clear pronouncements by the Corps of Engineers that it cannot now be seen to rely on the defense that it was affirmatively misled into believing that this conduct was lawful and was not prohibited by the Act.

For these reasons and the reasons stated in our main brief and reply brief, we submit that the judgment of the Court of Appeals should be reversed and the judgment of the District Court should be reinstated.

Mr. Chief Justice, if I have any time remaining, I’d like to reserve for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Gondelman.

Argument of Harold Gondelman

Mr. Harold Gondelman: Mr. Chief Justice and may it please the Court.

Listening to the Government’s argument today reminds me very much of the lyrics of the Mikado, where Mr. Gilbert said the flowers that bloom in the spring tra la, have nothing to do with the case.

And the Government’s argument has nothing to do with this case.

He did not tell you Mr. Justice Powell, that the first attorney in the history of the United States since March 3, 1899 who has fought a case under that Act through to a jury verdict is me.

That’s the first and only case that has come before this Court on a trial in a courtroom, and Your Honors have specifically reserved that, and that is why I did not go through motions and have the case come up here in the vacuum that it did in Republic Steel and Standard Oil.

You have to have the facts of the case, and in fact in the opinion of this Court in Standard Oil, the last paragraph says, we pass only on the quality of the pollutant not on the quantity of proof necessary to support a conviction nor on the question as to what scienter requirement the Act imposes as those questions are not before the Court on that restricted appeal.

Interestingly enough in the footnote, since having dealt with the construction placed by the court below on the Sherman Act, our jurisdiction on this appeal is exhausted.

We are not at liberty to consider other objections to the indictment or objections which may arise upon the trial with respect to the merits of the charge.

I don’t know what they mean the criminal charge or the charge of the court.

I did attack both of those before the court below.

Now, being trial counsel in the case perhaps gives me a little advantage.

I’m a bit appalled when the Government tells this Court that there was no offer in the court below to prove that the discharges of which we stand convicted comply with the water quality standards of the Government of the United States say “you have this anomalous situation.”

PICCO has been fined $10,000.00 for violating a criminal statute which the Government of the United States says is not a pollution discharge under its own water quality.

Now, I would refer you to page 158 of the appendix that the Government printed.

Despite the efforts of the court below to keep me from making a record that this Court would have, I insisted that certain offers be made.

One of them is, I also want to be on record.

I want to be on the record the fact that in connection with Mr. --

Unknown Speaker: What page is this Mr. Gondelman?

Mr. Harold Gondelman: 158 sir, at the top.

Mr. Lucani incidentally is a water quality control expert who at one time while the canoes were running up and down the Monongahela River, one of his employees filled the bottle and gave it to one of the bounty hunters in the canoe so that he would have it to take back.

Mr. Lucani’s testimony, he would have testified if permitted that the discharges August 7th, August 19th that’s the discharges, and the specific analysis on every matter which is related to this and these information are absolutely within the prescribed limits of the Pennsylvania water quality standards.

This case was tried in June 1972 and I intended to prove as late as June 1972 that every item on the exhibits that the Government have the chemical analyses and attached to their brief, every item is below the standards that the Pennsylvania Sanitary Water Board in charge of this permits under our state permit, permits PICCO to discharge in the Monongahela River.

And the court said yes but I’ve overruled that and to make sure that the record was clear I said “but it is not on the record” and I wanted to be that every matter discharged by this defendant, PICCO, is within the prescribed regulations of the Commonwealth of Pennsylvania which have been adopted by the Government of the United States, and therefore insofar as this actually relates to our dumping, the case is referred to pollutants and refuse interchangeably and as to the government’s own regulations, what we were convicted of discharging as a pollutant is not a pollutant.

And we’ve cited in our brief and I need not go in to that, but the Government has adopted specifically the Pennsylvania standards.

Congress has specifically said that the primacy of enforcing water pollution controls is in the States.

Justice William H. Rehnquist: Mr. Gondelman, does this part of you argument go to the exist -- to the existence of the offense so to speak, or to the existence of the defense, the permit?

Mr. Harold Gondelman: The existence of the offense.

I tried very hard, believe me, to get the Court to harmonize the Water Quality Acts which were passed in 1965, 1970 and the Refuse Act.

They can be read harmoniously together without putting the Government of the United States into the box that it has painted itself by actually being the one who muddies the waters of this whole situation more than anyone else.

Justice William H. Rehnquist: I understood the Government’s position to be that since you hadn’t cross-petitioned for certiorari from the Third Circuit that the existence of the offense wasn’t properly here.

Mr. Harold Gondelman: Well, of course I find that argument very difficult to believe, because the Government has appealed from the Circuit’s finding number one, that Congress intended no crime under the facts of this case, and two, if Congress did intend such a crime, such a crime would violate due process.

I don’t know how this Court considered the Government’s appeal without getting into the merits of the case and whether or not a crime actually was committed.

And on the issue of whether a crime has been committed, Justice Rehnquist, the issue seems to me to be what is refuse and in technology and Mr. Lucani’s testimony, he was completely almost as frustrated as I because he could not talk about pollutant and refuse, or define those terms because he said “I must know what the receptacle is into which the effluent is being discharged.”

You see, they go out to the middle of the Monongahela River and find a little bit of iron and a little bit of sulfur and other solids, where if you came closer to the river and the millions of gallons, and I think even their test expert testified billions of gallons of water.

In water pollution science, you must know what the effluent is going into in a rate of water flow not dissolve and evaporate the water to get the solids out and make these exhibits sound like these were actually solids.

All of the discharges in PICCO’s plant were in a liquid state, not solid.

And the fact is that what I tried to do is say to the Court, the word pollutant has a scientific present technology definition.

How can you charge a jury that we have no permit to discharge refuse, if in the science and technology today it is not refuse as that term is defined by the very science trying to work to clean up the stream.

Mr. Lucani would’ve testified and I cited on the brief the fact that Pennsylvania and the federal government defined pollutants as things above a certain standard, above a certain discharge rate, and Mr. Lucani continuously said “I cannot tell you if this is refuse since, Your Honor, you have told me I can’t talk about what it goes into and the rate of the flow of the stream, in other words, you can’t let me testify as an expert which I am trying to do.”

Unknown Speaker: Well, this case doesn’t hinge on this one.

Mr. Harold Gondelman: It doesn’t hinge on that but it hinges on this Your Honor, the question asked was if there was no permit program, is there a crime a committed?

I must first say that such a finding with I think about the Court’s approach to this case, the lower courts understanding of this case in light of Republic Steel and Standard Oil was that it’s like when he was in Bolivia they told him that he couldn’t carry a cigarette lighter without a permit.

He went down to get the cigarette lighter, they say “we don’t have permits” they confiscated the cigarette lighter, and this is the way this whole case was tried.

The court continually said to me that whether we --

Justice Byron R. White: I think one thing that you -- if you were just going to get to is staying that Court of Appeals judgment on the ground of refuse, but something else that you, I think you have to reach some other grounds as distinguished?

Mr. Harold Gondelman: I don’t have to reach another ground Your Honor, what I’m saying is that under these circumstances, the Court of Appeals has said that without a permit program and that I should be entitled to prove whether or not there was a permit program in effect, because after all the regulations and the statute itself.

Unfortunately, the Government doesn’t quote these things completely to the Court, if they read the complete provided further however quote of the Act of 1899, incidentally it’s interesting that up until 1969, this was the Rivers and Harbors Act of 1899.

Congress has not amended that Act.

The Government has amended it by continually referring to it as the Refuse Act.

It becomes the Refuse Act on December 23, 1970 in the Presidential Proclamation when he referred to the Refuse Act of 1899, but the Act itself Section 13 says “and provided further that the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby.”

The Government hasn’t read the next clause to you comma “may permit that deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him,” then it says “provided applications made to him prior to the deposit of such material.”

Now, the courts had been, the lower courts especially have been very concerned about whether the phrase comes after the semicolon or before the semicolon, I don’t know how anyone would diagram this sentence at all.

It would be an impossibility but it certainly seems to me that as the phrases flow the Secretary may permit the deposit of materials within limits to be defined and under conditions prescribed by him.

And what we find actually is that in 413 of the Act that is 33 U.S.C. 413.

“The Department of Justice shall conduct the legal proceedings under Section 407 and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same.”

This was passed on March 3, 1899 with the Act we’re concerned about.

I happened to check, I find that there’re 28 Attorneys General to the United States, five of whom have graced this Honorable Court, and yet we find that no vigorous prosecution except for the Act of 1899 affecting navigation.

Next we find, Section 419, this was a new statute passed in 1905 in which Congress said “The Secretary of the Army is authorized and empowered to prescribe regulations to govern the transportation and dumping into any navigable waters, or waters adjacent there to have dredging the earth’s garbage and other refuse materials of every kind and description.”

The exact language in the Act of Section 407, the Secretary must prescribe regulations concerning the dumping among other things other refuse materials of every kind or description whenever in his judgment navigation will not be affected thereby.

So I say that the Secretary of the Army, if this was a pollution statute and if we require the permit, he had a duty to set forth in regulations what the permit would be.

I offered these exhibits in evidence and they’re part of my brief.

I think they’re exhibit 7, 8 and 9.

In 1939 and this comes to the Court of Appeals argument, Justice White, that the administrative rulings and interpretations caused PICCO not to apply for a permit any more than ask if anything else were required.

In 1939, the information circular says “applications for authority to execute work or erect structures into navigable waters of the United States” nothing about pollution in this circular.

This was secured by subpoena to the Corps of Engineers to bring with them all of the regulations they had ever published under Section 407, this they brought.

Justice Potter Stewart: And what was the date of that?

Mr. Harold Gondelman: This was 1939, Mr. Justice Stewart.

Now, then brought to me, since we hear that the regulation was somehow changed in 1968 after some of the decisions of this Court which went beyond the factual situations in those cases.

They then show how well they amended it in 1968, permits for work in navigable waters.

This is the administrative ruling and publication which was given to everyone.

Then we find, now we say that this is after the Presidential Proclamation which incidentally had a moratorium in the date you asked about, Justice Blackmun, was very important.

These informations are filed in April 1971.

In December, the President issued an order to implement a permit program and you had until July 1st to apply for a permit, so that under the President’s own proclamation of December 23, there was an attempted moratorium to get people to now understand what had never been the law of this country that you needed a permit, because in 1971, the same regulation now says permits for work and structures in and for discharge or deposits into navigable water.

And now we get to the need for a permit and it’s not a letter like Judge Teitelbaum kept telling me, but the permits are 5, 6 and 7 pages and require thousands and thousands of dollars to determine the quantity of the effluent, the vast technological data that is needed in order to apply for a permit.

Justice Lewis F. Powell: Those regulations, they’re in the record I take it?

Mr. Harold Gondelman: They’re only in the record in this way Justice Black -- Powell that I offered them, they were put in this envelope and I have added them to my brief, and therefore, you will find simply the cover as an appendix to my brief.

I did not duplicate it because I was afraid the brief would simply get out of hand.

But you find that exhibit 9 as the 1971 regulation, exhibit 8 the 1968 regulation.

I have duplicated a few sections which show that -- actually the regulation says since Republic Steel, the Secretary of the Army must now with the Corps of Engineers find out how they get Industry to pay for dredging the Calumet River in effect, because the solids were building up.

Justice Potter Stewart: Did you just say Mr. Gondelman that you offered these regulations and in evidence at the trial?

Mr. Harold Gondelman: Yes, Your Honor.

Justice Potter Stewart: Isn’t that kind of an unusual thing to do?

I can imagine the regulations might have a bearing on the judge’s determination of the legal point, but ordinarily you wouldn’t offer them for use of the jury.

Mr. Harold Gondelman: Only, Your Honor, if the theory as I have it is that the finder of fact, that we’re going to a jury. Under the Court’s theory of this case, there was really no point in trying and I think you plead guilty because you have no defense.

You don’t have a permit he says this thru “the only way you can avoid liability and criminal culpability is show me if you have a permit, or that you didn’t know that you were putting this stuff in the river.”

Now, the fact is we knew we were putting it in the river and we knew that we didn’t have a permit, but I was offering in evidence at the trial a number of things.

We’re talking now about scienter, I thought I would get a charge on mens rea because it’s reserved.

This Honorable Court hasn’t decided whether it’s malum prohibitum, if it is of course then all Industry should’ve been closed and for 70 years in this country.

But if there is any scienter required I felt that the actual publications of the government of the United States telling us whether we needed a permit would be necessary to prove in the court.

Not only that --

Chief Justice Warren E. Burger: We’ll resume at that point after lunch.

Mr. Harold Gondelman: Okay, thank you.[Lunch Recess]

Chief Justice Warren E. Burger: You may proceed, and may I suggest to you that your time is running out and the merits aren’t really the important factor here.

The only issue before the Court now is whether the case should go back to the District Court for a new trial and that’s a limited aspect of the merits.

Mr. Harold Gondelman: Or really, whether the case has a criminal violation inherent in it at all, Mr. Chief Justice, and the point --

Chief Justice Warren E. Burger: And did you cross-petition?

Mr. Harold Gondelman: I did not cross-petition, however, the --

Chief Justice Warren E. Burger: Then let’s just stay at the -- let’s concentrate, you’ve only got about 11 minutes left to you.

Mr. Harold Gondelman: I’ll cover it in less time than that.

We have to look at the opinion of the Court of Appeals to see what this Court granted certiorari from, and the Court of Appeals specifically held that the due process violations, in answer to Mr. Justice Rehnquist’s questions, how did I offer this?

The fact that I offered this in the trial is what this Court of Appeals and that is what is now before this Court, I may respectfully suggest, because the Court of Appeals held two things.

One, Congress never intended a crime under the facts of this case.

From that the Government has appealed and that is what is before this Court, so the Court must now decide whether a crime has been committed.

Chief Justice Warren E. Burger: Well, why did the Court of Appeals sent it back to the District Court if no crime -- if their holding was definitively that no crime has been committed?

Mr. Harold Gondelman: Because they held that at least offers of proof should have been affirmatively allowed.

Chief Justice Warren E. Burger: But, there was error in the rejection of evidence?

Mr. Harold Gondelman: That is correct.

And if the evidence, the effect of the opinion of the Court of Appeals is if I can prove the exhibits which I shown this Court namely that there was no permit program, that the Corps of Engineers did not believe that a permit program affecting pollution rather than navigation was necessary, that there was no crime committed under facts of this case.

And I think that by reversing, they simply say “put that evidence before a court” and I’m entitled to a directive verdict.

Chief Justice Warren E. Burger: But, that’s before the District Court, not this Court.

Mr. Harold Gondelman: That would be before the District Court unless this Court were to find as the Court of Appeals found that if there was no permit program which is throughout everybody but the Department of Justice agrees that there was no permit program.

And it is definitely before this Court because the second holding of the Court of Appeals is that the circumstances here demonstrate that no crime was committed.

And in that connection, they discussed the regulations of the Corps of Engineers.

They discussed the lack of any affirmative permit program.

They discussed the fact that we were affirmatively told that they was no permit program required until 1970, and then in the third part of the opinion it says “even if the Act of 1899 were construed to make PICCO’s activities criminal, due process considerations would require a reversal” and in that situation he says that PICCO acclaims that it was misled by interpretation given to the statute by the Corps of Engineers, and this is where we get to the offers of evidence, none of which was admitted in the court below, but which are attached to the brief for the consideration of this Court.

So I do believe that the Government’s petition for cert and this Court having granted cert directly places before this Court.

Was a crime committed at all if the authors in the court below had been allowed?

Now, I think we briefly ought to get to the effect of what the Government is saying here.

Since Taylor versus Reeser (ph), the Government has been enjoined from issuing permits.

Now, if we understand the Government’s argument today, then under the administrative absolutism that the Department of Justice as it has, every Industry in this country since the injunction has been issued where no permits are now available by a court injunction, every Industry that has been discharging without a permit is guilty of a crime obviously.

It has to be the logical conclusion of the Government’s argument before this Court today.

We know that you cannot get a permit today because of that decision, it’s on appeal but at least for a year, a year and a half now nobody could get a permit.

And yet a U.S. Attorney certainly could prosecute any Industry discharging into a navigable stream matters which did not affect navigation because they don’t have a permit, because after all, what difference does it make?

They don’t have a permit only because the court has enjoined the Government permission legally?

And if they have not committed -- if Industry has not committed a crime during the pendency of that injunction, then why doesn’t it logically follow that before the injunction if there was no permit program, there also was no crime committed.

Mr. Rockel says, the director of the EPA says that there’s no question that no one could get a permit under the Act of 1899, I have his citation in my brief, so that without a permit program because of court injunction or prior to that, certainly there is no crime committed here and that issue has been decided by the Court of Appeals.

The court below took the position completely that it does not make any difference whether we could get a permit.

The only way that we could not violate the law is not to discharge effluent into a river.

I suggest that if acquisition had been taken by United States Attorney in 1944 when Industry was going full blast to supply the war material for the boys in Omaha Beach in World War II, and the effect of that type of criminal prosecution would have been to advice Industry to close its doors, the U.S. Attorney would’ve been subject to uncertain great criticism if not internment for having taking an American activities approaches to the law.

The fact that they didn’t in 1943, 1944 in fact the fact that the Secretary of Army awarded -- awards to Industry during those periods are national crisis certainly would indicate that there is no criminal violation and they compounded in this case.

The court below charged the jury that if the Secretary of the Army in his discretion decided not to issue permits, despite the fact that my entire offer was to show that the Secretary of the Army had actually exercised this discretion saying that no permits were required.

In fact in the 1968 regulations when they talk about the Republic Steel case, the only change the core of engineers saw was that under Republic Steel, they were now obligated to assess who should pay dredging.

I think what has happened in this situation and the metamorphosis so called, they change from the Rivers and Harbors Act to a Refuse Act unfortunately comes abide in this way.

Republic Steel came before this Court on a petition by the Government of the United States and if you read their briefs, you will find that they affirmatively told this Court that they are not in a pollution case, they are in a navigation case.

The entire brief on both sides talk about navigation, the opinion of this Court says we have pollution statute but that is over to think those were the facts that were before this Court.

Then you -- from there, we are led to Standard Oil, an accidental discharge in which the Court defined good gasoline aviation fuel as a pollutant.

From those two cases we have now jumped the complete line to say that we now have in the United States and as I said, now they talk about a Refuse Act, but I think that when you see the Presidential regulations proclamation of December 23, 1970, you must ask yourself why did the President of the United States take time from a busy schedule to issue a proclamation implementing a permit program and talking about all of the laws dealing with water control in the implementation of that program. He did it because there was no such program.

The Water Pollution Control Act of ‘65, ‘70, ‘72 can be harmoniously read with the Act of 1899 if one defines pollution in terms of those acts.

This case has no impact whatsoever on future cases because of the Act of 1972, the Government admits that.

This case and the thing that it must be understood here is that this case is not a pollution case.

It has been brought here without attractiveness on the times of today, but the fact is that it is not a pollution case because if we are complying with state and federal standards concerning what went into the river, we could put the same thing into the Monongahela River today and I offer to prove that that we did in 1970 because they are within the standards of the Government of the United States.

The reply brief of the government again misrepresents what I offered to prove.

It said that I offered to prove that we would comply with the 1974 standards that is not the offer of proof.

Commonwealth of Pennsylvania passed clean streams legislation before the federal government found out that there was a problem.

Our Act was passed in 1937 the Federal Act 1948.

I offer to prove that under the present Pennsylvania standards which are among the highest in the country, they intelligently to deal with the economy and the ecology and the technology that is available said by December 31, 1974 these will be the new standards that will be applicable to effluent discharges in streams of this Commonwealth.

I offer to prove that PICCO is already in the process and was when the canoes floated up and down the river ready in the process of building a $300,000.00 additional water treatment plant to meet the new standards which were effective and will be effective December 31, 1974.

You do not have as the Government untruthfully tells this Court in its reply brief, the largest polluter in the Monongahela River.

You have a company that has accepted its responsibilities, understands its responsibilities and the only thing the Government has done in this prosecution has attempted to turn off an industry that recognizes that it is trying to be a good citizen in this country and comply with the water control programs of the federal on state government.

Unknown Speaker: Mr. Gondelman, I don’t know if the appeals rely heavily on its conclusion that even if an application of pendent had been made, no pendent could’ve been obtained because the court’s opinion said pendents were unavailable.

In your view is the record clear on that or is that disputed in the record?

Mr. Harold Gondelman: It was disputed in the record.

Excuse me Your Honor, it was disputed but I tried to prove it in two ways.

First of all, exhibit G which I offered in evidence and attempted to argue to the jury shows the schedule of permits, the dollar cost of all permits.

There is nothing in exhibit G that would indicate that this permit would’ve been required or that there was a charge for it or included in exhibit G. The other is the twofold, first that Mr. Rockel says and I have that as part of my brief actually in an interview had said, I think it’s on page 7 (a) of my brief Your Honor, and I’m prepared to prove this.

Mr. Rockel has theoretically should know something about the Act of 1899 since today he is the one in charge of the administration of the program, was asked if there was an overlapping in the statutes.

Second paragraph he says “it really isn’t entirely fair to say that the reason a person is being sued under the Refuse Act is because they don’t have a permit.

They couldn’t get one if they wanted to.”

Until the permit program of the Corps of engineers was in that slate last year, after the Presidential Proclamation, we didn’t have any permit program for the discharge of waste into a stream.

So that under his own admission, under the exhibits which I did offer and I would be pleased to leave these -- these are maintained by me, I didn’t realize the Court of Appeals accepted that.

Unknown Speaker: Mr. Gondelman, let’s assume you were dumping solid -- dumping solid metal of some kind that unquestionably was a pollutant in the river.

Let’s just assume that you had been.

Would you say that there was any doubt into the Refuse Act which you could be prosecuted?

Mr. Harold Gondelman: No sir, because if I were dumping a solid into the river then we are under the Republic Steel case and the history, and then Republic Steel since 1904.

Unknown Speaker: Then it wouldn’t make any difference whether you had a permit or whether you applied for a permit or not, or whether there was a permit program or not, wouldn’t it?

Mr. Harold Gondelman: Well, it would in this sense, Your Honor.

Unknown Speaker: Well, I’ll just you again.

Now, you’re dumping solids in the river, let’s assume there was no permit program at the time that you dumped the solids in the river.

Now, could you be prosecuted under this law or not?

Mr. Harold Gondelman: If there was no permit program whatsoever?

Unknown Speaker: Yes.

Mr. Harold Gondelman: I don’t think we could be prosecuted under this law.

Unknown Speaker: Are you saying and we must then construe this law as meaning that unless there’s a permit program, you may not be prosecuted even if you were dumping admittedly polluted material industry?

Mr. Harold Gondelman: Right, and then we would not have this case.

That’s why I said originally I --

Unknown Speaker: What do you mean you wouldn’t have this case?

Mr. Harold Gondelman: Well, because this case and Your Honor’s case are two different cases, and the facts of my case --

Unknown Speaker: Well, there aren’t two different cases if you think for example that the question of whether this was refuse is foreclosed?

Mr. Harold Gondelman: No, you don’t have this case because, Your Honor, since 1899 everybody in this county knew that the act of 1899 affected the discharge of solids into a stream.

The Republic Steel case only made new law because it took a civil procedure and permitted an injunction.

Unknown Speaker: But again your argument turns whether or not a permit program is essential to permit prosecution under the Refuse Act.

Mr. Harold Gondelman: Not complete, my argue --

Unknown Speaker: But rather substantial --

Mr. Harold Gondelman: My argument is --

Unknown Speaker: Well, let’s assume for the moment then that you say a permit program is not essential permit prosecution under the Act and that you may be prosecuted even if there was no way of getting a permit?

Mr. Harold Gondelman: What I’m saying Your Honor, and the reason I can’t fit a factual situation into your hypothetical factual situation is simply this, it doesn’t stop with the narrow factual situation you’re presenting to me, I respectfully suggest.

What I’m saying to you is this, change your factual situation just a little bit for me and say that solids are being dumped into the river and for 70 years the Corps of Engineers says you don’t need a permit to dump those solids into the river, and then have a criminal prosecution, and then I say of course the Government can not lead an industry into entrapment.

Unknown Speaker: So sure enough, you’re really saying then that it’s not just the existence of a permit program. It’s an affirmative representation that you don’t need a permit or anything else for this.

It’s just as though you had a permit.

Mr. Harold Gondelman: It’s an affirmative -- the Court of Appeals said we were misled, and that is a very basic factor.

Unknown Speaker: Well, you’re saying in effect, you’re saying you had a permit.

Mr. Harold Gondelman: And if effect I’m saying we had a permit because the State want it.

Unknown Speaker: And they ended to be prosecuted when you had a permit is the denial of due process that’s really your case?

Mr. Harold Gondelman: Basically, that is second part of my case that is correct Your Honor.

Unknown Speaker: Well, is that any different from the first?

Mr. Harold Gondelman: It is in part, because in the first situation we’re saying that without any permit program whatsoever.

Unknown Speaker: Yes, but that doesn’t seem to hold water is it, if you are dumping real solids in the river?

Mr. Harold Gondelman: Well, it would hold real solids, you see, but not real water.

I mean we have to talk about water and --

Unknown Speaker: Well, if you dump that solids in the river, it wouldn’t make any difference whether there was a permit program or not?

Mr. Harold Gondelman: Unless the Government affirmatively misled the Industry into believing they could do --

Unknown Speaker: Well, that’s the secondary?

Mr. Harold Gondelman: Fine, I’d stand on that argument as well.

Thank Your Honor.

Chief Justice Warren E. Burger: I’m sorry Mr. Gondelman.

Mr. Reynolds you have anything further?

Rebuttal of William Bradford Reynolds

Mr. William Bradford Reynolds: Just one or two points Mr. Chief Justice.

I think that with --

Justice William O. Douglas: You don’t refer in your briefs to the all well-established federal law of public nuisance in navigable streams.

Was that considered below or argued at all?

Mr. William Bradford Reynolds: No, Your Honor, that -- this case was exclusively under the statute and the public nuisance federal law was not involved in this particular case.

Chief Justice Warren E. Burger: Conceivably, you might have been able to get an injunction under the law of nuisance that Mr. Justice Douglas was suggesting?

Mr. William Bradford Reynolds: Conceivably, I think that --

Chief Justice Warren E. Burger: But that couldn’t be a criminal prosecution?

Mr. William Bradford Reynolds: -- Illinois and the City of Milwaukee I believe this Court indicated that under the -- there is a federal law of nuisance which conceivably would be available, but this was an action brought under the federal statute and that was not involved.

I just want to make the point that the Corps of Engineers after 1968, after this Court decided the Standard Oil case and made it clear that the Refuse Act applied to non-impeding -- non-navigation impeding discharges and at that time it changed its attitude with respect to its responsibilities, this 1968 regulation which Mr. Gondelman showed to the Court was withdrawn.

It instituted new regulations which put -- whereby everyone was put on notice of the fact that the Corps was now considering pollution matters, conservation matters with respect to applications for permission to use navigable waters and this was made crystal clear with respect to the Refuse Act itself and the notice that we have appended to the reply brief in July of 1970 where it was made -- it was clear that there was a permit available at the time of these offenses and if even the most superficial inquiry had been made by the company of the Corps, assuming that they had some doubt as to whether the law did in fact apply to this particular discharge.

If they made the most superficial inquiry, they would have been notified at that time that there was in fact a permit available and one that they should have gotten before making these discharges.

I would point out just in closing that in fact in November of 1970 which is after the time of these offenses, Mr. Justice Blackmun, the dates you were talking about earlier that in November of 1970 the Corps explicitly advised this company that their discharges from this plant into the Monongahela River was in violation of the Refuse Act without a permit and they would need a permit so that the permit -- the permits were available and had they made any kind of inquiry, they could’ve gotten this permit.

They didn’t and in the absence of doing so, we think that it was proper to -- the conviction was proper under the Refuse Act.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

You may leave them if you wish.

Featured:

Humphrey v. Cady - Oral Argument

Thu, 23 Aug 2012 18:18:16 +0000

Case:

Humphrey v. Cady

Media File:

70-5004_19711207-argument.mp3

Related Transcript:

70-5004_19711207-argument

Transcript:

Argument of Irvin B. Charne

Chief Justice Warren E. Burger: We will hear arguments next in Humphrey against Cady 5004.

Mr. Charne, you may proceed whenever you are ready.

Mr. Irvin B. Charne: Mr. Chief Justice and may it please the Court.

This is a writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

And I represent the petitioner Donald Yogurt Humphrey who presented as the Court knows his hand written petition to this Court without the benefit of counsel.

Mr. Humphrey’s case, commenced -- started back in May of 1967.

On May 30 of 1967, he was arrested in the state of Wisconsin Waukesha County which is a county adjacent to Milwaukee County and charged with the offense of contributing to the delinquency of a child.

This is a misdemeanor in the State of Wisconsin caring a maximum penalty of one year.

We do not have the record, Your Honor of that initial proceeding here.

However, in his petition to this Court for writ of certiorari Mr. Humphrey said, he was sitting in a car and drinking beer with the boy who was almost 14 years, he was 13 at that time.

And this is--, I think over in Wisconsin, a very frequent type of case that contributing to the delinquency of a minor.

It is against the law for a minor to drink beer and if an adult gives him an alcoholic beverage, you are then contributing to delinquency of a minor.

So that is apparently the offense for which he was arrested.

May 30, 1967, the next day, May 31, 1967 he was in Court.

He pleaded guilty to the offense and the Court under the Wisconsin Sex Crimes Act committed him for a pre-sentence examination.

Unknown Speaker: (Inaudible) that the conviction was not for --

Mr. Irvin B. Charne: No, Your Honor.

It was for contributing to the delinquency of the child.

Now then, we --.

Pardon me, yes sir.

Unknown Speaker: Probably, you mean that the Wisconsin need know it is not a factual offense?

Mr. Irvin B. Charne: Well, Your Honor, I will explain what the Wisconsin Sex Crimes Act covers.

In Wisconsin under our Sex Crimes Act, there are two categories of Sex Crimes.

One category is that which calls for a mandatory sentence under the Sex Crimes Act and that includes the offenses of rape, attempted rape, sexual intercourse without consent and indecent liberties with a child.

If you are convicted of those, you automatically go in the system.

However, the Wisconsin statute provides that any other offense except homicide or attempted homicide can also be a Sex Crime, it is a Sex Crime, if the Court finds that the defendant was probably, directly motivated by a desire for sexual excitement in the commission of the crime, if the Court finds --

Unknown Speaker: This could be shop lifting or arson or --

Mr. Irvin B. Charne: Yes, Your Honor or sneaking in to an X-rated movie.

If the Court finds that the defendant was probably, directly motivated by a desire for sexual excitement in the commission of the crime, this becomes a Sex Crime in the State of Wisconsin.

Justice Thurgood Marshall: What kind of evidence does the Judge takes to make that defense?

Mr. Irvin B. Charne: Well, this is one of our complaints, Your Honor because I do not think that the statute requires any evidence.

It does not require assuring on that issue and we do not have a record as to what happened but we do have a record.

What is in the record shows that this man was arrested May 30th?

He was convicted on his plea of guilty to the crime of contributing to the trial on May 31st and sent away, for a pre-sentence examination under the Sex Crimes Act.

Unknown Speaker: Well, if you say we do not have a record, we have his say so that he was sitting in an automobile with a juvenile of the same sex drinking beer but if he does not say what else is going on.

Mr. Irvin B. Charne: Well, in his petition to this Court, Your Honor he says that, that is all that was going on, he says that he and the boy were put under considerable pressure to testify of something else, but both of them denied it.

He also says the boy was sent to a hospital for a Medical Examination and that there was no evidence of any Sexual Molestation.

So it is unfortunately, that we do not have that record but that is what the evidence is now.

We do have the Court's order of commitment which does not indicate any hearing on that particular issue.

He was sent away on May 31st and on July 24th, the report came back from the Department that had examined him and that is found the orders in the Court -- entered an order which is found on the appendix on page 11, that is part of the record and the Court says nothing about the basis of its finding that this was a Sex Crime, it says that he was sent away and the report of the Department came in and based upon that report he sentences him under the Wisconsin Sex Crimes Act.

He was sent to walk on state prison which at that time was the facility designated for a Sex Crimes Act people.

It was not a hassle to walk on a state prison.

Unknown Speaker: Do we have the report?

Mr. Irvin B. Charne: No, we do not have the report, Your Honor it is not in the record.

Unknown Speaker: We do know, do we?

That it was the recommendation of the Department, that your client was in need a specialized treatment for his mental aberrations, I am reading from your brief.

Mr. Irvin B. Charne: I believe that, yes!

Unknown Speaker: (Inaudible).

Mr. Irvin B. Charne: Yes sir.

And that the Judge says that in his order and incidentally the order of the Judge also indicates that on the day when he was sent away, that there was no attorney present, says that the report came back on July 24th and the appearances were the state of Wisconsin appearing by Robert Evans, assistant attorney --, district attorney for Waukesha County and the defendant appearing in person.

So that on that day, when he commenced his sentence under the Sex Crimes Act apparently, there was not even a hearing on that day.

Now then he went –

Unknown Speaker: Now, what is the sentence under the Sex Crimes Act?

Mr. Irvin B. Charne: Now, the sentence under the Sex Crimes Act is an indefinite period of time in these segments.

First, you go for the maximum period for which you could have been sentenced.

Unknown Speaker: It could be a year?

Mr. Irvin B. Charne: Yes, under the offense.

Then the Department, if it believes that you are danger.

If there is danger to the public from releasing you, orders you extend it and that order is subject to review of a Court and they can extend you in five-year increments without limits.

Unknown Speaker: One half of the year?

Mr. Irvin B. Charne: At the end of one-year or a little less than the year, in April of 1968, under which he had been sent away, July 24th of ’67 and April of 1968, the Department issued its order saying that this could be extended for another five-year period.

Unknown Speaker: Now did you say a judge has to confirm that or what?

Mr. Irvin B. Charne: Yes!

Then the Department applied to the County Court of Waukesha County to confirm that orders.

Unknown Speaker: Same judge of the recent case?

Mr. Irvin B. Charne: And goes it back before the same judge but it turned out the judge was not there and someone else was filling in for him, so another judge then heard the matter and there was a hearing on July 23 of 1968, on the order of the Department to extend him.

Chief Justice Warren E. Burger: By this time, he had counsel did he not? This is when he had the lady lawyer.

Mr. Irvin B. Charne: Yes, he had the lady lawyer on July 23.

Mrs. Naft(ph) who --

Unknown Speaker: (Inaudible)

Mr. Irvin B. Charne: Yes, he did Your Honor.

He had counsel and he pleaded guilty, through the original offense and it does not, the record does not indicate why that counsel was not called at the time he was actually sentenced.

Chief Justice Warren E. Burger: But the hearing which came after the guilty plea, he was uncounseled, is that not right?

Mr. Irvin B. Charne: If there was a hearing, Your Honor.

Yes.

Chief Justice Warren E. Burger: They refer to it sometimes as a hearing but let us call it the occasion.

Mr. Irvin B. Charne: Yes.

Chief Justice Warren E. Burger: The occasion, when that he was informed where he was going to be sent.

There was no counsel present.

Mr. Irvin B. Charne: That is correct Your Honor.

According to the order of the Court, that is the only record we have, that is the Court's order and it does not recite the presence of any counsel for him.

It says that the defendant appearing in person.

Unknown Speaker: Now, when I gather, he was extended for five years until what date?

Mr. Irvin B. Charne: Yes Your Honor.

He was extended for five years which would have made it 1973.

However, he was paroled this year earlier, in March of this year, he was paroled.

So at the present time, he is on parole.

At the time when he was brought back for this hearing to confirm the extension order of five years, he was there represented by Mrs. Naft.

Unknown Speaker: May I just interrupt you once more?

Mr. Irvin B. Charne: Yes.

Unknown Speaker: Do I understand you would say that at the end of these five years suppose he were recalled from parole, could be another five years?

Mr. Irvin B. Charne: Oh, yes!

It is very clear.

He could spend the rest of his life.

There is no time limit except that there are five year increments and it must be confirmed by a Court.

Chief Justice Warren E. Burger: The extension requires a finding; I understand that he would be at danger to society if they released him, is that it?

Mr. Irvin B. Charne: Yes.

That is right!

That in the opinion of the Department his release would be dangerous to the public.

Chief Justice Warren E. Burger: If you know in those extension proceedings is the subject represented by counsel usually?

Mr. Irvin B. Charne: I believe that he is, Your Honor.

I know that the Wisconsin Supreme Court has said he should be.

There was a case in Wisconsin Huebner case which the Court set out the procedural requirements and clearly indicated that person is entitled to counsel and it should be represented by counsel.

Chief Justice Warren E. Burger: Is that Wisconsin case cited in your brief?

Mr. Irvin B. Charne: Yes it is Your Honor.

Chief Justice Warren E. Burger: As I see it Huebner?

Mr. Irvin B. Charne: That is right Your Honor.

Unknown Speaker: Has the Supreme Court laid down, any standard to prove?

Mr. Irvin B. Charne: Well, they talk about dangerous in this Your Honor but they have not really --, I think explained what dangerous means other than it does not necessarily mean physical harm.

They point it --

Unknown Speaker: it has to be – a damage because as sexual elaboration?

Mr. Irvin B. Charne: I do not believe so Your Honor.

I do not believe that it is limited, the statute certainly does not say that and I am not aware of any Wisconsin cases.

It says it must be limited to sexual problems.

Justice Thurgood Marshall: This hospital was, I think you said as the hospital or at least on these two should prohibit?

Mr. Irvin B. Charne: No, at the time when he was sent there, Wisconsin had no separate facility, to sexual deviates.

The appendix to the respondents brief here points of one of the problems in Wisconsin of getting money to build an appropriate facility.

They did not have it and they –

Unknown Speaker: Of any kind in there?

Mr. Irvin B. Charne: Well, it is questionable with the case history in Wisconsin would indicate that some of these people had group therapy.

And that was considered sufficient treatment.

Now that this question of treatment for --

Unknown Speaker: Just a prison?

Mr. Irvin B. Charne: Yes sir.

It is prison, it was the State prison and according to --

Unknown Speaker: Nobody has ever been release as to having recovered?

Mr. Irvin B. Charne: I do not know Your Honor.

I know that Mr. Humphrey was paroled.

He is on the parole at the present time so apparently they thought it was all right to release him.

Now, whether they were tried exercise continued to control, when his time was up I do not know.

Unknown Speaker: This extension of one year is predicated upon the premise the person has not recovered?

Mr. Irvin B. Charne: Yes.

It is an extension of five year.

In five year increments.

Unknown Speaker: Right!

And when you say that this is just a prison, does this mean everybody just gets extended because there is no treatment and no recovery in the (Inaudible).

Mr. Irvin B. Charne: No, I would not say that is correct Your Honor.

Apparently, either if the Institutionalisation itself or the group therapy sessions that are held.

For some reason, persuades the official that as to this man for example, they could release him.

So in their mind, something happened whether it actually, whether there is a difference or not.

I am sure that Mr. Humphrey would not agree that he received any treatment.

I think in his papers that he filed in this and the Lower Court –

(Voice Overlap)

Unknown Speaker: But did not agree on anything, that he needed anything.

Mr. Irvin B. Charne: That is right Your Honor.

I am sure that is true.

Unknown Speaker: Well, what would be the basis upon which they could terminate parole?

Would it has to be a Sexual offense?

Mr. Irvin B. Charne: No!

I know that if he has parole conditions, suppose -- I know of the case, where a man was found drunk and driving.

Now, you are not suppose to drink when you are on parole and if you are found drunk that is the time --

Justice Thurgood Marshall: So in other words, the termination of the parole is on the grounds that any prisoner on parole might be terminated.

Mr. Irvin B. Charne: That is my understanding Your Honor, yes!

Chief Justice Warren E. Burger: And does this record, I suspect that does not the two if you may know, does it reflect whether there are psychiatric facilities or clinical psychologist at the Waukon prison?

Mr. Irvin B. Charne: I believe there are some psychiatrists on the staff and also some psychologist, social workers on the staff that are there and Wisconsin now has recognized the need for additional treatment.

I think as the respondent's brief indicates commencing in this year, in 1970, people are now being committed to what is called the Central State Hospital which is an Institution for the criminally insane in Wisconsin.

That is a change and the Wisconsin Department recognizes the need for a special Institution for these types of offenses but they do not have it yet.

Unknown Speaker: Well, in Wisconsin, there is a General State Prison?

Mr. Irvin B. Charne: Yes, it does.

Unknown Speaker: And this is not it?

Mr. Irvin B. Charne: That is it!

There was a place where this man was sent -- was the maximum security Institution of the State of Wisconsin.

With the walk on prison is the place where appellants go.

Unknown Speaker: If his parole were to be revoked, do you have any idea where he would end up now?

Mr. Irvin B. Charne: I do not know Your Honor.

I know that the recommendations were that those people who were in Waukon at the time that they transferred the new commencements went to the Central State Hospital but they said that those who had started in one place would continue there.

Now, I do not know what would happen to him if he was sent back, where he would be sent?

I believe that that is an administrative function by the Department.

I think, I had gotten in my chronology to the point where the Department had asked to extend him for five years and it came up for a hearing and he was then represented by Mrs. Naft who was appointed by the Court representative.

I think being indigent at that time.

Mrs. Naft advised him that he should not cooperate with Court appointed psychiatrists who were present in Court on the day of the hearing and said she intended to raise the constitutional issues.

The Court ask for her to file brief sentence and that was agreed a brief in schedule were set up and then apparently nothing further was heard from Mrs. Naft.

The Court record indicates that the judge wrote a letter to her and said if we do not hear from you we are going to conform this order and then the next happened is, in November the order was entered.

November 20, 1968, Judge Björk who was the substitute judge signed an order, confirming the extension for five years and in his order which is found in the appendix on page 14, he recites the fact he had expected to get briefs.

And he says the matter having been adjourned for the purpose of filing briefs to support their respective positions to the state in the defendant and no briefs having been filed and the Court having directed correspondents to Mrs. Naft dated October 15, 1968, advising Mrs. Naft Smith that the absence of the filing of briefs and any affirmative acts for and on behalf of the defendant with regard to this matter, the Court would presume that the defendant did not intent to offer any proof as to its condition and the order would stand and accordingly, he confirmed the orders.

So here you have a man represented by an attorney who did not do anything at the hearing, no cross examine, they were no witnesses presented as to the state position and then she set on, I am going to argue this on a constitutional basis and she did not file any brief.

So it is our position that-that type of representation is equal to nothing.

Chief Justice Warren E. Burger: Do you include in your claim in effect to the assistance of counsel, the advice given to your client and not to cooperate with the doctors?

Mr. Irvin B. Charne: No! I do not, Your Honor because I think that that -- there maybe a basis let us say, it is up to the State to show this man’s condition.

And this, according to the state order, they claim that they had had a previous psychiatric examination of him, they see it on the records and files based on his commitment, they believe he is dangerous.

So I think that they could come into Court based upon what they have and show to the judge, here is the reason that we think this man should be continued and it is not incumbent upon the defendant to come into Court on the day of the hearing that two strange doctors brought in by the Judge and expect the doctors to do a good examination in a short period of time while you are waiting for this case to be heard.

And I say that I do not think that the man has the right to have his own psychiatrist come in under the statute.

Chief Justice Warren E. Burger: Do you think the judge just offered him a psychiatrist of his own choice?

Mr. Irvin B. Charne: The record really does not indicate.

Chief Justice Warren E. Burger: But either your brief?

Mr. Irvin B. Charne: Statute says that.

The statute says that he is entitled to it.

I am not sure that he asked for that, but the record says that there were two doctors there who had been appointed by the Court.

Why they were there does not appear and who they are represented does not appear.

And in any event, he did not see them.

Chief Justice Warren E. Burger: He did not have to make provisions or the judge could appoint him?

Mr. Irvin B. Charne: It says that the judge should appoint psychiatrist that the man has the right to be examined by a psychiatrist of his choice and that the Court will --

Unknown Speaker: About the judge?

Mr. Irvin B. Charne: No!

I do not think it does, Your Honor.

I do not know what is the basis of having these two doctors there was.

Unless there was something in the record that we do not have it, in case somebody asked for him.

I do not know what they were doing there.

Chief Justice Warren E. Burger: Here, I am just reading from your brief on page 5.

Mr. Irvin B. Charne: Yes.

Chief Justice Warren E. Burger: There is a statement about the 20:48 down on advice, the court appointed the counsel.

Petitioner here is to submit to an examination by a doctor or a psychiatrist of his own choosing prior to the hearing.

Mr. Irvin B. Charne: Yes sir!

Chief Justice Warren E. Burger: Prior to the hearing?

Mr. Irvin B. Charne: Yes!

He did not ask to have the judge appoint a doctor for him.

Chief Justice Warren E. Burger: Well, it was more than his not asking.

He refused to cooperate by selecting a psychiatrist of his own choice and submitting to examination and apparently, he was going out, not of his own choice but because his lawyer.

Mr. Irvin B. Charne: Yes!

Chief Justice Warren E. Burger: At that time, advised that he do that.

Mr. Irvin B. Charne: I think the line, would refuse to cooperate is the judicial language act, when you are asking me, You Honor whether I consider that to be Court advise or whether I would base my charge of lack of adequate representation on that.

I would not say that, that was because I am not sure that the lawyer was improper in directing him not to have a previous examination.

I do not know what the result of that would have been.

I am not claiming that, that is the kind of error.

In any event, he was extended for five years and then after that extension, he then commenced the series of procedures which has brought him here.

He applied to the Wisconsin Supreme Court in October of 1969, he filed a petition, there for writ of habeas corpus and it was denied.

He was without counsel, it was denied without hearing and without even asking for response and then he went to the United States District Court and finally, we got him out of this Court.

Now, what are the points that we wish to phrase with you regards to his treatment, I think.

The first thing, I want to point out is the difference or the disparity between the treatment of man under the Wisconsin Sex Crimes Act and especially, I say those which are not the mandatory, not rape, that thing but any other crime where the judge find that maybe sexually motivated.

Unknown Speaker: Does he have a hearing in federal habeas in District Court?

Mr. Irvin B. Charne: No, he did not have a hearing Your Honor.

There was a response filed by the State whether it was denied without a hearing.

Unknown Speaker: Just on the plea.

Mr. Irvin B. Charne: Yes Your Honor.

Unknown Speaker: And absence of hearing, is that a question that was raised in the court of appeals?

Mr. Irvin B. Charne: No Your Honor.

This case is very peculiar posture.

The trial Courts denied him a certificate of probable cause, so he could not appeal.

Then he filed an application for certificate of probable cause to the Court of Appeals with Seventh Circuit and that was denied.

And then he filed the petition with this Court and it was granted, so that this Court has never been heard by them, this case is not been heard by the Court of Appeals and there was no hearing in the District Court.

Chief Justice Warren E. Burger: So what would you, as of now, what do you suggest as the much expeditious way of unraveling this?

Mr. Irvin B. Charne: Well, it is partly, that it is my feeling that the Wisconsin statute on its face which I think we can look at without going into the factual things, is improper, is unconstitutional.

And that the Wisconsin’s Supreme Court has so interpreted that statute as to be in conflict with this Court's decision with the Baxstrom case.

In the Baxstrom case which was the case in New York where you had a person who had been sentenced on an assault charge.

I think it was a second degree assault.

So certainly, you have some question of physical danger there.

A man was sentenced I think it is about two and-a-half years and toward the end of his sentence, they filed a petition saying this man is insane.

It requires his mental treatment.

So then there was a proceeding and he was committed to an effect a criminal type facility for treatment and it came to this Court and this Court compared that treatment that he got with what a person under a civil commitment was entitled to in the State of New York and said that the statute was unconstitutional because that person should have been entitled to his same treatment a person civilly committed guy.

Now, I think that is very applicable to the State of Wisconsin.

Here we have a person who our man, he get sentenced on a crime contributing to the delinquency of a child and then at the end of one year which is the maximum for which he can be sentenced, he is again committed.

Now, there is a great difference between that and what would happen if he were civilly committed because he is not entitled to a jury trial and under the Wisconsin Mental Health Act which we set forth, every person in Wisconsin who is convicted civilly is entitled to have that question determined by a jury.

Unknown Speaker: And under the Mental Health Act, would it be committed as sexual --

Mr. Irvin B. Charne: Under the Mental Health Act, he would be committed if he were mentally ill, infirm or deficient.

Mentally ill, it means a mental disease requiring care for the welfare for yourself or other community.

Justice Thurgood Marshall: So that might include on sex elaboration?

Mr. Irvin B. Charne: Yes, I think it might include in. Now, the Wisconsin --

Justice Thurgood Marshall: Under that he would have a jury trial?

Mr. Irvin B. Charne: Yes, we would, Your Honor.

Justice Thurgood Marshall: Whereas under the Sex Crimes Act he gets neither that nor any other processes except that you described here?

Mr. Irvin B. Charne: Yes! He is entitled to reexamination under both the Mental Health Act and Sex Crimes Act but even there, there is a difference.

Under the Sex Crimes Act, you are not entitled -- ask for a reexamination until you have served the maximum period for which under the crime.

In other words in our brief, we say if you are sentence for rape for example, under the Sex Crimes Act that is a 30 years maximum.

You cannot ask for reexamination on your mental condition for 30 years.

Now, under the Mental Health Act in Wisconsin, when you are committed, you can ask for a reexamination at any time after recommitment and you got a hearing and a jury and then you can ask for reexamination but you cannot require it, more frequently than once a year.

Now under the Sex Crimes Act, you have to wait before they serve the maximum and then you can ask for a reexamination and after examination, you do not get a jury trial.

In addition --

Unknown Speaker: Let me sure of one thing though, had he pleaded not guilty to the original charge, he would not have had a jury trial?

Mr. Irvin B. Charne: Yes Your Honor.

On the criminal charge, no question, he would be entitled for a jury trial.

Chief Justice Warren E. Burger: And if he had been found guilty by a jury, all of these procedures would have been -- could have been wrote.

Could they not?

Mr. Irvin B. Charne: Yes Your Honor.

The thing the jury though would not pass upon the question of whether the offense was sexually motivated.

Chief Justice Warren E. Burger: As per the judge.

Mr. Irvin B. Charne: This is something which the judge adds onto the criminal proceeding, where you have a criminal charge levied against you, the issues are “did you commit that offense?”

Here the answer is “yes!” I gave beer to a minor, I am guilty.

Unknown Speaker: Well, this sentence is just a matter of (Inaudible)

Mr. Irvin B. Charne: So then you have the question of exposing him to this new --

Unknown Speaker: The sentencing procedure -- it is the sentencing part of that but --

Mr. Irvin B. Charne: It is not, it is in the sentence that is in part of it.

Unknown Speaker: But it is pleaded guilty or convicted by a jury, this process is applicable?

Mr. Irvin B. Charne: Yes!

Chief Justice Warren E. Burger: Was this Wisconsin statute passed about 30 years ago and we have the influx of sex Psychopaths statutes, do you have it all?

Mr. Irvin B. Charne: I do not know, Your Honor.

I know it was one of the early statutes --

Chief Justice Warren E. Burger: That long standing though?

Mr. Irvin B. Charne: Yes!

It is a long standing.

Your Honor, in connection with that, I am sorry that I did not get a hold of this until just a few days ago.

This is an excellent book, 'The mentally disabled and the law,' which is published by the American Law Foundation in Chicago University of Chicago press and has a very good discussion of this whole area, I would cited it more sensibly in my brief.

I had known about it but I just got hold of it.

Chief Justice Warren E. Burger: You may if you wish call our attention that time, except from the fact.

Mr. Irvin B. Charne: I appreciate doing that.

I think Your Honor if I have few minutes, I will reserve them.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Charne.

Mr. Frederick?

Argument of George L. Frederick

Mr. George L. Frederick: Mr. Chief Justice and may it please the Court.

I represent the respondent here, Warden Cady, Warden of Wisconsin State Prison.

Perhaps it should be well to begin by dealing with some of the questions that we are put to Mr. Charne.

The question on the section as far as discretionary commitment is concerned is dealt within Section 97502, which provides that if their sex crime is defined there is one in which the desire for the sexual excitement existed in the commission of the crime and provides that the Court may take testimony after conviction if necessary, to determine that issue.

Chief Justice Warren E. Burger: Do you agree that does is not the crime he was charged with?

Mr. George L. Frederick: Let me clarify that Mr. Chief Justice.

The way the charge is booked is Section 94715, Subsection 1, Subsection 80 which is contributing to the delinquency of the child.

The Sex Crimes Act then comes in to play Your Honor, just as or the closest analogy would be the habitual criminal statutes which we have in Wisconsin Section 939.62 where the enhanced punishment as a repeater comes into operation not as an additional charge but as an enhancement of punishment but there is a separate finding and the defendant is given notice before he pleads to the offense.

And of course, this is our contention precisely that -- I have got a stand here and I cannot say anything outside the records but it is an inference I believe, Your Honor, from the Heubner case and the other cases as I cite in my brief such as Rippon (ph) that the practice was when this defendant entered his plea of guilty then he was informed that he might be subjected to the disposition under the Sex Crimes Act.

Now, the purpose for the discretionary element on these crimes other than the three mandatory ones is this.

If you charge a man with incest why is necessary to take additional testimony, on that to show that sexual excitement existed in the Commission of the Crime.

On the other hand, when you charge a man with contributing to the delinquency of a minor, then it is after proposed to take the testimony and --

Unknown Speaker: Suppose that he is charged larceny of a watch, may this feature then be triggered?

Mr. George L. Frederick: In larceny of a watch, Your Honor would be treated like this.

That would require a separate hearing to show that this particular individual was one of the small group that god sexual gratification from stealing the property of others just to some people --

Unknown Speaker: Like I gather that Mr. Frederick almost this may be triggered by conviction for any offense, any crime is that?

Mr. George L. Frederick: Except that the Courts of Wisconsin supreme Court, Your Honor has given the --, what should I say, a telegraph to prosecutors and judges that by the Heubner decision that you are not going to be able to stray too far-field on this.

They are going to require some direct substantiation that the crime involved was in fact, motivated by a desire for sexual gratification.

I think as we get further and further in field.

It becomes harder to show.

Unknown Speaker: Well, Mr. Frederick, Justice Brennan’s question, however so far as the statute goes, has to be answered yes.

Mr. George L. Frederick: Yes!

Unknown Speaker: Except for homicide and attempted homicide?

Mr. George L. Frederick: Yes, Your Honor.

Unknown Speaker: Those are the exception made by the statute.

Mr. George L. Frederick: I agree.

Unknown Speaker: And my question is, let us assumes the prosecution for shoplifting and the psychologist, psychiatric tell us that we do this shoplifting is motivated this statutory basis or for arson.

And let us assume a conviction for shoplifting, then what is it that triggers this extra procedure, does the prosecuting attorney does it or does the judge do it on his own motion or --, what is it that gives the Court, the idea or the motivation or the triggers that affects the procedure in this particular shoplifting case as against some other shoplifting case that this one might come under this Wisconsin Sex Crimes Act?

Mr. George L. Frederick: All right, Your Honor, now --

Unknown Speaker: That is not all clear for me, it is the statute or from what happened in this case?

Mr. George L. Frederick: Now, in 1967, Wisconsin adopted the manifest injustice test for acceptance of the plea of guilty.

At that time of course, we began to attempt to comply with federal rule 11 and that the trial judge had to ascertain that the acts the person allegedly committed constituted the offense.

So in the course of adducing that information on a guilty plea, this information might welcome to the trial judge’s attention or you are quite correct, the district attorney could call it to the judge's attention and surprisingly enough Your Honor defense attorneys may well call this to the Courts attention because --

Chief Justice Warren E. Burger: How about probation report?

Could that trigger the pre-sentencing part?

Mr. George L. Frederick: Pre-sentence report could and of course on a trial on the merits, then it would become or it might become quite obvious that --

Unknown Speaker: That might not at all, that might be evidence that it trigger the person, so much from our Department store.

Mr. George L. Frederick: That is true.

And before the disposition under the Sex Crimes Act could be sustained, Your Honor.

There would have to be a finding made on these by the judge on the record that is the necessary sexual gratification in the connection with the crime was present.

Unknown Speaker: Well, what is not clear to me still is what the motivation, what the trigger is?

What the source is of this extra hearing after plea of guilty or a conviction.

Mr. George L. Frederick: Well, let me be frank with you then, Your Honor that the same reason is why I always charged the repeaters statute and the guys down the hall in the prosecutors office, never did.

It was my right of discretion in effect whether to charge a repeater or not.

Unknown Speaker: You mean there are some prosecutors who charge this with respect to every event?

Mr. George L. Frederick: None!

Unknown Speaker: This person is guilty of stealing a horse and on top of that, I am charging that he was sexually excited by stealing the horse?

Mr. George L. Frederick: All our prosecutor can do in Wisconsin Your Honor is to charge the principal offense.

In this case contributing, and then that if and only if the trial judge asked for some recommendation as to disposition is the defendant likely to be subjected to the act and in Wisconsin, we have the rule that the prosecutors recommendations are not at all binding on a trial judge.

Every defendant knows that, so we have very little justice in the repeaters statute, very seldom is the enhanced sentence given.

Unknown Speaker: What about the repeaters statute, you have an objective test does this person have a record of prior conviction?

There is no such objectivity, under this statute.

I still do not understand what triggers this post conviction procedure, if anything?

There is something on that.

Unknown Speaker: Let me be a little more specific.

Is it automatic --, almost in practice when there is a charge of contributing to the delinquency of a minor.

Mr. George L. Frederick: No!

It is not automatic Your Honor.

And what triggers it is, he has a based I think set out from in Torpy which I cite in my brief.

The procedure is in Wisconsin as every place else in the union that you often charge less than the facts warrant and this is a very good clue that the judge of course, if the principal charge was in fact one of the mandatory offenses and the prosecutor moves to amend it because he says, Your Honor I feel that I cannot maintain my burden of proof.

This would be a clear instance of when the judge would be alerted to take discretionary action under that provision 97502 of the statutes.

So that Justice Blackmun, is a frequent case and what is the situation in the Torpy case actually, where the conviction was also contributing.

That I am sure alerted the trial judge that this person should be considered for examination.

I want to emphasize this, the trial judge -- the termination at that point is merely to have this examination and then the --, as I pointed out in my brief in the note 1954.

Wisconsin law review, you know the statute had been in operation only couple of years, it was enacted in ‘51 --

Chief Justice Warren E. Burger: This statute?

Mr. George L. Frederick: Yes!

Chief Justice Warren E. Burger: ‘51?

Mr. George L. Frederick: Yes, ‘51 sir.

Chief Justice Warren E. Burger: Did you have something like it before 1951?

Mr. George L. Frederick: We had a statute on the books Your Honor, from 1947 under which there was no commitment.

It was a civil sexual psychopath statute.

So the --

Unknown Speaker: Then where do you send for examination?

Mr. George L. Frederick: The examination, Your Honor, can be conducted at anyone of several places.

It can be conducted as an outpatient while the man is at large.

He can be sent to the Sex Deviate Center which up until January the 1st, 1970 was at the state prison of Waukon.

He maybe examined at a facility in Milwaukee County that has been approved by the State Department of Health and Social Services or he can also be examined at other various sundry hospitals that have met the requirements --

Unknown Speaker: Well then, if I understand you that.

The judge decides, he is going to find out.

Mr. George L. Frederick: Yes!

Unknown Speaker: So he then orders --

Mr. George L. Frederick: The examination.

Unknown Speaker: The first step is the examination?

Mr. George L. Frederick: Yes!

Unknown Speaker: Now, after the examination is completed then what else?

Mr. George L. Frederick: That was the point, the statistics -- since our program is been on operation show about a 50-50 breakdown after the examination.

About half of the people are determined to be not in need of treatment and not suffering form the statutory phrase aberrations and are disposed off under the criminal code, regular sentencing provisions.

Unknown Speaker: That if the judge gets to the Court from right where the Institution is and this has -- this fellow does not -- can the judge sentence him or in this case if that happened, if it got up to a year and that is then the end of the case, is that it?

Mr. George L. Frederick: That is true!

Unknown Speaker: Exactly.

Now, but now that the report is, you have to think this fellow needs -- then what happens?

Mr. George L. Frederick: Then at that point, Your Honor, there is a triggered second round in which the defendant has the right to counsel again, his own statutory, his own psychiatrist, not the States.

Now all are paid for by the State.

And they have a hearing to determine if in fact the recommendation of the Department should be followed.

The burden is on the State to prove that by the civil burden preponderance of the evidence--

Unknown Speaker: Does it bring in the people who are prepared to report?

Mr. George L. Frederick: Yes!

Unknown Speaker: From the Institution?

Mr. George L. Frederick: Judge takes this one.

Unknown Speaker: I see and then there subjected to cross examination?

Mr. George L. Frederick: That is true.

Unknown Speaker: And then the accused, then has, he can put on his own witnesses is it not?

Mr. George L. Frederick: He can put on his own experts.

Unknown Speaker: And then what is the final determination the judges want -- yes, he does need them or no he does not --

Mr. George L. Frederick: He does not (Inaudible).

Justice Thurgood Marshall: (Inaudible) it says after he is pleaded guilty, he was committed to the states probably welfare -- what does that mean to you?

Mr. George L. Frederick: Your Honor, what happened here was he was using his form of the --, they have a standard form of the order that he had been using up until that time.

Early in January 1967, the Heubner case was decided and that put in this requirement for a hearing.

And as I said, all I can do is make the inference that three months after this decision came down, the defendant either got a hearing or made a satisfactory waiver of his right to the hearing and I do not think --

Justice Thurgood Marshall: Do they have to do (Inaudible) thing?

Mr. George L. Frederick: Yes.

Not after it Your Honor.

At the time of this appearance for commitment when the order --, the first order.

Justice Thurgood Marshall: This two pages here does not show -- I have nothing hear that even suggests that there was a hearing?

Mr. George L. Frederick: That is true.

Justice Thurgood Marshall: Was there or was there not a hearing?

Mr. George L. Frederick: You want me to tell you? Go outside of the record, should I tell you?

Unknown Speaker: No!

Do you have anything on the record that disputes that?

Mr. George L. Frederick: I have nothing on the record to dispute that.

Justice Thurgood Marshall: Well it seems to me that if the State department had decided that he did not have mental aberrations?

He would certainly want this?

Mr. George L. Frederick: That is correct, Your Honor.

We cannot deceive that much, the Department did recommend 3 months.

Chief Justice Warren E. Burger: Or maybe you do not know who in the Department made that decision.

It could be an office clerk.

Mr. George L. Frederick: No, I can only tell you what the procedure is in the usual case but I could not swear that it was followed in this case.

That is true, Your Honor.

Instantly, this statutory word that may have troubled you at aberrations operations was a word devised by the Department to make this sort of distinction, Your Honors.

The Department of course has been studying this programs, since the end operation could be one and they gradually flushed out the criteria, so aberrations means essentially this.

Those who have sexual offense in the broad sense stands from the, what should I say, their environment, for example, it is no secret that in certain areas of Wisconsin, they incest between father and daughter, is not such a shocking thing.

As strangely enough those cases would be not within the purview of the statute as the Department has interpreted their criteria.

What they are trying to do is to deal with the individual whose own psychological make-up as best that can be determined and is imprecise as it is leads them to commit sex offenses.

Unknown Speaker: I gather as far as we know this person never had any treatment of any kind, that it is.

Mr. George L. Frederick: There is no record, Your Honor to show what it is –

Unknown Speaker: I think he was released on parole?

Mr. George L. Frederick: Yes.

All I can do is to cite you to the cases in my brief Burby versus Burke (ph) and if you --

Unknown Speaker: Well, I gather you have a parole board here?

Mr. George L. Frederick: They have a special review board under this statute, Your Honor who deals especially with this class of persons.

Unknown Speaker: Well, I wondered on that, we can have no idea of the basis on which he was paroled.

How does that, that special board determining that he is now cured of aberrations?

Mr. George L. Frederick: No Your Honor.

The question is --

Unknown Speaker: They are not sure there is still a lot of danger to the public?

Mr. George L. Frederick: Yes!

The criteria for a release is set out in section 97514, and it is dangerous to the public because of the person's mental or physical deficiency disorder or abnormality and that has been construed those last three words they relate back to the aberrations.

Unknown Speaker: Well, the finding must -- when it was extended the finding must have been that he ill --

Mr. George L. Frederick: Yes!

Unknown Speaker: And now, during the extended period, that is now a finding, that it is no longer ill.

Mr. George L. Frederick: That is true.

Unknown Speaker: Now, on what does that predicate?

Mr. George L. Frederick: I would not assume now it is predicated Your Honor, on the results of the test that are maintained under the statute.

Everyone has to be examined once a year and if he is not examined, he goes before the Court again.

When he has been extended once like this petitioner, he goes before the Court every six months if he wishes for an extension.

So I would assume that this petitioner, like everybody else similarly situated was afforded the opportunity for treatment and the Department felt that the things had progressed to the point that he was no longer dangerous.

Unknown Speaker: So if the state possessed a state hearing in the habeas corpus of District Court?

Do you mean that he would have a hearing in this case, he would not be fishing in the dark ?

Mr. George L. Frederick: That is why I feel like I am operating here with one hand type, like that.

Unknown Speaker: Well, how do could we (Inaudible)?

Mr. George L. Frederick: We did not resist it.

What happened was this.

When this lady attorney did not file the brief, the judge apprised the man --

Unknown Speaker: Well, I am speaking that he was the representative of the Federal Court, does he?

Mr. George L. Frederick: No!

Unknown Speaker: He filed a petition for habeas corpus.

Mr. George L. Frederick: That is true!

Unknown Speaker: And the state resisted it?

Mr. George L. Frederick: We did.

Unknown Speaker: And it was dismissed?

Mr. George L. Frederick: That is true.

Unknown Speaker: There was never been in the hearing.

Mr. George L. Frederick: There has never been an evidentiary hearing.

Unknown Speaker: None of the things we are discussing this morning, might have been flushed out --

Mr. George L. Frederick: Yes, that is what I devoted first part of my brief to and of course I stand on those positions but I would not burden you more than here now.

Unknown Speaker: Let me clear one thing.

As I understand you this to say in response to Justice Brennan's questions, there is an examination every six-months under the sex deviant statute --

Mr. George L. Frederick: Or after --

Unknown Speaker: After a five-year extension of his term.

Mr. George L. Frederick: No!

No, Your Honor.

It is, in this case, when the hearing was held at the end of the maximum time, he would have received had he been sentenced under the criminal code.

And he was continued for five-years, then every six months thereafter, he has a right to have another hearing before the court and department must justify his continued control by the department.

Justice Harry A. Blackmun: Are you saying during the five-year period?

Mr. George L. Frederick: Yes Justice Blackmun, but I should point out this, you understand that everyone under the sex crime was handled that under the Sex Crimes Law, has no minimum sentence so to speak.

In other words, if you go to the facility and they decide a week later that you are done, you go out.

Either on parole or final discharge, you can do either one.

And your parole and your connection with the Department is ended whereas of course, everyone else who goes to the state prison is sent there for a year and must pay the half the maximum before they are eligible for the parole.

If your sentenced for 30 years, you still come up for a parole within a year at the most under Wisconsin Law.

Incidentally, this maximum period is computed by like much as they do in federal, you take the statutory good time and deduct it from the maximum sentence, so that on a recharge of 30 years, you would do at most 16 years and 3 months.

Now --

Chief Justice Warren E. Burger: Do they have to wait for an examination for that long under the statute, would not they?

Mr. George L. Frederick: Of course, Your Honor –

Chief Justice Warren E. Burger: It comes under special motion on special order of the court?

Mr. George L. Frederick: You have the same right of course as everybody does to petition for a writ of habeas corpus and I think that here, it would not be just like the usual sentence where your sentence has not expired yet because if you could show that you had not been afforded treatment and so forth, the state would be in their election of its duties under the statute and the writ would lie just as very similar to the provision 18 US C4517.

If I could leave you with one fraud, Your Honors and that is this what we have tried to do here under this Sex Crimes Statute is to utilize psychiatric data.

Even though what is the best.

We can believe that there could be much worse in the existing system of incarceration where you put a man in prison and lock him up and leave him there.

Here, there is an obligation on both parties, the state to provide treatment and the defendant to seek out treatment and I think this is important because experience has shown on that this man are often poorly motivated for treatment and here, they have a definite incentive to be treated and I think that it is about as good a system as any for dealing with this sort of difficult problem, much is like faces us with alcoholics and drug addicts and so forth, where there is no real question of insanity.

It is best a personality dis-function that he has justified the commitment.

The other difficult part of this problem, Your Honor, is the jury trial question and I say it is difficult in the sense that if we require a jury trial for these proceedings, I wonder where it is we draw the line after that, because there are many statutes under which a man is deprived of his liberty without jury trial.

For example, under Wisconsin statutes, one who has tuberculosis, one who has venereal disease, one of that has typhoid fever.

Those who do not support their families might be incarcerated summarily for up to six-months, so I think it is a very real question as to what point we are going to extend the right to jury trial in these collateral proceedings Wisconsin has never required that under the constitution.

It has always been a statutory right to have a jury trial on insanity proceeding.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Frederick, Mr. Charne?

Rebuttal of Irvin B. Charne

Mr. Irvin B. Charne: Yes, Your Honor.

Chief Justice Warren E. Burger: You have one minute left.

Mr. Irvin B. Charne: I am just going to respond briefly to the question of what triggers this proceeding because my belief and understanding is that nothing may trigger it other than the judge's own intuition or prior knowledge of this person or the fact that the community is presently angry about a certain type thing, so the statute does not require any basis and I say the statute does not require a hearing on the question of whether the person is sexually motivated and this record does not show any such hearing.

The Wisconsin Supreme Court in the Buchanan case, that we cite, I say has laid down --

Unknown Speaker: (Inaudible) very difficult question do we have some king of record -- .

Mr. Irvin B. Charne: Of course, Your Honor.

Yes, no question about that and I --, that is very difficult for the District Court.

Your Honor, I was in the law court and Federal District Court, know how hard is to examine all these things and pick out the good ones and there was no lawyer who examine it and the judge upon the issue that the petitioner himself set forth the judges thought that this was not a meritorious case.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Irvin B. Charne: That would be very much easier.

Unknown Speaker: This petitioner on parole now?

Mr. Irvin B. Charne: Yes, he is Your Honor.

Unknown Speaker: And that if he will then commit to a commitment, would he return to the old prison, or will he go the mental health?

Mr. Irvin B. Charne: Judge, I do not really know the answer to that and I believe there is a big chance that he goes back to prison.

And even --

Unknown Speaker: The Wisconsin takes here a position --

Mr. Irvin B. Charne: I do not know.

Unknown Speaker: As (Inaudible).

Mr. Irvin B. Charne: They say that he would go to the state central hospital.

Your Honor, which is a Institution for the criminally insane.

It is a penal mental mental Institution.

It is not where people go on sooner.

Chief Justice Warren E. Burger: Was that in existence of the time he was convicted in '67?

Mr. Irvin B. Charne: Yes, he was.

Unknown Speaker: That is typical for a institution to which civilly committed people --

Mr. Irvin B. Charne: Yes, the people.

Yes, I think we point it on our brief that a person who is civilly committed; there is no provision for sending him to that institution.

He may go to a hospital if he is civilly committed.

Chief Justice Warren E. Burger: Mr. Charne?

Unknown Speaker: (Inaudible) We have here the wrong respondent.

Mr. Irvin B. Charne: Well, I think that maybe true although in the case of Jones v. Cunningham I think we cite, where there was a young man was on the parole.

It was pointed out the fact that he is on the parole, we are not making the case moot and I think really here, the respondents is the State of Wisconsin.

The Attorney General, the Supreme court of State of Wisconsin, the whole prison system and the welfare is under one direction, so he is (Inaudible).

It arises from the fact that he was paroled in March of this and the writ was granted in March also.

Unknown Speaker: Oh, yes they had file the petition here before?

Mr. Irvin B. Charne: Yes!

Oh yes!

Unknown Speaker: (Inaudible)

Mr. Irvin B. Charne: The petition has been filed last year.

Unknown Speaker: I think we have a case of those circumstances.

Chief Justice Warren E. Burger: Mr. Charne, you acted as our request and by the appointment in the court in this case and on behalf of the court, and I want to thank you for your assistance, not only to your client but your very effective assistance to the Court in the case today.

Mr. Irvin B. Charne: Thank you very much.

It has been a honor to be here.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Haines v. Kerner - Oral Argument

Thu, 23 Aug 2012 18:18:25 +0000

Case:

Haines v. Kerner

Media File:

70-5025_19711206-argument.mp3

Related Transcript:

70-5025_19711206-argument

Transcript:

Argument of Stanley A. Bass

Chief Justice Warren E. Burger: 5025, Haines against Kerner.

Mr. Bass you may proceed whenever you are ready.

Mr. Stanley A. Bass: Mr. Chief Justice and may it please the Court.

This case is here on Certiorari to the United States Court of Appeals for the Seventh Circuit which affirmed the dismissal of a pro se action brought by an Illinois prisoner against prison officials and others under 42 U.S.C. Section 1983 seeking damages and other relief for injuries resulting from allegedly unconstitutional disciplinary treatment.

The District Court granted the respondent officials' motion to dismiss without allowing relief to amend or to amplify, without directing an answer from the defendants, without allowing discovery, without a point to counsel as some other person to assist the petitioner and without conducting any hearing.

The facts are basically as follows.

In 1968, Haines was then 66 years old, was an inmate of the Illinois State Penitentiary serving a life sentence imposed for burglary as habitual offender which was imposed in 1939.

Justice Harry A. Blackmun: Where was he, at State Ville or?

Mr. Stanley A. Bass: He was in Menard.

Justice Harry A. Blackmun: Menard.

Mr. Stanley A. Bass: At the time he had a foot disability for which he had been awarded compensation by the Illinois Industrial Commission.

On March 10 of 1968, Haines while on work detail was threatened by two younger inmates about 30 years old.

Statements were made by the other inmates to the effect that the young blood was taking over and that the old blood like Haines was dying.

Haines did not immediately react to these torrents, but obtained an inmate pass to go outside and inspect the pile of cinders.

When Haines reentered the shack, the two younger inmates resumed their arguments and their threats stating that Haines had better watch out or he would be hurt.

Again, Haines did not react.

After Haines entered the bathroom, these other inmates approached him in a threatening manner and resumed the argument.

One of the two men asked him if he wanted to start something, he thinks of Dorothy and Haines then hit Dorothy with a shovel. Subsequently, there was a scuffle with Mr. Moore and after that Mr. Haines was taken by one of the officials of the prison to the solitary confinement.

Sometime after that which is not clear from the complaint, Mr. Haines was taken by the defendant Rogers to the disciplinary officer.

Mr. Haines refused to explain his actions other then to acknowledge he had hit Dorothy with the shovel.

He was locked again in an isolation cell until the report that he had from the defendant Duncan.

Sometime after that, it is also not clear how long the period was, the report was submitted to the disciplinary committee.

At that time Haines was brought before them and objected to certain statements regarding his hitting the shovel on the floor.

Haines had indicated that he had dislodged some dirt from the shovel and the defendant Lance wanted to know why plaintiff would hit Dorothy and stated that it been 28 years since Mr. Haines had been in the hole.

When plaintiff refused to talk to these officers he was given 15 days punishment in solitary from March 10 to March 25, 1968.

Mr. Haines described somewhat the conditions of the solitary.

He said that it was a dark cell, that he had no bed or mattress, that he had to sleep on the floor on blankets, that he had received one regular meal during the afternoon and some bread in the morning and in the evening, that there were no personal articles of hygiene, specifically no soap or towel and that his false teeth became so rancid he had to take them out.

Following his day in solitary confinement, Mr. Haines was demoted to C grade which meant that he lost certain commissary privileges and other privileges which Haines said are not known to him.

Although in discovery Haines filed numerous requests for admissions and interrogatories where he sought to ascertain more information along that line.

The issues in the case are first whether or not the District Court prematurely dismissed the complaint.

Secondly, whether the totality of the circumstances of this particular solitary confinement as applied for this particular inmate unjustified on this record violated Haines' right to be free from cruel and unusual punishment.

Third, whether Haines was effectively precluded from making a defense or self-defense at the disciplinary proceeding and finally there is a question of whether or not Haines was penalized for exercising his right to remain silent until the existence of any immunity was fairly demonstrated to him.

The issues that are not involved in this case are a general attack upon solitary confinement per se under humane conditions and secondly whether or not the application of Goldberg versus Kelly type of procedures apply to all disciplinary proceedings.

We deal in this situation with the specific problem where a man is charged with a prosecutable offense where a self-incrimination question must be dealt with.

Justice Harry A. Blackmun: Mr. Bass I am just a little curious.

Does the record show what happened to Dorothy and Moore?

Mr. Stanley A. Bass: The record does not show what happened to Dorothy and Moore in terms of whether or not they were punished or prosecuted nor does the record show if Haines was ever prosecuted.

I believe he was not.

The principles applicable to this –

Justice Harry A. Blackmun: Do you know?

Mr. Stanley A. Bass: I do not know.

Well, I do know that he was not prosecuted from talking to Mr. Haines, but I do not know that the other two individuals.

But the principles applicable to the Eighth Amendment claim are well stated in Jackson versus Fischer in the opinion by Mr. Justice Blackmun then a Circuit Judge.

Justice Harry A. Blackmun: You said there has been no hearing in this case?

Mr. Stanley A. Bass: We said that there was a disciplinary hearing.

Justice Harry A. Blackmun: No, in the District Court was there hearing?

Mr. Stanley A. Bass: The District Court summarily dismiss under the motion of the defendants to dismiss.

So there is no evidence on which we can (Inaudible) –-

The only thing we have the allegations of the complaint which are taken us true for present purposes which must be liberally construed in accordance with pro se of willing rule.

Quoting from the Supreme Court pronouncements in Jackson versus Bishop, Mr. Justice Blackmun pointed out that the meaning of the Eighth Amendment is nothing less than the dignity of man that it is a flexible guarantee drawing meaning from evolving standards of decency that mark the progress of a maturing society, wanton infliction of pain and unnecessary cruelty are barred.

Significantly a statement is made there that brought an idealistic concept of dignity, civilized standards, humanity and decency are useful and usable and as we point out, the practices of other jurisdictions, standards of the American Correctional Association, the United Nations Minimum Standards and the views of experts show that these concepts are also practical and workable.

This Court has not hesitated to strike down state penal practices which contravene federal constitutional guarantees.

Younger versus Gilmore, Cruz versus Hope, Johnson versus Avery, Cooper versus Pate and Lee versus Washington, all involved the cases where state penal practices were held to be inconsistent with the Federal Constitution.

It appears that the respondents do fall back to the position that the action taken here was actually necessary to the maintenance of prison discipline and security.

But interestingly there is no evidence in this record to support that conclusion and that is another reason why the case needs to be remanded.

They suggest possible abuse of facilities by a person in solitary confinement as an abstract possibility, but nowhere as it is suggested, as the Second Circuit pointed out in Wright versus McMinn, that a determination had been made administratively that Haines was a person that would have abused those facilities.

Accordingly, the case must be remanded to ascertain whether or not such a determination had ever been made and it should be noted in this connection that there are alternatives to the type of punishment that was imposed upon Haines.

This would be entitled to some weight in determining whether or not the inflictions in this case were actually necessary for prison discipline.

As the President’s Crime Commission pointed out in 1967, one of the things that could be done in a situation involving misbehavior is that the inmate should be contacted by members of the staff concerned with this classification in counseling which can include chaplains, case workers and persons of that sort.

They should discuss with him the causes and consequences of his misbehavior trying to reach agreement on what the causes are and how they may be corrected.

So that instead of blandly imposing a subtle or not so subtle form of corporal punishment, they ought to try to get through to the man’s mind and find out why his attitudes are the way they are.

In this case, it is quite possible that would finally ascertain that Haines was reacting in self-defense and was not the aggressor.

And as we find from some of the returns to our questionnaire from some of the departments of corrections, many persons are saying we use solitary confinement only as a last resort when other alternatives are not availing.

Perhaps one approach that –-

Chief Justice Warren E. Burger: Would you clarify for me Mr. Bass, I am a little confused by something that you just said.

What happened when they undertook to make an inquiry into the incident of hitting the other prisoner over the head with shovel?

Mr. Stanley A. Bass: Well he refused to explain his actions.

I will get to that in a moment as to why he was affectively precluded from talking about self-defense at that point.

That is the second point involving due process.

With respect to the first point, perhaps the best approach would be for this Court to adopt the procedure utilized in the Eastern District of Arkansas with respect the whipping cases.

First case, Tally versus Stevens held that there must be procedural safeguards surrounding the infliction of corporal punishment in order to minimize abuse.

Interestingly, none are shown here.

That is we do not know whether or not they are Illinois regulations requiring a doctor to certify that a person is fit to take certain types of confinement.

There is no showing that there is administrative review of low racial armed personnel nor that any showing that Haines' physical condition was given any weight whatsoever in the determination that he should be subjected to this type of punishment.

Of course this is a determination for the prison officials not the Courts to make.

However, there is no showing that prison officials made such an informed showing on this record, and therefore, the case must be remanded.

As the Fourth Circuit pointed out in Brown versus Payton while the judgments of prison officials are entitled to considerable weight, prison officials are not judges and are not charged with responsibility of enforcing the constitution and they are not always disinterested persons.

We do not denigrate there views, but cannot be absolutely bound by them.

The second approach that might be taken would be to hold as in Jackson versus Bishop that there are such practices that so contravene civilized standards as to constitute cruel and unusual punishment per se.

For example, there is no showing at all that any legitimate interest is served by keeping people in dark cells.

Nor is there any showing that prisons could not be loaned the personal articles of hygiene which is then be returned back to the officials so that a person would not be able to make weapons or razor blades or things of that sort.

Nor is there any showing that it is impossible to construct the bed that cannot be taken apart by a prisoner.

Nor is there a showing that it is impossible to have medical visitation or to have exercise.

But we think that a remand should be held in this case in order to fully develop the record as to exactly what alternatives were available to the state and whether or not the inflictions in this case were actually necessary.

We are not seeking final judgment here, but only a chance to prove that Haines was in effect treated as rubbish.

The second claim which is the procedural due process claim is as follows.

Mr. Haines points out that no statement of reasons was ever given for the punishment and there is the chance that he may have been penalized for exercising his right to remain silent.

He was under dilemma of talking and possibly incriminating himself or not talking and thereby suffering punishment.

As we pointed out this was –-

Justice Potter Stewart: Mr. Bass, he was -- in fact that no reasons were given for the punishment really does not make this case very unusual?

In that sense the as a general rule in ordinary and criminal prosecution after a conviction, the sentencing judge quite often does not give reasons why you got one sentence rather than another, is that not true?

Mr. Stanley A. Bass: Well, I was leading for another point Mr. Justice Stewart.

Justice Potter Stewart: Not such a procedural due process claim?

Mr. Stanley A. Bass: To the extent to which the Federal Courts might defer to administer determinations which are based upon sound procedural basis then it may be that if it can be shown that there were statements of reasons that they are adequate procedures, the Federal Courts might then not undertake to review every single situation, but what we have as here a situation where no reasons were given without any explanations to whether or not that would have been impossible.

Actually many prison officials could give reasons for punishment.

Justice Potter Stewart: You mean give reasons why they impose ten days in solitary confinement rather than 12 or rather than eight?

Mr. Stanley A. Bass: I believe some --

Justice Potter Stewart: If so this makes it much different from the ordinary criminal process where no states, where juries set the punishment, no reason is ever given and/or ascertainable and in those state, those jurisdictions where the federal judge or where the judge in a federal system or in the state systems where the judge imposes the punishment, he quite typically does not give reasons why he imposes a sentence of two years rather two-and-a-half or three rather than one-and-a-half.

Mr. Stanley A. Bass: Well, the alternatives to no reason is that the Federal Courts will then have sufficient to the cases is to determine what the reasons were applied.

Justice Potter Stewart: Why?

Mr. Stanley A. Bass: In order to ascertain whether or not there was an impermissible basis of punishment.

If he was penalized for taking the Fifth Amendment, that would be negligible.

Justice Potter Stewart: In the whole -- in reviewing State Criminal convictions and Federal Criminal convictions.

This Court and most reviewing courts are entirely without power to look into the punishments so long as it is within permissible limits and generally no reason is given by the one who imposes the sentence?

Mr. Stanley A. Bass: Well, in the event that the Court does not require a statement of reasons be given that it would be necessary then in individual cases to ascertain exactly what the basis was.

If an inmate claims that the reason that he was punished was because he engaged in protected activities such as filing writs against the warden --

Justice Potter Stewart: You mean as to why he was punished at all?

Mr. Stanley A. Bass: Why he is punished at all or why he was punished to the extent to which he was punished?

Justice Potter Stewart: Well, that is the second part that I do not understand.

Mr. Stanley A. Bass: We would simply submit that it may be required by due process and perhaps more important, it will enable to Federal Courts to ascertain whether or not the case does present the constitutional infirmity raised by the prisoner, but in any of that we would suggest that the way that the dilemma that the inmate has can be resolved is suggested by the District of Columbia Circuit decision in Nelson versus Hart.

There, there was a man on Federal parole that was arrested for a new offense.

It was sort of continuance of the Federal parole revocation proceeding on the ground he might incriminate himself.

The Circuit Court said there was no need for a continuance because they would adopt an implicit use immunity rule saying anything that he said in the revocation proceeding would be ipso facto inadmissible in the criminal case.

Under those circumstances that removes the legitimate fear self-incrimination.

If it has been fairly demonstrated to the prisoner that he has no Fifth Amendment problem, he could then talk.

In this situation there is no showing that Haines do of any implicit use immunity nor that he was advised by this.

Now, the appointment of counsel might suffice or simple admonition by the administrative officials might suffice.

On this record we certainly cannot presume a waiver that he intentionally relinquished that right knowing that he had such a right and under the circumstances the case must be remanded for a determination.

In addition, while Haines raised a question as to whether or not his good time was properly taken away.

We think candidly that, that issue really is not relevant to this case for the following reason.

In Illinois life prisoners are entitled to be considered for parole at the end of 20 years minus good time.

But Haines did not need that good time because his 20 years were up in 1959.

Therefore, the only question related to his release is whether or not the parole board might have taken this disciplinary proceeding into consideration in denying him parole in 1968.

For the Court’s information, Mr. Haines in June of 1971 was paroled effective July 6, contingent upon acceptance by the Veteran’s Hospital if the detainer was not exercised against him.

Well, unfortunately the Veteran’s Hospital has not chosen to accept him and that is the problem that remains to be worked up, but he still has a damage claim in this case that must be resolved.

He does say that he suffered physical injuries and pain and suffering as result of being in that solitary cell and under the circumstances that he has a clear right under Section 1983 under Monroe versus Pape to come into this Court and seek relief.

If there are no further questions, I will save my remaining time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Bass.

Mr. Smoot.

Argument of Warren K. Smoot

Mr. Warren K. Smoot: Mr. Chief Justice and members of the Court and may it please the Court.

In June of 1968, petitioner filed a pro se civil rights complaint in the District Court of the Northern District of Illinois Eastern District.

In addition to the facts that Mr. Bass has already laid out, I would like add the additional facts that were presented by the complaint.

Haines was 65 and he was working in the yarding.

There was a verbal disagreement between himself and other inmates and in response to this verbal disagreement, Haines struck another inmate over the head with a shovel, a dissent that was observed by another inmate by the name of Orlando, a prison official who was close at hand came to the incident.

He administered first aid to the inmate that was struck over the head with a shovel then called for the disciplinary lieutenant of the day.

There is a procedure at Menard Penitentiary to walk serious rule infractors to the Disciplinary Captain.

When Mr. Haines was walked to the Disciplinary Captain, he admitted the violation of a serious rule to penitentiary.

He admitted to the lieutenant that he struck another inmate over the head.

In response to this admission, Mr. Haines was placed in what Menard calls a holing cell.

Mr. Haines calls it isolation; we will accept that as true.

On the same day, an investigation took place.

On the same day March 10, 1968, Mr. Haines was given a hearing in front of two captains, one was lieutenant one was the captain who were not involved in original incident.

The investigation report of the guy who made the investigation was presented to Mr. Haines.

He was confronted with the investigation.

He had the opportunity to rebut the investigation or in the alternative to explain his actions.

He took advantage of that by making what he felt were minor changes in the investigation report.

In fact he said “Well, I did not bang the shovel on the yard room floor as investigation presents, but I will answer no further questions.”

Justice Potter Stewart: Were the prison regulations published and disseminated upon the prison population?

Mr. Warren K. Smoot: Yes sir, Your Honor.

It is a policy of the penitentiary to place the inmate guidebook in each cell and I think it is Rule 19 which prohibits fighting in the penitentiary and also gives the inmates notice that if fighting does occur, there will be quick and summary punishment, including potentially isolation and revocation of good time.

Justice Potter Stewart: Is that Rule 19 or is it the guidebook?

Mr. Warren K. Smoot: It is in the respondent’s brief, Your Honor.

I do not have the page at hand.

Justice Potter Stewart: Thank you.

Mr. Warren K. Smoot: After the hearing, giving Mr. Haines the chance –

Chief Justice Warren E. Burger: Does the regulation provide for the hearing?

Mr. Warren K. Smoot: I do not think it does, Your Honor, but it is the policy for the penitentiary to have a hearing for all serious rule infractions.

Minor rule infraction such as not standing in line for the count, taking food that is not authorized, often times the guard will dispose of this violation on the spot.

But any violations which the prison considers serious fighting, stealing, contraband they will have a hearing in front of an impartial Disciplinary Captain and in this situation, there were two.

Justice William J. Brennan: By impartial that is someone who was not connected with the particular incident?

Mr. Warren K. Smoot: That is true, Your Honor.

They are penitentiary staff though in that context.

Only after Haines was given a hearing in front of these two members who are not a part of the original confrontation was there a disposition.

The disposition resulted in placing Mr. Haines in 15 days in isolation.

He did have a toilet, He slept on the floor with three blankets.

He admitted having one meal a day plus bread and water in the morning and in the evening.

He alleged the absence of any personal hygiene articles, but he specifically noted no towel, no soap.

He also alleged his false teeth became rancid.

The first issue I would like to address myself to is whether the hearing or the procedure in which the penitentiary disciplined Mr. Haines complied with due process.

The majority of Federal Circuits who have examined this problem have concluded that as long as the punishment is not posed arbitrarily or capriciously, it comports with due process.

This Court has stated in several cases that the fundamental requisite of due process is a meaningful opportunity to be heard.

The meaningful opportunity to be heard is a relative concept depending on the capacities of those to be heard and the circumstances of the situation.

This Court has also noted that where a specific proceeding is required, the nature of that proceeding would depend on the nature of the alleged right involved, the nature of the proceeding and the possible burdens inflicted on the proceeding.

I think when we look at the facts as pleaded by Haines and by the way I viewed approximately 800 civil rights complaints while I had been working for the Attorney General and Mr. Haines was not only articulate pro se a litigant, but he had pled his facts well.

He was very specific.

There is no evidence that Mr. Haines is inarticulate, not intelligent or incapable of presenting his own complaint.

Haines admitted the rule violation.

He admitted to a guard.

There is no evidence of coercion that he hit, struck another inmate over the head.

He refused to answer any further.

After an investigation by the guard, being presented with this investigation, Mr. Haines had the opportunity to rebut the findings of facts in the investigation or explain his actions.

He failed to correct any of the report or to respond other than to make minor corrections in the report.

The disposition occurred only after investigation and a hearing.

Justice Thurgood Marshall: Mr. Smoot, what was he punished for, not answering the question or for hitting the man over the head?

Mr. Warren K. Smoot: There is no question that the record supports that he was punished for the rule infraction.

Justice Thurgood Marshall: Well, where is that in the record?

Mr. Warren K. Smoot: Well, I think it is a reasonable assumption to make it if an inmate strikes another inmate over the head with a shovel.

He admits to the guard and there is investigation and after they give him the opportunity to respond to that, they say, alright 15 days –-

Justice Thurgood Marshall: Was it possible that he was punished for not saying he did it?

Mr. Warren K. Smoot: Not in this situation.

No sir but even if –-

Justice Thurgood Marshall: Why is it an impossible?

Mr. Warren K. Smoot: Alright, it could be possible but it is not logical in this situation that he was punished for not -- he already admitted the rule violation, so he was not silent in this situation.

He admitted the rule violation even if he was silent, I think it should be permissible to punish an inmate for remaining silent.

Justice Thurgood Marshall: Oh, you do?

Mr. Warren K. Smoot: Yes sir.

The Fifth Amendment follows the individual and penitentiary.

No question about that but the Fifth Amendment should not permit an inmate to remain silent when he was asked solely and narrowly questions concerning discipline in the penitentiary because the inmates are probably one of the sole or often times the only sole information concerning what is going on in the penitentiary.

I do not think that the Fifth Amendment has right against self-incrimination should prohibit the penitentiaries for disciplining inmates for being silent.

It is not an issue here and we are not quite sure what the punishment would be for remaining silent, but obviously it is not logical assumption from the facts in this case that Mr. Haines was punished for remaining silent.

There is no issue here of confrontation and cross-examination.

The facts were not in dispute.

The question for the penitentiary officials was what would be the result of the situation.

There are no complicated fact situations.

The credibility of witnesses are not in issue here.

There is no biased evidence from the statement of the pleadings.

So since the facts were not in dispute and there is no evidence of faulty memory or bias, obviously cross-examination now requires it.

Mr. Haines did not ask for any witnesses.

He states in his complaint that Orlando was in the witnesses at the time of the hearing.

He did not ask for inmate Orlando to come in.

It is a policy of the penitentiary to permit inmates to call other witnesses, if they have this or in the alternative if the Disciplinary Captain feels it is the better practice, he will go out and have an investigation or write-up a report on the other witness, comeback and present it to the inmate who was subjected to the hearing.

The second issue concerns cruel and unusual punishment.

I think equally is important or maybe even more important are the facts that Haines does not allege, the following facts are not at issue here.

Haines did not allege that there was any absence of running water.

In fact, he had running water.

He said he had a toilet and the unit in the isolation cell of Menard only comes with a basin and toilet and not separable.

So he had a wash basin with running water and a toilet.

He never alleged the absence of running water.

Justice Potter Stewart: With the same -- same utensil?

Mr. Warren K. Smoot: Same unit Your Honor.

Yes sir.

Justice Potter Stewart: It was a toilet and a wash basin?

Mr. Warren K. Smoot: Yes, there is one unit there installed.

They were installed in 1968 prior to his incarceration.

Mr. Haines does not allege the absence of any shower or shave.

In fact, it is the policy of Menard penitentiary to give inmates a shower once a week and a shave while in isolation.

He never alleged he did not have a shower.

Justice Potter Stewart: Well then you say that is a policy, you are just telling us that?

Mr. Warren K. Smoot: That is right Your Honor.

Unknown Speaker: As we are hearing, I take it that is a sort of thing that would have been developed at the hearing then?

Mr. Warren K. Smoot: In response to that Your Honor may I say, I think the logical implication for requiring a hearing is that you are assuming that penitentiary has done something wrong and you are making them prove off that they did not do anything wrong.

I think the proper posture –-

Unknown Speaker: Well, you can stay where that was --

Mr. Warren K. Smoot: Okay, if I may complete.

Unknown Speaker: Yes.

Mr. Warren K. Smoot: I think the proper posture here is when you have a complaint, even if it is pro se, the rule says that a liberal construction must give the inmate liberal construction, but this does not mean that you plead facts for the individual that may or may not state a cause of action.

You rule, you give the appropriate remedy.

That is how liberal construction says, that the federal Courts should provide the inmate a remedy.

Notwithstanding if he says habeas corpus and if it is really civil rights or vice versa, the Federal Court should apply the plurality there, but not plead facts for the individual and Mr. Haines was very specific throughout his complaint concerning the allegation.

He mentioned the individual's names and the dates.

I thought I think it is logical to assume that if he did not have running water or did not have showers or he did not have adequate heat or ventilation, he would have brought these out in this complaint and I think it is improper for the Federal Court to assume the absence of these, hold a hearing and then require the state to prove that he had.

I think it is fair to both parties and you are not doing an injustice to a liberal construction to require, the Federal Courts, to merely rule in the facts as pleaded and I think what is logical here is to show the facts they were not pleaded.

They are balanced of against the facts that were in concluding whether under the total circumstances the incarceration of Haines was cruel and unusual punishment.

There was no inadequate heat or ventilation in this case.

There was no inadequate medical attention.

He alleges no permanent physical discomfort.

He says he had circulation problems at that time.

Absence, his specific allegation that he had no towel or soap, he alleges no unsanitary conditions.

So you have a situation in which you have 15 days, that is the maximum time an individual can spend in isolation at Menard Penitentiary, in every penitentiary in Illinois.

He had toilet, he had a running water.

Justice Potter Stewart: That is the maximum consecutive number of days?

Mr. Warren K. Smoot: That is right.

Justice Potter Stewart: And then after 24 hours or so can he spend another, can he be put in there for another 15 days?

Mr. Warren K. Smoot: Yes, I suppose technically, but it is not the procedure.

If he goes out and would strike another inmate over the head with a shovel or attack him, yes I think technically he could be placed back in.

Justice Potter Stewart: (Inaudible) he could spend 30 or 31 days or 60 days or 62 days or 240 or 244 days in isolation, is that right?

Mr. Warren K. Smoot: Technically yes, Your Honor, but it is not the policy.

Justice Potter Stewart: Well it does not happen very often I suppose (Voice Overlap) why is not imposed.

Mr. Warren K. Smoot: That is right.

That the policy has not to do that for technically but they could.

Yes, I guess as the rules are interpreted right now.

Justice William J. Brennan: May I ask Mr. Smoot, if this volume of photographs, is that the state’s appendix?

Mr. Warren K. Smoot: Yes, it is Your Honor, the respondents.

Justice William J. Brennan: And it was in evidence, was it below?

Mr. Warren K. Smoot: No, it was not.

It was not in evidence below, but I think it is a legitimate response for the respondents to show the Courts what other jurisdictions are doing.

Justice William J. Brennan: Well I gather, you can prove it, have you not a photograph of the isolation cell at Menard?

Mr. Warren K. Smoot: Yes sir.

It is the last Section.

Justice William J. Brennan: This is it?

Mr. Warren K. Smoot: Yes sir.

Justice William J. Brennan: I know as this one, this I gather is the toilet and the wash basin that you were talking?

Mr. Warren K. Smoot: That is right.

Justice William J. Brennan: But there is a mattress in front of this?

Mr. Warren K. Smoot: Yes, that came approximately six months after Haines was in there.

They have mattresses now.

Justice William J. Brennan: But this does not show what the cell was like when Haines was --

Mr. Warren K. Smoot: If you remove the mattress that is what the cell was like.

I had a basis of the facts as presented.

There are clearly two issues under the Eighth Amendment.

Was it merely disproportionate and/or was the implementation unnecessary and painful?

This Court has looked at four factors in determining whether punishment is cruel and unusual.

If you look at the history of similar or the same punishment, it compared what other jurisdictions are doing in the similar situations.

If look at the case law and finally they have contemporary standards of decency under all four tests, the present punishment was not cruel and unusual.

There is no question that in the 1780s when the Eighth Amendment – when the Eighth Amendment was enacted, the use of isolation, silence and hard labor was the quakers (ph) humane alternative to the former sanguinary punishments.

The law in that state prison initially started using isolation one-twentieth to one-half of the confinement of individuals that were sentenced to death.

Now subsequently, the different penitentiaries through out the country in the early 1780s, found that prolonged use of isolation was detrimental to the health of the individual so they discontinued the continued use of isolation, but up to 1840 and both the Auburn Penitentiary Systems and Pennsylvania Penitentiary Systems which was the two main penitentiary systems in the 1830s and 40s, isolation was continued in use for part of the sentence for serious violators of the criminal law and also for the punishment.

In fact, John Howard who was the father of all penological reform in the early 1770s suggested the use of isolation for serious rule infractions.

There is not question that historically the framers of the Eighth Amendment did not intend that this type of punishment should be circumscribed by the cruel and unusual clause.

The Court might take judicial notice of many of the Federal Court's opinions.

Isolation is the common measure for discipline in penitentiaries throughout the country.

Now, the Court should be careful because not all jurisdictions use the term solitary or isolation.

They may have a different term, but the effect is the same.

Whether you call it administrative segregation or you call it corrective measures or a holding cell, the removal –-

Unknown Speaker: Or the hole?

Mr. Warren K. Smoot: Or the hole, yes, but I think the use of the term the hole is such a derogatory that it kind of begs the question in this type of situation.

For every jurisdiction to my knowledge uses some form of isolation in punishing individuals.

The case laws, there is a multitude of cases which the respondent has noted these in the notes and there are sufficiently in our brief, and I am not going to mention them here but there are common denominators of the Federal Courts that could have come up with in determining whether confinement is cruel and unusual punishment.

The common analogy involves prolonged use.

There is no evidence here that there is prolonged use.

Overcrowding, Haines was in the cell by himself.

Unjustified beatings, no allegation that he was physically confronted in any manner.

Inadequate food or water, there is no evidence here.

I will address myself to – how he was given adequate food and water under the contemporary standards.

There is no allegation of adequate heat or ventilation.

There is no allegation of inadequate medical treatment.

He makes no claim here.

Justice Potter Stewart: Have been inadequate?

Mr. Warren K. Smoot: Inadequate, Yes Your Honor.

Justice Potter Stewart: I suppose you mean that?

Mr. Warren K. Smoot: That is right and there was no allegation of inadequate medical treatment.

Justice Potter Stewart: Or of inadequate heat or ventilation?

Mr. Warren K. Smoot: That is right ,Your Honor.

I apologize if I said the opposite.

He makes no allegation that it was unclean.

In fact, we keep these cells very clean and the fourth and the eighth common denominator, was excessive confinement in light of the conditions that were involved.

None of these are evident.

The final factor and I think this is particularly relevant here if we apply contemporary standards of decency or rather they care, but I think we can place it into more specific context.

If we look at the American Association, the American Correctional Association, recent 1966, Menard Penitentiaries follow this as a penological guide.

They have noted the custom -- custody, discipline and security are the primary functions of the penitentiary and only if you have proper control of the inmates can you have an effective rehabilitative system.

American Correctional Association notes that isolation is acceptable form of discipline and they circumscribe it by the following limitations.

No more than 15 days at a time. You should a toilet and a wash basin, but they observe that not all isolations cells need a toilet and wash basin because it is been their experience that certain inmates for causes unknown or causes known would go in and break things up.

They will tear up toilets, they will stuff towels down the toilet seat, there will be an overflow, and they will burn the mattresses.

There may be on restricted diet of an individual here who has access to limited space.

As to the claim not completely dark, they observe –- well they acknowledge it shall not be wholly dark, well-heated and ventilated.

If we take a look at a situation we will observe that the prison really had no viable alternative than to use isolation and I think the Court should keep in mind that when you are comparing whether this isolation or the hole, whatever terminology you use is cruel and unusual.

It is not logical to compare the confinement to your bedroom or living room at home.

It should be a relative comparison.

These individuals are in the penitentiary.

By definition punishment must be somewhat derogatory.

So, if you place an individual in isolation and it has to be a little more severe than the normal coming and going that he has in the prison cells or it is not effective.

Justice Harry A. Blackmun: Do you have any comment about false teeth allegation?

Mr. Warren K. Smoot: Yes, I have Your Honor.

If it is true, we have to accept this true his false teeth became rancid, but it is due to his own shortcomings.

He had running water and he had false teeth.

He can remove him from his mouth and I do not find that particularly inhumane to require a man to remove his false teeth from his mouth and wash it underneath the running water.

Concerning the towel and soap, he had showers.

At least it is not an issue whether he did have a shower and a shower once a week and a shave that means he had two showers and two shaves, does not make the absence of a towel soap cruel and unusual punishment in my estimation, especially I think the test here is reasonable.

The penitentiary has 1200 inmates in there and I think it is reasonable for the penitentiary to set up a situation which will meet the average individual.

Haines hit another inmate over the head of shovel.

There was some evidence of violence.

He was healthy.

He was working on the yard gang with pick and shovel.

At the hearing, the Disciplinary Captain had the opportunity to observe his physical demeanor.

So when they placed the inmate in there without towel and soap, I think it is reasonable to conclude that they could be used as a garret.

They could place the soap in a towel.

That is a very effective blackjack.

So when you compare the interest of the penitentiary to prevent their guards from serious attack and at the same time determining whether or not he was subjected to inhumane punishment, I think the opportunity that he has a shower does not convert the mere absence of towel and soap a cruel and unusual punishment especially when he was provided with adequate food.

The American Correctional Association says 2500 calories a day.

He had a regular noon meal and bread and water in the morning.

That composition could easily total 2500 calories a day.

Justice Thurgood Marshall: Did it?

Mr. Warren K. Smoot: We do not know.

It could easily have done so.

He did not allege that it was inadequate.

He had a regular noon meal.

Justice Thurgood Marshall: Now why cannot (Inaudible) three meals?

Mr. Warren K. Smoot: You mean the people that are released?

Justice Thurgood Marshall: No, the other prisoners.

Mr. Warren K. Smoot: All people in isolation at that time received one regular noon meal then bread and water.

Justice Thurgood Marshall: And how about the other 1200, they got three meals?

What are they doing, wasting taxpayer’s money?

Mr. Warren K. Smoot: [Laughter]No, but to make isolation effective, you got to have it severe.

Justice Thurgood Marshall: So it is the minimum?

Mr. Warren K. Smoot: Pardon me?

Justice Thurgood Marshall: He got a minimum of food, you admit that?

Mr. Warren K. Smoot: I am not sure it is a minimum.

If you could have 2500 calories in a noon meal that is a lot of starch at the penitentiary but he had the minimum meal.

I can admit that and still with clear conscience to say it was not cruel and unusual punishment.

You have got to have it entirely severe to have it punishment.

If you do not have it severe, you might as well not punish the individual and we are going back to the position of what viable alternatives that the prisons have.

They have 1200 inmates who are looking at this situation.

Punishment has got to be swift and severe.

It is got to be certain and it is got to be a consistency there.

Can you imagine the trouble with the penitentiaries individual are faced at saying, alright, you hit him along the head with a shovel but we will give you a pass.

Now, the next guy comes along he got just a little different situation.

Now, he wants a pass after he struck another inmate over the head.

There is no evidence that you are contrary to presume that Mr. Haines was not able, he will hit the shovel pretty well.

Justice Potter Stewart: May pass, what does that mean?

Mr. Warren K. Smoot: Alright, by passing, we may not commit him to isolation. Haines (Voice Overlap) was on a license.

Justice Potter Stewart: Pass means, we will overlook this?

Is that what you mean?

Mr. Warren K. Smoot: Yes, he had a license.

He could not have good time revoked.

It was impossible.

He could not earn good time.

You cannot take good time away from a death and life sentence.

So the only thing they could have done is three things.

One, do not punish him at all, give him a pass.

Two, put him in isolation.

Three, do something minor like take away his earphones or not to let him attend the theater for that Saturday or for three weeks coming.

I think in the context of penitentiary, the other two are not reasonable.

Justice Thurgood Marshall: Is it not true that he was eligible for parole in 20 years?

Mr. Warren K. Smoot: That is right but he already had been up to that Your Honor.

So he could not –-

Justice Thurgood Marshall: Why would it not -- when he is up for parole is his prison record considered by the Parole Board in Illinois?

Mr. Warren K. Smoot: Yes, it is.

But I think that goes to due process as a point to the cruel unusual punishment point.

Justice Thurgood Marshall: By the point you raised, that is where I was wondering why you raised it?

Mr. Warren K. Smoot: No, I am saying –-

Justice Thurgood Marshall: That does not –- it does just not strike me as being any help to you?

Mr. Warren K. Smoot: Well, it was not a problem.

The point I am trying to make, they had no viable alternative even though it may affect his parole.

At that time, they had only three alternatives.

No punishment, minor withdrawal rights, or isolation.

So I think it is logical to say isolation.

Now, the question for this Court to answer, was the implementation of isolation reasonable?

I think when you compare the requirements of discipline, the requirements of the penitentiary for custody and security, when you bounce at against fairness to the individual, I believe the answer is that this was not cruel and unusual punishment even though you personally may disagree what had happened.

I do not believe, only the Courts have not so founded that that is a test.

Most recent penological advancements are not the test in this situation.

The fact that there was other alternative does not make this cruel and unusual because within an area the prison should have discretion to apply what they feel is appropriate in the situation.

I think in summary and conclusion, I submit that since petitioner was disciplined in a fair manner, no question about that and he received punishment that was only a workable humane alternative available to the prison authorities under circumstances, this Court should affirm the dismissal of petitioner’s complaint.

Chief Justice Warren E. Burger: Thank you Mr. Smoot.

Mr. Bass, do you have anything further?

Rebuttal of Stanley A. Bass

Mr. Stanley A. Bass: Yes, Mr. Chief Justice.

The respondents are not asking this Court to act as a Trial Court by bringing in exhibits or by making certain statements about policies.

Our position is that the case should be remanded so that a full record could be made in the Trial Court.

Secondly, it is our position that the state does not have a right to jeopardize inmate's health without showing necessity, without showing some reliable procedural safeguards.

It is not irrelevant to know the effect upon any potential rehabilitation as the point that Jackson versus Fischer pointed out when a inmate perceives cruel and unusual punishment, it makes it much more difficult to socialize it.

Our the final remark is that with respect to such questions to shave and shower, Haines did allege “there was no articles of hygiene” furnished to him and it would seem to me under a liberal construction that one might then put the burden on the state to come forward and say exactly what you did supply him and under the circumstances we feel that the record must be developed more fully and that the case should be remanded to the District Court, thank you.

Chief Justice Warren E. Burger: Thank you Mr. Bass.

Mr. Bass you acted at the request of the Courts and by the appointment to the Courts and we wish to thank you for you assistance to us and to the client you represented.

Mr. Stanley A. Bass: Thank you Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Sanders v. United States - Oral Argument

Tue, 25 Sep 2012 22:33:51 +0000

Case:

Sanders v. United States

Media File:

202_19630225-argument

Related Transcript:

202_19630225-argument

Transcript:

Argument of Fred M. Vinson, Jr.

Chief Justice Earl Warren: Number 202, Charles Edward Sanders, Petitioner, versus United States.

Mr. Vinson.

Mr. Fred M. Vinson, Jr.: Mr. Chief Justice, may it please the Court.

The question here presented for decision today involves the extent of the right of a prisoner to be heard on a second or successive motion under Section 2255 of Title 28 of the United States Code.

The facts in the case are simple and undisputed and quite important to determination herein.

On January 19, 1959, the petitioner appeared before the United States District Court for the Northern District of California where he was charged with having taken three days prior thereto, approximately $220 from a federally insured bank.

After explanation by the Court at this hearing, the petitioner waived his right to counsel, waived his right to indictment, consented to proceed by way of information.

The information was then filed and read and the petitioner entered a guilty plea.

Several weeks later, in February of 1959, the petitioner again appeared before the sentencing court.

He was asked before a sentence was pronounced if he had anything to say.

An exchange then ensued between the petitioner and the judge.

The petitioner reported to the judge that he had been a narcotics addict on and off for quite awhile, and he requested that he'd be sent to Springfield or to Lexington for treatment.

The judge accepted his statement and recommended that the petitioner be sent to a medical facility for treatment.

Thereupon, the petitioner was sentenced to a 15-year term and he is now incarcerated in a federal penitentiary in the State of Washington.

Justice Potter Stewart: He was in Alcatraz for a while, isn't it?

Mr. Fred M. Vinson, Jr.: Yes, Mr. Justice.

He was transferred in January, I believe.

Justice Potter Stewart: And then he -- does the record show that he ever did go to a -- to a place for treatment of his narcotics addiction?

Mr. Fred M. Vinson, Jr.: His -- the first place he was incarcerated was McNeil Island in Washington.

I am not certain whether they have medical facilities there or not.

Justice Potter Stewart: It doesn't show why the recommendation of the sentencing judge wasn't carried out, does it?

Mr. Fred M. Vinson, Jr.: No, it does not.

The record does not.

Petitioner, appearing in proper person, filed a 2255 motion in January of 1960, asking that the Court vacate his sentence.

As grounds therefore, he alleged only very broad conclusions and they were largely conclusions of law or they were mixed conclusions of law and fact.

The District Court in California, quite properly I might add a very little attention to this petition, the Court said that defendant's motion, although replete with conclusions, sets forth no facts upon which these conclusions can be founded, and for this reason alone, the Court may deny the motion.

The Court then went on to state that they had inspected the files and records, and these conclusively showed that the petitioner was entitled to no relief and so the motion was denied.

Some seven months later, the petitioner again appearing in proper person filed the 2255 motion which is before this Honorable Court today.

In this intervening seven-month period, the petitioner took to heart what the Court said in its first decision about his failure to allege any basic facts and he very carefully drafted another pro se petition supported by a memorandum and buttressed by an affidavit in which he clearly alleges that he was deprived of substantial constitutional rights and that during the proceedings when he waived his right to counsel and so forth, and when he was sentenced, that he was under the influence of narcotic drugs.

His affidavit very specifically details this ground.

He states that he was confined in the Sacramento County Jail from January 16 until February 18, 1959, that during this period, he received narcotic drugs, administered by medical authorities, attendant at the jail, and this was due to the fact that he was a known addict, that he was under the influence of a drug during the time of what he refers to as his trial, obviously the proceeding I referred to before.

In concluding his memorandum, in support of his motion, he requested that a hearing be held to enable him to present evidence.

Justice John M. Harlan: Mr. Vinson, was the -- were the two succeeding 2255 applications before the same district judge who sentences -- who sentenced this man?

Mr. Fred M. Vinson, Jr.: I believe so, Mr. Justice.

Justice Hugo L. Black: (Inaudible)

Mr. Fred M. Vinson, Jr.: Separate and distinct motion, seven months apart.

The District Court refused to entertain his second motion.

The Court stated that no reason was given or was apparent to the Court while the petitioner could not and should not have raised the issue of mental incompetency at the time of his first motion, the first motion that alleged only conclusions.

So the Court refused to entertain the petition, but in a footnote to that decision, the Court again made the boiler plate assertion that it had reviewed the entire files and records and it found there was no merit in petitioner's claim.

Of course, this is a real bootstrap operation because the claims made by petitioner were completely involving matters outside the record and on which the record could cast no light.

Justice Potter Stewart: Except the -- not the record but the -- but the judge's own recollection of the trial and of the -- and of the petitioner's demeanor at the time of sentencing.

Mr. Fred M. Vinson, Jr.: Yes, Your Honor, but the record includes a complete recital of the judge's recitation of prisoner's rights and the petitioner's response thereto.

Justice Hugo L. Black: Was he known (Inaudible)

Mr. Fred M. Vinson, Jr.: There is no indication in the record that he would have.

However, the probation officer's report went before the judge at the time of sentencing.Now this -- in this jurisdiction, at least, that is a confidential report.

The Government in its brief --

Chief Justice Earl Warren: We'll recess now, Mr. Vinson.

Mr. Vinson, you may continue your argument.

Mr. Fred M. Vinson, Jr.: Mr. Chief Justice, may it please the Court.

Just prior to the luncheon recess, I had almost completed the statement of facts of the case at which time Mr. Justice Stewart, I believe, inquired as to whether the judge who entertained the -- the judge who sentenced the prisoner and the judge who entertained the successive motions was aware of the fact that the -- that the petitioner had received narcotics.

On the record before this Court, there is no indication for such awareness but in a footnote 11 of the Government's brief, the Government goes outside the record and points out that the probation report, which was before the judge at the time of sentence, confirms the fact that the petitioner was a known addict and did, in fact, receive medical treatment at the time of his incarceration in the Sacramento Jail.

After the denial -- rather the refusal to entertain the second 2255 motion, the petitioner duly appealed to the Ninth Circuit which, in essence, denied the appeal on the same ground stated in the District Court's opinion and this procedure before this Honorable Court then followed.

The relief sought here by the petitioner involves a reversal and a remand to the sentencing court with a hearing to be ordered before that court.

This is a procedural matter only but I would like to point out that it concerns the procedural right to be heard on a very substantial constitutional question.

We should first turn to the statute involved.

And without laboring the statute, I do wish to call two sentences to the Court's attention.

First, the statute states that unless the motion and the files and records of the case “conclusively show” that the petitioner is entitled to no relief, the Court shall grant a prompt hearing.

The statute also states, and this is crucial language in this matter, that the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

It is petitioner's view that this statutory language with reference to successive motions, does not give the sentencing court the power to refuse to entertain a successive 2255 motion when new uncontroverted grounds for relief are raised.

This Court has never passed directly upon this question of successive motions and the sentencing court's exercise of jurisdiction to entertain them.

We should first turn to the landmark case of United States v. Hayman, decided by this Court in 1952.

In that case, the Court goes very exhaustively into the genesis of Section 2255.

The Court quotes with approval, a report of the judicial conference, which was submitted to the appropriate congressional committees where the judicial conference stated in reference to 2255, that as a remedy, this Section was intended to be as broad as habeas corpus.

Further in Hayman, this Court held that nowhere in the history of Section 2255 was there any evidence that there was any purpose to impinge or limit petitioner's right of collateral attack.

And I quote from Hayman, “On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum”, that forum being the sentencing court.

With this guidepost and in the absence of this Court's treatment of the precise subject, we must look to some of the landmark cases involving the great writ, habeas corpus, that this Court has decided.

First, there is the case of Salinger v. Loisel, where this Court held that previous applications were proper for the courts to consider in exercising their judicial discretion involving successive habeas corpus applications.

But immediately following that enunciation in Salinger, the Court quotes from Ex parte Cuddy, with approval, and in Ex parte Cuddy, Mr. Justice Field said, and I quote, “The action of the court or justice on the second application will naturally be affected to some degree by the character of the Court or officer to whom the first application was made, and the fullness of the consideration given to it.”

I call to the Court's attention the fact that in this case, no consideration, no area in Court has ever been given to petitioner's allegations with respect to his deprivation of constitutional right.

Next -- the next landmark of habeas corpus case is the case of Waley v. Johnston, decided by this Court in 1942, when the Court said that on petitioner's earlier application for a writ of coram nobis, the same issue was not raised as that which was here presented.

The earlier application was denied for insufficiency upon its face and without a hearing.

There is thus no basis for the holding of the District Court, and the Supreme Court, thereupon, vacated the appellate court's judgment and remanded for a hearing.

This case -- these facts are also present in this case for new allegations were made in the second motion by petitioner upon which no hearing has been afforded.

The case of Price v. Johnston was decided by this Court in 1948 at a time when what ultimately became 2255 was pending in the Congress of the United States.

I feel that language in the Price v. Johnston case, when viewed in the framework of Hayman, may be determinative in this case.

In Price v. Johnston, the Court was dealing with the fourth successive application of a prison.

And the Court stated that there's been no proper occasion prior to this fourth application for the matters raised to be decided.

I quote, “But here, the three prior applications did not raise the issue now under consideration, and the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petition.”

If Hayman means what it says that relief under 2255 is as broad as that afforded by habeas corpus, this language in Price v. Johnston is determinative of the case.

I have not gone into any exhaustive analysis of the various decisions involving this point.

In the circuit courts of our land, I have not done this frankly because I believe they cast more confusion than light on the subject.

I would like to, however, to call your attention to one case decided by the United States Court of Appeals for the District of Columbia sitting en banc.

This is a case of Smith versus United States, cited in my brief, where the Court meet head on the problem of interpreting the statutory language involving the Court's jurisdiction, the Court's discretion rather in entertaining successive motions for the same relief.

In dealing with the 2255 motion, the Court of Appeals in this Circuit, sitting en banc, held that such a motion, and I quote, “is required to be entertained by the sentencing court when it presents ground not theretofore presented and determined,” such as the case here.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Fred M. Vinson, Jr.: Mr. Justice, I believe that these prisoners have very little access or limited access to lawyers and they probably both have the same lawyer.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Fred M. Vinson, Jr.: Yes.

I believe and its petitioner's principal position that a judge is required to look at such a petition to entertain it if there are clear factual allegations supporting a claim that there's a deprivation of constitutional rights and if, again referring to statutory language, the files and records of the case do not conclusively show that the petitioner is entitled to no relief.

In this case, the files and records cannot conclusively show that the petitioner is entitled to no relief for his relief is grounded upon matters that are completely outside the record, matters that occurred in the jail house.

Justice Potter Stewart: We have held, I think though Mr. Vinson, have we not, that in addition to the files and the records, the district judge may draw upon his own recollection --

Mr. Fred M. Vinson, Jr.: Indeed, yes, sir.

Justice Potter Stewart: -- of what happened.

And in this case, the second -- the second petition under 2255, the one which is now before us, alleged basically that he was mentally incompetent and incapable of participating intelligently at the time of his plea and sentence.

And as the previous application as the Court's memorandum in the previous application had shown, the Court was there during the sentencing procedure and he sent out the transcript in which the man, so far as one can see from the record, and apparently so far as the trial judge's impression went, was intelligently knowingly proceeding in the whole sentencing procedure.

And I noticed from page 23 of the record in a little footnote, that the Court on this second application said that he'd gone over all those things again and then on the merits of this second application, on the merits, he was satisfied from what had actually happened at the sentencing proceedings that this man was in fact -- in fact not incompetent.

And the transcript of those proceedings indicates that he was not incompetent.

Is that -- isn't that true?

Mr. Fred M. Vinson, Jr.: Well, your question, Mr. Justice, I think --

Justice Potter Stewart: It's a long question.

It's (Voice Overlap)

Mr. Fred M. Vinson, Jr.: -- boils down into two parts.

Justice Potter Stewart: Yes.

Mr. Fred M. Vinson, Jr.: First, of course, the judge is entitled to take into consideration his physical observation of the prisoner at the time of sentencing, at the time of plea, waiver of plea.

However, this begs the question in the factual context of this case of whether a judge is able to determine the competency of a prisoner where his incompetency is alleged to arise from the administration by the police of narcotics.

Justice Potter Stewart: However, it arose whether it'd be from congenital defectiveness or from intoxication or from the administration of drugs or, however, it allegedly arose, whether or not it existed, it would have been something which the judge could determine from the -- from his observation of the demeanor of the man.

Wouldn't that be true?

Mr. Fred M. Vinson, Jr.: I would question that statement, Mr. Justice.

For instance in the Townsend v. Sain case that is presently before you, this point is raised in a more substantive fashion than here.

In that case, it was pointed out that scopolamine was the drug which was used on that prisoner when he was incarcerated.

That, as we know, is the so-called truth serum.

That question whether a judge is confident to look upon a prisoner across the bench and determine whether he -- and to what extent the truth serum has affected him.

The second part of your question in regard to determination on the merits, I think that footnote in the decision of the -- of the case is completely a bootstrap operation because where the allegations concerned factors completely outside the record, an examination of the record cannot operate without a hearing testament -- and testimony given cannot operate as a -- as a determination on the merits.

Chief Justice Earl Warren: Mr. Vinson, does -- does your argument carry us so far as to say that the defendant may split up his constitutional claims and make them the basis for his many successive proceedings as he chooses to start provided he -- that he only named one at a time.

Mr. Fred M. Vinson, Jr.: My principal argument could carry the Court that far.

Yes, sir.

Assuming two things assuming that the records in filing the case don't conclusively rebut his allegations; and secondly, I -- I think the Court might possibly place a limitation upon the number of successive motions predicated on the petitioner having had a full day in Court, an opportunity to be heard and perhaps counsel appointed.

In this case, petitioner has never had any day in Court.

Chief Justice Earl Warren: And of course, I'm speaking about claims that were known to him at the time his first -- his first claim was (Voice Overlap) --

Mr. Fred M. Vinson, Jr.: Yes, Your Honor.

There has been an attempt in --

Chief Justice Earl Warren: -- to make no distinction between that and this case where -- whereas -- as a prisoner, he merely made a shotgun approach to it on his first -- on his first try and then learned little something by experience and pinpointed the facts.

You make no distinction between those two.

Mr. Fred M. Vinson, Jr.: The principal argument could carry us as far as the Chief Justice suggests, however, it does not have to.

Chief Justice Earl Warren: Yes.

Well, I understand that.

Mr. Fred M. Vinson, Jr.: Approximately three of the circuits have attempted to graft the test upon these successive motions that involved whether there's any excuse given by the prisoner for failing to raise issue earlier or whether there's any indication that he was unaware previously of the significance of the facts there now raised for the first time.

Well, I submit that the first such grafting places an intolerable burden upon pro se prisoners who are unlearned in the law.

The second is a much too subjective test to say there's no indication of an awareness that he was not -- there's no indication of a lack of awareness of the significance of the facts now alleged.

Justice Hugo L. Black: But what you asked in that relief is to (Inaudible) amendment of the case.

Mr. Fred M. Vinson, Jr.: That is possible in these facts but my principal argument is based upon the contention that where prisoner has been given no day in Court and he raises clear and uncontroverted factual issues involving the deprivation of constitutional rights that he is entitled to a hearing thereon.

Contrary to --

Justice William J. Brennan: (Inaudible) had they done the same thing that (Inaudible) have given all those.

Mr. Fred M. Vinson, Jr.: Oh no, Your Honor, then the clerk -- the Court under the statutory language would clearly have the right.

Justice William J. Brennan: He has no (Inaudible) on the appeals, on the first or second?

Mr. Fred M. Vinson, Jr.: No, Your Honor, none.

And in the second motion --

Justice William J. Brennan: (Voice Overlap) relate the first and the second where the raising the same question or the because of the conclusive (Inaudible) to say that he hasn't have a hearing in fact he has complied with.

Mr. Fred M. Vinson, Jr.: And he has for the first time clearly raised factual issues --

Justice William J. Brennan: And that's the same answer -- did I understand you to say (Inaudible) about the footnote.

Mr. Fred M. Vinson, Jr.: Yes, Your Honor.

I think the footnote is completely illusory.

There was, in fact, no opportunity for a determination on the merits.Contrary to this principal position, the Government contends that the statutory language gives the sentencing court a very broad discretion with respect to denial of successive motions.

In support, the Government cites much legislative history but unfortunately almost all of it concerns Section 2244 rather than the Section we are here faced with.

However, I call your attention to the fact that what became 2255 in its second draft in the Congress contained a one year limitation.

A prisoner had only one year from the time of sentencing to bring a motion hereunder.

The Judicial Conference Committee on Habeas Corpus headed by Chief Judge Parker in 1947 submitted a report to the conference which was made known to the Congress in which they disapproved this one year limitation.

Thereafter, the statutory language we're here interpreting involving successive motions appeared in the statute as a substitute for the one year limitation with no explanatory or clarifying material with respect to it.

But I think it's very obvious that legislatively the Congress drops the one year limitation because it did not want to limit by a very mechanical means of prisoner in asserting constitutional rights.

In portions of its brief, the Government treats this case as a problem primarily involving judicial administration and court congestion, both of which are matters of great concern to the mentioned bar.

However, they are not primary considerations here.

Our primary consideration is to see that the prisoner who raises clear issues involving deprivation of constitutional rights is afforded a hearing.

For purposes of this argument, let us assume that the Government is correct and the statutory language as to successive motions.

I beg your pardon on this.

Chief Justice Earl Warren: Finish your -- finish your statement on that subject, Mr. Vinson please.

Mr. Fred M. Vinson, Jr.: Assuming for the purposes of this motion that Government's contention is correct that the statute gives the sentencing court very broad discretion, even under these circumstances, it is an abusive judicial discretion for the Court to refuse entertaining petitioner's motion and to afford him a hearing.

This is true because he has clear and uncontroverted allegations which are presumptively correct and the files and records of the case do not controvert them.

Thank you.

Chief Justice Earl Warren: Ms. Rosenberg.

Argument of Beatrice Rosenberg

Ms Beatrice Rosenberg: May it please the Court.

In any question involving collateral remedies, the fundamental issue before district judge is, is there anything in the petition in the light of the files and records in the case which call into question fundamental fairness particularly specifically here a plea of guilty so that the matter should be explored further.

That's the first question he has to decide.

This Court has emphasized that this is a broad inflexible remedy, designed for that linear occasion when somehow there's been a breakdown despite all the safeguards that we have, there had somehow been some breakdown in the judicial machinery.

And so the question as to second petition as we see it must remain flexible much as the lower courts sometimes strive for fixed rules and much as I'm sure, we in the Government side, would like to have them.

Congress found itself unable to formulate them.

And I doubt at least we're not prepared to offer in a very specific way.

All we say about the second petition is that the fact that it is a second one is irrelevant fact to be considered like everything else in the record.

It's part of the files and records of the case that this is a second petition.

And the way to be given to it must necessarily depend on the particular facts of a case.

I think this explains some of the confusion that my opponent has talked to in the Court of Appeals and the decisions are confusing, they're not even consistent within a circuit.

But in the case of Smith against the United States which he mentioned in the District of Columbia Circuit, it was then in a second petition some substantial basis for the allegation of the prisoner, so reasonably that it was possible, that the prisoner at the time he had not -- at the time he made his plea had not really been mentally competent.

And on that basis, although the court en banc split for its reasons, there was almost agreement that the petition should be heard because there was something that really pulled into question the fundamental fairness of proceeding.

And so we think that largely, this has to be decided on a case to case basis on the -- in relation to files and records of particular case.

Let's see what the record shows here.

As of this second petition in which about a year and nine months after he pleaded guilty, this prisoner said he didn't know what he was doing because he was under the influence of narcotics at the time.

Well, first thing the record shows was that the prisoner was arraigned on Friday, January the 16th on a very same -- given a preliminary hearing I should say, on Friday the -- January 16th, the same day as the robbery, bank robbery.

That afternoon -- and that afternoon, he indicated to the United States Attorneys that he was ready to proceed by a waiver of indictment.

The only reasonable inference from that record is that he was caught in the act.

Any case on Monday, January the 19th, he came before the district judge.

And if you read the record at pages 1 to 5, I think the judge was this here for as you can expect the judge today in trying to make sure that the defendant knew what he was doing and knew what his rights were.

He started out.

Now, this is a typical defendant had no lawyer.

The judge made absolutely certain to understand to have a right to have a lawyer that if you don't have enough money, I'll appoint a lawyer for you and then he said, he made the defendant say, “You understand, you have that right.

You're waiving that right here in open court.”

And he went on and said “In addition, Mr. Sander, that's at the bottom of page 2.”

You have a right to have your case heard by the grand jury.

And you -- if you have any idea that you are innocent, you should have the case heard before the grand jury, because I can accept only a guilty plea from you if you think you are not guilty of this charge, you should have the matter heard by the grand jury to determine whether or not you should even be brought to trial.

And he said to the defendant, “You want to have the case heard by the grand jury”, and then the defendant said, “No, I waived.”

The judge didn't hear him and he said, “What was that?”

And the defendant repeated, “No, I waived.”

And the judge went on again and said, “Has anybody made any promises to you?”

And the defendant said, “No.”

He said, “Does anybody made any threats?”

And he said, “No.”

And then only after all this had been gone through, did the judge accept a guilty plea.

Now, I don't know how long this took when you read it.

But when a judge is that careful, when the defendant is continually giving the right answers, he went over to have to sign the waiver of information, it's hard to believe that a judge who was as very careful as this judge was whether he accepted a guilty plea.

We have at the slightest reason to doubt, the defendant knew what he was doing.

After the plea was accepted, judge did not sentence the defendant immediately.

He asked for probation of the Court.

And let me say now that I think this is a fact that has been somewhat neglected in relation to this question of whether to hold a hearing or not, probably because the probation reports are not sent up as part of the records in the case.

But in a probation situation particularly with the plea of guilty, where it's taken as in this case three weeks to get up a probation report before the defendant is brought back for sentencing, where the defendant has interviewed other people who know and are interviewed.

If there are issues which tend to pass out on the voluntariness of the plea or on the ability of a defendant to enter a plea, they are likely to show up.

And there have been occasions where judges have said, “I don't think I will accept this plea.

I think there is a question of innocence and done it.”

Justice Arthur J. Goldberg: (Inaudible)

Ms Beatrice Rosenberg: No, it's --

Justice Arthur J. Goldberg: (Inaudible)

Ms Beatrice Rosenberg: No.

What I am saying is that where a judge has before him a probation report which would raise a question of mental competence for example.

A probation report would tend to reflect that not necessarily.

I'm not saying it's conclusive.

I'm saying it's another factor in the record, because if a probation report for example which show a long history of mental incompetence, it would be the duty of a judge, I think to say, no matter what this man says about vacate -- about waiving counsel, I don't -- I am not certain that he has a mental capacity probation.

Justice Arthur J. Goldberg: So it thus required investigation or probation report.

Ms Beatrice Rosenberg: Yes, I -- well, I do know what's in the probation report, Your Honor.

The -- and I think the record indicates at least something about what was in the probation report on page -- on the sentencing procedure which is on page 7 of the record, you see the probation officer was present and the judge asked the probation officer, if he had anything to add to his report and I say his attorney was present, they had nothing to report and then the petitioner was asked if he has anything to say and then he said, I have been using narcotics off and on for quite a while.

I would like to go to Springfield.

Now, this is what the probation officer present.

The judge accepts this and says, “I think that he ought to be given this consideration and before I sentence him.”

I think it is evident from that and that the Solicitor General has stated the Court have said that the fact that petitioner was a narcotic user off and on was reflected in the report.

Now, in the same from that, when you have a judge who is, as I think clearly, interested in seeing that the defendant knows his rights, is aware of them, is making any waiver he wants to make voluntarily, a judge would not go ahead and sentence the report, it seems to us, unless he had no reason to believe that this was not done voluntarily.

In other words, unless he was convinced that it was a voluntary action.

And so on the face of this record, if you consider both petitioner's responses, the fact that he was before the judge then, the fact that the fact of narcotics addiction was in the record and then let me also say that the decision and testimony of experts is that the mere fact that one have taken narcotics normally does not affect one's mental facility.

This is recorded in the decision in the Juelich case, the testimony of the experts on the Lipscomb case in 209 F2d. at 831, and the same thing is testified to by a -- expert from public health service in the Cox case which it doesn't show up in the opinion but it's in the record that was before this Court and this is generally reflected in the jury, that it takes either an extraordinary dose of narcotics or the pains of withdrawal symptoms are the two things that tend to affect ability so that we have that record at the sentence procedure.

Then the next thing that we have in the record is the petition filed a year later in which it has been characterized as the shotgun approach, in which he stated that his plea of guilty was involuntary because it was entered without handful.

Well, it's true this is an indigent petitioner and one can call denied the tooth of pleading.

But our statement about the relevancy of the first petition, our position with respect to that is that once a prisoner know that he has a remedy for a plea of guilty that was obtained wrongly, feeling that he'd been overreached that he'd been had in applying the phrase, once he knows that if there's any real basis in that or such an attitude, the real facts are going to be alleged inarticulately, not very artistically but if a man says they promised me something I didn't get it, he can say that if it's true.

It's when he's trying to fit his case to the facts of other cases which you get allegations that may well be is absolutely contradicted by the record as this one was, this first petition.

So that our position roughly is this about the second petition that we are not saying that the mere fact that one was filed was conclusive, if it were true as petitioner alleges that the first one was dismissed merely because it was generalized and that this was a mere -- this was a particularization of the first.

We wouldn't be arguing if the first was entitled to any waiver at all.

But that isn't the case here.

In the first place, the second one wasn't filed to about nine months later from a different prison.

In the second place, the second petition is in the sense, inconsistent with the first because the first says, “I knew what I was doing but I was coerced.”

The second one says, “I didn't know what I was doing at all.”

Now, when you have, we say, the combination of factors that you have here, a district judge is justified looking at the whole record before him including the fact that it was the second petition in denying the second motion on the grounds that there is nothing in the record before him which passed enough doubt on the voluntariness of the petition to justify a hearing.

And let me see if I can just summarize all --

Justice William J. Brennan: (Inaudible)

Ms Beatrice Rosenberg: Right.

And also on the peti -- on the position which expresses a general congressional attitude that the Court is not required to entertain a second successive motion for relief.

Justice William J. Brennan: (Inaudible)

Ms Beatrice Rosenberg: Conclusive must be read in the light of all the factors and I think that conclusive means -- conclusive is conclusive enough so as not to shed a doubt on the voluntariness of the plea.

The question is not, Mr. Justice Brennan, whether this man did or did not receive narcotics.

The question is, is there anything in his allegation in the light of the files and records which is to show that he did not knowingly and competently enter a plea of guilty.

And in the late -- in the light of this record, as to the careful resentment which the judge went over every step of the way with him in the light of the fact that he didn't know he had a remedy.

And then at that time, he did not even mentioned narcotics, although it was known at the time of sentencing that he was a narcotics user.

I think that it can be said in the face of all these that the files and records conclusively show that the plea of guilty was entered competently and knowingly.

Justice William J. Brennan: With this I gathered (Inaudible)

Ms Beatrice Rosenberg: Well, I think the District Court had the right to consider that.

There is no -- I will say that there is nothing in his opinion on the second motion to show that he did.

What is significant even on the basis of the record here is that it is clear that having had a probation report which -- having had a probation report and having had the prisoner's statement that he was a narcotics user, nevertheless at the time of sentence, the judge saw no reason not to continue with the sentencing in the light of the plea of guilty which he had accepted three weeks before.

Justice William J. Brennan: (Inaudible)

Ms Beatrice Rosenberg: I think that on the basis -- I do think that on the basis of this record and the care of the judge plus the fact that all the petitioner alleges is that between the date he was arrested and the date he was sentenced is very unspecific as today that he was given narcotics which is as I say per se does not establish incompetence.

There's nothing in the -- in the literature.

The opinions are to the contrary, that in the light of that fact, and in the light of what the record shows about how intelligently he did answer the question, about the facts that the judge did want him of his right, about the fact that he had already talked about pleading guilty the minute he was arrested, I would say that even at the first application, but I say this that the motion could be denied but I say that the denial on the basis of the files and records is even more supported when it is realized that a year later, a year after sentence, and seven to nine months before the second application, petitioner who was aware that he had a remedy for a involuntary or unknowing plea of guilty with -- let's put it -- with the way that if he had been overreached by the Government, he had a remedy.

With that knowledge, he nevertheless made no contention that he didn't know what he was doing.

Justice William J. Brennan: May I ask you (Inaudible)

Ms Beatrice Rosenberg: Well, I think so as we point out in our brief, there is no legislative history specifically on this clause.

Such legislative history as there is comes in connection with 2244, the habeas corpus cases which are -- is raised a little different.

He says, the Court shall not be required to entertain a motion unless it offers new grounds not determined.

Now, that's almost -- that's not much clear as in 2255.

What the legislative history shows is that the judicial conference, when they were considering this motion, decided that they would wanted to have the petitioner assert every grounds that they have.

But -- and so originally, it was raised that the Court should not be allowed to consider something unless it raised new grounds.

There were various judges who objected to that saying it's never too late to do justice.

And so it ended up legislative history showing that the judge could consider it but did not have to.

And I think this is what -- I think that -- I think as I said in the beginning that if one tries to make rules too rigidly, that you will end up not protecting the one group that this is really designed to reach, which is that rare person who has really been overreached.

This is rare.

We have also at the state courts that have been built in to avoid this.

But if it could well be that the one person who should have a hearing may not make his allegations the first time he's heard about it, I think that we have to judge this in the light of experience and common sense and reality.

Justice William J. Brennan: Ms. Rosenberg, may I ask you (Inaudible)

Ms Beatrice Rosenberg: Not necessarily.

Not necessarily --

Justice John M. Harlan: But your --

Ms Beatrice Rosenberg: -- except that obviously we think it is relevant that he didn't raise it before.

It might not be conclusive.

That is, I would say that if a claim of purged testimony even though it was not holding new but if the only phrase I can use is has the ring of reality as a right it alleges.

I think that -- that one must look at this in a normally pragmatic way and say our interest is -- our interest is to do justice.

It's not to hold hearings.

It's not to sort out allegations.

Our interest is to -- is there anything here that casts doubt, if there were troubling doubt, this is all I think that someone can say, and in judging whether there is a troubling doubt, it is significant that this is the second time we've heard about it, because --

Justice John M. Harlan: Putting a -- putting a legal label on it, does your position come down to this that in a successive petition, 2255 petition, the judge must exercise a discretion but his scope of discretion is broader than it is on an initial application.

Ms Beatrice Rosenberg: Yes and that he is entitled to view the second petition with somewhat more degree of skepticism than he does the first.

Justice John M. Harlan: Skepticism is part of discretion, isn't it?

Ms Beatrice Rosenberg: Yes.

I think this is so.

And in a few minutes that I have left, maybe I want to say something a little more general on this question.

It sounds easy and it sounds simple to say, well why don't we settle all this at a half hour hearing.

But it isn't that simple.

And it isn't -- it isn't just the time of the Court and it isn't just the expense of transporting prisoners.

I don't think that's really the problem.

The thing that worries me most about too easy a hearing in the light of the experiences we have seen of doing this too easily is that, we will in a sense, negate the remedy, cheapened the remedy.

“Wolf!

Wolf!” is a fable of human that reflects human experience and it applies to a class as well as to a person.

And I think it's happening, I suppose I have read more of these petitions than almost any person in the Government, and it gets to a point where it gets very difficult to assort the real -- the ones that really troubled you from the ones that sounds troublesome and then turn out not to be.

And if we have many experiences that the courts have been having lately with this allegation of the use of narcotics, I think the danger is that when we get the special, the odd, a very extraordinary case and it is the extraordinary case in our federal system where we ought to have a remedy there is always the danger if we have too many hearings, the one person that ought to be believe won't.

And I ask the Court to consider one happened in the case of Catalano in the Second Circuit, where the Court said this in its decision in 292 F.2d has said this may be incredible allegation as to a man who claims to be under narcotics for two and a half weeks at his trial, no -- not noticed by the Court and not noticed by his lawyers.

He made very specific allegations, the Court said, “Let us be careful, we must have a hearing just to settle this down.”

And then the sequel to that is reported now in 311 F.2d 186.

And I think that we have much more of this.

If we have prisoners having hearings too often, that this will not in the end work to the fundamental justice for that rare case, that it will serve as a detriment rather than helping in the end.

Now, this definitely means of course that we're going to have some unnecessary hearings where prisoners will not be let loose.

But I think that we cannot simply --

Justice Potter Stewart: I didn't get though what the sequel to the Catalano case was.

Ms Beatrice Rosenberg: It's at 311 F.2d 186 has just been reported and the District Court's opinion --

Unknown Speaker: 186.

Ms Beatrice Rosenberg: 186, and the District Court opinion is that 204 F.2d supplement 881.

This is a problem of judicial administration.

It's a problem of doing justice but it is not -- it cannot be solved so simply as to say, well, whenever there's any kind of a question, let's have a hearing.

We think you have to look at each case on the record.

We have not been able to formulate what we think is a fixed rule, what we say about the second petition is that it is relevant to consider the fact that it is a second and that therefore in the words of Justice Harlan, there is more discretion at the time of the second in determining whether to hold a hearing.

Justice Arthur J. Goldberg: (Inaudible) in the trial, the practical matter is the denial of this?

Ms Beatrice Rosenberg: No, I don't.

I'm sorry.

I think that more hearings will simply encourage more -- more allegations.

This is for a prisoner a hearing.

This man was out of Alcatraz for five weeks.

This has advantages whatever happens in the end.

Justice John M. Harlan: What's the current figure of 2255 of the 2255 petition being filed all over the country?

Ms Beatrice Rosenberg: Your Honor, the administrative office of the United States hold at least 560 for 1961 and 546, I think, for 1962.

The 1962 figure was not there at the time we wrote our brief.

I know that that is not an accurate figure because it depends on the way that clerks keep their records and sometimes it also lists, I think about 600 habeas corpus petitions which cover all sorts of other things, federal, not state.

We tried to check it, improve impossible.

To check that there are at least 560 but I'm sure there would be more.

I have found it unable to get the feeling, the figures on the number of hearing that have been held.

We got responses from some districts and not from others and we just couldn't get accurate set of figures on this field.

Justice John M. Harlan: What's the most accurate 2255 district?

Ms Beatrice Rosenberg: Well, you see one of the difficulties is that because one of things that happened, one of the reforms that 2255 accomplished was to spread the work throughout the country because it is filed in the district of trial rather than the district of confinement.

Now, I should say that the most -- most active petition came out of Alcatraz but they do spread throughout the country and it is hard to say -- well in theory, it's hard to say.

It really depends on prisons and Alcatraz and Leavenworth and probably McNeil are the most active.

I think that most of the petitions that we see that come to this Court, at least, come from those penitentiaries.

I think Particularly Alcatraz and Leavenworth is understandable.

Obviously, it's a long-term sentence person who is most likely to resort to the remedy.

I also have no figures on releases that are -- oh I suppose I should qualify that Your Honor.

The District of Columbia is probably the most active.

Chief Justice Earl Warren: Mr. Vinson, before we call the next case, I would like to take this opportunity to thank you for having accepted the assignment to this Court to represent this indigent defendant.

The Court is always confident by the fact that there are lawyers who are willing to give their time and energy to represent those who do not have the means to represent themselves and we're very much indebted to you for your service in this case.

And Ms. Rosenberg, we're indebted to you as always for your fair and earnest representation of the Government in these matters.

Ms Beatrice Rosenberg: Thank you.

Rebuttal of Fred M. Vinson, Jr.

Mr. Fred M. Vinson, Jr.: Thank you, Mr. Chief Justice.

It's my pleasure to appear before the Court.

Chief Justice Earl Warren: Thank you.

Featured:

Bushnell v. Ellis - Oral Argument

Tue, 25 Sep 2012 22:36:19 +0000

Case:

Bushnell v. Ellis

Media File:

561_19610502-argument

Related Transcript:

561_19610502-argument

Transcript:

Argument of Percy D. Williams

Chief Justice Earl Warren: Number 561, James M. Bushnell, Petitioner, versus O. B. Ellis, Director, Texas Department of Corrections.

Mr. Williams, you may proceed.

Mr. Percy D. Williams: Thank you very much, Your Honor.

May it please the Court.

I want to talk to the Court about a prisoner of the State of Texas, the petitioner in this case who is serving a term of 5 to 35 years on a robbery conviction.

His claim is that he was denied due process when he was tried and convicted without assistance of counsel.

His application for writ of habeas corpus was originally filed with the Court of Criminal Appeals of Texas.

That Court denied his application without ordering the State to answer and without ordering any development of the record of the facts.

I don't know why the Court of Criminal Appeals proceed to handle it in that way because in other cases of this type in recent years that Court has proceeded to order the trial court to develop the facts as a basis for consideration of such an application.

I think that if the Court of Criminal Appeals had had before it the record, which is now before this Court, it would have granted the writ.

After this case was docketed in -- in this Court, the notes of testimony which were taken at the trial in 1944 by the reporter, who since was deceased, were transcribed by another reporter and put into this record.

And the charge to the jury at the petitioner's trial in 1944 was also located and is now included in this record.

This record reflects that when he was tried on this robbery charge, the petitioner had no attorney.

Justice Charles E. Whittaker: May I ask you in that connection please, Mr. Williams, under your law, was that testimony, and in the event of a new trial, re-admissible against him?

Mr. Percy D. Williams: It is my understanding, Your Honor, that it is.

The record reflects that at his trial, the petitioner pleaded not guilty.

He testified to his own innocence.

And he attempted in a brief and in article way to examine several cross-examines, several of the State's witnesses, but that was as much as he was able to do in his own defense.

Under the Texas statute, Code of Criminal Procedure, which was in effect in 1944 when this case was tried, there was no duty under Texas law on the Court to appoint counsel for an indigent defendant in a non-capital case.

Justice William O. Douglas: Has that been changed since --

Mr. Percy D. Williams: Yes, Your Honor, a couple of years ago.

The statute now provides that, as I read it, although it has not been construed judicially, that in all cases, all felony cases, the Court is under a duty to appoint counsel for an indigent accused.

Justice William O. Douglas: What is the felony under Texas law, is that --

Mr. Percy D. Williams: Penitentiary offense, Your Honor.

Justice William O. Douglas: Penitentiary.

It doesn't matter if the length of this --

Mr. Percy D. Williams: I believe --

Justice William O. Douglas: -- the date --

Mr. Percy D. Williams: -- I believe that's correct.

Justice William O. Douglas: -- the date of entry of the felony?

Mr. Percy D. Williams: Now --

Justice Charles E. Whittaker: They imposed that the sentences for (Inaudible) let's say a years, are to not (Inaudible)

Mr. Percy D. Williams: I believe, and I'm no expert in criminal matters, Your Honor, not experienced, but I believe that the offenses in our penal code where the penalty is prescribed read more or less uniformly like the provision under which this man was convicted.

If Your Honor will look on page 3 of my brief for the petitioner, at the very bottom of that page, you will notice that the prescribing portion with respect to punishment states that he shall be punished by confinement in the penitentiary for life or for a term of not less than five years.

And in the case of the other offense, it's included in the same article, robbery by firearms, again, the portion, similar portion says punishment shall be death or confinement in the penitentiary for any term.

And it's my understanding that that is the basis of the distinction between a felony and a misdemeanor whether that portion of the statute authorizes confinement in the penitentiary.

Justice William J. Brennan: I understand you to say that the new Texas statute --

Mr. Percy D. Williams: Yes, Your Honor.

Justice William J. Brennan: -- (Voice Overlap) the appointment requirement to appoint a counsel to felony.That's (Voice Overlap) --

Mr. Percy D. Williams: To clarify the situation, if I may, on page 5 of my brief, I call your attention to the statutes which were in effect at the time of this petitioner's trial which was 1944, Article 491 and 494.

491 stated that there would be no arraignment of a defendant expect on indictment for a capital offense, and 494 provided that when the accused is brought into court for the purpose of being arraigned, if it appeared that he have no counsel, too poor to employ counsel, the court shall appoint one.

Now, on the next page, coming to the point raised by Mr. Justice Douglas, in 1959, the legislature amended Article 494.

And just for your information, though it has no materiality to this case that I'm aware of, at the top of page 6, I give you the text of the law that it's presently in effect that whenever it's made known to the court in an arraignment or any other time that an accused charged with the felony is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him.

And although some question is to the construction of that is raised in the brief for the respondent, it seems to me all together clear that that means that in any felony prosecution, if the defendant is too poor to employ his own lawyer, the court is obligated to appoint him one.

But the trial with respect to which we are here concern occurred in 1944, 15 years before the adoption of the preferable statute.

And it is the contention of the petitioner that any of his trial, he was not treated fair by the judge or by the prosecutor.

It's my contention that had he had a lawyer, the abuses to which he was subjected could have been avoided, the sentence which was imposed upon him might have been less severe and possibly, he might have been acquitted.

Justice William J. Brennan: Well, this much is clear, Mr. Williams, that had he been tried within the last couple of years on the offense for which he was convicted, the revised 494 would have required the appointment of counsel, is that so?

Mr. Percy D. Williams: That's my understanding, Your Honor.

And if he is tried again, if this Court reverses this case and the Court of Criminal Appeals of Texas remands the man after granting the writ of habeas corpus, remands him to the sheriff of Orange County for another trial, I understand that under that article, he would be entitled to the appointment of counsel by the Court.

Now, what was it that happened to this man at his trial?

In the first place, the State introduced without objection in the hearing of the jury and the Court allowed the jury to consider assigned written statement that included a complete confession by this prisoner which he repudiated at the time of trial.

As I read the record, the undisputed uncontradicted testimony of the petitioner and the State's own evidence, taken together, established beyond any question that this confession which was introduced and considered against him was coerced and was involuntarily.

Let me give you briefly, if I may, the circumstances that led to his confession.

The robbery, and I'm referring here only to the undisputed evidence given by the petitioner in testifying for himself for -- on cross-examination and the evidence presented by the State, the robbery was committed late one Saturday night, the petitioner was arrested the following Sunday morning or early in the morning.

He signed his confession the following day, a Monday in the Office of the County Attorney of Orange County.

He was arrested by a constable, a local county peace officer of Orange County across the Louisiana line in Louisiana after a close pursuit, as they call it in Louisiana law, from Texas to Louisiana.

And at that point, where the prisoner was arrested in Louisiana instead of being taken under -- in accordance with Louisiana law to a local magistrate for an examining trial which was this petitioner's right at that moment promptly to be bound over to await the issuance of a writ of extradition which was also his right, he came back to Texas after having been given the choice by the arresting constable from Orange County of either coming back with him or being run back across the river by Louisiana law.

When the man was -- when the petitioner was brought back to Texas, he was not promptly taken before a magistrate of Texas either on that Sunday of his arrest or when he, at latest, should have been under our law on the following Monday before he was taken in to sign the confession.

Now, I don't claim that the confession was involuntary by reason of anything that I have said per se, but I think that these are factors of illegal conduct on the part of the arresting officer and the County Attorney that this Court is entitled to consider as part of the background and fabric of coercion that seems to me to exist in this case.

Now, what happened between the time of his being returned to Orange, Texas on Sunday morning when he was put in jail and the time of his confession in the County Attorney's Office on Monday?

The testimony in this connection is -- is almost unbelievable.

The -- the -- in short, the man was beat, they throw water on him, they stamped on him, they -- they threw him on the floor, they were trying to get a confession.

And I want -- this is the most important part of my case, and I want to direct the Court's attention to what was said at the trial.

He was arrested by constable named Williamson and some of Williamson's testimony is in the record at the bottom of page 12.

Chief Justice Earl Warren: On your brief?

Mr. Percy D. Williams: There were six witnesses produced by this --

Chief Justice Earl Warren: On your brief?

Mr. Percy D. Williams: I beg your pardon.

Of the record, Your Honor.

Chief Justice Earl Warren: Of the record.

Mr. Percy D. Williams: The record.

My client was trying to cross-examine Williamson and in the last three or four lines on page 12 he said to Williamson, "Will you beat me up across in Louisiana?"

Which the interesting answer was, "I never touched you over there.

I have scars to prove it on my back," top of page 13 to which the answer was, "I ain't touched you but once, and then you jerk me out of my car on Louisiana highway, beat me up without mercy," to which the answer was, "It wasn't over in Louisiana."

And unbelievably, the prosecuting attorney excused that witness at that point without making any effort to show that he did not beat this man during the short interim between the arrest early Sunday morning and the confession on Monday.

Also, I would call to the attention to the Court that when this prisoner was brought into the County Attorney's Office for his -- to sign his confession at the -- in the middle of page 17 of the record, again, the petitioner cross-examining the County Attorney, he says "At the time they brought me inside your office, I was threatened about the statement, is that right?"

And the County Attorney gave him what seems to me to be an evasive reply.

Another question, "You didn't tell me anything about it, did you?"

And then later on that page, near the very bottom, "When the constable threatened to take me out and tie and wipe me unless they got a confession, is that right?"

The County Attorney merely said, "I didn't hear it."

But the County Attorney, at the top of page 18, on redirect examination, referring to the time when this prisoner was brought in to his office the day following the arrest, he was asked by the prosecutor, "Did he look like he had been abused?"

And the County Attorney said, "He was.

He had a bandage on his head, yes, sir."

And there, in the next four or five questions that were asked by the prosecutor, the County Attorney was never really asked whether the petitioner was threaten immediately before he signed the confession.

The questions simply were, "Did the petitioner tell you about being mistreated?

Did he tell you the statement he was making this true?

Did he tell you he was being forced to make the statement?

And it -- it seems to me that if I had been the prosecutor and had wanted to establish that there had not been any coercion of that confession, I would've ask a direct question requiring a direct answer.

But this prosecutor seems to have had no qualms about the coercion that proceeded this confession or over in the course of his examination of the petitioner on page 27 of the record, he asked an unbelievably brutal line of questions of the petitioner that condoned in the hearing of the jury, the brutality which have been meted out to this petitioner.

Down at the bottom of 26 and through most of page 27 of the record, the District Attorney was asking this petitioner and said, "Officers have to get a little bit rough with you, you don't like it after you've done everything you did to this poor old man.

And -- and what kind of treatment would you be in favor of giving a man that would beat up old man Myers as he said he was beaten up.

What kind of treatment would you be in favor of for such a man?"

And when my client said, "I beg for mercy," the smart question of the prosecutor was, "Just like you meted out to Mr. Myers or would have to anybody else."

Justice Felix Frankfurter: Mr. Williams, may I ask you whether if he had the (Inaudible) defense lawyer in Texas, could those questions be subject to objection if it's inadmissible or improper?

Mr. Percy D. Williams: In -- in my opinion, Your Honor, they would have been excludable under decisions of the Court of Criminal Appeals.

In that, they tended to condone what had been admitted by the officer who gave the punishment to be physical abuse.

And they brought into issue the question of whether this man was merciful or would've beaten up just anybody, and that was an issue of going to his character and reputation that I do not believe had been raised by his appearance on the stand.

I think they --

Justice Felix Frankfurter: Do they care if they came and say excludable?

Would they -- do you think it would've been error on -- error by your Court (Inaudible)

Mr. Percy D. Williams: I think that the Court of Criminal Appeals would have said that it was the duty of the trial court to prevent that line of questioning, and I think I have one or two cases cited in my brief, though the exact name of them escapes me, in which that type of interrogation by the Court was -- was held to have been excludable and should have been excludable on the Court's own motion.

Justice Felix Frankfurter: Before you (Inaudible)

Mr. Percy D. Williams: Now, what could a lawyer have done with regard to this confession?

First, he could've seen to it that it was heard in the preliminary way outside the hearing of the jury.

Second, if I am correct in my evaluation of the import of this testimony, he could've had excluded on objection under both the decisions of this Court and the Texas cases.

There were at least six of them from the Court of Criminal Appeals prior to 1944.

Justice William J. Brennan: Did I understand your suggestion, Mr. Williams, the whole proceeding governing the admissibility of the confession was in the presence of the jury, there was it?

Mr. Percy D. Williams: It was indeed, sir.

Justice William J. Brennan: And may have -- may --

Mr. Percy D. Williams: Under the decisions of the Court of Criminal Appeals, it should have been -- should heard, it should have been heard initially outside the jury's hearing.

Justice William J. Brennan: This requires a request of it, of the trial judge?

Mr. Percy D. Williams: Yes, it does, Your Honor.

Justice William J. Brennan: But -- but there must be one otherwise may be heard in the presence of the jury?

Mr. Percy D. Williams: I believe that's correct, Your Honor.

Justice William J. Brennan: And your point is that had he had counsel --

Mr. Percy D. Williams: First --

Justice William J. Brennan: -- it might suppose the request would've been made for a hearing on the presence of the jury.

Mr. Percy D. Williams: Indeed.

And since reading the more recent opinion of this case in McNeal and Culver hastened to add one point, which I did not have in my brief, and that is that the -- although the burden is on the State on the defendant to show that he was under arrest at the -- at the time he made this confession.

The burden is on the State of Texas under our Code of Criminal Procedure to show that it was a voluntary confession.

And a recent case to that effect is the Harris case out of the Court of Criminal Appeals, 286 S. W. 2d 936.

Now, I want to point, if I may, two other serious errors, prejudicial occurrences at this trial which counsel could have prevented.

There were a couple of oral confessions that were introduced against this prisoner.

I don't know whether they were voluntary or not.

It doesn't make any difference whether they were voluntary under the Texas statute.

They were not made before a magistrate, they were not warned, and they were not signed.One of them was a testimony by a deputy sheriff appearing in this case to the effect that prior to trial, petitioner had offered himself as wanting to plead guilty.

And Texas cases squarely hold that oral evidence of a prior offer or agreement to plead guilty amounts to an unwarned confession, and it's not admissible on objection.

Justice John M. Harlan: What is the explanation of the long delay 15 years before this proceeding was brought (Inaudible)

Mr. Percy D. Williams: Well, Your Honor, I do not honestly know.

I understand that from the petition filed in this Court by the petitioner that he has filed numerous applications for habeas corpus in the Court of Criminal Appeals.

None of them have ever been applications.

This is the first time that any court has ever cared about this man.

I'm the first lawyer he's ever had.

And --

Justice Felix Frankfurter: Lucky color.

Mr. Percy D. Williams: I don't know [Laughs] I don't why it's taking him so long.

He is just poor frogman of a person.

And I feel that he needs for you to say that he was mistreated and treated unfairly here.

Now, it was reversible error for those hearsay statements of oral -- oral confessions to be admitted.

There was also an admission in the confession, signed confession of his prior Louisiana felony conviction.

Now, under Texas law that should not have been admitted at the time it was.

His character was not -- his character for reputation for credibility was not in issue at that point.

It could've been excluded at that point.

Later, when the petitioner went on the stand in his own defense, he put his reputation and character for veracity, credibility in issue.

And that evidence of his prior Louisiana felony conviction was then admissible for that limited purpose.

And although the respondent in his brief says it was limited for the purpose of consideration on the issue of credibility, I have not been able to find that in the record, in the charge, the jury or any where in the record, anything limiting the jury's consideration of that prior conviction to the single question of credibility.

And the Texas Court of Criminal Appeals has held that whether or not such limitation in the jury charge is requesting its reversible error not to so limit the purpose for which that kind of evidence maybe considered.

There was a lot of miscellaneous hearsay.

There were questions which a prosecutor under our Texas case is -- cannot ask, "Why didn't you have witnesses here?"

That is an improper comment for a prosecutor in Texas.

Those are the things that actually happened at this trial.

In looking over the record, it seems to me entirely possible that a good lawyer might have been able to take this petitioner's testimony with respect to his condition immediately before the offense and make out of it, a well-founded issue of temporary insanity because he testified without contradiction and the State's evidence also showed that he had been drinking rum and beer and taking something called either "fematol" or "amatol", it's variously referred to in this record, immediately before this robbery that he was delirious, that he had passed out and there is some confusion in the Texas authorities on this point.

We have a statute that says that evidence of temporary insanity resulting from combined use of whiskey and narcotics, it doesn't excuse the crime but it can be taken into account and mitigation of punishment.

But at the same time, there is one decision of the Court of Criminal Appeals in which it was held that the Court properly charged the jury that under those circumstances, there was a -- an issue of excuse for the crime justifying an acquittal.

Now, what was the circumstance or the condition of this man at the time that these things happened to him at his trial?

He was 25 years of age, according to undisputed testimony.

He was referred to as a boy, young man.

He'd been in jail continuously for almost four months from the time of his arrest.

When he was arrested, the constable testified, they took from him all the money that was on the man's person.

The jailer testified deputy sheriff that he had advanced money to this man to send out telegrams from the jail to his relatives.

The boy testified that he had no friends present at the trial.

His mother was sick, his father, he could not depend on.

He'd been given a medical discharge from the army.

The State's witness testified that he had been badly shook up in the army.

He was suffering from moods.

He was taking nerve medicine on doctor's prescriptions.

And under those circumstances, I'm asking you to -- to hold that on the undisputed facts of this record, no further development of these facts by the Texas Court of Criminal Appeals is necessary before it grants the writ.

The undisputed evidence shows that this man was denied due process, and that he was entitled to the writ.

Of course, the matter of request is unimportant.

He alleges that he requested counsel, and the counsel was not provided.

Under your recent reaffirmation in McNeal and Culver, that's unimportant.

Justice Charles E. Whittaker: Mr. Williams --

Mr. Percy D. Williams: Sir?

Justice Charles E. Whittaker: -- suppose that should happen on hearing that there was evidence that the Court believed that at trial is petitioner refused counsel, would that make any difference?

Mr. Percy D. Williams: Yes, Your Honor, I think that would -- would amount to a waiver of his federal right.

Justice Charles E. Whittaker: How do we know what the facts are in that respect from this record?

Mr. Percy D. Williams: Well, I believe we have concessions from the respondent that didn't -- didn't make any difference whether the man asked for counsel or not.

However, that doesn't go quite to your inquiry.

Perhaps, you have a good point Your Honor.

I -- I don't believe there is anything in the record that amounts to a concession by the State that he refused -- that he did not refused counsel.

That may be an open question of fact.

Chief Justice Earl Warren: Mr. Timmins.

Mr. Percy D. Williams: Thank you.

Argument of B. H. Timmins, Jr.

Mr. B. H. Timmins, Jr.: Mr. Chief Justice, may it please the Court.

Initially, I'd like to begin by referring to the question just asked by Mr. Justice Whittaker regarding the import of development regarding the possibility of petitioner not asking for counsel or refusing counsel, I believe it was.

To begin with, the record begins with a question and answer examination of witnesses.

And there is nothing, of course, in the record pertaining to whether he asked for a counsel or whether he was denied counsel or whether he refused counsel.

The statement was made in our brief.

And we really admit that the -- the basic question here is the fundamental fairness and justice of the trial.

As accorded petitioner by the trial court whether -- whether or not he was offered counsel and refused counsel is not reflected, and I -- I know of no way that it can be developed under the circumstances since we have made a very careful inquiry into the facts of the case by going into Orange County and trying to find witnesses who remember this case.

We -- we learned that the trial judge is dead.

The District Attorney who tried the case did not have an independent recollection of the case and neither did Mr. Sexton, the County Attorney.

Many of the other witnesses are dead.

This was one of the -- this was one of the principle problems that we encountered in this case as well as other similar cases where there has been a long passage of time as there was here.

We found that it was quite difficult, and in many instances, possible to find witnesses who could make affidavits to support the contentions to include as exhibit with the responses to the applications because witnesses either had passed away, they did not remember the cases, and we have encountered this time and time again as we did here.

Now, the -- the Texas law that we're concern with here is Article 494.

I want to refer to the questions which were put to Mr. Williams regarding the amendment to the statute.

It was amended in 1959.

The Texas courts did not construe the statute.

And we do not know whether or not counsel is required in every case.

My information is that the practice is not uniform in Texas courts under this amended statute.

Some courts appoint counsel in every felony case, some do not.

And so we -- we simply do not know.

However, of course, we're concern with the statute as it existed in 1944.

Again, we think it is not significant how the statute read because the -- the real question that we're faced with is whether the trial court accorded the petitioner a fundamentally fair and just trial under the facts of the case.

We have to look to the facts in each individual case.

That is established.

Now, under the Texas law, and there have been a number of cases as -- as Article 494 read at that time, counsel was not required in non-capital felony cases unless the failure to appoint counsel by the trial court resulted in a trial which was not fundamentally fair and just to the petitioner.

Now, petitioner has asserted a great number of grounds here on which he claims there was a denial of due process.

We believe that he's read meanings into the record which are not justified from the testimony.

He has referred to the testimony of the arresting officer, Mr. Williamson, on page 12 of the record and at the top of page 13.

Mr. Williamson testified that he had not put the scars on his body.

He testified that he did not jerked him out of the car over in Louisiana and beat him up.

The question was raised with regard to whether he jerked him out of the car in Louisiana and beat him up.

He stated that he did not, in reply to the question.

Justice John M. Harlan: First, we're -- we're not concern here with the ultimate question as to whether there was lack of due process or not, we're concern with is whether the context of this record, the situation was such that he was prejudiced by not having him a counsel.

Mr. B. H. Timmins, Jr.: I think we are concerned with -- with that --

Justice John M. Harlan: (Voice Overlap) --

Mr. B. H. Timmins, Jr.: -- question whether he was prejudiced and as a result of his prejudice whether he was denied due process.

Justice John M. Harlan: Yes.

Mr. B. H. Timmins, Jr.: I -- I think it follows the -- the second question, yes, sir.

Now, over on page --

Chief Justice Earl Warren: Well, would you -- you wouldn't consider that a denial that he had beat him without mercy, would you?

What you just read on 13 or the question by the defendant was, "You jerk me out of my car over on a Louisiana state highway, no Louisiana law, just you and two kids had beat me up without mercy," and the answer was, "It wasn't over in Louisiana."

That -- that's hardly a denial of -- of beating him up without mercy, is it?

Mr. B. H. Timmins, Jr.: It -- I would -- I would say that in the context of the question, Your Honor, it was -- it was a denial that he jerked him out of the car in Louisiana.

It -- I -- I admit that it was not developed there as to whether he may jerked him out of the car or in some other place.

That was not developed.

Chief Justice Earl Warren: Well, but -- but just before that, the petitioner said, "Well, you beat me up across in Louisiana," and the answer was, "I never touched you over there."

Mr. B. H. Timmins, Jr.: Yes, sir.

Chief Justice Earl Warren: And -- and the next question was, "I have scars to prove it on my back," and the answer is, "I ain't touched you but once," and then we get to that question, "You jerked me out of my car over Louisiana state highway, no Louisiana law, just you and two kids and beat me up without mercy."

Answer, he wasn't over in Louisiana.

This is hardly a denial, is it?

Mr. B. H. Timmins, Jr.: It is -- it is not a denial that -- I would say that -- that replaying to the question, as I asked, it was a denial that he jerked him out of the car over in Louisiana.

I -- I do not know -- I do not know what might have been.

It was not developed further whether he jerked him out of the car or not.

He -- he did say he had touched him once.

We do not know whether he touched him and arresting him just what.

But I refer the Court to --

Chief Justice Earl Warren: But the question was, "I have scars on -- that -- to prove it on my back," and the answer says, "I ain't touched you but once," is that -- would you consider that a denial or any?

Mr. B. H. Timmins, Jr.: A denial of the beating?

Chief Justice Earl Warren: Yes.

Mr. B. H. Timmins, Jr.: I would consider -- I would consider -- I can't -- I can't import an absolute denial to that answer.

I would -- I would simply say that he testified there that he did not jerk him out of a car over in Louisiana, and that he did not touch him over in Louisiana.

And then in later testimony, on page 31 of the record, his -- the same man testifying, the same officer testifying said that he -- in -- in reply to a direct question from the District Attorney said that he did not put the scars on -- on the man's body.

The question, "Did you or Officer Thompson put those scars on his body?"

"No, sir."

"Did you hit him or beat him in any way to make those scars?"

"No."

And then he said he went on and told that he was shook up in the army in taking "amatol".

I would say that -- that reading his testimony in full, he has denied that he beat him up or put the scars on his body in the full context of -- of the question then answers.

Now, respondent takes the position that after the long passage of time here, the State is in a position that it cannot find witnesses who were on the scene at the time of the trial or at the time of the arrest who can make affidavits bearing on the central question here, that is, whether he was mistreated in -- at -- at the time of his arrest or during his trial.

We feel that the trial judge knows the elements of a fair trial.

And that his wisdom in judgment should be respected unless it's patently erroneous.

The trial judge heard the testimony with regard to the arrest.

He heard the testimony relating to the confession.

He admitted the confession in the evidence after hearing the repudiation of it by petitioner from the witness stand.

We feel that petition -- that the trial judge's wisdom in his judgment in these matters must be given varied weight.

We do not feel that the testimony of the arresting officers are the repudiation of the confession by the petitioner justifies a finding that he was denied due process at the time of the trial.

Now, we do really admit that a representation by counsel better than no representation at all and that under our adversary system that justice is more likely to resolve.

But at the same time, we must examine the record, and we cannot read into the record certain assumptions with regard to mistreatment.

When there is no opportunity for a reputation of those ex parte and self-serving declarations by the petitioner.

Chief Justice Earl Warren: Well, didn't -- didn't they have a full opportunity?

I notice after this page 13 when he said it wasn't over in Louisiana, the District Attorney excused the witness.

He never asked him another -- another question to clear that up although he did have real opportunity to do so.

Mr. B. H. Timmins, Jr.: Your Honor, I was not speaking of the time of trial.

I was talking about the time that the application for writ of habeas corpus is made.

Chief Justice Earl Warren: I see.

Mr. B. H. Timmins, Jr.: At -- at a much later time that habeas corpus is -- is sought, not at the time of trial --

Chief Justice Earl Warren: Oh, I see.

Mr. B. H. Timmins, Jr.: -- was --

Chief Justice Earl Warren: I see.

Mr. B. H. Timmins, Jr.: -- was my reference there.

Chief Justice Earl Warren: I see.

Justice Tom C. Clark: Is Hop Williams the same as (Inaudible)

Mr. B. H. Timmins, Jr.: Sir?

Justice Tom C. Clark: Is the man named Hop Williams, is he same (Inaudible) witness, Clyde --

Mr. B. H. Timmins, Jr.: Clyde Williams.

And I think Hop must have been a nickname of some sort.

Justice Tom C. Clark: The same man.

Mr. B. H. Timmins, Jr.: Apparently, it's the same man, yes, sir.

Justice Tom C. Clark: Your contention is on the later testimony when he (Inaudible) back on the stand that he claimed the -- the details of what he did (Inaudible)

Mr. B. H. Timmins, Jr.: Yes, sir, that -- his -- his earlier testimony and later testimony must be read together.

Respondent also appeals that this case is help subvert the -- the traditional in the proper remedy of the writ.

We have encountered many of these cases, and we feel that -- that this is -- this is one in which due to the passage of time that we are placed in a great disadvantage in being able to refute any contentions made by the petitioner.

We feel that granting a reversal of the case could have very significant policy implications in this whole area.

Chief Justice Earl Warren: Did the man -- did this man try to get into the federal court, I mean into the state courts to have this matter heard before this proceeding?

Mr. B. H. Timmins, Jr.: Before this proceeding?

Chief Justice Earl Warren: Yes.

Mr. B. H. Timmins, Jr.: I find no record of it in the Court of Criminal Appeals, Your Honor.

I have examined their record.

Chief Justice Earl Warren: Well, is that the place for him to go?

Mr. B. H. Timmins, Jr.: That is -- that is the place that he would go.

He would -- he would apply to the Texas Court of Criminal Appeals for an application for writ of habeas corpus.

He did not appeal his case here.

Justice Felix Frankfurter: Of the -- in the writ -- is the writ tried in the Court of -- in your Court of Criminal Appeals or do they sent it back to a lower court?

Mr. B. H. Timmins, Jr.: The Texas Court of Criminal Appeals would order the trial court to send the record up, and they would then examine the record in the case to ascertain whether there had been a denial in -- in the trial court.

Justice Felix Frankfurter: And if they have to -- they wouldn't -- they would act on the record of the trial court rather than it's too substantially as I believe, whereby the appellate court is asked to leave to send the case for determination of their claims so far as their contested facts at lower court.

Mr. B. H. Timmins, Jr.: They would -- my understanding, Your Honor, is that they would act on the record of the lower court.

Now, after the conviction, an application for writ of habeas corpus can be made to the trial court as a predicate to appeal.

Justice Felix Frankfurter: Yes, well, I -- I misunderstood your answer to the Chief Justice.

I thought you said -- I -- if I understood the Chief Justice's question was whether there was any application by way of habeas corpus in the courts of Texas, and I understood your reply to be that that must be lodged with the Court of Criminal Appeals, is that correct?

Mr. B. H. Timmins, Jr.: After the conviction, the application for writ of habeas corpus may be lodged with the trial court and then an appeal may be made and then an application may be lodged with the Court of Criminal Appeals.

We have several alternative remedies.

He -- he can go either anyway that he chooses.

Chief Justice Earl Warren: But can you say that he made no effort to bring this to the attention of any court in Texas for this long period of time?

Mr. B. H. Timmins, Jr.: So far as I was able to discover from the record of the Texas Court of Criminal Appeals, his -- his first -- his first application was made last year.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Yes, go ahead.

Justice Felix Frankfurter: I -- I think the Chief Justice, may I ask question after that.

Chief Justice Earl Warren: Well, there -- what other courts in the State would have had jurisdiction over habeas corpus or coram nobis or whatever it might -- might be?

Mr. B. H. Timmins, Jr.: The trial --

Chief Justice Earl Warren: After he -- after he's convicted and was in the penitentiary, what other courts --

Mr. B. H. Timmins, Jr.: No other --

Chief Justice Earl Warren: --- than the Court of -- of Appeals?

Mr. B. H. Timmins, Jr.: No other court, Your Honor.

Chief Justice Earl Warren: But you just told us that --

Mr. B. H. Timmins, Jr.: The trial court --

Chief Justice Earl Warren: -- the trial court.

Mr. B. H. Timmins, Jr.: -- after conviction, immediately after conviction before sentencing, immediately after conviction, there could have been an application for habeas corpus to the trial court.

When he went to the penitentiary subsequent to sentencing, the only court that has jurisdiction in an appeal or in habeas corpus is the Texas Court of Criminal Appeals.

Chief Justice Earl Warren: Yes.

That's what I did not understand.

Mr. B. H. Timmins, Jr.: Yes, sir.

I'm -- I'm sorry.

The --

Justice Tom C. Clark: (Inaudible)

Mr. B. H. Timmins, Jr.: The trial judge would consider it in either granted or denied at that time, as I understand it, Your Honor, and then -- and then after sentencing, after sentencing and -- and the man was in the penitentiary, then the application would be lodged directly with the Court of Criminal Appeals.

Justice Felix Frankfurter: And only that.

And only that.

Mr. B. H. Timmins, Jr.: And only that.

Justice Felix Frankfurter: And only that.

Mr. B. H. Timmins, Jr.: Yes, sir.

Chief Justice Earl Warren: I would think -- I would think that would give him a terrible burden to the Court of Appeals to -- to have all those writs from all the prisoners and all your penitentiaries go direct to the Court of Appeals.

Mr. B. H. Timmins, Jr.: It does, Your Honor.

Chief Justice Earl Warren: It does.

Mr. B. H. Timmins, Jr.: It does.

It does, Your Honor.

Justice Felix Frankfurter: You say in your brief, and my Brother Clark has pointed out, you say in your brief that implied within -- whatever the figures are 300 odd, in your brief some (Voice Overlap) --

Mr. B. H. Timmins, Jr.: During the past four years, we have encountered in -- in the Texas Attorney General's Office about 375 applications for writ of habeas corpus.

Justice Felix Frankfurter: Actually filed in your Court of Criminal Appeals?

Mr. B. H. Timmins, Jr.: Either filed in -- no, sir.

In the Court of Criminal Appeals, those matters are not even handled by our office.

The -- the writs which I -- to which I refer or the applications for certiorari in this Court are applications in the United States District Courts.

Justice Felix Frankfurter: Federal courts?

Mr. B. H. Timmins, Jr.: Yes, sir, and the federal courts.

Justice Felix Frankfurter: And then --

Mr. B. H. Timmins, Jr.: Those are the ones which -- to which I refer.

Justice Felix Frankfurter: And when you say you are not, do you think the General's Office doesn't have to deal with those, that means the district prosecutors deal with it?

Mr. B. H. Timmins, Jr.: We do not deal with the ones in the state courts, the district prosecutors to handle those.

Justice Tom C. Clark: You have a state's attorney?

Mr. B. H. Timmins, Jr.: We have a state's attorney.

And he works with the -- he works --

Justice Tom C. Clark: Court of Criminal Appeals.

Mr. B. H. Timmins, Jr.: -- with the -- with the District Attorney in presenting those to the Court of Criminal Appeals.

The only ones which we handle are those which reach the federal courts.

And we have --

Justice Tom C. Clark: And the state's attorney would handle matter for the State in the Court of Criminal Appeals, wouldn't he (Voice Overlap) --

Mr. B. H. Timmins, Jr.: In conjunction with the District Attorney.

Justice Felix Frankfurter: He's competent to statewide?

Mr. B. H. Timmins, Jr.: Yes, sir.

Justice Felix Frankfurter: But you call him state's --

Mr. B. H. Timmins, Jr.: State's attorney.

Justice Felix Frankfurter: -- state's attorney.

Mr. B. H. Timmins, Jr.: He -- he represents the State before the Texas Court of Criminal Appeals.

Yes, sir, that's correct.

Chief Justice Earl Warren: We'll recess now, Mr. --

Featured:

Stirone v. United States - Oral Argument, Part 1

Thu, 29 Nov 2012 22:23:27 +0000

Case:

Stirone v. United States

Media File:

35_19591109-argument-1

Related Transcript:

35_19591109-argument-1

Transcript:

Argument of Michael Von Moschzisker

Chief Justice Earl Warren: Number 35 Nicholas A. Stirone, Petitioner, versus United States.

Mr. von Moschzisker

Mr. Michael Von Moschzisker: Mr. Chief Justice and may it please the Court.

We come here from the Third Circuit on certiorari, extremely proud that Chief Judge Biggs and Circuit Judge Hastie agreed with us in this three to two decision under the Hobbs Act.

The charge under the Hobbs Act was an obstruction or interference with interstate commerce by extortion.

The sufficiency of evidence of extortion is not here today, but just at the beginning I think I should say it was hotly contested and you should know that this alleged extortionist was paid by check and paid his income tax on it.

He's a labor leader accused of having shaken down a manufacturer by threatening him with labor trouble, but none of the labor leader's men worked for that manufacturer, none of the labor leader's men worked for his suppliers and none of the labor leader's men worked for his customers.

As I say, the defendant was indicted for obstructing or interfering with commerce between the states.

Our first point of our two points here today is that he was indicted for one obstruction of commerce, but the jury was permitted to convict him of another obstruction of commerce for which he was never indicted and our second point which is two-fold, involve the arguments that they admittedly purely local actions of the defendant had no sufficient effect upon commerce between the states.

The evidence showed that there was sand in the bottom of the Ohio River between West Virginia and Ohio and a company called the Ducane Sand Company dredged or dug it up and sold it from out of Ohio or West Virginia or both to a company in Pennsylvania called Ducane Slag Company.

Justice Charles E. Whittaker: Why does the (Inaudible) again?

Mr. Michael Von Moschzisker: Majority of the stock of one was owned by the other as it appears from page 68-A of the record sir, fifty-one percent I think.

Another company called Crane Brothers brought the sand up the Ohio River and then up the Monongahela River to the Brady Street Yard of the Ducane Slag Company in Pittsburgh, Pennsylvania and maybe once or twice to another place, but in general to the Brady Street Yard of Ducane Slag Company.

Ducane Slag Company, which had a lot of other customers also, sold some of this sand to a man named Rider, who was a manufacturer of concrete and the sand was sent over from the Brady Street Yard to another property of Ducane Slag at Belle Vernon, Pennsylvania where Rider did his business of manufacturing concrete on property owned by Ducane Slag.

There was no --

Justice Charles E. Whittaker: It is a batching plant.

Mr. Michael Von Moschzisker: A batching plant, yes sir, and -- what sir?

Justice Charles E. Whittaker: And that's at Vernon place.

Mr. Michael Von Moschzisker: At Belle Vernon the last place I named and no interlocking relationship in the ownership between the Rider Supply Company and either of the -- or in any other company in this case.

The indictment which appears at page 6-A or commences there is one that the Government construes differently than I do and therefore in this case I will take a moment to say what's in it.

The indictment, page 6-A, charges a part of the commerce between the States was the transporting of materials used in the construction of a steel mill and that this man Rider who is going to turn out to be the alleged victim of the alleged extortion had caused a movement of such material in commerce toward his concrete manufacturing plant in Pennsylvania and that the defendant had obstructed commerce and the movement of the aforesaid material in it by extorting $30,000 from Rider.

Now the defendant, none of whose men worked for this man Rider or his suppliers or his customers said that he had obtained a very profitable contract for Rider and that the checks on which he paid income tax was preventative commission.

He will notice in the indictment that Stirone, the defendant appellant was indicted for obstructing the receipt in interstate commerce of sand to be used in manufacturing concrete and that all he was indicted for.

So far what some people sometimes call a technicality, that's all they had any right to try him for it.

The only obstruction of commerce they had any right to try him for, was the obstruction of the receipt of sand, moving toward the concrete manufacturing plant.

Of course, it's a technicality of great importance and unless it continues to exist as an important part of our Law, it will just mean that the baron shouldn't have bothered to go to any meeting in the first place because he could only be tried for something he's charged with.

But over objection at page 51-A, and the objection was based on the ground of materiality which seemed to me would have been exactly the right ground, other objection, the Government at the trial of this indictment was allowed not only to produce evidence that the receipt of sand that they're receiving him might have been obstructed or interfered with, but was also allowed to produce evidence that that sand was used to make concrete and that that concrete was supplied by this man, Rider, to the prime contractor and was used by the prime contractor to help build a steel mill, the Pittsburgh Steel Company and then after the steel mill was built, it shipped hot -- it's called hot room sheet and strip metal from Pennsylvania to the automotive industry, principally in Michigan.

Justice William O. Douglas: What was this (Inaudible) in 51-A, you say?

Mr. Michael Von Moschzisker: 51-A when the Government started to produce evidence sir with regard to the steel mill, Mr. Casey who sat -- who sits here now said at the top of the page, “I'd like to have an objection to any question relating to the out of state shipments so far as Pittsburgh Steel is concerned and then he said it was kind of materiality.

When the Judge, trial judge short --

Justice Felix Frankfurter: In an out of state (Inaudible) the Court for the popped up, was there an attempt to show his statement?

Mr. Michael Von Moschzisker: Yes sir, and perhaps --

Justice Felix Frankfurter: But you had helped to turn interstate commerce and that is charged in the indictment.

Mr. Michael Von Moschzisker: And later on, sir, later on, I believe and contended it didn't show it anyway but at the moment that's what I'm saying.

Thank you.

Mr. Michael Von Moschzisker: When the trial judge charged the jury, and this comes at pages 287-A and 288-A, the trial judge charged the jury that they could find if they chose the necessary obstruction or interference with commerce either with regard to sand, what we've all come to call the receiving end, or in the alternative they could find it with regard to steel products at the end where they were being shipped out after the steel mill was finally erected out of the concrete into which the sand went.

We say that that was very lacking in any element of due process of law and that if anything went to this jury at all, it should only have been an obstruction or interference with sand at the receiving end.

The Government says that the matter was not made an issue at the trial.

I can only answer that questioning if we only know of one way to plead the general issue and that's by a plea of not guilty and we've entered a plea of not guilty.

Justice Felix Frankfurter: Would you have answered the questioning about the charge?

Mr. Michael Von Moschzisker: There -- at the end of the trial, at the end of the charge, Mr. Casey, the trial counsel, made an objection with regard to the judges charged about the steel products and I must say he made that objection in such a general way that I cannot pinpoint it as having included the argument I'm now making.

But his objection on the grounds of immaterial -- on the grounds of immateriality with the evidence offered, I think it does support my argument.

And this --

Justice Felix Frankfurter: The real concept who was the trial judge?

Mr. Michael Von Moschzisker: Sir?

Justice Felix Frankfurter: Who was the trial judge?

Mr. Michael Von Moschzisker: His name was Judge Miller.

Justice Felix Frankfurter: On context, that is the detention has been brought, he would have suggested how now we read the indictment or see I can't do that on contrary, wouldn't made that distributive that he wouldn't have withdrawn this (Inaudible) we don't know?

Mr. Michael Von Moschzisker: We do not know.

Justice Felix Frankfurter: Would you say that he allowed in evidence (Inaudible) improperly because of what he had done in the indictment?

Mr. Michael Von Moschzisker: And we do know that at that time he would have won -- won because the objection by Mr. Casey had been on the ground of lack of materiality.

So at least at that time we know what he did.

Justice Hugo L. Black: Would you mind explaining to me the place in the indictment that you rely on that standing just the same?

Mr. Michael Von Moschzisker: I don't think sir I can point to just one place but looking at page 6-A, of course in the first paragraph the one numbered one, it is said that a part of the interstate commerce of the United States has consisted at the transportation between the several states of materials and supplies for use in the making of ready mixed concrete.

Now they never mention in their indictment, any other part of the commerce between the States, that's the one part they do mention and then over on page 7-A in the paragraph numbered four just about 60% of the way down that paragraph four, I find the words and of course I don't read the whole paragraph, I find the words and the movement of the aforesaid materials and supplies in such commerce.

Justice William O. Douglas: Replicate the cement problems today.

Mr. Michael Von Moschzisker: Well the only aforesaid materials and supplies that have been aforementioned in the previous part of this indictment were materials and supplies for use in making concrete that could have been cement.

It could also have been sand and if the judge had submitted a cement issue to this jury I don't think I'd be here complaining about it, I am complaining about the steel product itself.

Justice John M. Harlan: What about paragraph two of the indictment and the --

Mr. Michael Von Moschzisker: I think paragraph two is entirely consistent with my proposition that I urge here and I thank you very much for reminding me of it.

There again for the purpose of performing the contract causing those supplies and materials to move in interstate commerce for the contract they had to perform was a contract to manufacture concrete.

Justice Charles E. Whittaker: At least then it is referred to that commerce in steel --

Mr. Michael Von Moschzisker: It certainly did not.

Now the Government says in their brief that I'm warmed on this argument anyway because they say it was a question of law for the trial judge and then they cite a lot of cases but of course I almost don't need to stand here and say, that when you check the cases you'll find that the cases don't say that the factual question of whether commerce was obstructed was for the judge that's always for the jury but the cases do say that it's alright for a judge to tell a jury that if they find certain facts, then he tells them as a matter of law, those facts do constitute an obstruction of commerce and only in that sense is this a question for the Court instead of for the jury and we say the fact of whether or not the shipment of steel products was interfered with, was a fact for the petit jury but only after an indictment charged of prima facie and only after a grand jury made a prima facie finding of the commission of that felony.

Justice Tom C. Clark: Well the real question is, isn't it that's the scope of the allegation of the indictment, isn't it?

Mr. Michael Von Moschzisker: Yes sir.

Entirely.

Justice Tom C. Clark: Of course that's for a judge for the judgment to go (Inaudible).

Mr. Michael Von Moschzisker: Correct.

Now --

Justice Charles E. Whittaker: Would you mind telling me, I didn't see it, (Inaudible)

Mr. Michael Von Moschzisker: There were exceptions taken to the charge and as to the part of the charge which dealt with the shipment of steel products into commerce there was an exception taken in one of those speed words.

Your Honor, I accept to what you said about the steel product.

I say I can't stand here and say that the exception was couched in such language as I've been trying to use here to make my point clear.

Justice John M. Harlan: What page is that on?

Mr. Michael Von Moschzisker: That's on page 300-A.

Justice Tom C. Clark: Aren't you (Inaudible) first paragraph at the bottom of the page.

Mr. Michael Von Moschzisker: Of what Sir?

Justice Tom C. Clark: 300-A

Mr. Michael Von Moschzisker: Yes.

Justice Tom C. Clark: An expert charge of that Judge Bennett (Inaudible)

Mr. Michael Von Moschzisker: That's what I'm trying to remember.

I construe it as counsel on the spot, it was said a little while ago, trying to make the exception that I'm make here but --

Justice Tom C. Clark: Yet incomplete?

Mr. Michael Von Moschzisker: But not as completely as I make it here, as to the steel after he mentioned the sand.

Now the other question in the case involves whether this alleged interference was the purely local activity of manufacturing concrete had such an effect on commerce between the States that it could be the subject to this prosecution and of course I should start with the fact, I know perfectly well that by scholastic reasoning involving what somewhat -- someone called abstract notions, everything affects commerce.

And that the statute in this case is very sweeping at what it tries to reach and probably reached about as much as any statute one could possibly pass but I still claim that the effect upon commerce in this case was not only too distant, but also too unsubstantial.

That has two aspects.

First as to the sand, you remember that Rider, the alleged victim of this extortion, was in Pennsylvania and that in Pennsylvania, he purchased the sand from Ducane Slag Company which was also in Pennsylvania which had lots of other customers and that Slag Company was the one who purchased sand from Ducane Sand Company in another state.

Now, the theory by which the trial judge and by which today the Government says that extortion directed against anyone as remotely connected with commerce between the States that this man Rider can be tried in federal court appears at pages 306-A and 307-A of the record where the Trial Judge in his opinion frankly said, starting five lines up from the bottom of 306-A.

That statement was based upon a premise that a deliberate act which tends to prevent Articles from being used, once they have reached their destination, after being shipped in interstate commerce, then it is up the stream of commerce and delays and obstruct and defect interstate commerce as surely as though the same act had cut off the supply at short.

So what they're really contending here today and they cite United States versus Sullivan as they contended in their brief, what they're really contending here today is that an extortion or a robbery because the Hobbs Act covers robberies also, an extortion or a robbery which would prevent a corner druggist from selling something to a customer which had originally come from another state is an extortion or robbery which can properly be made and has been made the subject of federal jurisdiction.

Well if that's so, you won't have anymore days like today because J Edgar Hoover isn't going to have time to catch anymore spies.

Justice Charles E. Whittaker: Well that's our first rule in here and --

Mr. Michael Von Moschzisker: Sir?

Justice Charles E. Whittaker: -- that there was evidence of direct shipping from the Slag Company in West Virginia or Ohio to this (Inaudible), was there?

Argument of Wayne G. Barnett

Mr. Wayne G. Barnett: There was evidence of direct shipment from the company in West Virginia, which happened to be the Sand Company two premises of the Slag Company on which Rider had also put his batching plant.

Justice Charles E. Whittaker: Consigned to Rider?

Rebuttal of Michael Von Moschzisker

Mr. Michael Von Moschzisker: Some evidence of some shipments consigned to Rider but ordered by Slag Company.

Justice Charles E. Whittaker: Would the fact, the latter fact be consequential.

Mr. Michael Von Moschzisker: I think that the latter fact puts me a little bit worst off than I would be otherwise but it seems to me not so badly off as to bring this case within the power of Congress.

Justice Charles E. Whittaker: Would not the evidence of direction from the sand company in West Virginia to the contactor in Pennsylvania for disuse the commerce, interstate commerce, direct commerce?

Mr. Michael Von Moschzisker: The-- when it would-- when ordered by Ducane Slag and shipped to Rider, it seems to me that the shipment would of be direct commerce.

If what this seems to me in answer to Your Honor's question that even there, the effect of an extortion as in this case or as in or of a robbery as it might be in some other case, upon that commerce is still entirely too remote to be controlled by the Congress power.

Justice Felix Frankfurter: Are you -- are you arguing -- are you arguing that this is outside of the Commerce Clause or are you arguing the scope of the Hobbs Act really?

Mr. Michael Von Moschzisker: I thought of that in train all the way down here and it seems to me, I'm really arguing both that I think Congress in the Hobbs Act tried to go almost as far as they could go under the Commerce Clause, I don't think that either the intent of Congress whether the Constitution reaches this.

Justice Felix Frankfurter: Almost, did they -- I mean if you see what Congress almost been doing what is asked, there might be a (Inaudible) this Court would prevail.

Mr. Michael Von Moschzisker: Well you see what troubles me there.

The Government says that Congress tried to go as far as they could but forgetting robbery for the minute, they only tried to cover extortion and they defined extortion as the obtaining of the money.

So whoever, by obtaining money, interferes with commerce, they reach.

It seems to me that Congress could even have gone with it further and could have said whoever by obtaining money or by threatening to pull a strike in effect interferes with commerce or threatens to interfere with commerce in violation of this Act.

Now it so happens they didn't say that.

They just think to find extortion in the narrow sense of receiving money so I think that one way they went as far as they could but only with regard to a very limited type of extortion, but I just can't answer the question yes or no.

Justice Felix Frankfurter: Yes.

It is just not just easy question to be answered in the right way.

Mr. Michael Von Moschzisker: A question to where I wouldn't be -- I would be honored to be here.

Incidentally, the amount of the extortion was not directly geared to the amount of sand that came in.

It was I would say indirectly geared to it.

The alleged extortion was 50 cents on every cubic yard of concrete so of course you could work it out in relationship with the sand by one step but you wouldn't need that one step.

Justice Felix Frankfurter: What – what -- may I ask you?

What change did the definition in Section A -- Section 1 (a) of the Forty-Fifth Amendment make the original 24 (a)?

(Inaudible)

Mr. Michael Von Moschzisker: I can't say that I recall none.

Justice Felix Frankfurter: Steel trade of commerce is used in it defining it to its own.

All of the greater congruent in United States has constitutional jurisdiction that is almost more embracing, more extensive than the Forty-Fifth Amendment which merely says, all other commerce on which the United States has jurisdiction in the original act it would have been constitution (Inaudible) I can't imagine it.

Mr. Michael Von Moschzisker: I think both times they were trying to reach as much commerce as they could but not as much extortion as they perhaps could.

Now on the point that I've been arguing--

Justice Felix Frankfurter: I'm a little troubled there, let's say it reached over the commerce (Inaudible) and extortion wasn't in any restrictive meaning to powers, commerce, extortion is extortion whether it's intrastate or a proportion of the political commerce.

I don't see what fallacy get out of (Inaudible)

Mr. Michael Von Moschzisker: That's why sir, I didn't try to bring that out except in response to a question from the Court.

I don't think that the limited definition of extortion by virtue of its limits helps me or hurts me.

I just thought I should mean that it is there.

Now on the question of whether there was a sufficient connection between the alleged extortion and the receipt of the sand, I should report that that's the one question in which Chief Judge Biggs and Circuit Judge Hastie did not agree with us.

The Court below was unanimously against us on that point, but those two judges were with us on the point about the man being tried for something he hadn't been indicted for.

And those two judges were also with us or if one Chief Judge and one other judge were also with us in the (Inaudible) which is that if I must assume as I hate to do, that it was alright to submit the issue of interfering with the shipment of steel products to this jury, if I have to assume that, then I say that under the decisions of this Court, the shipment of those steel products from a plant which had been built partly out of concrete by a prime contractor for whom Mr. Stirone -- pardon me, for whom the subcontractor who was the victim of the alleged extortion has made the concrete is again a matter in which the relationship between the alleged extortion from Rider who made the concrete or rather mention the prime contractor who made the factory with somebody else placed machines that makes steel products that went to somebody else from Detroit was again not close enough in its relationship to interstate commerce to use one part of Mr. Chief Justice Hughes' phrase and as well as not being close enough, it wasn't substantial enough in its relationship to the shipment of the steel product.

For one reason, as Judge Hastie points out, there's nothing to show that there were plenty of other resources of concrete.

This is no question of a monopoly as in your Sherman Act cases and when supported properly going to authorities.

I should add one more thing that at the time of the extortionate demand, no sand was being received directly from other States.

It was coming in to the Brady Street Yard of the Slag Company, was being unloaded and piled up there, mixed with other sand from Pennsylvania and then eventually sent away by railroad car to Rider, the alleged victims at the time of extortionate demand.

Later on, the sand moved in the way I told Mr. Justice Whittaker when I responded to him.

Thank you.

Chief Justice Earl Warren: Mr. Barnett.

Rebuttal of Wayne G. Barnett

Mr. Wayne G. Barnett: Mr. Chief Justice, may it please the Court.

As counsel for the petitioner says there's no question here about the fact of the extortion.

We're concerned only with the commerce element.

He's giving you most of the facts and I would to like to clear up a few details particularly in the sand commerce.

The relationship of the companies I believe Mr. Justice Whittaker asked about, the sand, the Slag Company owns 49% of the sand company which does the dredging.

The other 51% is owned by the towing company, the Crane Brothers who own the tugs that handle the barges for both companies.

It's true that the sand was sold by the dredging company to the slag company and not directly to Rider.

That was by the relationship between those two companies, all of their production was taken by the slag company and also by the terms Rider's lease, he was required to take his sand from the slag company.

So the slag company did buy the sand from the dredging company and paid for it and then charged Rider for the sand that was directed to go to him.

Now the physical movements however of the sand were in most cases direct from the barge from the dredge in West Virginia to Rider's plant in Pennsylvania.

The barges were taken upstream by the towing company, pass Brady Street which was the plant of the slag company in Pittsburgh and then up another 25 miles to Rider's plant.

Sometimes they were docked temporarily in Pittsburgh at the Brady Street Yard and thereafter picked up by the towing company and taken on upstream but they were never unloaded nad we don't think it makes any difference that the barges did stop temporarily at Brady Street but that some of them did.

Also, as to the matter of the shipments at the time of the extortionate demand, I think it is probably true that at that time the shipments were by rail that however was because the dock wasn't finished at Rider's plant, that was finished in October of 1951, the contract went on until well in the 1954 when the extortion continued.

On the steel commerce, the only fact that was necessary to establish was that the steel mill upon completion would sell its goods in interstate commerce and that testimony was given.

Now --

Justice Charles E. Whittaker: That testimony was -- was before that when the steel mill was built for good devoters and manufacturers to use, which we would like to (Inaudible) solely different to state crime -- and then it was suggested.

I'm just --

Mr. Wayne G. Barnett: Well actually at the time the testimony was given the mill had already been built and in fact part of the mill was in operation before the construction job was completed as what was testified in about the actual shipment.

Justice Charles E. Whittaker: I know but would not the extortion would be as of this is the (Voice Overlap)

Mr. Wayne G. Barnett: Yes.

Yes.

Yes well there is no dispute about what this plant was going to be.

It was to be a hot strip rolling mill making sheet steel and I -- I dare say there's no dispute that sheet steel is used primarily in the automobile industry than the (Inaudible) industry.

Justice Charles E. Whittaker: That's all been included.

Mr. Wayne G. Barnett: Yes that is right but there's no doubt of that expectations generally prevailing.

That commerce did not then exist I agree.

Justice Charles E. Whittaker: Is that enough then to constitute one who works on that confidently that constituted at present with obstruction commerce.

Mr. Wayne G. Barnett: That essentially was the position of the dissenters in the Court of Appeals that it did not argue is that its -- it certainly is a sufficient effect to bring it within the broad scope of the commerce power.

The dissent below relied primarily on Fair Labor Standards Act cases which are limited to persons engaged in commerce and it maybe that that the distinction between existing commerce and future commerce is relevant to such a statute, we think it is not the statutes extends to -- affecting in anyway or degree commerce.

Certainly the future effect is substantial even though it is not present.

A delay in the construction of the steel mill necessarily would cause a delay on the beginning of the shipment of the steel in interstate commerce.

And certainly I think the national interest is as great in promoting an increase of production capacity as it is in avoiding interference with current production.

Justice Felix Frankfurter: How would you know a lot of pass in order to form an allegation?

Mr. Wayne G. Barnett: Well I think well perhaps, the best way to win this case I think is to sustain both of the alternative instructions.

Justice Felix Frankfurter: I'm following you, I follow your resentment but you talked about all this interest we have in to commerce about the incident so we better get down to the allegation of the invite?

Mr. Wayne G. Barnett: Well yes, on the variance point.

Justice Felix Frankfurter: Something like that.

Mr. Wayne G. Barnett: Yes well we think indeed that it was in fact a little thing, we do -- a large part on the variance issue, a large part of petitioner's argument is that this were two different crimes that he was charged with the crime of obstructing sand commerce and was possibly convicted for the crime of obstructing steel commerce.

We're a little surprised to hear the argument that we might be able to indict Mr. Stirone four or five times if we could show also that the obstructed commerce in cement.

Certainly in our view, a single act of extortion is but one crime.

It makes no difference how many ramifications on interstate commerce it may have.

We think therefore that the question comes down to one prejudicial variance between the facts alleged and the facts proved.

Justice Charles E. Whittaker: Does that-- does the sacrament of fact prove or (Voice Overlap)

Mr. Wayne G. Barnett: The variance between those.

Justice Charles E. Whittaker: Or to the one (Inaudible) then on the other side the facts prove with the chart to support that the (Inaudible) you find in our law had still come was obstructed.

Mr. Wayne G. Barnett: I -- I include that sir, yes.

Now the indictment does emphasize we agree on the sand commerce theory as a way in which commerce was affected but thru that channel.

In terms of the allegations of facts, however, it does specifically allege that the sand was to be use for concrete for the steel mill.

So the fact of the destination in concrete was alleged.

The only fact that was not alleged is that the steel mill which ships steel in interstate commerce.

Now that is a matter, I think, of common knowledge and it's hard to see how that might have prejudiced the defendant and the record I think shows that there was no prejudice.

That testimony that steel have absolutely shipped in interstate commerce was offered on the second day of the trial.

The trial went on for almost two weeks after that.

At no time did the petitioner claimed surprise or asked for continuance to make a defense to that testimony and I think the reason was there is no answer to the test --

Justice William J. Brennan: Did you see the text?

Mr. Wayne G. Barnett: No, yes he did object to the admissibility on grounds of materiality.

Now --

Justice Hugo L. Black: Did you cite Paul against Arkinsas?

Mr. Wayne G. Barnett: No, we do not Sir; I think that we should have.

I do not -- I'm not aware of the case.

Justice Hugo L. Black: The case where we held (Inaudible)

Mr. Wayne G. Barnett: Oh your Honor--

Justice Hugo L. Black: Does it state that in time it has to go on contempt?

Mr. Wayne G. Barnett: Oh yes--

Justice Hugo L. Black: Did you know that?

Mr. Wayne G. Barnett: Indeed it is, we would agree and if these are two crimes, we would -- we would agree that the judgment should be reversed.

Justice Hugo L. Black: Certainly a different one.

Mr. Wayne G. Barnett: I'm sorry, sir.

Justice Hugo L. Black: Couldn't there be any difference from (Inaudible)

Mr. Wayne G. Barnett: No, in our view, the scope of the crime or the acts of extortion and the impact on commerce must be proved, we agree.

Justice Hugo L. Black: That's the way the Federal Government gets secu --(Voice Overlap).

Mr. Wayne G. Barnett: Yes that is the jurisdiction of fact.

Justice Hugo L. Black: Otherwise it would have to be emphasized in the statement.

Mr. Wayne G. Barnett: That is right.

That is right.

Justice Hugo L. Black: That's all (Inaudible)

Mr. Wayne G. Barnett: But --

Justice Hugo L. Black: The State rather just to have it's extortion in that sense?

Mr. Wayne G. Barnett: I have not checked that these venue statutes -- but are-- it is almost universally a state crime and I think we will be sure it is Pennsylvania but I agree that --

Justice Hugo L. Black: Nor the (Voice Overlap) of the Federal Government can get it on this very thing you say of enmity?

Mr. Wayne G. Barnett: Yes well I -- nothing is immaterial and we must prove it.

I -- I do not -- I do not think it is essential to allege the precise way in which interstate commerce is affected.

We did alleged one way I agree and only to suggest the facts towards which we -- we tried to show in other briefing.

Justice Charles E. Whittaker: Those points out to a fallacy, you didn't have to allege by what means the commerce (Inaudible) aren't you stuck with it?

Mr. Wayne G. Barnett: well I would agree that that is true if the defendant is prejudiced, if he has mislead in preparing his defense because of that.

But it became clear in the morning of the second day of the trial when we were also relying on steel commerce, we introduced the evidence then and it – it – I'll come back in to the question about the objection, he did object on grounds of materiality and in the colloquy that followed, he argues that steel commerce is too remote and therefore it is not material.

Now just a materiality to recover the water front and it--

Justice Hugo L. Black: What is in charge here towards the company is to keep an eye on things once the (Inaudible) does that make any difference in your evidence?

Mr. Wayne G. Barnett: I think probably it would not accept in terms of misleading the defense.

Now we have to define the acts that constitute the defense I agree and -- and I'm assuming that we alleged identifying facts of the acts of extortion.

Justice Hugo L. Black: But you have to prove beyond a reasonable doubt that Rider come out of it wouldn't you say (Inaudible)

Mr. Wayne G. Barnett: We would have to prove beyond a reasonable doubt that the facts upon which interstate commerce is based, yes sir.

Justice Hugo L. Black: But I understand a bit in this security offer they may have made a mistake that they found beyond a reasonable doubt that (Inaudible) guilt.

Mr. Wayne G. Barnett: Yes sir.

Yes sir.

And I don not -- my point is simply that any-- any failure to specifically allege the steel commerce in indictment and so it's going to prove that variance did not go to the definition of the crime or -- or to the -- it remained a single crime and this was only a different theory to sustain jurisdiction and that the variance did not in anyway prejudiced the defendant.

Justice Felix Frankfurter: But it may prejudice in the sense of money we can't argue to what he is intending because no matter how far reaching scope you give to the Commerce Clause, there are limits, the kind of limits that that Judge Learned Hand pointed out (Inaudible) the case of the law that everything isn't-- everything is related to everything else and therefore that's agreeing to the commerce.

Mr. Wayne G. Barnett: Yes.

Justice Felix Frankfurter: And he might have argued that the shipment of steel is too remote as of the remoteness that qualifies all (Inaudible)

Mr. Wayne G. Barnett: Yes.

Justice Felix Frankfurter: Like the Gunny -- the argument in Gunny case, there are limits in connections we've made for purposes of law.

It amounts to purposes of (Inaudible) blunt equal parlay in that it isn't the concern and yet we like to rely on it and he says it isn't in gear that's what I think it is meant particularly by the acts of the past (Inaudible) who is nowhere this relates to commerce.

Mr. Wayne G. Barnett: Yes-- Yes well I agree he made the objection that it is too remote all the way through he has argued that all the time.

Justice Felix Frankfurter: No, no, no (Voice Overlap) but this stands on that 90 pieces, you said evidence of and I can make an argument either to the Court which is impurely that this is the kind of abuse (Inaudible) and if that is not charged in the indictment notice has given to him that he needn't need it then you say, oh well he -- what difference does it make it comes within the Commerce Clause or he doesn't come --

Mr. Wayne G. Barnett: Well no and -- and it also comes in to the trial early in the stage that has ample opportunity to meet it and he has in fact all the way through I think had a full opportunity to argue that issue of law but I don't take the variance from the indictments as material, it did not affect the opportunity to meet the evidence.

Not the legal arguments.

Justice Felix Frankfurter: We must write the variance and it's fortunate which is hard, there is such a thing as not allowing (Inaudible) could loose and how the-- how they formulate and charge and it's one thing to say if you need a (Inaudible) it doesn't matter which is kind of good.

It's 12 o'clock in the afternoon, it's 10 o'clock in the morning or two people and three people but even for some reason there was a particularity of this technical charge.

Then you say, oh well we can disregard that because if it relates to commerce clause (Inaudible)

Mr. Wayne G. Barnett: But let -- let me but it is my position to this was not in fact prejudiced by the fact that at no time did he object.

Justice William J. Brennan: Meaning that is right.

And that protection has never (Inaudible)

Mr. Wayne G. Barnett: That is right, sir.

That is right.

Justice William J. Brennan: That is what he says some of the work..

Mr. Wayne G. Barnett: That is right.

No, I think in any words, there's a reason to be construed --

Justice William J. Brennan: If you use the word --

Mr. Wayne G. Barnett: Better.

Immaterial, yes sir.

Yes.

Justice Charles E. Whittaker: You mean that (Inaudible)

Mr. Wayne G. Barnett: Well I think not sir.

I think it says something very different that the effect is too remote.

Chief Justice Earl Warren: We'll recess now.

Featured:

Stirone v. United States - Oral Argument, Part 2

Thu, 29 Nov 2012 22:23:27 +0000

Case:

Stirone v. United States

Media File:

35_19591110-argument-2

Related Transcript:

35_19591110-argument-2

Transcript:

Argument of Wayne G. Barnett

Chief Justice Earl Warren: Number 35, Nicholas A. Stirone, Petitioner, versus United States of America.

Mr. Barnett, you may proceed with your argument.

Mr. Wayne G. Barnett: Mr. Chief Justice, and may it please the Court.

Before returning to the question of the effect to the variance, I would like to clarify the distinction I made yesterday in speaking of the steel commerce issue between the scope of the Hobbs Act and the scope of the Fair Labor Standards Act.

I pointed out that the -- the dissenters in the lower court had relied upon Fair Labor Standards Act cases in support of the view that only in effect upon present commerce instead of future commerce would bring it within the act.

I noted that the Fair Labor Standards Act cases are -- that these were the so-called new construction doctrine cases were based upon an interpretation and application of the specific standard of that Act, the application to persons engaged in commerce.

And I noted that whatever the validity of the distinction for that purpose, it would not be applicable to an act which applied to activities affecting commerce.

Now when I'm saying that, I don't mean to imply the distinction is valid under the Fair Labor Standards Act and in fact the Court has at least greatly limited if not over -- overruled the new construction doctrine there.

In addition there's a second branch of coverage in the Fair Labor Standards Act to persons engaged in the production of goods for commerce?

And in applying that, the Court has in fact applied it to those engaged in operations which lead towards the future production of goods.

The case to which I refer is Warren-Bradshaw which is decided in our brief at -- at that page 34.

There the Act was held applicable to an independent contractor engaged in preliminary drilling of oil well.

With his equipment he could only go down to a stated depth, which would be short of the oil sand and the owner thereafter engaged other persons to bring in the well.

Nevertheless, the employees of the contractor doing the first stage of drilling were held to be covered by the Fair Labor Standards Act because their operations were necessary to the future production of oil and we think the relationship of the construction of the steel plant's future production of steel is virtually the same and it may well be that the Fair Labor Standards Act would apply to Rider's employees.

I don't argue that case here, but in relying on the broader scope of the Hobbs Act, I don't mean to imply that the -- the Labor Standards Act would not apply.

Returning to the variant point, I would like -- if I may briefly to outline our position, I think there are really two questions.

The first is whether he was in fact convicted for a crime for which he was not indicted, whether there are two crimes and if that is so, as I said yesterday, we would agree that the judgment should be reversed.

In our view, there is very little question but that the extortion was one crime and the effect on commerce is simply of the jurisdictional element to make -- bring it within the federal jurisdiction.

And in fact, we think the indictment would not be fatally defective if it did not allege at all the specific channels though which interstate commerce was affected.

Now, it is true here as Mr. Justice Whittaker pointed out that we did allege one of the means by which that effect was felt and that might in a particular case work to the prejudice of the -- of the defendant by misleading him as to what he has to prepare for.

Justice John M. Harlan: Do you think that in bringing this indictment (Inaudible)

Mr. Wayne G. Barnett: Well, as I said yesterday, we do allege the fact that the concrete goes into the steel mill.

But I have to concede that we do not allege the fact that the steel products would go into interstate commerce, and in that sense we have not alleged the full -- all of the elements that we have to prove on that.

It may be that the act was noticed.

Justice Potter Stewart: Excuse me.

Mr. Wayne G. Barnett: I'm sorry.

Justice Potter Stewart: I beg your pardon.

The movement of the concrete itself was intrastate, wasn't it?

Mr. Wayne G. Barnett: Oh yes, it was sir.

His plant was located just a few miles from the --

Justice Potter Stewart: And the charge in the indictment alleges that the -- that it was interstate in effect.

Mr. Wayne G. Barnett: Yes, yes.

Justice John M. Harlan: I notice in the Bill of Particulars, the one in Number 1(a) which inquires as to what the interstate commerce was that I can't find that that was -- an answer to that was given, the motion to develop particulars requires as to that the Bill of Particulars themselves doesn't seem to cover it.

Mr. Wayne G. Barnett: I -- I -- as I remember the Bill of Particulars was directed -- I -- I think the questions were directed towards the sand commerce and I think you're quite right.

Justice John M. Harlan: 1 (a) says, “State where the interstate commerce referred to in paragraph 2 originated and where it ended.”

Mr. Wayne G. Barnett: Yes, yes.

Well it doesn't say, “The interstate commerce it was referred to in an indictment was the sand commerce.”

I -- I'm not denying that and that was -- that was true up until the trial.

I don't think at anytime prior to the trial had we specifically spelled out the steel theory and it -- it brought us a -- a new theory introduced at that point and in that sense perhaps is -- was error, but I -- I think as rule 50 says the Court should notice only a prejudicial error.

Justice William J. Brennan: I gather than it's as Justice Harlan did you say that question 1(a) was or was not answered?

Mr. Wayne G. Barnett: It was answered only in terms of the sand commerce.

Justice William J. Brennan: Well I see -- but the actual answer is not in the record, is it?

Mr. Wayne G. Barnett: Oh, I'm sorry.

Justice William J. Brennan: I've noticed --

Mr. Wayne G. Barnett: I think it was not in the --

Justice William J. Brennan: It seems to start with the answer to question six at page 112(a).

Mr. Wayne G. Barnett: No, that was not required to be answered.

I -- I -- I'm wrong on that.

It was only question six on, I think it was, that were answered in the Bill of Particulars, but that issue has not been raised here.

Justice John M. Harlan: I suppose you can read where it would say it's referring only to sand because it refers to paragraph 2 of the question.

Mr. Wayne G. Barnett: Of the question, I think that's probably right because I say -- that the -- we were not directed to answer that.

I know -- I don't know why the -- the motion was limited but that is not an issue here.

But it -- but it is true that -- that we do not -- specifically raise the steel theory until the trial, other than alleging the fact of the destination -- the construction of the steel mill.

Justice William J. Brennan: Or what about this -- it there any significance to show Mr. Barnett to be attached to the concluding words to paragraph 2 of the indictment and more particularly from outside the State of Pennsylvania into the State of Pennsylvania, that would not be pertinent to steel, would it?

Mr. Wayne G. Barnett: Well, I can make it pertinent by the raw materials used in steel production, but I -- I think I have to agree that that alluded to the sand commerce and -- and not to the steel commerce.

Chief Justice Earl Warren: Mr. Barnett, suppose there was not sufficient evidence for any of the jurors to find that the sand was in commerce, do you -- is it your contention that the man should still be convicted on the steel theory?

Mr. Wayne G. Barnett: Yes, sir.

Yes sir that as -- as -- we do not think that you have specify in the indictment.

Chief Justice Earl Warren: Suppose six -- suppose six jurors were of the opinion that -- that the sand was not in commerce and six jurors were of the opinion that the steel was not in commerce but together they -- they found him -- found him guilty.

Mr. Wayne G. Barnett: I -- I -- I'm not -- I'm not sure of the answer to that -- whether the jurors are supposed to be unanimous on alternative instructions whether the -- the jurors can divide on -- on alternative instructions.

My guess would be that that they are to be unanimous on -- on the -- a single instruction.

But in any event --

Chief Justice Earl Warren: Is there any way you can establish in this case that they were -- all agreed that the sand was the issue?

Mr. Wayne G. Barnett: Oh, not at all, not at all.

Chief Justice Earl Warren: Or that the steel was the issue?

Mr. Wayne G. Barnett: No, no.

We have to agree that we cannot tell from the jury's verdict which they found and they may have gone on the steel issue.

Justice Felix Frankfurter: They could have found with implied obedience or attempted obedience to the charge of the Court that the steel thing is -- or this is our objective but it's not in cause, couldn't they?

Mr. Wayne G. Barnett: Yes, they -- they certainly could have and I would like to point out, on the sand commerce the only fact that had to be established was that these barge movements did take place and the barge movements were established by unconvertible records of the dredging company and also the slag company which corroborated with one another.

There was no dispute that the sand movements did take place and we later argued that the conviction could be sustained simply on the ground, but there was no dispute about that issue.

That's not the point I'm arguing now, however.

But -- but we think that this is the kind of variance which is relevant only if it's prejudicial.

That -- that it is not fatal per se and that there certainly was no prejudice in meeting the proof that the steel didn't move in interstate commerce.

Justice Hugo L. Black: You are in effect -- you in effect are arguing there, are you not, that this would be acceptable (Inaudible)

Mr. Wayne G. Barnett: Well we could --

Justice Hugo L. Black: (Inaudible) I suppose it's pretty well settled that the Government has to prove these allegations as being part of the charge?

Mr. Wayne G. Barnett: Well, that -- that is right.

I think the question is what degree of specificity is required in the indictment, whether it would be sufficient just to allege that the extortion delayed and obstructed interstate commerce without spelling out the ways in which that happened, but the Court said --

Justice Hugo L. Black: The Court didn't have anything to say as it said it all, that it had appeared to be interstate commerce.

Mr. Wayne G. Barnett: Oh, I think we do have to allege that and that is the center on --

Justice Hugo L. Black: Did you allege that practice at all?

Mr. Wayne G. Barnett: Yes, yes.

Well --

Justice Hugo L. Black: And that if you do allege more in fact it is not prejudicial at all?

Mr. Wayne G. Barnett: Well no, it is fatal only if it's prejudicial.

In fact we think you have to look at the whole trial to see if the man was prejudiced or surprised by this.

Justice Felix Frankfurter: How do you -- how do you determine -- how do you go about determining that --

Mr. Wayne G. Barnett: Well in --

Justice Felix Frankfurter: Put to one side, if you put to one side, as I gather you do, the confusion that it's taking (Inaudible) in conflict with the defendant, in his conception was -- was irrelevant in the theory of issue.

Mr. Wayne G. Barnett: Well, I -- I --

Justice Felix Frankfurter: How do you determine whether it's prejudicial -- it was just a -- explicitly one thing and then -- and then it's saying explicitly on something else?

Mr. Wayne G. Barnett: I don't think the counsel was confused.

Justice Felix Frankfurter: You mean you objected to the materiality.

Mr. Wayne G. Barnett: Well I -- I -- there was a -- a colloquy that followed that and we explained the reason we were introducing it and he then answered that he did not think the effect on steel commerce was substantial enough to satisfy the statutory requirement, the legal argument that he's making here.

And that is the only argument he has ever made during the whole course of the trial in about either sand commerce or steel commerce.

Justice Felix Frankfurter: But the effect of the admission of that contested author of evidence by the U.S. Attorney was, that it pertained to commerce as though the indictment had charged, it was implicit there that this obstructed interstate commerce.

Now it doesn't follow because of indictment was is no simple term for which the Bill of Particulars was or was not asked, that that allegation is sufficient and broad enough to let in any phase of obstruction that if you do not rest on that kind of a broad indictment, or confine it that you're equally obliged.

Mr. Wayne G. Barnett: Well -- well, I think that if it weren't -- if it were not essential to allege in a specific way in which interstate commerce is affect --

Justice Felix Frankfurter: I don't think it is myself.

Mr. Wayne G. Barnett: -- then I do not think -- see how we resolve because we specify one way except for the possibility of the prejudice and as I say, the evidence of the steel sales in interstate commerce was introduced in the second day of trial, no request for continuance was ever made and no suggestion at all that he was unable to meet that evidence of the single fact --

Justice Felix Frankfurter: But the trial isn't merely what the lawyers do.

A trial is also what the judge does and charges, but if the judge steps outside the scope and confinement of the indictment then he is from my point of view not capable of having really charging the jury.

Mr. Wayne G. Barnett: Yes, I -- I would like to deal with that.

I think it is the responsibility of the lawyer to call the matter to the judge's attention.

I think that's the very purpose of rule 30 which provides that that no error may – may be assigned to an instruction unless it is specifically objected to for stated reasons.

Justice Felix Frankfurter: Do you think that applies even if you travel outside the scope of the indictment?

I'm assuming --

Mr. Wayne G. Barnett: Yes, yes.

Justice Felix Frankfurter: -- for these questions that he did travel outside the scope of the indictment.

Mr. Wayne G. Barnett: No, I think this is also with the plain error, under Rule 52(a) but I -- I think this was not done.

Chief Justice Earl Warren: Mr. Von Moschzisker.

Argument of Michael Von Moschzisker

Mr. Michael Von Moschzisker: Mr. Chief Justice, may it please the Court.

When we asked for a Bill of Particulars, so we could find out among other things what commerce they meant to be talking about, the Government opposed the grant of the bill and that's why that paragraph hasn't been answered and then in the Government's opening in this case particularly the part at 520(a) and 521(a) and most particularly the top of 521(a) in their opening, they told us the commerce they were talking about was the sand.

Justice John M. Harlan: But it is true that at the time this evidence was introduced as to the future potentialities of the steel mill that you were put on notice at that time that the Government rightly or wrongly was going to rely on that evidence as part of its -- the commerce phase if it's in that -- of its case.

Mr. Michael Von Moschzisker: It is true that we were so put on notice after the trial began and it is also true that no grand jury ever made a prima facie case of such as felony or prima facie finding if it's a felony.

Yes, sir.

Justice John M. Harlan: Well the basic question on that is, on the indictment is whether the Government even though it didn't have to specify it at all what the commerce was that it was relying on by having specified sand, was thereafter precluded it from introducing any other elements of obstruction of commerce.

Mr. Michael Von Moschzisker: I would so argue if necessary sir, I think they were obliged to show in their indictment what commerce they were talking about because this statute prohibits obstructing commerce by extortion.

It's not like the Labor Management Relations Act which prohibits a labor leader from accepting money from an employer whose business affects commerce.

Here the extortion has to affect the commerce and not as what I should have more truly answered Mr. Justice Whittaker yesterday.

Sure, that sand on one barge may have been in commerce, sir or the record is somewhat ambiguous on that, but even if it was, the crime couldn't be made out.

If I ran a corner cigar store and some of my cigars came from another State that would be commerce just like the sand on that one alleged barge.

But if a holdup man came in and held up my cigar store, I say the effect on interstate commerce would be the same as that in this case and the effect is not enough for congressional jurisdiction.

The extortion has to affect commerce.

It's not enough for the business or the victim to which to affect commerce, you have to do something like hijacking a truck or stopping something from actually moving in commerce.

Here, that was not done.

What's that?

Justice Felix Frankfurter: In the statute, I don't suppose anybody would argue that the statute such as, every extortion of an owner of a business who might be subject, who would be subject to the Fair Labor Standards Act.

Mr. Michael Von Moschzisker: I would not have supposed anybody would argue that, but when they come before Your Honors and cite the Sullivan case, in support of that position here, wonder.

Good afternoon, Mr. Chief Justice.

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