Cases by Issue - Bank Robbery

Carter v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:17 +0000

Case:

Carter v. United States

Media File:

99-5716_20000419-argument.mp3

Related Transcript:

1999_99_5716_argument.xml

Transcript:

Argument of Donald J. McCauley

Chief Justice Rehnquist: We'll hear argument next in No. 99-5716, Floyd Carter v. United States.

Mr. McCauley.

Mr. McCauley: Mr. Chief Justice, and may it please the Court:

Federal bank larceny is a lesser included offense of Federal bank robbery.

Both offenses draw their language and history and understanding from centuries of common law under which larceny has always been understood to mean a lesser offense of robbery.

At common law, robbery was defined as an aggravated larceny or as a compound larceny, all of the elements of the larceny subsumed and embraced by the robbery.

The robbery... it was defined as an aggravated larceny because it had an extra element.

Chief Justice Rehnquist: I don't think the Government contests you on that point, Mr. McCauley.

I think that what they rely on is a case like Bell against the United States, which says that the bank robbery statute was... was deliberately altered so as not to be a common law and... and its successor.

Mr. McCauley: I don't believe... the Prince case reveals that there was not an altering of the common law.

The Prince case I... I think is the precedent here regarding the understanding of the 1948 recodification and explains... there are two things I think the Prince case explained.

It explained that the recodification in 1948 was a change in phraseology, a tidying up of the entire criminal code.

It was not a rewriting and redefining of crimes.

And what's significant, it interpreted another provision within 2113, the unlawful entry.

And it said... and it emphasized right in its opinion... it was manifestly the purpose of Congress to establish lesser offenses.

The Prince case said the heart of the offense is the intent to steal.

It was... that language was emphasized.

The intent to steal on the unlawful entry provision.

Then the unlawful entry provision merges into the robbery provision.

So, the robbery provision had to have an intent to steal.

Chief Justice Rehnquist: What do you make... how do you distinguish or how do you treat the Bell case?

Mr. McCauley: The Bell case doesn't... it's not changing the common law understanding.

It's not interpreting a statute where this Court said when interpreting a statute that is codified a traditional common law offense, we're going to understand all of the elements at common law for that particular offense.

That long history and tradition is not going to be eviscerated or revolutionized if... or... I think the language in the Morissette opinion... if there was a mere deletion of a term.

And that's what we have here in 1948, the mere deletion of the term...

Justice O'Connor: Well, do... do you agree that we apply the so-called elements test to determine whether it's a lesser included offense?

Mr. McCauley: Yes, Your Honor.

We do not quibble with the Schmuck standard.

Justice O'Connor: Okay.

So, then we have to decide... even if you're right about intent to steal, what about the requirement in the larceny statute that property be carried away, which doesn't appear in the bank robbery statute?

And what do we do about the monetary value problem?

Mr. McCauley: Well, if I may address the monetary value problem first, Justice O'Connor.

There is a monetary element in the robbery provision.

You must take the money or the property.

The value is the universe of value... the universe of money, of which $1,000 is embraced.

So, that is not an element.

And even if it is an element, it is embraced.

The reason I say it's not an element is I refer the Court to the Reviser's Notes and Congress in the Reviser's Notes, when it changed the threshold from $100 to $1,000, specifically stated that this change goes to punishment.

However, should the Court interpret it as an element...

Justice O'Connor: Well, what if the Court says it doesn't go to punishment, it's an element?

Then what do we do?

Mr. McCauley: Then it is... then it is embraced in the robbery provision's requirement of money... a money requirement.

Justice Souter: Why isn't the simple answer that the... that the... whatever it is... the... the lesser degree of... of larceny is clearly included because there is no particular value requirement there at all?

I mean, if the value is anything above 0, you're... the lesser offense value requirement is made, isn't it?

Mr. McCauley: Yes.

Justice Souter: That's all you have to do to... to win your... I mean, on this point, that's all you have to show to win your case, isn't it?

Mr. McCauley: Show that the elements are a subset of the greater, and I believe the money requirement in the greater offense embraced whether it's $1,000, whether it's $100, whether it's above $100...

Justice Souter: No, but let's... I mean, in order for you to prevail here, I think all we would have to conclude was that there was some value requirement in the robbery statute, as you pointed out, and that there was some value requirement in at least one version of larceny.

And in the lesser grade of larceny, there's no requirement to prove $1,000 or anything else.

As long as there... as long as there is proof of something more than 0, the value requirement is made.

And that's all you need, isn't it?

Mr. McCauley: Yes, Justice Souter.

Justice Scalia: But then... but then the... the greater larceny charge would not be a lesser included offense and you would not have give the instruction if you want to get the fellow for... I'm sorry.

You would not have to give the instruction with regard to that.

Mr. McCauley: The $1,000 I submit is within the universe of the monetary element of robbery.

Justice Souter: No, but all you want is a lesser... maybe I don't understand your case.

I thought all you wanted was some lesser included instruction for larceny.

Mr. McCauley: That's correct.

Justice Souter: So, if you get a lesser included instruction for whatever it is, the... the minor... the lesser larceny, that's all you want.

Or do I misunderstand what you're asking for?

Mr. McCauley: No, you do not.

Justice Scalia: Well, that's not going to help you very much if... if your client stole a yacht and the jury is instructed, you need not... you need not convict him of... of robbery for stealing the yacht if you find that instead he's guilty of larceny of property worth... worth less than $1,000.

That's not going to help your client.

Don't you have to get in the... both of the two larceny statutes in order to get where you want to get... want to be?

Mr. McCauley: And both of them are within that, yes, Your Honor.

And my...

Justice Scalia: You do.

Mr. McCauley: my client has never been on a yacht.

He's been in a bank and...

Justice O'Connor: Yes, but this was $16,000.

It wasn't under $1,000.

This was a $16,000 heist.

Mr. McCauley: Yes, Justice O'Connor.

Justice Scalia: There's no way that... that the lesser larceny instruction would have helped you.

The jury obviously wouldn't... couldn't have brought back a verdict on the lesser larceny.

Mr. McCauley: The lesser offense of larceny, as that term is understood, a conviction on that.

Then it goes to sentencing as to where the sentencing.

And it is the quintessential adjustment for punishment under the sentencing guidelines.

The first adjustment is the amount of money involved.

The definition of this...

Justice O'Connor: Well, what if the court were to think it was an element not going... not a sentencing factor, but an element?

Then what do you do?

Mr. McCauley: I submit it... it is not outside the Schmuck understanding and... as a subset of the universal monetary, 0 to a million, thousand is within.

Justice O'Connor: And you've... you've not addressed the carrying away problem.

Mr. McCauley: The carrying away is a common law term signifying asportation.

Asportation was understood to mean the slightest movement, a hair's breadth some call it.

As my adversary spoke the last time this matter was presented to the court, it could involve a movement involving one foot, whether it be the foot or a hand.

The common law understood it, and that's why robbery was defined and understood as aggravated larceny.

The asportation, the carry away, is in that take language of the robbery statute.

When you take from the person or presence of another, there is a slight movement.

Justice Scalia: Was asportation involved in common law larceny too?

Did common law larceny require asportation?

Mr. McCauley: Yes.

Justice Scalia: And common law larceny was considered a lesser included offense of robbery at common law.

Mr. McCauley: Yes, Your Honor.

Justice Breyer: What about the third?

That is, as I understand this, you have bank robbery, and that involves taking money from a bank through force or violence.

Mr. McCauley: Yes.

Justice Breyer: Then you have larceny, which involves taking money from a bank.

I forgot force and violence.

That doesn't exist.

It looks identical but for the force or violence.

Mr. McCauley: Yes.

Justice Breyer: Now, my problem, I guess from the Government's point of view, is I happen to leave out one phrase.

It says in the... in the larceny one, which it doesn't say in the bank one, with intent to steal.

All right.

So, their basic argument... I think it's their best argument.

Maybe they have a disagreement.

But they say that... that with intent to steal means there's something about larceny that isn't true of bank robbery, and so it isn't true that bank larceny is just three of the four things of robbery.

It is three plus.

It is three plus the intent to steal.

Now, what do you say about that?

Mr. McCauley: That... that term is no longer there.

The Government agrees it was there from its inception in 1934 when bank robbery was codified right through 1948.

So, we have to find the meaning with it not being there for today's purposes.

I submit you have to look at the context and the context in the 1948 recodification.

Context may clarify.

Context may...

Justice Ginsburg: First, before we get to the clarification, you're saying the word feloniously... that did it.

Not the words of the bank larceny statute, intent to steal, but feloniously takes was adequate because that's what at common law described...

Mr. McCauley: Intent to steal.

Justice Ginsburg: Right.

Mr. McCauley: Yes, Justice Ginsburg.

Feloniously had modified the term to take from the person or presence of another.

Steal was not a common law term.

Steal was... the definition of steal was take from a person or presence of another.

So, there was common law meaning, common law language and understanding right in the bank robbery provision.

Feloniously falls out.

We cannot say it is there today.

But why does it fall out?

And I submit it falls out, explained adequately... and the only explanation... in the Prince decision as a change of phraseology, to tidy up the whole code.

The code had become very cumbersome with much language distinguishing felonies from misdemeanors.

And all of the felony language and misdemeanors had been deleted from the actual definitions of the crimes because a new provision was added, section 1 of title 18, that defined a felony...

Chief Justice Rehnquist: If you're right, Mr. McCauley, why didn't they change the other statute too?

Because one now says with intent to steal, the other doesn't.

Mr. McCauley: The term feloniously was not in the larceny provision.

Justice Scalia: You're saying they thought that feloniously would... would confuse the reader to think it has... it was a felony, rather than a misdemeanor.

Mr. McCauley: That... that may... that may explain it.

I do not know.

I do know, however, that...

Justice Ginsburg: But it was a part of a wholesale cleanup operation.

They weren't saying it's confusing in this robbery statute.

They took out all the words in many statutes.

Mr. McCauley: Yes.

Justice Scalia: They took out other feloniously's?

Mr. McCauley: Yes.

In the statute interpreted by the Court in Morissette, the conversion statute, 641 of title 18... and Morissette previously had the term feloniously.

And I think the wisdom of the Morissette opinion... and the wisdom of the Morissette opinion and its application to this case is the language in Morissette that the Court...

Chief Justice Rehnquist: Well, Morissette is totally different from this case, it seems to me.

There there was no intent requirement, and the Court said because at common law there was one, we're going to read it in here.

Here you have very specific elements that weren't present in Morissette at all.

Mr. McCauley: I think there's a subtle difference.

What Your Honor says is all correct.

The Morissette opinion substituted a knowing mens rea into a statute because the common law understanding of the crime of conversion did not have a specific intent element.

It only had a general intent element.

The court was interpreting conversion.

At common law conversion was understood... and it was not a common law offense.

It was among one of the first statutes codified in the old English law.

It required an act inconsistent with the rights of the true owner.

And that's what... so, what the Morissette opinion, I submit, stands for is the missing element.

If Congress has not specifically contraindicated that as departing from the centuries of understanding, the missing element that the Court would imply in is what had appeared at common law, meaning a general intent for the conversion offense...

Chief Justice Rehnquist: That a criminal statute is going to be... if... if it's silent as to intent, there's going to be some mens rea requirement.

Mr. McCauley: Yes.

Chief Justice Rehnquist: But I think that's quite different from the situation here where the elements have been quite... quite specifically specified and one... one substantially differs from the other.

Mr. McCauley: My point is the missing mens rea in the conversion statute interpreted in Morissette was a general mens rea, a general...

Chief Justice Rehnquist: Is... is...

Mr. McCauley: whereas robbery is specific intent to steal.

Always it's been understood that in the mere deletion of the felonious word, consistent with Morissette, you're going to imply in the mirror image, the specific intent to steal.

And that best fits.

This is the best fit with the Court's prior holdings in Prince and Heflin.

Justice Souter: May I just go back to... I want to make sure that I understood your... understand your argument.

I... and this is what I think your argument is.

If I'm wrong, tell me I'm... tell me where I go wrong.

I... I think you were saying in so many words that feloniously, under the statute prior to the revision, had two functions.

One function was to say this is a felony and will be punished as such.

Second function is to say you must prove intent to steal because that's what feloniously implied at common law.

They dropped the word feloniously when they adopted what is now, I guess, section 1, which explains what crimes are felonies and what crimes are misdemeanors.

So, they didn't need feloniously for the first purpose anymore.

But your argument is that when they dropped it as redundant for the purpose of identifying the crime as a felony, they didn't mean to redefine the elements of the crime to omit intent to steal.

Have I got it right?

Mr. McCauley: Exactly, Justice Souter.

Justice Souter: Okay.

Mr. McCauley: Exactly.

Justice Stevens: May I just ask one question going back to the dollar problem in the case?

Is it correct that at common law both petty larceny and grand larceny were lesser included offenses of robbery even though there wasn't that subdivision in robbery?

Mr. McCauley: Yes.

We... we... in our brief there's a quote right out of Blackstone where they were... are distinguished.

It's a lesser offense.

Petty larceny is the same as robbery.

Robbery is an aggravated compound larceny, and petty larceny could be differentiated in terms of punishment, the threshold being the sixpence.

And we say...

Justice Scalia: How about grand larceny?

That's...

Mr. McCauley: Grand larceny was greater than the sixpence, but grand larceny was... Blackstone says it's right within the robbery understanding.

The sixpence threshold went to punishment and distinguished between a misdemeanor and felony offense.

Justice Breyer: I think your answer to my question was what Justice Souter just said, but I'm not sure.

The... the... I'm back to... to the fact that there... these words do appear in the larceny statute, whoever has... with intent to steal or purloin.

They are there, aren't they?

Mr. McCauley: Yes.

Justice Breyer: Yes.

But they're not in the bank robbery statute, are they?

Mr. McCauley: After 1948...

Justice Breyer: Not, not.

But your point was that that's always implied.

Mr. McCauley: My understand...

Justice Breyer: Now, this is the case that I think tests it.

It's a little hard and it's rather absurd.

But I suppose that if I went into a bank and I took some money from the bank and I thought it was mine, I wouldn't have an intent to steal.

I was wrong.

It wasn't mine.

It was the bank's, and so I wouldn't be guilty of larceny.

Now suppose I got so angry at the bank because the automatic teller wasn't working.

You know, I had been frustrated, and I got so angry I got a gun.

I wouldn't ever do this.

Unidentified Justice: [Laughter]

Justice Breyer: I went to the teller.

I pointed the gun at it and said give me that $200 thinking it was mine and, lo and behold, it was the teller's.

Would I be guilty of bank robbery?

Mr. McCauley: Yes.

Justice Breyer: Yes, but there is no intent to steal because I thought the money was mine.

You see, that... that's what they're saying... that's what they're saying the difference is.

They're saying that the difference is that if I think the money is mine, I get off under the bank larceny statute, but if I think the money is mine, I don't get off under the bank robbery statute.

Is that... I mean, I don't know.

It may be so absurd, this case, it may never have happened and I don't know that we should turn a serious opinion on something that's never happened in the history of the world.

I mean, I think Sophia Loren once got a hatchet and chopped apart a Coke machine because she was so angry at it.

So, I... I guess that it's possible it could happen.

But am I right in principle?

Mr. McCauley: I would say it is a robbery.

I did not understand the hypothetical that there was no intent to steal initially when I answered no.

Robbery does require an intent to steal is our position.

Justice Breyer: So, you would... it requires an intent to steal.

So, you're saying my angry... my angry, revenge-driven customer who tries to steal his own money and fails is or is not guilty of robbery?

Is not.

Mr. McCauley: Well, the modern statute has done away... what Your Honor's hypothetical encompasses is the common law defense of a good faith claim of right.

And the modern bank robbery provision takes that away specifically by congressional pronouncement when it says take the money in the care...

Justice Breyer: All right.

So, if that's...

Mr. McCauley: in the care, custody, and control of the bank.

So, it's broader than the common law definition, but I don't think it affects the common law understanding...

Justice Scalia: I don't understand that.

The phrase, in the care, custody, or control of another.

What does that have the effect of doing?

Mr. McCauley: At common law, a crime of larceny could be defeated by showing that the perpetrator had a good faith claim of right.

We have The Fisherman's Case or where someone thinks they're getting their own money back.

Justice Souter: So, it's not intent to steal, I mean, within Justice Breyer's hypo.

Right?

Mr. McCauley: That would defeat the...

Justice Scalia: You're talking larceny or robbery?

Mr. McCauley: That was an affirmative defense for both larceny and robbery.

Justice Souter: And robbery.

All right.

So that on Justice Breyer's hypothetical, if in frustration the depositor goes into the bank with a gun and says to the teller, give me my $200 and that's what he believes, that it is his $200, is he... is he guilty of robbery or not?

Mr. McCauley: He's guilty of violating 2113(a).

And the court may not... no court may ever have to get to the issue of whether there's a specific intent to steal because of 2113(a).

He's taking the money by force and violence that is in the care of the bank, and that...

Justice Souter: Okay.

Then I think you're saying intent to steal is not an element.

Mr. McCauley: It is an element.

It is an element.

It has always been understood to be an element.

Justice Souter: But in my hypothetical, he doesn't have an intent to steal.

He's trying to get his own money.

He's wrong.

But his intent... his state of mind is it's my money.

Mr. McCauley: I submit that a good faith claim of right defense has been taken away, but there's always the intent to steal.

There's been no congressional indication and it has to come from...

Justice Scalia: That makes no sense.

You... you can't have an intent to steal if you have a good faith claim of right.

I mean, you... you say that but it doesn't make any sense.

How can you possibly have... have an intent to steal if you have a good faith claim of right?

Mr. McCauley: If you're taking from the person or presence of another, you're stealing.

Justice Ginsburg: Mr. McCauley, this... this same question was asked of you as a prior argument.

And I... there... there was another hypothetical that you were... one was I think it's my money.

The other was I just want to see how nimble I am, so I'm going to get the money.

I'm going to rob the bank.

Then I'm going walk around the block and give it right back to them.

That was the other hypothetical.

No intent to steal in either case.

One, I think it's my money; the other, I'm going to walk around the block with it.

In... in all of the annals of criminal law, I don't know that either of those situations have ever come up.

Mr. McCauley: No, but I think they were posed to try to illustrate there was no intent to steal if he was just testing the security of the bank.

Justice Ginsburg: Is... I... I'm wondering whether there is a case where it would be real and not just hypothetical.

But there's another aspect of this case that... that may also fall in the academic category.

That is, didn't one of the... didn't the Government urge that in this case there's no way that this could be anything other than robbery?

That it could not have been larceny so that whatever we answered this question, it wouldn't matter because in this case you could not... you didn't... it could not have been larceny.

Mr. McCauley: The Government is arguing a fact-based inquiry that was never presented to the jury, and indeed, the district court in its first instance made no determination regarding the factual evidence in this case whether they could submit... whether they... it would satisfy the elements of larceny.

Justice Ginsburg: But I thought it was the Government's position that no rational jury... juror could so find, so you couldn't submit it to the jury.

Mr. McCauley: The Government is relying upon the district court's decision regarding a motion for judgment of acquittal pursuant to rule 29 at the end of the Government's presentation of the evidence, and saying that amounts to a directed verdict when the district court said, I'm not going to instruct this jury on the bank larceny provision.

That just simply is not so.

The district court never made a factual determination.

It was bound by the Third Circuit's opinion in Mosley that, as a matter of law, I'm not permitted as a district court judge to submit this to the jury.

And that's all the district court did.

The district court did summarize the evidence solely for the rule 29 function.

Whether or not there was sufficient evidence, giving the Government the best benefit of all reasonable inferences to support the elements of robbery.

That is not the same as what... if, as a matter of law, we are entitled to a lesser offense of robbery.

That inquiry... if we are entitled to it as a matter of law... instruction regarding the lesser included offense, the fact that a district court ruled on the... on a rule 29 motion does not affect the jury's determination, does not affect... the Government is essentially arguing that it's harmless error, and this Court in its first instinct could say it looks like a... a robbery to me.

So, that's good enough.

An all or nothing verdict, as the Court pointed in Beck v. Alabama, is not proper.

As we point out in our brief citing the Keeble case... it's cited in the Morissette opinion... we were entitled to these instructions as a matter of law if there's any evidence, a scintilla of evidence, that could support our theory that these elements are met.

Just because a jury convicted...

Chief Justice Rehnquist: Is there any case that uses the word scintilla in that context?

Mr. McCauley: There's a case out of the Ninth Circuit...

Chief Justice Rehnquist: I mean a case from this Court.

Mr. McCauley: I don't recall if it was from this Court, Your Honor, the scintilla.

That car was... that case was United States v. Escobar Debright and it collected a number of cases from around the circuits regarding the quantum of evidence necessary for a theory of a defense or a lesser offense I submit.

If the Court has no further questions, I'd like to reserve my time for rebuttal.

Argument of David C. Frederick

Chief Justice Rehnquist: Very well, Mr. McCauley.

Mr. Frederick, we'll hear from you.

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

Bank larceny, felony bank larceny, is a lesser included offense of bank robbery because it requires proof of three elements not found in the robbery provision: the intent to steal or purloin, the carrying away of the property, and that the property is worth more than $1,000

By contrast, bank robbery requires proof that force...

Chief Justice Rehnquist: Mr. Frederick, you said it is a lesser included offense.

Mr. Frederick: Sorry.

Is not a lesser included offense.

I apologize.

Those three elements under the Schmuck test require a finding that larceny is not a lesser included offense of robbery.

Justice Breyer, to go to your question on intent to steal, this is in our view an important element, and I do not want to digress to the point of hypotheticals where the person steals his own money because...

Justice Breyer: That's actually a bad example, but I'm just... it does illustrate that my great difficulty in finding an instance where this intent to steal could make a difference.

I mean, can you think of one?

Mr. Frederick: Yes.

Justice Breyer: What?

Mr. Frederick: And we have given you the... we have given you this fact situation in the footnote in our briefs.

Justice Breyer: You mean the Tenth Circuit hypothetical.

Mr. Frederick: Yes.

That happens every single year...

Justice Breyer: What?

Can you remind me?

Mr. Frederick: where the defendant commits a bank robbery because he is unable to live in a free society and in a comfortable way and commits a bank robbery with the intent of getting captured.

And the important point here...

Justice Scalia: The intent of stealing and getting caught stealing.

I mean, but he's still stealing.

I don't see...

Mr. Frederick: He doesn't have an intent to deprive permanently the custodial arrangement of the bank of property.

Justice Scalia: Well, he would if he knew that that's the only thing that's going to get him in jail.

Mr. Frederick: Justice Scalia, what is important here is what the prosecution must plead and prove beyond a reasonable doubt, and it is reasonable to infer that Congress, in enacting the bank robbery provision, would not want to subject the Government to proof where the robber had engaged in such unambiguously dangerous activity as using force or putting somebody in fear or intimidation to take property.

Justice Souter: Yes, but in the real world, that proof requirement is going to be as simple... is satisfied as simply as rolling off a log.

Mr. Frederick: Justice Souter, in addition to the instance where the person is not committing the robbery with the intent to steal because he wants to go back to prison, there are circumstances and there... there are real cases where the defendant commits the robbery with the purpose of having the Bureau of Prisons provide health care for the person.

Justice Souter: Oh, yes.

I'm sure that happens.

It's, you know, winter is coming and the guy needs new shoes.

But we... we know that.

But that... I... I can't imagine that Congress was motivated by that kind of... of concern.

Defendants do not customarily take the stand and say, look, I was only doing this because I need a... a good place to sleep.

I...

Justice Scalia: Or to put it another way, why is leaving it out of the statute any more absurd than leaving it out of the common law?

Mr. Frederick: Justice...

Justice Scalia: I mean, the common law didn't include it.

Was the common law absurd?

Mr. Frederick: The common law...

Justice Scalia: That cannot be.

Mr. Frederick: You know, Justice Scalia, I would want to... to refer to the common law in this regard.

The... the references to Blackstone and to other commentators are rather imprecise with respect to the elements, and it is important for this Court to focus on the language that Congress actually used.

Justice Breyer: What about... what we really want to know is the words...

Chief Justice Rehnquist: There was a question before that.

Now, answer Justice Scalia's question.

Mr. Frederick: The words that Congress actually used in not having an intent to steal requirement were consistent with the modern trend of legislatures, including Congress, to make robbery a general intent crime because robbery is a crime against the person, and the social evil that legislatures are legislating against is the knowing use of force to take property from a person.

It's not the interest of many State legislatures to be concerned with what the robber's ultimate intent with respect to the property is.

Rather, it is the means that he employs to take the property and that is what Congress was legislating against.

Chief Justice Rehnquist: Now answer Justice Breyer's question.

Mr. Frederick: Could you rephrase your question please, sir?

Justice Breyer: Sorry.

I... I was trying to think of the actual concrete example.

What I've had a very, very hard time thinking of is thinking of an example where a person commits bank robbery but he doesn't intend to steal the money.

I did try to give one before, and I don't think actually it was a very good one.

You know have the example of a person commits robbery because he wants to go to prison.

But Justice Scalia just said in that case he's committed robbery to go to prison.

Mr. Frederick: Well...

Justice Breyer: So, I... I don't know why that's a good example.

And... and so, can anybody think of a real example where a person commits bank robbery but he doesn't have an intent to steal?

Mr. Frederick: I have two other examples to provide the Court for its consideration.

One is the hostage situation where the robber takes possession of the bank and has control over the bank for the sole purpose of engaging in a hostage situation.

A taking has occurred of the property with force and violence, but the... but the... the defendant does not have a demonstrable intent to dispossess the bank of those funds.

A second real world practice...

Justice Scalia: And you want to get him for bank robbery.

Mr. Frederick: Yes.

Justice Scalia: Weird.

Mr. Frederick: No, it's not.

Justice Scalia: Isn't there some other provision of the United States Code that... that would cover this kind of thing?

Mr. Frederick: Justice Scalia, the elements that Congress provided demonstrate that the defendant has engaged in the kind of behavior that should be held criminally culpable.

And that is our point here, that when we read the...

Justice Ginsburg: But my problem with that argument is do you... do you consider that until the word feloniously was taken out, it was a lesser included offense?

Mr. Frederick: No.

Justice Ginsburg: Ah, so what was the law pre-1948?

Mr. Frederick: The Government has consistently charged these as independent provisions, according to their elements, from the time of enactment up until the present day.

Justice Ginsburg: So, before 1948, if on a bank robbery indictment, which did not include also a count of bank larceny, counsel for the defense had said, judge, I would like you to give a lesser included offense charge pre-1948.

The... the proper answer for the judge would have been, no, it's not a lesser included offense.

Mr. Frederick: That's correct for the two additional reasons that we've highlighted as differences between these two provisions, that there is no carrying away, asportation, requirement in bank robbery and that for a felony bank larceny to be made out, the prosecution must plead and prove that the property is worth more than $1,000.

Justice Souter: But not for misdemeanor larceny, I take it.

Mr. Frederick: That's correct, as to the valuation element, Justice Souter, but there's no carrying away requirement as a distinction.

Justice Ginsburg: Do... do you know what was the Department of Justice's practice before 1948?

Did they object to giving the bank larceny charge as a lesser included offense on the theory that the word feloniously wasn't enough to do it?

Mr. Frederick: I... I cannot give you the specific charging practice.

I can tell you what the reported cases say, which is that the Government had argued that they were distinct offenses which required proof of distinct elements.

Some courts accepted that view of the Government, some courts did not.

And in fact, it was the circuit split that ultimately led up to the Prince decision requiring merger in the entry and in the completed bank robbery offense.

That best evidence is the fact that the Government had consistently taken the position with respect to these...

Justice Stevens: But in these cases, has the Government ever... ever taken the position that they can charge both offenses and get cumulative punishment for the two?

Mr. Frederick: Prior to Prince, the Government did take that position.

After Prince, the Government, to my knowledge, has not been... has not been prosecuting both simply as a way to...

Justice Stevens: It could under your theory of the case.

Mr. Frederick: That's correct.

Justice Stevens: Yes.

Mr. Frederick: That's correct.

I would point out, though, that with respect to the punishing element, it would have no real practical consequence.

In this case, this petitioner was... he... convicted of three bank larcenies in a different district, and for sentencing purposes, his... his sentence was assessed as a result of the bank robbery that he committed in this case after his bank larcenies.

Justice Ginsburg: Mr. Frederick, tell me about those three others because one of his points was, it was a... I did... I did the job the same way.

One time I got indicted for robbery, those other three times for bank larceny and did exactly the same thing.

And so, it's got to be a lesser included offense.

Mr. Frederick: I don't think that's correct, Justice Ginsburg.

We don't know what the facts are in those other cases other than what the petitioner has represented.

And we do not know what proof the prosecution had as to the use of force, violence, or intimidation in those cases.

Justice Stevens: Yes, but isn't it true that in the typical case... John Dillinger statute... he goes in, robs a bank.

You could... under your view of the statute in every single transaction, you could punish him for both crimes.

Mr. Frederick: No, I don't think that's correct, Justice Stevens, as a matter of the way the sentencing guidelines work.

We could prosecute...

Justice Stevens: Well, forget the sentencing guidelines.

Just as a matter of the statute.

Mr. Frederick: We could prosecute him for both...

Justice Stevens: Right.

Mr. Frederick: because it requires proof of distinctive elements.

Justice Stevens: Right.

Mr. Frederick: And I would point out to you that this is no different from the way many State courts have construed modern robbery statutes.

I would direct the Court's attention to the Connecticut statutory scheme, which we have set out the statute at page 17 of our brief, which defines robbery as a larceny plus the use of force.

And yet, on page 28 of our brief, we quote the Boucino case which holds categorically that there is no double jeopardy problem in charging both grand larceny and... and robbery because they require proof of distinctive elements.

The Court there said robbery requires proof of the use of force, which larceny... grand larceny does not, and grand larceny requires proof that the money taken had a specific monetary value above a certain threshold, which robbery does not.

Justice Scalia: Let's... let's do the money.

I happen to think that the... that the $1,000... less than $1,000 or more than $1,000... that that is an element, not... not just a sentencing factor.

But does that kind of an element deprive the lesser offense of its character as a lesser offense?

Suppose you have a statute that explicitly says after the robbery statute, as a lesser offense there will be the crime of larceny which will be punished to such an extent if the larceny is for less than $1,000, and to a greater extent if the larceny is for more $1,000.

I don't see how that... that causes it not to be a lesser offense.

Mr. Frederick: Because it requires the prosecution to prove beyond a reasonable doubt that element which changes the offense.

Justice Scalia: But the purpose of that proof is just to decide which of the two lesser included offenses you get into, but to get into the category of lesser included offense, you don't have to prove anything.

The only purpose of that $1,000 is to decide whether in this lesser included offense of larceny, you're going to be... you're going to be in... in grand larceny or petty larceny.

I... I don't think that that's enough to... to cause it to be a... the sort of an element that... that can deprive something of its character as a... as a lesser included offense.

Mr. Frederick: It changes the constitutional requirements, Justice Scalia, because in this provision, felony bank larceny requires that fact to be put in the indictment and found by the grand jury.

The constitutional requirement for that is such that it has to be an element of the offense.

Justice Stevens: Yes, but wouldn't that be taken care of in the instruction to the jury.

You'd say to the jury, if you... if you find he didn't have the intent, you may find him guilty of... of larceny.

And in order to find him of grand larceny, you must find $1,000 or petty larceny, less.

But one or the other is a lesser included offense, and the jury would have to make the determination as to whether the dollar amount was satisfied.

Mr. Frederick: It depends on how the...

Justice Stevens: And it just... let me just ask one question.

Was that the rule at common law?

Your opponent says it was, and I guess you... you disagree with him?

Mr. Frederick: I don't think that there is a conclusive answer at common law because even Blackstone was reciting not just common law decisions, but also the statutes.

If you... if you read the chapter that... that is cited by both sides from Blackstone, throughout Blackstone is saying that common law rules were changed by parliament in the time of King George II and King George III, precisely because the common law rules were not deemed adequate to meet the evolving needs of British society.

Justice Scalia: Well, that's a...

Justice Ginsburg: Isn't it still the rule?

Isn't it still the rule in England even to this day, that larceny is a lesser included offense of... of robbery?

Mr. Frederick: Justice Ginsburg, I don't know what the rule in England is now, but I do know that the rule in the States of the United States is that in those places where State legislatures have changed the elements of the crime, robbery and larceny are not lesser and greater included offenses where robbery does not require proof of elements that are found in larceny.

And we have set out these cases in our brief.

They go unrebutted.

Justice Ginsburg: They go both ways I think.

Mr. Frederick: They go unrebutted by the other side, Justice Ginsburg, with respect to those specific elements on all three of them.

Justice Ginsburg: Aren't there a number of States that have holdings that bank larceny is a lesser included offense of bank robbery?

I thought there were a number of States that...

Mr. Frederick: State courts construing 2113 or State courts construing their own robbery and larceny statutes?

Because I think with respect to the former, I'm not aware of State cases...

Justice Ginsburg: I wouldn't... I don't know why a State court would be interpreting 21... they wouldn't have the prosecution for that, so it would have to be their own statutes.

Mr. Frederick: Well, actually that's not correct because there's not exclusive jurisdiction with respect to this provision.

But...

Justice Ginsburg: Is it... what is the incidence of... of State prosecutions under the Federal statute?

Mr. Frederick: I'm not aware of a large number of those.

There are a smattering of cases over the years.

But if I... if I can get to the gist of your question, it all depends on the jurisdiction that you are looking at.

And I have not looked at all 50 States, but I've looked at enough of them to be able to tell you with high confidence that virtually every jurisdiction has a slight difference with respect to these various elements.

Justice Breyer: Given... that... that's basically... you're now right at the point of where my real question is because I... the... the serious question is this, that I imagine it's possible... we were thinking of facts of the Thomas Crowne Affair.

You know, it's possible to work out a law school hypothetical where a person would, in fact, maybe be guilty of robbery although he didn't intend permanently to deprive the bank of the property.

It's conceivable.

And that person wouldn't be guilty of larceny.

And so, you know, because he didn't use force, but he... he didn't intend permanently, so he didn't steal.

I could imagine such a thing, though it's... obviously we're having a hard time finding one.

All right.

Should lesser included offense law turn on that kind of law school hypothetical?

I mean, if in fact judges who are busy and criminal lawyers who are not experts in weird hypotheticals as... you know... which... and they have to manage a system, is it the case that if it's... why is it?

If it's so hard for us to find even a hypothetical, why isn't that the end of this?

That the U.S. Code is written with provisions at many different times.

The words are not identical.

They don't track different things perfectly, and if you have to have a manageable system, there should be a real difference, not a difference that turns on some obscure ability to think of... of a set of cases that perhaps never occurs.

Mr. Frederick: Justice Breyer, the Thomas Crowne Affair involved a larceny and not a robbery, and that distinction is critical because if Thomas Crowne had pulled out a gun and used force to take the painting, regardless of what he ultimately intended to do with it, he would have done something that demonstrates criminal culpability.

Justice Breyer: That is precisely my point.

We found a movie that contains your hypothetical.

Unidentified Justice: [Laughter]

Justice Breyer: As the sentencing commission... as a sentencing commission, I had... we had many thousands of cases, and I'll have to say I never recalled such a case.

And so, my real because is if it's so hard for us to find such an example, should we turn lesser included offense law upon that.

That's my actual question.

I'd like your view about that.

Mr. Frederick: And if I could get out all the various answers that I have to that question, Justice Breyer, on page 20 of our brief we cite a rash of Federal court of appeals decisions that hold that robbery is a general intent crime not a specific intent crime because of the real world situation that defendants come to court arguing they did not intend to steal because they were drunk or they were on drugs or they had some other kind of mental defect that prohibited them from having the full intent to steal.

Justice O'Connor: May I ask a question about intent to steal?

Mr. Frederick: Sure.

Justice O'Connor: I don't want to interrupt you if you have something else to add.

Mr. Frederick: I'll get them out.

I'll my points out.

Justice O'Connor: All right.

In Prince v. United States, we considered whether the crime of entering a bank with intent to commit robbery is merged with the crime of robbery if robbery is consummated.

And we said, yes, there's a merger because the heart of the crime of entering the bank with intent to commit robbery is the intent to steal.

And apparently we thought at the time of Prince that that was the intent element of bank robbery.

Mr. Frederick: I respectfully don't think that's correct, Justice O'Connor.

The provision as it was worded then is as it is worded now, and it was intent to commit a felony or larceny.

There was no intent to steal word in second paragraph (a).

The court used that as a very loose shorthand.

It did and it also said that with respect to two provisions, paragraphs, that are not directly at issue here.

Second paragraph (a) prohibits entry into the bank with the requisite intent, and what the court there said was that for punishment purposes, the two shall merge if the person enters with the intent to commit the robbery and then actually commits the robbery.

Justice O'Connor: Well, is it... is it possible that in... that in interpreting a statute like the bank robbery statute, which doesn't spell out anymore the intent to steal requirement, that the court could interpret it as incorporating the old common law intent to steal element?

Mr. Frederick: We would suggest not for the following reasons.

Congress had before it a decision about how much of the common law to import when it drafted the bank robbery statute.

Of the eight elements of bank robbery, only three track the common law: the word takes, the use of force, and in the person or presence of another

As to the other five elements, Congress expressly departed from the common law.

The theory of reading back in an intent element, notwithstanding the fact that Congress specifically omitted it in 1948, would lead to some very strange results that would...

Justice Ginsburg: In 1948 is the felonious.

But you told me that... nothing turned on that.

I... I had thought that up until '48, bank robbery meant intent to steal.

And you told me no.

Mr. Frederick: Justice Ginsburg, if I could correct your understanding of our previous colloquy, you asked me whether intent to steal was encompassed within the word feloniously.

I said it was.

You asked me whether or not that meant that before '48 bank larceny was a lesser included offense of robbery, and I said no because of the other two elements.

Justice Ginsburg: Oh, because of the...

Mr. Frederick: Carrying away and the monetary valuation element.

That's correct.

Justice Ginsburg: And the carrying away... I think the last time you were before us you did say, well, he didn't even have to make it to the door of the bank to carry it away for purposes of bank larceny.

Mr. Frederick: What I said before was that we would prosecute that person, and what I also said before was that it was unclear whether we would prevail because numerous jurisdictions held that a carrying away would not be completed until the person...

Justice Ginsburg: But we asked you your view of the Federal statute, and you said that... you said a step, in effect, would be enough.

Mr. Frederick: To prosecute.

There are no reported cases on that hypothetical, but there are cases from State jurisdictions which hold that when a person is taking property within a store or other kind of business, an asportation is not satisfied until the person leaves the premises.

And every year... every year... we prosecute people who attempt to get out of the bank and we catch them before they leave.

And in those cases, the effect of a carrying away element would transform completed bank robbery in our view into an attempted bank robbery.

That would be the effect of your reading in an asportation element that Congress made an explicit decision not to read in.

And...

Justice Souter: Mr. Frederick, on... on that point, just a historical question.

Is it correct that in the 1948 revision, one of the things that clearly was being done by Congress was to substitute a... a general definition to distinguish between felonies and misdemeanors to take the place of individual statements... or provisions in individual statutes?

Mr. Frederick: That was one of the purposes for deleting feloniously as to certain offenses, Justice Souter.

And what we have done in describing what the Reviser explained with respect to certain robbery offenses is that feloniously was taken out of those robbery offenses, but the Reviser used a different explanation, did not rely on section 1, but simply said that changes in phraseology were made.

And we would submit that that was perfectly consistent with the decision Congress had made in 1946, which was to define robbery under the Hobbs Act by not including an intent to steal or feloniously element.

Congress defined robbery as a general intent crime, which was the precursor, we argue, to the modern trend of treating robbery as a crime against the person where the person's demonstrable criminal conduct is to use force to take property away from the person...

Justice Souter: Okay, but it would also... I think it would also be consistent, based on... if I understand what you've told me, it would also be consistent with the... the 1948 action to say that the change in phraseology, i.e., dropping the word feloniously, was a change in phraseology which was justified by the fact that the need for particular phraseology to indicate a felony had been superseded by a general felony/ misdemeanor definition.

Mr. Frederick: Well, I think it was this Court's...

Justice Souter: You could read it either way I... I would think.

Mr. Frederick: And the point is what the Reviser said is ultimately irrelevant to what Congress enacted and the words that are in the statute now.

This Court in Wells said that the Reviser had been wrong before in making... in describing the change by Congress as substantive.

And we submit there's no difference...

Justice Souter: There's nothing... nothing dispositive about it.

It's just one thing for us to look at, and I think it's still relevant.

Mr. Frederick: That's correct.

And ultimately what you should be looking at is the text of the statute which contains these three very clear elements that the prosecution does have to prove beyond a reasonable doubt.

Justice Souter: But your... your argument... I think your argument for the plausibility of concluding that dropping feloniously dropped the intent to steal requirement is that in the earlier Hobbs Act provision there had been, in effect, a conversion of the concept of robbery from a... a primarily... from a... let's say from a... a property plus personal violence crime to something closer to a personal violence crime.

And... and that's your... I think that's your best argument for saying, therefore, dropping feloniously in '48 was... was probably meant to signal not merely that it was no longer necessary to define felonies in particular provisions, but to signal a... a conceptual change in giving... giving emphasis to the personal violence part of robbery.

I mean, that's your argument...

Mr. Frederick: That's correct, and the Congress did the same thing with section 2111, the robbery in the special maritime jurisdiction of the United States.

It took the word feloniously out.

It made that crime a general intent crime.

Justice Souter: What year did it do that?

Mr. Frederick: 1948 in exactly the same revision.

The Reviser note explained that that was a change in phraseology, and what Congress had done in defining all three of these robbery offenses, Hobbs Act, bank robbery, and robbery in the maritime, was to convert them from specific intent to general intent crimes.

Justice Ginsburg: As far as the same offense at least... well, let me ask you it this way.

Indictment for a bank robbery.

Acquittal because the evidence of force or intimidation is equivocal, as it is in this case, or at least as the defendant alleges.

Could the Government then re-indict for bank larceny?

Mr. Frederick: Yes.

Justice Ginsburg: It could.

Mr. Frederick: There would be no double jeopardy problem.

That's correct.

Justice Ginsburg: Yes.

I... I wanted to...

Mr. Frederick: The elements are...

Justice Ginsburg: I wanted to be sure that that was a consequence of the argument that you are making today, that the Government would have two bites by doing this.

It could... it could indict just for robbery.

If it loses on that, it could come back with a bank larceny.

Mr. Frederick: Justice Ginsburg, that is the... that is the logical result of our position because the elements are different.

It no different than in the Blochberger situation for double jeopardy.

They are distinctive cases.

Justice Ginsburg: I just wanted to be sure that you are... you are saying that.

That's the discretion...

Mr. Frederick: Yes, I am.

Justice Ginsburg: under the... under the statute.

Mr. Frederick: Yes.

Justice Ginsburg: And that's what Congress had in mind when it made this... took out the word feloniously, which appeared to be, from what the Reviser said, part of this cleaning up, taking out the felony misdemeanor.

There isn't anything that indicates... you... you said it might be this and it might... but there's nothing in... in removing that word feloniously that we have to go on other than the... the Reviser's note, is there?

Mr. Frederick: No, Justice Ginsburg.

Just the text of the statute as it currently exists.

And I would just point out that there is nothing illogical about making that decision because of the emphasis of the robber on using force.

That is a social evil Congress is perfectly justified in legislating against irrespective of what the robber intends to do with the property.

But larceny has a special intent to steal because otherwise innocent conduct would be subject to the criminal sanction.

Larceny is a crime against the... its property and robbery is a crime against the person.

And because of these distinctive evils, it is perfectly logical to think that Congress would have gone in the same way that States have gone in changing robbery from a specific intent crime to a general intent crime.

Finally, I would just like to point to the Court's... several points in the record.

The joint appendix at A indicates that the element of bank larceny that the petitioner here asks for was felony bank larceny, so even if the Court were to disagree with our submissions as to the carrying away and intent to steal element, he's not entitled to a special jury instruction here because he asked for felony bank larceny with the monetary element.

And finally, he did get his... his instruction to the jury in this case.

The joint appendix at page 57 makes absolutely clear that the theory of the defendant was that he had not used force or intimidation.

The jury had to make a finding in rejecting the defendant's theory in this case and it did so because the defendant here had a ski mask on, he pushed a customer twice, he vaulted over the bank counter, he... he terrorized the... the tellers there in taking the money.

They were... they were too startled to react.

Justice Ginsburg: This is an argument that we should dismiss the writ as improperly granted because it doesn't raise the question that you have been arguing up until now.

Mr. Frederick: Justice Ginsburg, whether the Court decides to dismiss the writ is up to the Court.

We pointed this out in our brief at the cert stage.

We pointed it out in the Mosley case.

The truth of the matter is, as a legal matter, this question hardly ever arises.

The last footnote of our brief points out that in virtually all cases where the defendant asks for this instruction, the facts do not justify the giving of the instruction.

So, there is an academic quality to this case.

We would concede that, but we did not bring the petition for a writ of certiorari here.

And we are entitled to defend the judgment on an alternate ground.

Thank you.

Rebuttal of Donald J. McCauley

Chief Justice Rehnquist: Thank you, Mr. Frederick.

Mr. McCauley, you have 5 minutes remaining.

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

I just have some brief points.

I do not believe the common law understandings of these two offenses is as malleable as my adversary says, and I... both sides have addressed all the citations.

I just again point to the understanding of robbery as being defined and understood for centuries as an aggravated larceny.

Blackstone's specific words... they are the exact same understanding with all the elements of taking and carrying away.

They only differ by punishment.

It's all there.

They cannot say the common law is fuzzy about this issue.

These two offenses have always been looked upon...

Justice Scalia: Does the common law include any statutes?

Does the common law include any statutes?

Mr. McCauley: There were statutes based upon the common law, taking the common law terms.

The common law was an... an understanding and there were writings and case law publications explaining what the requirements were for the offense.

They were codified in judicial opinions.

I would also draw the Court's attention to a structure argument.

The structure of 2113 supports a finding that larceny is a lesser included offense of robbery.

If you look to 2113(c), the receiving stolen property provision, which makes it a crime to receive stolen property and then points to 2113(b) as to how you punish that receiver of stolen property and you punish him equally the same as you would punish a larcenist.

And we point out the anomaly of that at page 8 of our reply brief, that that would allow a receiver of stolen property from a bank robber to go unpunished if only the receiver of a stolen property can be punished as to (b).

But this mystery disappears if the understanding is 2113(b) is a lesser offense of (a).

So, receiving the proceeds of a bank robber as well as receiving the proceeds of a larcenist are punished.

And that structure, the congressional structure there, explains and gives meaning to this whole centuries... many, many centuries of the understanding that larceny is a lesser offense of robbery.

Policy arguments cannot trump the text.

The Government points to what States are doing now, that robbery is bad, so we're going to make it easier to prove.

That cannot trump the congressional text here.

And the change in phraseology is not a specific pronouncement by Congress that it's acting contrary.

It's a mere deletion of a word, as was pointed out in Morissette.

And I believe Morissette understanding is that tradition... centuries of tradition and understanding and our whole criminal jurisprudence is not revolutionized by the mere deletion of one word.

And I submit that the mirror of the offense that's being interpreted, just as it was in Morissette, the offense of conversion that required a knowing element that was read in as a mens rea... it's always been the requisite element of intent to steal at robbery.

And that's what it was from 1934 to 1948.

And I think to square with the Prince holding, that the heart and the gravamen of the offense... and the Prince court said that the gravamen of the offense of robbery is the intent to steal.

When you put the Prince case with Morissette, the only square reading is to imply the mens rea of a specific intent to steal, and there's nothing radical about it.

It's consistent with many, many centuries.

Thank you, Your Honors.

Chief Justice Rehnquist: Thank you, Mr. McCauley.

The case is submitted.

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

Attribution:

The Oyez Project

Featured:

Simpson v. United States - Oral Argument

Fri, 09 Jan 2009 14:46:21 +0000

Case:

Simpson v. United States

Media File:

76-5761_19771101-argument.mp3

Related Transcript:

76-5761_19771101-argument.xml

Transcript:

Argument of Robert W. Willmott Jr.

Chief Justice Warren E. Burger: We will hear arguments next in 5761 Simpson v. The United States and 5796, the consolidated case.

Mr. Willmott you may proceed when you are ready.

Mr. Robert W. Willmott Jr.: Mr. Chief Justice and May it please the Court.

The question that I present to the court today is whether or not an individual can be charged, convicted and sentenced under the aggravated bank robbery statute 18, 2113 (d) and additionally charged, convicted and sentenced under 924 (c)(1) for using a firearm during the commission of the felony.

The tenure of our argument has changed somewhat from a double jeopardy question to a question of multiplicity or duplicity, but I still think that the dictates of the Blockburger case are applicable in that you we must show that each offense requires proof of an element that the other does not and it has been our contention since the inception of this case that in order to sustain a conviction under 924 (c)(1) that all of the elements under 2113 (d) must be proven.

Now, the Fourth and Fifth Circuit, and the Sixth Circuit in following the Fourth and the Fifth Circuit in their opinion in the lower court stated that they thought there was a difference in proof of the elements and they base their decision on the language contained in 2113 wherein the government is required to prove that an individual's life was endangered by the use of a dangerous weapon or device and that a dangerous weapon or device was not always a firearm and it is my contention that in getting to the elements in 2113 (d) that you have to prove every single one of them to prove that the felony in 924 (c) was committed and that you cannot sit back and judge the facts of each case in a vacuum.

You have to look at the weapon that was used, and when a firearm or a handgun is used, it fits both in 2113 (d) and 924 (c).

Justice William H. Rehnquist: Well when you say the Blockburger test is not one where you compare the statute, but where you simply compare the evidence in each particular case?

Mr. Robert W. Willmott Jr.: No, I think the test is set down in Blockburger, is that you compare the statutes.

Justice William H. Rehnquist: Well, then I do not see how you can advance the proposition that you compare the weapon involved in each particular case because here clearly a dangerous weapon or a device includes other things than a firearm?

Mr. Robert W. Willmott Jr.: That is correct, but I do say that you have to look at the factual elements in Fifth Amendment of the statute.

You have to draw the statutes sufficiently broad to encompass all the factual situations that may occur, but I do not think that in viewing 924 (c) as opposed to 2113 (d), you can just say, suppose something else was used.

Justice William H. Rehnquist: Well, then it is a case by case, exhibit by exhibit test so far as your concern?

Mr. Robert W. Willmott Jr.: I believe that, that interpretation can be used and should be used in a case where the facts do not really fit in either one of them.

Justice Potter Stewart: Well, your submission is as I understood it that whenever the weapon is a firearm then these charges are necessarily duplicities?

Mr. Robert W. Willmott Jr.: Yes, Your Honor, that is exactly my position.

Chief Justice Warren E. Burger: But if, that were a hand grenade?

Mr. Robert W. Willmott Jr.: Well, then I do not think you could prosecute under 924 (c) because that specifically has to be a firearm.

I do think that the legislators in drafting 2113 (d) had to have thought that the most common weapon or dangerous weapon or device to be used would be a handgun, or firearm, or rifle, or shotgun, something that would be encompassed by 924 (c).

I think that we see it on TV and we read about it occasionally that other weapons are used to rob banks and usually they are more dangerous than a firearm.

Justice Potter Stewart: But it is only when the firearms involved that this question could ever arise because that is the only time that 924 (c) is involved?

Mr. Robert W. Willmott Jr.: That is correct.

Justice Potter Stewart: That is your point, is it not?

Mr. Robert W. Willmott Jr.: That is exactly my point.

Justice William H. Rehnquist: My brother Stewart asked you a question a moment ago which I am sure he knew the meaning of it and which you doubtless know the meaning of it, which I think I did not understand the meaning of one of the words and that is that the indictment is necessarily duplicities this.

What does that mean?

Mr. Robert W. Willmott Jr.: Well, I think --

Justice William H. Rehnquist: If you know (Voice Overlap) I think may be I used the wrong word?

Mr. Robert W. Willmott Jr.: Well, I think it is duplicities or multiplicities.

Justice William H. Rehnquist: What does that mean?

Mr. Robert W. Willmott Jr.: That they are charging two distinct crimes out of the same offense.

Justice William H. Rehnquist: And what is the objection to that, Blockburger?

Justice Potter Stewart: Well, in delinquency United States case is like that.

Justice William H. Rehnquist: Any other objections?

Mr. Robert W. Willmott Jr.: I think I stated it simply to the District Court and again in same scenario that they have charged the petitioners here with robbing a bank using a gun, and using a gun to rob a bank, and I think that is duplicitous.

I think you can adopt the lesser included offense arguments and saying that the elements in manslaughter are the same as murder, but you ought to be required to go one way with the other.

I think in looking at the legislative history, United States has said that you should not put much weight on Representative Poff's comments, he was the sponsor of the 924 (c) amendment and I guess my case rests on the part of his comments in legislative history wherein he says, it should be noted for legislative history that my amendment is not to apply and he named several additional statutes in addition to the 2113 (d) statute.

Justice William H. Rehnquist: Where was that statement by Representative Poff made to constitute, do you know it was on the floor --?

Mr. Robert W. Willmott Jr.: I believe its during the floor debates.

Justice William H. Rehnquist: During the floor debate?

Mr. Robert W. Willmott Jr.: And there was as pointed out in Counsel for the Government's brief and abrupt cessation of talking about that amendment or that part of it.

They just want to write on to another part of it.

Chief Justice Warren E. Burger: Is there any kind of a weapon or any kind of a dangerous device that could be used in your view that would be sustainable with convictions under both Sections as you have here.

That is, you are arguing that when it is a firearm or pistol for example, they cannot be two.

Is there any kind of a weapon or device that would warrant the conviction under both Sections?

Mr. Robert W. Willmott Jr.: Mr. Chief Justice I do not believe if there is. I believe that Congress provided the enhanced penalty under 2113 (d) if any sort of weapon, dangerous weapon or device was used and endangered anybody's life and I think that 924 (c) was enacted in response to the growing concern for the use of firearm specifically in committing crimes and I have to agree with Representative Poff's comments that it was not intended to be used in cases where there was already an enhanced punishment provided.

Since the time of submission of our briefs, I was sent a copy of letter written from the Department of Justice to United States Attorney in Maryland Mr. I believe it is Beal (Ph) wherein the Department of Justice said, “It was their policy not to prosecute on the 924 (c) charge when the defensible offense was a 2113 (d) charge” and they cited the general principle of law that when a specific statute and a general statute are involved in the same set of facts that the general statute should be used, and additionally they cited Representative Poff's comments.

Now, I think that the legislative history in enacting these statutes should be considered in cases where the statement that Congress' best means what it says has to be looked at when you cannot really determine what Congress says.

In a case of this nature where the government is arguing that they do not mean what they say and that you should not listen to Representative Poff's comments and the fact that you do have what on its face is a conflict, that this Court has to use the tools that are available to it to determine exactly what they did mean and as I have stated before I think that they have created an absurdity and they could carry it one step father by saying that whoever uses a Saturday night special which costs less than $50, shall be guilty of an additional offense and I think that would follow in line with the logic that has been used in allowing a 924 (c) charge to be tacked on to a 2113 (d) charge and basically I rest my case on Representative Poff's comments and the absurdity that is committed when you let a person be charged with robbing a bank using a gun, and using a gun to rob a bank.

Unknown Speaker: What the indictment had been on the, that this what 924 (c)(1)?

Mr. Robert W. Willmott Jr.: Yes, Your Honor.

Unknown Speaker: What is the indictment under (c)(2)?

Mr. Robert W. Willmott Jr.: Well, that was the case I believe in the Crew case where the Fourth Circuit said that that was perfectly acceptable.

Unknown Speaker: And do you agree with that?

Mr. Robert W. Willmott Jr.: No, Your Honor I do not.

Unknown Speaker: Well, because under the 2113 you have to put someone's life in jeopardy?

Mr. Robert W. Willmott Jr.: Your Honor and I think that is conditioned on using the gun, it says “by the use of a dangerous weapon or device” and I think that when you use a dangerous weapon or device, you automatically put somebody's life in danger.

Chief Justice Warren E. Burger: When you use it or --?

Unknown Speaker: Well, when you have 924 (c) it says carries a firearm?

Mr. Robert W. Willmott Jr.: The two charge?

Unknown Speaker: Yes.

Mr. Robert W. Willmott Jr.: Well, that if you --

Unknown Speaker: You do not have to use it when you are robbing the bank?

Mr. Robert W. Willmott Jr.: I can see the circumstance where it would be safe in your pocket, then I do not think they could charge him under 2113 (d) and I think there is a further fact in this case is that the indictment itself specify that the dangerous weapon or device was a handgun under the 2113 (d) charge and then specified that the firearm was a handgun under the 924 (c) charge and so that they moved any possible distinction or difference between the two in each statute.

Unknown Speaker: Mr. Willmott do I understand from your comment before my brother White's question that absent Congressman Poff's comment, you would not be here?

Mr. Robert W. Willmott Jr.: No, Your Honor, I say that I rely heavily --

Unknown Speaker: You say that here basically on it and I wanted to be sure of your status?

Mr. Robert W. Willmott Jr.: No, Your Honor, I do rely heavily on it and we were not aware of Congressman Poff's comments until the decision in the Eagle case came down, and --

Unknown Speaker: In other words if the Congressman had not made his statement you would be here anyway?

Mr. Robert W. Willmott Jr.: Yes, Your Honor.

Unknown Speaker: And then you would rely on what?

Mr. Robert W. Willmott Jr.: Our argument that it is duplicities and possibly places a person in double jeopardy, but trying him twice for the same offense at the same time.

Unknown Speaker: Do you feel the Eighth Circuit case in Eagles essentially at odds with this case or is it rather a --?

Mr. Robert W. Willmott Jr.: I think it is --

Unknown Speaker: Collateral (Voice Overlap)?

Mr. Robert W. Willmott Jr.: It is all our force with this case.

Thank you.

Chief Justice Warren E. Burger: Mr. Farr.

Argument of H. Bartow Farr Iii

Mr. H. Bartow Farr Iii: Mr. Chief Justice and May it please the Court.

Within the two month period in the fall of 1975, petitioners in this case robbed two banks in Middlesboro, Kentucky.

They carried and used firearms in the commission of each robbery and while attempting to escape from the second robbery, engaged in an extensive gunfire with the police.

Petitioners' conduct quite plainly violated several provisions of federal law and the juries in both cases so found.

In each instance, petitioners were convicted under 18 U.S.C. 2113 (a) which makes it a felony to rob a federal bank and under 18 U.S.C. 2113 (d) which provides an increased penalty for anyone who are robbing a federal bank in the words of the statute, assaults any person or puts in jeopardy the life of any person by the use of a dangerous weapon or device.

Petitioners were also convicted under 18 U.S.C. 924 (c)(1), a part of the Gun Control Act of 1968, which provides an additional term of imprisonment for anyone who in the words of that statute, uses a firearm to commit any felony for which he may be prosecuted in a court of the United States.

The trial judge sentenced petitioners to the maximum terms of imprisonment allowed for each crime, 25 years for each offense under Section 2113 (d), and another 10 years for each offense under Section 924 (c), all sentences to be served consecutively.

Petitioners have attacked their sentences on the ground that 924 (c) while seeming on its face to apply to any federal felony is not available to punish bank robbers who who used the firearms as makes the absurdity to punishment under Section 2113 (d) as well.

They rely for this proposition on a statement by Congressman Poff who sponsored Section 924 (c) on the house floor that this bill was not intended to apply to various federal offenses of which bank robbery under Section 2113 is one.

This argument in our view raises two questions.

First, did Congress intend Section 924 (c) apply to bank robbers, simultaneously subject to conviction under Section 2113 (d) and if Congress did so intend, secondly does the Double Jeopardy Clause in anyway prohibit that result.

For reasons we shall discuss in a moment, I believe that the intent of Congress to punish for both offenses is evident from the statute itself and from the way to the legislative history.

We furthermore believe that the Double Jeopardy Clause is not prohibited from doing so.

Looking at the language of Section 924(c), we did not perceive any serious question about the meaning of the statute on its face.

Indeed we do not understand petitioners today to say anything to the contrary.

While its terms it applies to any felony for which a person may be prosecuted in a court of the United States, the definition they claim includes all degrees of bank robbery and this case when argued before this Court 50 or 75 years ago, that clear language would likely have been not the starting, but the stop in place for an inquiry into congressional intent.

The Court entered the rigid and vulnerable dictates to the 'plain meaning' rule.

Although, that rule no longer commands absolute allegiance, even today we think that the language of a statute must remain the most secured evidence of the legislative intent.

As Justice Jackson stated, it is the business of Congress to sum up its own debates in its legislation and where Congress is unable to do so clearly --

Justice Potter Stewart: Mr. Farr can I interrupt, supposing a man was indicted for violating 924 (c)(2) carrying a firearm, could he for the same transaction also be indicted for violating 924 (c)(1)?

Mr. H. Bartow Farr Iii: That is the situation that came up in the Crew case Your Honor and the Fourth Circuit held he could not.

Justice Potter Stewart: Well, would you think that decision is right?

Mr. H. Bartow Farr Iii: I think in terms of whether he could be indicted, it perhaps may not be right, but I think he could not properly be convicted and consecutively sentenced for both the violation of (c)(1) and (c)(2).

I think it might be permissible indictments so that you can see what do show --

Justice Potter Stewart: But don't those two Sections have an element, the other does not?

One, he has to carry it and other he has to use it and I suppose you could use it without carrying it?

If you give someone else orders to shoot or something like that?

Mr. H. Bartow Farr Iii: Well, I think that even if that were true that there is no evidence that Congress intended in fact to get at the situation where you are carrying one yourself and also --

Justice Potter Stewart: But what other than the lateral language of the statute, I mean, then you are not relying on the lateral language, what evidence is that the Congress intended to get a 2113 (d)?

Mr. H. Bartow Farr Iii: Well, I think we are not necessarily relying, we are not suggesting that you could rely only on the language of 924 (c) in order to support this.

In fact, we agree that one of the situations which Congressman Poff posed which would be other offenses set forth under Gun Control Act of 1968 itself, might be situations in which the Congressional intent was really not to impose punishment for 924 (c) and perhaps purchasing a gun.

In other words, offenses that cannot be committed without a gun in the first place. However, we do not reach at that conclusion by reliance on what Congressman Poff said directly, but by the fact that what it seems to lead if somewhat awkward result to the fact that it does seem to go beyond the Congressional purpose in this case which is to attach some additional penalty.

So we are doing it really by a construction of the statute in light of its overall purpose and the evils of which it was directed not simply by relying on one's statement by the sponsor's of the Bill.

Justice Thurgood Marshall: Is there any place to show how many bank robberies are made with non lethal weapons?

Mr. H. Bartow Farr Iii: I do not have any statistics on that.

Justice Thurgood Marshall: Have you ever heard of them?

Mr. H. Bartow Farr Iii: Well, I think its possible to, you say non lethal weapons meaning not a firearm?

Justice Thurgood Marshall: Non lethal -- not those mentioned in this statute, pin it down?

Mr. H. Bartow Farr Iii: In that by 924 (c).

Well, I think that there probably are some bank robberies that are committed with knives or with some sort of blunt instruments, but I would think the majority of them would be committed with a firearm, but I also should point out the thing --

Justice Thurgood Marshall: How does that cut the --

Mr. H. Bartow Farr Iii: Pardon me?

Justice Thurgood Marshall: Does that help or hurt you?

Mr. H. Bartow Farr Iii: As far as I concerned it is, it does not necessarily make any difference, it seems to me that --

Justice Thurgood Marshall: In fact the Congress meant to put an additional penalty on robberies that were normally going on?

Mr. H. Bartow Farr Iii: I think Congress meant --

Justice Thurgood Marshall: They could have just changed the statute?

Mr. H. Bartow Farr Iii: I think Congress meant to put an additional penalty on any crime that was committed with a firearm.

Justice Thurgood Marshall: Well, then it seems to me that if they wanted to put it on the bank robbery, they could have raised it, could they not?

Mr. H. Bartow Farr Iii: They could in fact have done that.

They could have gone through the United States Code and added an additional penalty to every single offense that was in it.

Justice Thurgood Marshall: In term of bank robbery?

Mr. H. Bartow Farr Iii: They could have done it with bank robbery and they could have done with any other offense.

What they did instead and our belief is that it passed a single statute that applied to any felony, and therefore, just did it in one piece of legislation rather than numerous pieces, but they could have done the way you have suggested, I agree.

Returning for a moment to discussion of the 'plain meaning' rule, I was about to suggest that where Congress has not been able to state its meaning clearly in a statute, but whereby reading the statute in connection with the Congressional purpose, it obviously leads to awkward results, or indeed where the subject to the legislation is so complex that Congress cannot reasonably foresee and provide for all matters that will ultimately arise, some relaxation of the 'plain meaning' rule was inevitably necessary.

Justice Thurgood Marshall: Then I suggest that can he as “is not awkward,” this is more than an awkward result, this is 10 years of the man's life?

Mr. H. Bartow Farr Iii: Well, I am not suggesting that this is an awkward result Mr. Justice Marshall.

I think that in this particular case that the Congress is aiming to impose what is not an awkward result, but a reasonable result on people who use guns to commit crimes.

Where however as we believe it is true in this case, the objects of the legislation are not complex the language is straightforward and the results of adherence to the language of the statute, or equally as reasonable if not more so than the results of departure from it, then it seems that the Court should exercise great caution when it proceeds past the language of the statute to the legislative history, and therefore, we believe it is very important to examine carefully the legislative history, essentially Congressman Poff's statement, the petitioners in this case find so compelling and to give it a proper place in the context, the passage of the Gun Control Act of 1968.

This perhaps will direct more to Mr. Justice Marshall's question about what Congress intended to do in these situations.

We think its first appropriate in doing that to examine the purpose of the Gun Control Act itself.

In this context, there can be a little doubt that about the evils which prompted enactment of the Gun Control Act, the problem simply put was guns.

The Presidential Commission report published in February 1967, and considered by Congress in connection with the passage of several bills had set forth alarming figures on the use of guns to commit crimes.

Figures that had worsened by the end of that year.

For example the House Report on the Gun Control Act show that in the 13 months ending in September 1967, 50,000 people had been murdered or assaulted with guns and similar the number of robberies including bank robberies with guns had taken place.

The Senate Report using figures for all of the 1967 showed over 60,000 murders and assaults and over 70,000 robberies all committed with guns, an average of 150 armed assaults and 190 armed robberies each day.

The House Report accompanying its version of the Gun Control Bill stated plainly that no civilized society can ignore the malignancy, which this senseless slaughter reflects.

You might also note that this concern was not confined to the Congress itself.

The assassinations of Robert Kennedy and of Martin Luther King had mobilized public support for greater controls on firearms as well.

Indeed Senator Davidson (Ph) indicated that in one month alone he received over 100,000 letters favoring gun registration.

The overriding purpose of the Act therefore was to take strong majors to inhibit the use of firearms in serious crimes and those majors took two principle forms.

First, greater federal controls over the sale and shipment of guns, provisions that are not an issue in this case.

Unknown Speaker: Mr. Farr, can I just interrupt with another question?

Mr. H. Bartow Farr Iii: Yes, Mr. Justice.

Unknown Speaker: What would you describe as the purpose of Section 2113 (d)?

Mr. H. Bartow Farr Iii: I would think that the purpose of 2113 (d) is to deter bank robbers from using dangerous weapons in connection with that, not only bank robbers, but people committing any crime under 2113 (a) and (b) which includes larceny and attempts to commit crime.

Unknown Speaker: But to the extent that the most commonly used dangerous weapon in bank robberies is gun, the purpose is identical then, is it not?

Mr. H. Bartow Farr Iii: Well, I think the purpose is identical if you assume that there is no purpose to add increased deterrence to something true and I think that the statistics show that the most commonly used weapon to commit murder is also a gun, but this I do not think anybody would dispute that because the statute would also add a penalty to that crime, that it should be read not to include coverage of murder.

The second measure that the Congress used to attack, increase crime by use of guns was simply increasing the penalties for the use of the firearms in serious crimes.

We do think it is significant. Every Court of Appeals that has placed principle emphasis on the language in purpose of Section 924 (c) has concluded that it is available to convict and punish bank robbers also subject to punishment under Section 2113 (d).

In addition to the Sixth Circuit in this case, the Second Circuit, Fourth Circuit, and Fifth Circuit have so decided.

Unknown Speaker: Mr. Farr, undoubtedly, perhaps as in this case or perhaps not, there will be instances where the facts of the crime, where the facts necessary to prove the crime under 2113 will be the identical facts which would be used to prove the crime under 924 (c) to use a gun to rob a bank and put somebody's life in jeopardy, you are going to violate both Sections?

Mr. H. Bartow Farr Iii: That is correct and in fact this is a --

Unknown Speaker: And so that in the particular instance you do not have to prove any different facts to violate one Section as compared with the other?

Mr. H. Bartow Farr Iii: That is correct, but I think that, that is coincidental rather than something that derives directly from the requirements of the statute itself.

Unknown Speaker: It may be, but how about double jeopardy?

Mr. H. Bartow Farr Iii: Well, I think that the court said in Iannelli, if each statute requires a different element and the other does.

Unknown Speaker: Well, it does in this case.

Mr. H. Bartow Farr Iii: The statute does, the statute requires proof of different elements --

Unknown Speaker: Not in this case to violate the statute, you do not have to prove any different facts.

Mr. H. Bartow Farr Iii: Well, it seems to me that in order to prove, you have to prove certain different facts --

Unknown Speaker: In other instances there --

Mr. H. Bartow Farr Iii: In order to prove a violation of the statute.

The fact that you are able to prove them by the same evidence, does not seem to me to put you on double jeopardy.

Unknown Speaker: But you just do not have to prove any different facts in a situation that I posed to you.

In other instances you will have a crime under one that is in the crime on to the other, but in this instance the same facts prove a violation of both statutes?

Mr. H. Bartow Farr Iii: Well, as I said it seems to me that, that there are situations.

We are not suggesting that they will not be situations where the proof does not overlap, but it does not seem to me that that it was --

Unknown Speaker: Do they overlap in this case?

Mr. H. Bartow Farr Iii: The proof does overlap in this case.

There is no question about that.

These people took a gun.

The petitioners brought guns into the bank, used to them to assault people while they were robbing the bank.

Unknown Speaker: And you think is it enough Mr. Farr to put a man, a person's life in jeopardy in robbing a bank to point the gun at somebody.

Just as you say, if you have used the gun to commit the bank robbery have you put a person's life in jeopardy?

Mr. H. Bartow Farr Iii: Well, it seems to me, if you are using the gun, if you are directing the gun at people, yes.

I do not think that it is absolutely sensible.

Unknown Speaker: Well, how do you use it otherwise?

Chief Justice Warren E. Burger: What other purpose does the bank robber have, having the gun, except --?

Mr. H. Bartow Farr Iii: Oh! Assuming there are several --

Chief Justice Warren E. Burger: Make people believe that their lives are in jeopardy?

Mr. H. Bartow Farr Iii: I assume that there are several reasons that he could be carrying a gun, whether he is going to use it or not.

Chief Justice Warren E. Burger: I asked you about using it?

Mr. H. Bartow Farr Iii: In connection with using it, I suppose it is possible for him to use a gun for instance to shoot open the door of the bank to break the glass.

Chief Justice Warren E. Burger: Well, does not he use it when he carries it in his hand, walking in the bank, is he not using it for the bank robbery?

Mr. H. Bartow Farr Iii: In that case, certainly --

Chief Justice Warren E. Burger: He does not have to pull the trigger -

Mr. H. Bartow Farr Iii: My understanding of Justice White's question is that there are possible cases in which he could be carrying it and in which he would be not using it.

Chief Justice Warren E. Burger: But how could he carry it without using it?

Mr. H. Bartow Farr Iii: Well, to begin he could carry it in this pocket, but that would violation of Section (c)(2) not (c)(1).

Unknown Speaker: Well, I am just suggesting to you that even on the language of the statute it is plain that there will be all sorts of instances where the proof is identical?

Mr. H. Bartow Farr Iii: I think that is correct.

I think that there will be numerous instances in which the proof is identical.

Well, in fact there will be instances in which the proof is not identical.

Unknown Speaker: Let me ask you this, in a charge of violation of 2113(d), where the dangerous weapon or device is a firearm, loaded always inevitably, universally also include the same identical proof as necessary to prove the violation of 18 U.S.C., 924(c)(1) always, inevitably and universally?

Mr. H. Bartow Farr Iii: I think in the majority of cases it will.

I am not sure that --

Unknown Speaker: When possibly could it not?

When the (Voice Overlap)

Mr. H. Bartow Farr Iii: What seems to me is possible to use a gun in attempting to commit for instance a crime under the part of 2113 (a) which requires --

Unknown Speaker: Requires more than just use of the gun, but it always does require use of the gun?

Mr. H. Bartow Farr Iii: It does require use of the gun.

Unknown Speaker: And requires use plus other things and 924 (c)(1) requires use?

Mr. H. Bartow Farr Iii: However, it requires use of the gun in a bank robbery.

Unknown Speaker: Yes, as I say use of a gun plus other elements.

Mr. H. Bartow Farr Iii: Possibly, that is right.

Unknown Speaker: But use of the gun as a single element in 924 (c)(1)?

Mr. H. Bartow Farr Iii: That is right, but of course 21 --

Unknown Speaker: So that evidence will always going to include it?

Mr. H. Bartow Farr Iii: Well, if the statute said, if 2113 (d) said, whoever puts anybody's life in jeopardy by the use of a firearm --

Unknown Speaker: Well, I say whenever the weapon is a firearm?

Mr. H. Bartow Farr Iii: That in fact would be a different case --

Unknown Speaker: Always going to do it --

Mr. H. Bartow Farr Iii: But the statute of course does not --

Unknown Speaker: Inevitably and universally?

Mr. H. Bartow Farr Iii: Right.

Justice Thurgood Marshall: What about the argument that had made that Congress could now pay us one and said if you use an automatic, it's a third one?

Mr. H. Bartow Farr Iii: It does not seem to me that if Congress is able to pass the statute where the terms of the statute require proof of different elements it seems to me that they are permitted to do that under the Double Jeopardy Clause.

It does not strike me that the statute is positing – no, it does not.

Justice Thurgood Marshall: It goes on and on.

Mr. H. Bartow Farr Iii: It does not strike me that the statute here positing would in fact, it would be a different element in terms of that statute would have an additional element that the 924 (c) does, but not sure what 924 (c) would have.

Justice Thurgood Marshall: That it was an automatic?

Mr. H. Bartow Farr Iii: That it was an automatic.

Justice Thurgood Marshall: I suppose as it is in working condition, it says the gun that is in working condition?

Mr. H. Bartow Farr Iii: That would be an additional requirement that 924 (c) does not have, but that statute does not have --

Justice Thurgood Marshall: But suppose it says that the person assumed it was loaded?

Mr. H. Bartow Farr Iii: Which person assumed that it was loaded?

Justice Thurgood Marshall: The people in the bank?

Mr. H. Bartow Farr Iii: Well, in other words you can keep on spinning examples Mr. Justice Marshall.

It will add elements --

Justice Thurgood Marshall: Well, as for me --

Mr. H. Bartow Farr Iii: To a particular crime.

Justice Thurgood Marshall: What I am trying to tell you that I want to spin with the first one?

Mr. H. Bartow Farr Iii: But the fact is, that the fact that crime contains an element that the first crime did not, does not meant that the reverse is true --

Justice Thurgood Marshall: But what am I trying to exercise is --

Mr. H. Bartow Farr Iii: And that is what the double jeopardy clause is --

Justice Thurgood Marshall: That in this one it is identical.

Mr. H. Bartow Farr Iii: It is identical if 2113 (d) said, if 2113 (d) required that the weapon be a firearm it seems to me it would be a different case.

The fact that it may be a firearm --

Justice Byron R. White: But in this case it ism there was a firearm so you do not have to theorize --

Mr. H. Bartow Farr Iii: In this case it was.

Justice Byron R. White: Where the weapon or device used under 2113 (d) is a firearm, proof of the violation inevitably includes the single element of 924 (c)(1)?

Mr. H. Bartow Farr Iii: That is correct, but I do not --

Unknown Speaker: 924 (c) will.

Justice Byron R. White: Probably.

Mr. H. Bartow Farr Iii: Well, except to that has to be carried unlawfully, so it is not necessarily true, but it seems to me --

Unknown Speaker: And if you prove that a robbery of the bank? If that is unlawful, I do not know what it is.

Mr. H. Bartow Farr Iii: I am not sure that makes to carrying of the firearm.

Chief Justice Warren E. Burger: Does it mean to imply that if he had a license for the firearm, that would give him some immunity nothing under that one Section?

Mr. H. Bartow Farr Iii: That would certainly remove one of the possible ways in which the carrying would be unlawful.

Chief Justice Warren E. Burger: That is what Mr. Justice White suggests, if he is carrying a gun in a bank in the course of a bank robbery, does not the unlawful aspect change everything?

Mr. H. Bartow Farr Iii: Well, I think that is part of what we are trying to find out in this case.

Unknown Speaker: There is something that you have not answered Mr. Justice Stewart yet why that (c)(1) would not be included in the bank robbery crime and anytime it is a gun that he uses?

Mr. H. Bartow Farr Iii: Well, anytime that it is a gun, I mean, if you take a situation and posit all the facts to being identical or even posit some of them as being identical, you can make the statute is dovetail. The fact is that the statutes do not have to dovetail.

It seems to me the question that Congress is entitled to define crimes differently and still remain flexible under the Double Jeopardy Clause, even though the elements of proof may substantially overlap and in fact it seems that the Court said that in Iannelli.

Unknown Speaker: Mr. Farr could I ask it from the other point of view?

Mr. H. Bartow Farr Iii: Yes, Mr. Justice --

Unknown Speaker: You stress the fact that use of a firearm is an element in 924 (c), putting life in jeopardy is the element in 2113 (d).

The elements are different, therefore, even though the Act is the same, there are two different offenses, but is it possible that one could use a firearm and that fact be brought before the jury and that, that fact itself is sufficient proof of putting a life in jeopardy so there really is no difference between the two elements?

Would it not be a sufficient, an instruction of the jury on the issue of when does the man's life is put, when is someone's life is put in jeopardy, would the judge not be correct in instructing a jury that merely evidence showing that a firearm has been used is sufficient to establish that kind of jeopardy that 2113 (d) (Voice Overlap)?

Mr. H. Bartow Farr Iii: I do not think necessarily, I do not think that the fact --

Unknown Speaker: You do not think that during the commission of a bank robbery?

Mr. H. Bartow Farr Iii: Well, it depends, I mean, it depends on what the facts of the robbery were.

Unknown Speaker: You do not think that you have to fire the firearm, do you?

Mr. H. Bartow Farr Iii: Pardon me?

Unknown Speaker: You are contending a 2113 (d) requires the firearm to be fired?

Mr. H. Bartow Farr Iii: No, we are not contending that.

Unknown Speaker: Just has to be used during the --?

Mr. H. Bartow Farr Iii: That is correct, but it does --

Unknown Speaker: To put someone's life in jeopardy and as soon as it is used someone's life is in jeopardy and also you have established the element in 924 (c)?

Mr. H. Bartow Farr Iii: Again, I think in most cases that will be true, but I do not think that it is --

Unknown Speaker: But when would it not be true?

That you use a firearm in a bank robbery without putting anyone's life in jeopardy within the meaning of that --?

Mr. H. Bartow Farr Iii: What seems to me if you have to use -- what is perhaps a strange example, but I think one is legitimate under the facts if he used a firearm to shoot open the door to a bank and broke in and (Voice Overlap)

Unknown Speaker: And you do not think evidence of that could be taken as sufficient to show jeopardy to life?

Mr. H. Bartow Farr Iii: Not, if there was nobody in the bank, no.

Chief Justice Warren E. Burger: A Blockburger case was not double jeopardy case, was it?

Mr. H. Bartow Farr Iii: The Blockburger case was not a double jeopardy case.

Chief Justice Warren E. Burger: But it has been used in subsequent double jeopardy --

Mr. H. Bartow Farr Iii: But it seems to me for instance in Gore (ph) that it was used, clearly they used the same sort of arguments to deal with it in a double jeopardy context in Brown v. Ohio last year.

It seems to me the court quite finally stated that that was the test, but I think in speaking of Gore (Ph), it seems to me that that provides a different way of looking at the statute.

It seems to me that the Congress is free in defining crimes and fixing punishments to pass the statute that says if you rob a bank, you face a maximum penalty of 20 years.

If you use a dangerous in the course of that 25 years, and if that weapon is a gun 35 years is the maximum penalty, and it does not seem to me that the effects of this statute are necessarily any different than that one.

Justice Potter Stewart: What about this communication we were told about from the Justice Department to the US attorney?

Mr. H. Bartow Farr Iii: Mr. Justice Stewart, I am unaware of that letter and we did not get a copy of it from petitioners and --

Justice Potter Stewart: Have you been supplied with a copy of it?

Mr. H. Bartow Farr Iii: I am sorry.

Justice Potter Stewart: As a member of the court, you have been supplied with copies of it?

Mr. H. Bartow Farr Iii: No, no.

Justice Potter Stewart: As soon when counsel referred to that that it was something that had been made available, if not, it certainly should be if any reliance is placed on it?

Mr. H. Bartow Farr Iii: It is something that has not been made available to me and I understand from what petitioners’ counsel said this afternoon about it, that it is a policy statement by the Department of Justice which --

Justice Potter Stewart: You might be interested in seeing if it, or either seeing it or having forget that there is no such thing?

Mr. H. Bartow Farr Iii: And I will, if I can have a copy of it from petitioners’ counsel, if tell me, I will track it down and I will find out what it involves and report to the court.

Justice Potter Stewart: And you will make it available?

Mr. H. Bartow Farr Iii: I would like to point out before the questioning started a few moments ago I was discussing the figures that were in front of Congress showing the increasing number of crimes committed with guns and I pointed out in the course of that that among the most serious figures which Congress specifically included in its reports, were figures relating to armed robberies and aggravated assaults.

Now, where Congressman Poff's statements about the scope of Section 924 (c) allowed to override the language of the statute, in fact the Congressional solution to the problem they perceive would be much narrower than the problem that it addressed.

If the Court --

Unknown Speaker: Mr. Farr can I ask, I am sorry to keep interrupting, the figures relate to crimes like armed robbery and assault, the statute relates to use of a firearm in a felony for which you can be prosecute in a federal court.

Mr. H. Bartow Farr Iii: That is correct.

Unknown Speaker: Now, are most of these armed robberies and assaults federal offense?

Mr. H. Bartow Farr Iii: I would think that most of them, that this includes federal and state offenses and I would think that --

Unknown Speaker: So most of those figures really are not relevant to what the element of statute came --

Mr. H. Bartow Farr Iii: I do not think the figures in terms of their absolute numbers are necessarily allow them.

Unknown Speaker: Do the figures tell us how many of those assaults were in violation of federal law?

Mr. H. Bartow Farr Iii: The figures do not no, but what the figures do do is indicate that there is a substantial problem with which Congress was concerned and that dealt with a state problem and the federal problem with the licensing requirements, but obviously it did not feel that that was sufficient to take care of all the crimes because it did add a Section 924 (c) that applies to federal crimes alone.

So we are not suggesting that it will effect every crime, but that the problem was both state and the federal and Congress recognized it.

Justice Thurgood Marshall: It did not show that there was an increase in bank robberies with guns?

Mr. H. Bartow Farr Iii: The figures specifically did not, no, but Congressman Poff --

Justice Thurgood Marshall: That is what we are talking about?

Mr. H. Bartow Farr Iii: Well, we are talking about that in this particular case, but Congressman Poff in fact fact was talking about something more than that, because he said that his statute would not only be inapplicable to the bank robberies under Section 2113, but certain other robberies, including armed robberies of the mails and also to virtually all armed assaults under all of the federal assault statutes.

So that in order to accept his version of 924 (c) you would have to believe that though Congress was very concerned about the rise in crimes, including armed robberies and armed assaults, that it deliberately enacted legislation which would not apply to federal armed robberies, most of them or some, at least bank robberies and mail robberies or federal assault which does not strike me as making much sense.

We have also pointed out in our brief that the other amendments introduced on this subject do not make any such distinction between felonies that already have a penalty for use of a dangerous weapon put into them in the House Congressman Casey had introduced an amendment, putting substantial additional penalties on persons who used a gun during certain federal crimes, including robbery and assault.

So far from exempting bank robberies and armed assaults, the Casey Amendments specifically included them.

In the Senate, Senator Dominick introduced a bill which impose similar penalties for use of guns in any federal crime of violence and that was defined specifically to include assault with a dangerous weapon and robbery and Senator Dominick was fully aware that there were statutes which already provided increased penalties such as 2113 (d) and said that his amendment was not intended to detract form or repeal those provisions, but would be available to prosecutors, in addition to them for stronger penalties if they so desire.

Now, the Casey Amendment was replaced by the Poff Bill and then in conference committee, the Poff Amendment was used rather than the Dominick Amendment, but there is no indication anywhere that the House and Senate as a whole or the conference committee of which Congressman Poff incidentally was not a member deliberately endorsed an effort to immunize serious federal crimes, certain serious federal crimes and the remedy set forth in that Act.

In fact, given the overall purpose of the Gun Control Act and given the apparent common understanding of the Poff Amendment and the alternatives in the House and Senate, it is difficult to conceive a language that would express more clearly an intent, restraint for the laws relating to the use of guns in all federal felonies.

Unknown Speaker: Would not Congressional purpose in the Gun Control Act with respect to bank robberies or with respect to 2113 have been satisfied if the indictment had simply been under 2113 (a) and then 18, 924 (c)?

Mr. H. Bartow Farr Iii: Well, some of it. If you assume that the purpose of Congress was to put a special --

Unknown Speaker: If it was to put a special penalty on for committing felonies with gun that would have --

Mr. H. Bartow Farr Iii: If it is to put a special penalty on that perhaps would suffice to put an additional and special penalty for.

Unknown Speaker: And that will allow the 30 years instead of 25?

Mr. H. Bartow Farr Iii: In that particular case that is true.

However, there are other statutes where it does not work out so cleanly.

As we have indicated in other statutes even within 2113 (d), the governing felony statute, the larceny statute would provide for much lower penalty than 20 years which is the 2113 (a), so by adding on the additional penalty, you do not really get up to the same place that you would under 2113 (d).

Chief Justice Warren E. Burger: You time is expired now Mr. Farr.

Mr. H. Bartow Farr Iii: Thank you Mr. Chief Justice.

No further questions?

Chief Justice Warren E. Burger: Do you have anything further Mr. Willmott?

Rebuttal of Robert W. Willmott Jr.

Mr. Robert W. Willmott Jr.: Mr. Chief Justice, I would like to make one final comment in response to Mr. Justice Stewart's comments and I think that anytime a firearm is used to commit a bank robbery that you automatically have the conditions of 924 (c)(1) and 2113 (d) satisfied, but that anytime a weapon other than a firearm is used you cannot get a conviction under 924 (c)(1) and I would be most happy to make copies of the United States Department of Justice's letter wherein they have referred to United State's Attorney Bulletin 519, number 3, February 05, 1971, available to Mr. Farr.

Chief Justice Warren E. Burger: Make it available to your friend and he will see it to it that we get that and anything that may occur directly on it?

Unknown Speaker: But what is the date of the letter?

Mr. Robert W. Willmott Jr.: The date of the letter is January 13, 1972, and refers to the United States --

Unknown Speaker: Is the same Bulletin extent now?

Mr. Robert W. Willmott Jr.: Well --

Unknown Speaker: In the same manual, the same manual as --

Mr. Robert W. Willmott Jr.: I received this letter through my co-counsel in Lexington and the letter itself refers to United States Attorney Bulletin 519, number 3, February.

I have just received this last week before coming up here.

Chief Justice Warren E. Burger: That is the reason for my suggesting you give it to Mr. Farr because there may be other methods that relate to it and to explain it.

Mr. Robert W. Willmott Jr.: Yes, Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

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Featured:

United States v. Gaddis - Oral Argument

Thu, 23 Aug 2012 18:27:42 +0000

Case:

United States v. Gaddis

Media File:

74-1141_19751215-argument.mp3

Related Transcript:

74-1141_19751215-argument

Transcript:

Argument of Frey

Chief Justice Warren E. Burger: We will hear arguments first this morning in United States against Gaddis and Birt.

Mr. Frey you may precede whenever you are ready.

Mr. Frey: Mr. Chief Justice and may it please the court.

This case is here on the Government’s petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit, which reversed respondents’ convictions for aggravated bank robbery and possession of the proceeds thereof, in violation of various subsections of 18 U.S.C 2113 and remanded the case for a new trial.

The facts maybe stated simply, respondents along with co-defendant Davis robbed the bank.

In the course of doing so, they assaulted several people in the bank, and in departing the scene of the robbery both respondents shot at and one at least hit a police officer who tried to intercept them.

After getting away with their loot, respondents and Davis split up the money.

For this event, respondents were indicted in an eight count indictment.

Seven of these counts charged robbery and assault and unlawful entry offenses under subsections (a) and (d) of Section 2113.

The eight count, thanks to which we are here today, charged respondents with possession of the proceeds of the robbery in violation of subsection (c).

The case was submitted to the Jury under instructions that allow the Jury to convict on all eight counts.

The Jury was not told that the possession count was inconsistent with all the others, or that it could not return a guilty verdict on that count, unless it refused to convict on the robbery and assault counts.

The defense made no objection to the failure to give this what I will call here after in the argument an either-or instruction.

The Jury convicted respondents on all counts.

And imposing sentence the District Court stated that, this is set forth at page six of our brief, the Court realizes the 25 years is the maximum.

And the cases say that there is a merger of all of these offenses.

If there is any question as to the legality of that sentence, that is the Court’s intention, and the judgment indicated maximum sentences on each of the counts all that are concurrent.

The maximum sentence for the (c) count would be ten years, had the defendants been convicted only on that count, however in effect they received the 25 year sentence.

On appeal the Court of Appeals relying upon this Court’s decisions in Heflin and Milanovich reversed.

Held that the failure to give the either-or instruction was plain error and the proper remedy for this error was a remand for new trial.

It explains this as follows, and this is at page 18 of our petition, there is no way of knowing what verdict to properly instruct the Jury would have returned in this case, and for a reviewing court to speculate on that subject would be to usurp the functions of both the Jury and the sentencing Judge, citing Milanovich.

Since the Jury’s verdict was inherently inconsistent, the proper remedy is to remand for a new trial.

Before beginning the argument portion, I would like to make one correction in our brief at page 17, the brief of the United States --

Unknown Speaker : On the merits?

Mr. Frey: The brief on the merits, yes.

I do not believe, we had a supplement to the petition, but we do not have a supplemental brief or reply brief.

We only have one brief on the merits.

Page 17 in footnote 4 in the second paragraph, there is a citation to a case called Ethridge versus United States.

Unknown Speaker : What page?

Mr. Frey: Page 17, footnote 4, the second paragraph CEG(ph).

That Ethridge case is mis-cited, it did not involve equal concurrent sentences, and that citation should be deleted and I suppose, the EG(ph) signals should also be deleted because I can not replace it with any other cases.

It is not pertinent to the main body of my argument but I did not want to --—I believe it does.

We have presented basically three arguments to the court in our brief.

First that the Milanovich decision is distinguishable on these facts.

Second, that the either-or instruction in the new trial remedy dictated by Milanovich were incorrect and that the case should be overruled.

And thirdly, failing those arguments that any retrial that might take place in this case, should be limited to a selection by the Jury between the possession and the theft offenses, that it should not detail a retrial of guilt or innocence.

We have not argued although, it was argued in the Court of Appeals and it is a point that may perhaps be kept in mind, the plain error issue, Milanovich did not deal with the question of whether it was plain error because there was an objection in Milanovich.

Here there was no objection and presumably, if the either-or instruction was correct then we hope the court will hold that no such instruction ought to be given.

But if it should be given, had defense council pointed out to the court, the error could have been rectified at that time.

Justice Potter Stewart: Mr. Frey, as I understand it, you do agree do you not, that the person cannot be convicted of both bank robbery and of receiving or possessing the proceeds of the robbery of the same robbery.

Mr. Frey: No, I do not that is correct.

What we do agree with, we do not dispute Heflin, and what we do agree with is that there could be no accumulation or pyramiding of punishments.

When it comes to the question of whether they can be convicted, I think that is not in a sense an important question, so long as they are not cumulatively punished.

We would have no objection to a rule which require the vacation of a possession--

Justice Potter Stewart: Which had a, an objection to an instruction in this case that had said if you find that these people were the robbers, beyond a reasonable doubt, then you should convict them of bank robbery.

But if they were the robbers, they were not guilty of receiving stolen goods?

Mr. Frey: On the facts of this particular case we would have had no objection, because on the facts of all—

Justice Potter Stewart: And all the evidence was in this case that they was a robbery—

Mr. Frey: On the facts of this particular case, I think there was simply no independent basis for convicting them of possession that would be completely irrational, that is right.

Chief Justice Warren E. Burger: Now in the Milanovich case there was a distinction of facts, wasn’t there?

Mr. Frey: Yes, we would distinguish Milanovich from this case, because in Milanovich there were separate evidence of a separate receipt transaction.However --

Justice Potter Stewart: 17 days apart, it had evidence of each one of them.

Mr. Frey: But the Courts of Appeals in applying Milanovich have rather consistently taken, extracted from Milanovich the principle that the two offenses being inconsistent in law, although of course they are not inconsistent in fact, this either-or instruction must be given to the Jury.

Normally, I believe it is important to submit both counts to the Jury.

Now on the facts of this case where there was absolutely no independent evidence of possession, I think it would have been quite proper for the District Court simply not to instruct the Jury on possession.

Normally, and I might mention that the court has before it two petitions, which I guess, it is holding for the time being in cases that raise related facets of this problem.

One is a case called United States against Sellers out of the Fourth Circuit.

Now Sellers was halfway between the facts of the present case and the facts of Milanovich and that, or little closer to Milanovich I would say, in Sellers he was found with the loot sometime later.

So that there was independent evidence of possession, that would have been logically possible for the Jury to convict the possession only and not of robbery.

That case might more squarely present the problem about which we are concerned.

There also is a case called Phillips, also out of the Fourth Circuit into which we have petitioned.

And there three of the Judges in the Fourth Circuit held that it was a defense to a possession charged to prove that you were the robber.

That also is to us a wooden and improper application of the principles that underlie Heflin.

I have mentioned those cases just to keep in mind that there is a broad spectrum of factual variance that can arise.

Now certainly in this case we have argued that these -- on the facts where all the evidence points to robbery where there is no independent evidence of possession.

At least in that case, there is no basis for ordering a new trial and at most it would simply be logical to vacate the possession, conviction and the concurrent sentence on that point.

Now, I will say that respondents have argued that this case is not distinguishable from Milanovich, and their argument is based on the fact that one of the respondents, the evidence suggests that it was respondent Gaddis who was the driver of the getaway car and not an actual entrant into the bank during the robbery.

The argument then is that he is similarly situated to Mrs. Milanovich because he was not a principle that is he did not take the money out of the bank drawers.

That argument would have a little more merit where it not for the fact that he was a principal in one of the assaults involved in this case that is that it is he who shot Officer Cody according to the evidence.

And so that, I think creates some difficulty in analogizing his situation to that of Mrs. Milanovich.

Justice Potter Stewart: Well there was no question to Milanovich case it had the Jury believe that Mrs. Milanovich and her husband had indeed been drivers of the getaway car, that they would have been themselves guilty of bank robbery.

If that was up for the Jury and there was wholly different and independent evidence indicating that some 17 days later she agreed, dug up some, made a hole in the ground and dug up the proceeds of a bank robbery, and those were two separate --

Mr. Frey: It was a theft, not robbery, yes --

Justice Potter Stewart: I am sorry, that from a commissary down below.

Mr. Frey: Yes, yes.

Well it is true that the evidence was far more separated than here, but logically one could perhaps suggests that after all the government’s witness was co-robber, Davis and his testimony was that, that Gaddis had waited outside in the getaway car and that after they had made their getaway they had divided the loot.

Logically, I suppose one could argue and I do not think it is an empirical possibility on this record that the Jury could have disbelieved that Gaddis -- portion of his testimony, that Gaddis was involved in the robbery but believed the portion that he divided the proceeds.

You shake your head Justice Stewart, I think it is obviously—

Unknown Speaker : Jury have done things like that sometimes --

Mr. Frey: Well they have done, they have done very strange things.

I do, we do submit that the cases are distinguishable but I also submit that at the heart of this whole problem is the either-or instruction that this court indicated in the Milanovich case was required.

And I believe that it is our submission to the court that that instruction has been the source of considerable problems in the administration of the bank robbery act, and that it is not justified upon close analysis.

And that this court ought now to indicate that the either-or instruction is improper and ought not to be given in the future.

The first defect --

Chief Justice Warren E. Burger: Do you mean that the problem of double punishments could be taken care of by the sentencing court --

Mr. Frey: By the sentencing court.

Chief Justice Warren E. Burger: Or if the Judge did indeed give cumulative sentences for both offenses, that could be readily corrected on a remand, on review.

Mr. Frey: Or even on subsequent attack later on that would be an illegal sentence under Heflin, yes but that is exactly our position.

Justice Potter Stewart: If all the evidence in the case for the prosecution is that the defendant, I should just simplify to say there is one, entered a bank, armed, held up the teller, left with the money.

Is there any ground at all upon which the Trial Judge had instructed the Jury with respect to the offense of possession or receipt of the proceeds of a bank robbery?

Mr. Frey: Well, I agree Justice Stewart—

Justice Potter Stewart: Now is that the question?

Given my case where all the evidence for the prosecution indicates that the defendant was a bank robber.

Mr. Frey: I think it would be proper not to submit the possession --

Justice Potter Stewart: It would be improper to submit it, wouldn’t it?

Mr. Frey: Well I am reluctant to say that because if you look at the --

Unknown Speaker : Lesser included isn't it?

Mr. Frey: Well, Heflin stands for the proposition that you cannot pyramid punishments of—

Justice Potter Stewart: Anymore than in a bank robbery case, it would have been --it would not be error for a Trial Judge to instruct the Jury on those, on a direct offense?

There is just no evidence of it.

Mr. Frey: Well, but that requires us to conclude before the Jury has decided the case what the evidence shows; I think it is true that there is no evidence and it ought not to be submitted but there are lesser included defense cases where there is virtually no evidence, and Courts of Appeals have nevertheless --

Justice Potter Stewart: Heflin said this was not lesser included offense, did it not?

Mr. Frey: I understand I cite that by analogy.

Justice Potter Stewart: But that is not an analogy, given Heflin.

This is not a lesser included offense, is it?

Mr. Frey: Well I fail to see the -- from the standpoint of safety, there is no conceivable prejudice to the defendant from submitting the possession count and it eliminates the possibility that an appellate court might later determine that perhaps the Jury could somehow if convicted of possession and acquitted -- under the either-or instruction acquitted of robbery.

I mean there would be out of a great abundance of caution that one would submit, and if I were the District Judge in this case I think would not have submitted it because I think it is clear on this evidence that it would have been unnecessary.

Justice Potter Stewart: Why do you say there is no evidence of possession?

Mr. Frey: Well there is evidence—

Justice Potter Stewart: Well certainly if he had stolen, had it, and he possessed it, but you certainly can argue very sensibly that was not what-- the Congress did not intend to, to make a separate crime out of possessing what you stole?

Mr. Frey: Well that is what Heflin suggests that Congress, and Milanovich where the possession is distinct in time and proved by the distinct evidence, suggests that even there congress did not intend to make it a separate offense.

Of course as a matter of fact, the person is guilty of possession, where he indicted only for possession and not for robbery, there would be no obstacle to convicting him of possession.

Chief Justice Warren E. Burger: Does the submission of both these questions to the Jury invite the bizarre result, I say bizarre, it would have been bizarre on this evidence to find him not guilty of bank robbery but guilty of possession.

Mr. Frey: Well, it would be bizarre and --

Chief Justice Warren E. Burger: But those things have happened?

Mr. Frey: Well it could, it could happen if there were, if there were an either-or instruction then there would be a considerable risk that something like that would happen.

And I would like to mention a case to show that my concern would be either-or instruction is not simply wild conjecture.

An individual attempted to buy a car and he used the hundred $5 dollar bills to make his down payment on the car.

And those bills were checked and turned out to contain to be bait money from a recent bank robbery.

He was arrested and he was indicted for bank robbery.

The prosecution’s theory being that his possession of these bills, his recent possession of these bills permitted the Jury to infer that he was involved in the robbery itself.

The evidence showed that he was not one of the robbers at the bank but it also showed that he had been in the vicinity of the bank shortly before the robbery.

The Jury accepted the prosecutions’ theory and convicted the defendant of robbery.

The case was appealed.

Now had there been an either-or instruction, unfortunately there was no possession charge in this case, the Jury would presumably have to acquit him of the possession charge of which he was clearly guilty pursuant to the Milanovich either-or instruction.

The case was appealed to the Court of Appeals, I think Justice Blackmun may remember this case because he sat on the panel in the Eight Circuit at that time, and the Court of appeals said the evidence is not sufficient to establish robbery.

It merely shows possession, the inference from possession to robbery is not strong enough where there is no evidence besides the guilty possession and therefore it reversed the conviction for robbery and in order the entry of a judgment of acquittal on the robbery charge.

Now this case, United States against Jones 418 F2 818, which is cited in our brief, had Jones been charged with possession as well as with robbery, had the Jury been given the either-or instruction, they very likely would have convicted him of robbery, acquitted him of the possession charge.

And on appeal, the Court of Appeals would have said, well this does not make out robbery and he would have gone scot-free.

Now that is a serious problem.

Justice Potter Stewart: Well that is you say undoubtedly and so on, that is a hypothetical case.

In the actual Jones case, he could have been indicted for possession, and there would have been no double jeopardy questions whatsoever because he had not been charged with that the first time around as you give it to us.

Mr. Frey: He could but this requires a degree of pressing and some prediction by the prosecutor in making an indictment by the Judge and submitting the case to the Jury and the question is why ought not the Jury be allowed to consider the facts?

That is did these defendants’ in fact—

Justice Potter Stewart: Well the Jury in the Jones case was not allowed to consider the alternatives, he was not charged with possession, you just told us—

Mr. Frey: No but had he been -- I am merely pointing out that the cases are numerous where the evidence of possession is stronger than the evidence of robbery and there is ample evidence of both, where the robbery conviction if one is obtained may fall for a variety of reasons on appeal, and—

Justice Thurgood Marshall: In Jones the charge being -- it is either the Grand Jury or the prosecutor?

Mr. Frey: That is correct.

Justice Thurgood Marshall: What would happen in this case if he had been found not guilty of possession in this very period?

Mr. Frey: Not, there would have been absolutely no difference had he been found not guilty of possession.

Justice Thurgood Marshall: That would have been an awful silly verdict, wouldn’t it?

Mr. Frey: Well it would have been a silly verdict, yes.

But the either-or instruction is, is—

Justice Thurgood Marshall: I don’t see why we have to make rules to let the prosecutor try anyway he wants to try, I think he should follow the rules?

Mr. Frey: Well—

Justice Thurgood Marshall: If he decides to try the man on possession, he is stuck with it.

If he decides to try him on robbery, he is stuck with it; he can have it both ways.

Do you agree with that?

Mr. Frey: Not really Mr. Justice Marshall, because even in Milanovich there was no question that the prosecutor was entitled to indictment on both charges, and everybody agreed that he was not required to elect between the charges.

The issue was when the case went to the Jury, was the Jury to be forced to select between the two charges, and that is what we are saying was the mistaken holding of Milanovich --

Justice Thurgood Marshall: Was it not brought it back by the prosecution, putting all four of these together?

When it gets to the Jury, doesn’t he have a duty of deciding which one should go to the Jury?

Mr. Frey: I do not believe that is the law Mr. Justice Marshall, it is not required --

Justice Thurgood Marshall: That he is required to --

Mr. Frey: I do not think he should be required to elect because—

Justice Thurgood Marshall: Well isn’t he required to read these two cases?

Mr. Frey: Well certainly he should be required to read, so should defense counsel.

I mean that, nobody points, so should the Judge but nobody pointed out, I mean apparently there was not an awareness of Milanovich but—

Justice Potter Stewart: Well Milanovich was a totally different case from this on its facts, isn’t it?

Mr. Frey: That is our contention, I—

Chief Justice Warren E. Burger: Well it is borne out by the opinion, the opinion indicates that one crime is committed and this woman -- the case against her for the bank robbery was dubious at best and probably could not be made out, but the case against her for the possession was perfectly clear two or three weeks later.Mr. Deputy Solicitor General Frey:

Mr. Frey: Well I think both cases were quite clear in Milanovich, and it is true that the cases are distinguishable but honestly I do not think I can say to you that Milanovich itself depended upon that distinction.

In fact Justice Frankfurter's dissent was based largely on the proposition in Milanovich that these were two distinct defenses, in fact and therefore the Milanovich ruling ought not to be held proper.

That is Justice Frankfurter's thought that she should be convictable of both offenses because of the degree of separation between the two.

Chief Justice Warren E. Burger: Well, assuming that the prosecutor on your view, should not be required to make an election before he starts, that is he is entitled to wait until his evidence is in to see what his case is, where the strengths and weakness of his case is.

Doesn’t the either-or instruction present a parallel to the idea of dismissing one charge at that time?

Mr. Frey: We would submit that either the dismissal of one charge at that time or the either-or instruction would be erroneous.

There is no harm --

Chief Justice Warren E. Burger: You are talking about what is required to do—

Mr. Frey: He is not required to elect, both counts can go to the Jury that much is clear.

That is, it is established that both counts can go to the Jury in the normal case.

Now I agree with Justice Stewart that in this case, there was really no occasion to submit the possession count because of the nature of the evidence.

And therefore, harmless error however in having done so, no certainly no basis for awarding a new truck.

Justice Potter Stewart: Do you know what the Jury convicted him?

Mr. Frey: We know that the Jury found --the Jury finds facts, that is—

Justice Potter Stewart: They just said guilty, didn’t they?

Mr. Frey: They said guilty on each count, eight counts.

Guilty as to count one, guilty as to count two, guilty as to count three, and so on that is the form of the verdict that is in the appendix.

They did not just say guilty, in other words they convicted him separately—

Justice Potter Stewart: Did they in Milanovich?

Mr. Frey: Nobody said anything about Milanovich, nobody said --

Justice Potter Stewart: No, but did they in Milanovich, was there just a general verdict on --

Mr. Frey: I am not sure that I recall, the case was treated, there were two separate counts.

I assume they were convicted on -- Mrs. Milanovich was convicted on each count.

On Mr. Milanovich, the larceny count, the possession count rather I think he received a directed verdict from the Trial Court—

Justice Potter Stewart: Why would the Government object to saying that the instruction was improper, and that at least -- and that the conviction for possession should be set aside as well as its sentence, but no new trial I should say?

Mr. Frey: I do not object to the second part, I object to the first part.

I think the instruction was --

Justice Potter Stewart: Well you would not object afterwards to saying, you cannot be convicted for both therefore we will set aside one count or the other?

Mr. Frey: I do not object so long as that count is subject to revival in the events something happens to the other count.

Yes, we have no --

Justice Potter Stewart: On appeal, on appeal, on appeal if the Court of Appeals says, it should not have been convicted of both counts.

We set aside the besides the conviction on the possession count and sentence—

Mr. Frey: We do not object to that.

In fact we believe that uniformly we --

Justice Potter Stewart: Because conviction on both counts is improper?

Mr. Frey: Because punishment on both counts is improper, conviction is a little bit like the concurrent sentence—

Justice Potter Stewart: Well I know but you would not object to setting aside the conviction?

Mr. Frey: That is right, we don’t.

Justice William H. Rehnquist: What if under 2255 then, they later come and attack the main sentence—

Mr. Frey: Then our view is that the conviction would be revivable at that point, but we want a Jury verdict as guilty in order to avoid that possibility.

Justice William H. Rehnquist: I had thought you could submit inconsistent verdicts to the Jury for the last 200 years that notions to the contrary went out with Blackstone.

Mr. Frey: That is true, that is verdicts that are inconsistent.

In fact, what we are dealing with in Milanovich is not inconsistent verdicts, the verdicts are completely consistent in this situation.

We are dealing with verdicts that are inconsistent in law.

But the either-or instruction --

Chief Justice Warren E. Burger: (Inaudible)

Mr. Frey: No, in fact they possessed --

Chief Justice Warren E. Burger: They are perfectly consistent—

Mr. Frey: Consistent, yes.

Chief Justice Warren E. Burger: They did rob the bank, they did posses the money.

Mr. Frey: Right.

Chief Justice Warren E. Burger: It is just a question of whether the rule of law is that that is in effect double punishment.

Mr. Frey: Well, this is a very technical area.

What the Court of Appeals held is, well they may have robbed the bank and they may have possessed the proceeds but they could not be convicted of both, and therefore although nobody doubts that they robbed the bank and possessed the proceeds, we are going to give them a new trial.

And the reason we are going to give them a new trial is because the Judge did not give an either-or instruction, which if I may give an analogy, it is a little bit like saying to the Jury; you are asked to find on, count one whether 140 equals 12 inches, and on count two whether three feet equals a yard, but you may not find both.

Justice Potter Stewart: Now in Milanovich, as you pointed out Justice Frankfurter dissented.

And in his dissent he said this, it is hornbook law that a thief cannot be charged with committing two offenses; that is stealing and receiving the goods he has stolen.

This is not a manner of inconsistent of the general rule of inconsistent offenses, this is a specific rule as to robbery and receiving stolen property.

This is the dissenting opinion, I am reading.

Mr. Frey: Yes, I do not agree with that portion of the opinion because we do not know until the Jury has returned its verdict, Justice Stewart, what has been done, we do not know whether the person is a thief, we have evidence suggesting that he is a thief, we have stronger evidence indicating possession.

Justice Potter Stewart: Not in this case, you do not.

You have nothing but evidence that he was a bank robber not a thief, a robber.

Mr. Frey: It is true that if this case falls within a subclass of the cases in which we have had these issues arise where I agree --it would have been better to indict these people in one count under (d) for aggravated bank robbery to treat the (a) and (b) as lesser offenses.

But it is clearly harmless error in the circumstances, it hardly warrants a new trial even if you were to hold that the prosecutor was in error in framing his indictment in that fashion and that the court was in error in submitting it to the Jury.

The problem will --that holding I think would be correct.

The problem I assume would be back before this court shortly because I do submit with all respect for the reasons I have indicated that it is a continuing problem in the administration of the Federal Theft Statutes.

Justice William H. Rehnquist: Do you think that failure to object to the instructions is open to the government to argue in this Court?

Mr. Frey: I do not see why not, it is within the questions presented, it was argued to the Court of Appeals.

We have mentioned it in our brief, but we have not argued it in our brief.

I mentioned it here at oral argument, I think it would be open be for this court to decide it on that basis.

I reserve the balance of my time for rebuttle.

Chief Justice Warren E. Burger: (Inaudible) if that is the case by remanding for reexamination of the sentence to see that double punishment is not imposed for both possession and bank robbery.

Argument of Tommy Day Wilcox

Mr. Tommy Day Wilcox: I will address myself to that question, Your Honor.

Chief Justice Warren E. Burger: Do it in your own time.

Mr. Tommy Day Wilcox: Mr. Chief Justice and may it please the Court.

Before I begin, I would also like to make a notation, a correction if you will in the respondents’ brief on the merits.

It is on page nine, and it comes from a quote by Judge Donahue in the Ninth Circuit in the case of United State v. Tyler.

About one-third way down the page the quote begins, and it begins by leaving all of the word “A”, it is a typographical error I assume.

But that particular quote should read, “A case”, it does not decide only the exact factual question that it presents and then it continues on as it is there.

Unknown Speaker : A case?

Mr. Tommy Day Wilcox: A case, Sir.

Page nine on the merits.

Before beginning my argument, let me say that my name is Tommy Day Wilcox and I am counsel for the respondents Gaddis and Birt.

In the trial of this particular case, I was trial counsel for Billy Sunday Birt.

Mr. Tony Mann of Megan Georgia was the attorney for Mr. Bobby Gene Gaddis.

At the conviction Mr. Mann and I, as co-counsel represented these two respondents on appeal, I now represent each, the two of them together of course.

Justice William H. Rehnquist: Why did you not object to the failure to give the instruction that you now say should have been given?

Mr. Tommy Day Wilcox: The two-two responses to that question.

Certainly, I accept responsibility for these respondents for not requesting that charge.

Our theory of that particular case of course, that interviewing these two defendants was one that they were not involved at all, either as possessing or robbery.

So from that standpoint that was one reason we did not request it.

Quite frankly, Your Honor, I was not aware of this line of cases and therefore I did not request this particular instruction.

Justice William H. Rehnquist: Isn’t that the whole point of objections in the Trial Court is so that the District Judge who maybe on the point of erring can have his attention called, and if you fail to object, you are presumably barred from raising that point?

Mr. Tommy Day Wilcox: Your Honor, unless it is plain error.

And certainly I would—

Justice William H. Rehnquist: Why was this plain error?

Mr. Tommy Day Wilcox: The reason this was plain error is it, for one thing whether or not an objection is made as plain error or not more times, and that goes to the facts in the case, so the courts that have considered have said that anyway, whether that evidence is overwhelming or not.

But to this particular point I would cite the Court’s attention to at least three appellate courts that were presented with this particular question and decided that it was plain error and the case not to give the particular instruction that should have been requested --

Justice William H. Rehnquist: Well why did they decide it was plain error?

Mr. Tommy Day Wilcox: The case of United States v. Roach and O’Neal v. United States, and those cases went off on the fact that, and also that, and Baker versus United States.

Almost the same thought that I am giving here, Your Honor.

One, the evidence was not overwhelming in those particular cases and the court concluded that it was plain error, and they went to certainly the merits of the defendants claim.

Justice William H. Rehnquist: Well that is true of almost any Jury exceptions.

If you say this is plain error, you are going to end up saying that counsel never has to object because you can always call it plain error.

The District Judge could have shaped his instructions to conform to your objection, you called his attention to the Milanovich case, I would think?

Frankly, that you didn’t know of it and he didn’t know of it.

I would think it is counsel's job to call his attention to that.

Mr. Tommy Day Wilcox: Certainly, we bear some of the responsibility.

But in this particular case and in this particular situation, the question here is how to avoid, I think Your Honor, the error that was committed by the lower court.

First of all the prosecution has all the facts of the case, they certainly did in this case and that Mr. Davis was arrested.

And after getting his statement, this particular indictment ensued the prosecution then as Mr. Justice, in his dissenting opinion Mr. Justice Clark in the Milanovich decision said it would better that be to have the prosecution elect.

Whether or not at the onset, they were going to indict for possession and for robbery.

And second of course, the prosecution could have dismissed this particular charge before it went to the Jury and the Judge of course has some duty to properly instruct the Jury.

But no, Your Honor, again we would say that certainly it was my responsibility and I did not request that particular charge in this case.

Chief Justice Warren E. Burger: In evaluating of plain error claim, is it of some consequence that the error wasn’t so plain that the counsel in the case didn’t see it?

Mr. Tommy Day Wilcox: That is correct, Your Honor.

And as I say, in this particular situation, I can only speak from my experience in this particular case.

This was the very first case, I participated in as a trial attorney, and is this is the first case I participated in here, no excuse of course.

But our defense was, one; that we did not participate either as the robber or as the possessor, perhaps we still should have had the duty to request this particular charge.

Chief Justice Warren E. Burger: Then do you think in those circumstances the prosecutor should be required to elect before the case is tried which count, he is going to stand on?

Mr. Tommy Day Wilcox: Either before the case is tried or before the case is submitted to the Jury, yes Your Honor.

Chief Justice Warren E. Burger: Did you move for dismissal of all of the charges at the close of the evidence?

Mr. Tommy Day Wilcox: Yes we did, we have made the motion for judgment of acquittal -- conclusion of the prosecution’s case and also at the conclusion of the case as a whole.

If I might comment on the facts in this case, one brief comment before beginning my argument, that is the facts as stated by the counsel Frey.

Certainly we are clear in acquitting this case, but actual trial of this case, the only evidence it connected either Gaddis or Birt with the robbery of this bank in Loganville, Georgia, was a testimony this co-defendant Gaddis.

In other words, there was no independent evidence to otherwise connect them with the robbery of the bank.

Chief Justice Warren E. Burger: Where was the money found?

Mr. Tommy Day Wilcox: Interestingly enough the money was found in the possession of the wife of Mr. Davis, the co-defendant.

She took some of the marked money to the bank, the FBI discovered it there, went to her house and the remainder of the money or a portion of the money was found in her deep freezer.

If the Court will.

But none of the money, neither masked guns nor independent identification was ever given as to Gaddis and Birt at the trial of this particular case.

To the Court’s submission, I will present two arguments in support of respondents’ position before this case.

First, this Court’s decision in Milanovich v. United States, which is applicable to the case involved in our view, is an appropriate statement of the law where defendant is charged and convicted, both of taking and receiving the same property.

Second, any suggestion that an Appellate Court rendered the error that was committed in the Trial Court, by ordering the Trial Court to either dismiss the taking conviction or the possession conviction as improper, in our view; whether under the guise of some rule of priority, what has become known as the concurrent sentence doctrine.

Petitioner has properly stated the rule enunciated by this court in Milanovich, and again that rule simply says that where the Government chooses to indict both for robbery and for possession, then it is the duty or it is incumbent upon the Trial Judge to give an either-or instruction.

Further, given Heflin v. United States, the rationale of this Milanovich decision is appropriate to this case, where these particular defendants were charged and convicted on a federal bank robbery statute.

However, in his argument here today, the petitioner attempts to distinguish the case at bar on the facts, and thereby take it out from under the purview of Milanovich.

In our view, the factual pattern in these two cases is much the same, especially when viewed toward the activities of the driver of the getaway car.

To point up what happens in a case and in our opinion why the government would choose to indict, both for robbery and for possession, I cite this court’s attention to a recent Eighth Circuit case, Dixon versus United States, 507 Federal 2d. 683.

In that case, there were three robbers.

One drove the getaway car, he was indicted, and that was Dixon.

A mistrial was declared as to the robbery, but he was found guilty as to the possession.

That particular panel concluded that the no-charge was given, but it was harmless error given to verdict, and the comment was that the driver of the getaway car acted only as an aider and abettor to the robber.

And therefore it could be conceptualized as a separate offense.

This discussion of the distinction between the two, engenders, we think a consideration of whether or not this was a single transaction or two separate transactions.

Justice Potter Stewart: Did the driver of this car take a shot at the policeman?

Mr. Tommy Day Wilcox: The evidence adduced at the trial, given Davis’ testimony, was as I recall the driver of the getaway car did fire at the policeman when he arrived at the scene.

Justice Potter Stewart: Do you think that makes any difference as to whether he was participant in the robbery?

Mr. Tommy Day Wilcox: I do not, Your Honor.

Certainly if a separate charge of assault, as to the driver of the getaway car would have been proper.

Justice Potter Stewart: The man who guides the robbers inside the bank is not a party to the robbery?

Mr. Tommy Day Wilcox: Under an aiding and abetting charge where there had certainly a Jury could return that type of verdict, I have no quarrel with that.

But Juries do return verdict saying that drivers of getaway cars as evidenced by the Dixon case.

Chief Justice Warren E. Burger: That was the defense verdict, isn't it?

Mr. Tommy Day Wilcox: Not really, Your Honor.

Certainly, given the legislative history of 2113(c), the possession is only as a separated offense, it contemplates separate people.

Chief Justice Warren E. Burger: I am talking about the driver of the car.

Mr. Tommy Day Wilcox: That is correct.

Justice Thurgood Marshall: You mean the only people guilty in the robbery are those inside the bank?

Mr. Tommy Day Wilcox: No, Your Honor.

Justice Thurgood Marshall: Well what do you say?

Mr. Tommy Day Wilcox: I am not taking that position.

I am saying that under the facts in this case when looking at the driver of the getaway car, there really is not distinction between this particular case and the case of the Milanovich situation, where the lady there drove the getaway car to the scene—

Justice Thurgood Marshall: But she didn’t shoot anybody?

Mr. Tommy Day Wilcox: She did not shoot anybody, that is true.

And that, if in fact we consider that an assault charge then it would be proper to separate count.

Justice Thurgood Marshall: But were the men in this case charged with assault?

Mr. Tommy Day Wilcox: They were.

Justice Thurgood Marshall: Well he was guilty of that then, wasn’t he?

Mr. Tommy Day Wilcox: That is correct, given the facts.

Justice Thurgood Marshall: Well I have lost your point.

Mr. Tommy Day Wilcox: Well the point is simply this, that in our position whether or not it is a single transaction or two transactions is of no import.

And that the Milanovich situation and the rule of law there was a rule or rationale that is applicable to these types of cases whether or not it is a single transaction or two transactions.

I have mentioned the Dixon case, only to show the court if I might that the reason for the possession count oftentimes, is in fact Juries do return verdicts when a person is found guilty of possession and not robbery, even though he drove the getaway car and waited for the robbers to return.

Similar case, the Fifth Circuit case, Baker v. United States, where there are same facts.

The man drives the car, he waits for the robbers to go in, he identifies the car in the parking lot, steals it and drives the robbers away.

There, that particular case, no either-or instruction was given and the case was remanded for a new trial.

Unknown Speaker : Under the statue, it simply is not possible to break this into separate offenses of this kind, it is one offense.

And therefore you cannot indict on separate counts, one for the robbery and one for possession?

Mr. Tommy Day Wilcox: Yes, Your Honor.

You can indict, but the point is of course, that the Jury should be instructed before they retire, that given the history of this particular statute under which these men were charged, that they have the choice.

To first of all determine whether or not these folks are robbers.

And if they are, fine, they cannot also be convicted of possession, unless a separate person.

Justice Potter Stewart: No matter what maybe the length and time between the date of the robbery and the incident which led to the possession charged?

Mr. Tommy Day Wilcox: That is correct, Your Honor.

Justice Potter Stewart: It is about the same person?

Mr. Tommy Day Wilcox: In this particular—

Justice Potter Stewart: The robber cannot be can't be convicted of possession, somebody else could be convicted of possession.

Mr. Tommy Day Wilcox: That is correct.

And of course under that particular factual situation then, the Jury could return a verdict—

Justice Potter Stewart: But this is a situation where Gaddis was convicted of robbery?

Mr. Tommy Day Wilcox: That is correct, Your Honor.

Justice Potter Stewart: That being so, no matter what the interval may have been which led to the possession count.

Mr. Tommy Day Wilcox: He cannot be convicted, that is correct.

Justice Potter Stewart: As a matter of law?

Mr. Tommy Day Wilcox: As a matter of law.

Justice Potter Stewart: Under this statute?

Mr. Tommy Day Wilcox: Under this statute.

Justice Potter Stewart: That is what Heflin said.

Heflin said that the possession count was directed toward a wholly different kind of a defendant, the person who is not the robber, is that not what Heflin said?

Mr. Tommy Day Wilcox: That is correct, Your Honor.

And certainly this Court relied on the legislative history of that statute, when they rendered that opinion.

And I might add, as far as the facts are concerned in this case on that particular point, while Mr. Davis chose to identify Mr. Gaddis as the driver of the car.

The evidence at the trial of the case was that Billy Sunday Birt had a very serious speech impediment, and had had to the testimony of a numerous—several people throughout his life.

And it is possible that that particular Jury decided that yes, these two men were involved, but may have decided that Birt was in fact driving the car.

This is on the conjunction on my part, but it is the real reason that we are here today is whether or not we want to look behind what the Jury decided.

These facts presented to this court in the coolness(ph) of this hour appears to be just open and close, this particular Jury was out for six and one-half hours, this appears to be a clear case.

But certainly in the State Courts of the State of Georgia, where a man cannot be convicted on the uncorroborated testimony of a co-defendant, this case may not have even gotten to the Jury.

Justice Potter Stewart: Well there is no question what the Jury decided as respect to the individual counts, isn’t it?

Mr. Tommy Day Wilcox: That is correct, Your Honor.

My only point was there is—

Justice Potter Stewart: They made separate, in turn separate verdicts on the different counts, each count?

Mr. Tommy Day Wilcox: They did.

There is some concern in my mind whether or not the Jury decided it was Birt or Gaddis driving the car, that was my point, Your Honor.

Justice Potter Stewart: Well you point is in any event, the Jury under this statute could have convicted on these facts, of robbery or nothing?

Mr. Tommy Day Wilcox: That is correct, Your Honor.

The question is what remedies to be applied in this case, given the error committed.

We can see that the lower courts, during this interval between 1961 and today’s date, have attempted various methods to avoid the new trial mandate of Milanovich.

It is interesting to note the case pointed out by Mr. Frey, that Mr. Justice Clark set on in the Fourth Circuit.

There Sellers, the defendant, four counts of robbery and possession and he was convicted.

And when the instruction was not given, and the appellate court there decided that the remedy should be that the case would go back to the trial court and there the prosecution could elect whether or not they would let the possession or lesser sentence stand or whether or not they sought, would seek to have a new trial.

Chief Justice Warren E. Burger: Why do you think, or do you think that is not the proper solution?

Mr. Tommy Day Wilcox: It is not, Your Honor, because I have the feel that what has been done there is that an appellate court then has looked at the facts there really, I am almost arguing for fairness on behalf of the government, and that the appellate court has decided that this man was guilty of possession but was not guilty of robbery.

And my fear is of course, on balance, if it is sent back and said drop the possession there guilty of robbery there again in some way usurp the authority of the Jury, which is this case is all about in my opinion.

But the Sellers case also concerns me, but is one way appellate courts have looked at this problem.

And certainly the Tyler case in the Ninth Circuit, there the Appellate Court said, well we have a sentence stay of six years for possession and six years for robbery.

So under the concurrent sentence doctrine, we would not even look at this particular case.

Unknown Speaker : Why do you say concurrent sentence doctrine was not --

Mr. Tommy Day Wilcox: For number of reasons.

I have a real question and only this court can know after the Benton case, Benton v. Maryland, the real thrust of the concurrent sentence approach at this point.

But I think certainly here there was a general sentence, concurrent sentences cases had not gone to where there is a general sentence.

Second of all as in the recent case --

Unknown Speaker : (Inaudible)

Mr. Tommy Day Wilcox: Yes it is, Your Honor.

We could go back and have the Trial Judge breakdown the particular years on each statute.

That would be simple enough and would correct that objection.

Unknown Speaker : (Inaudible)

Mr. Tommy Day Wilcox: Not to bring it under concurrent sentence doctrine, Your Honor.

Because in this particular case, as in United States v. Belt, a very recent case in the Eighth Circuit, 516 Federal 2d. 873.

The court there concluded that the concurrent sentence doctrine lacks propriety, where the prime is charged of various and serious and differing in substance.

And the possibility of collateral affects is what that particular court went to.

And certainly the concurrent sentence doctrine concludes that there is one valid count, and of course the error here we say goes to both counts.

Justice Thurgood Marshall: (Inaudible) with the instructions that the court acquit on the possession charged.

Mr. Tommy Day Wilcox: The objection would be, Mr. Justice, that the same fear that this court had in Milanovich would be of course evidence and that is that an appellate court had decided which offense these particular men were guilty of.

And we still have the question of whether or not a correctly instructed Jury would have returned the verdict of possession --

Justice Thurgood Marshall: What more do you want in there?

Mr. Tommy Day Wilcox: We want a new trial in this particular case.

Justice Thurgood Marshall: Yes.

Mr. Tommy Day Wilcox: That is correct, Your Honor.

Justice Thurgood Marshall: You want a new trial.

You were satisfied with the trial at the time of the verdict weren’t you?

Except the verdict?

Mr. Tommy Day Wilcox: Well certainly, we made a motion for judgment of acquittal after the evidence was adduced to trial and then again—

Justice Thurgood Marshall: Did you cite the failure to give the either-or instruction in there?

Mr. Tommy Day Wilcox: No, we did not, Your Honor.

Justice Thurgood Marshall: So, so far that was concerned you were satisfied.

Mr. Tommy Day Wilcox: That is correct at that time.

Our main fear is of course, as I have already pointed out, that given the decision in Milanovich and given the decision in Heflin, we find nothing to take this case out from under the purview of those two decisions.

And by the same token, the majority of Appellate Courts and the interim have given this same set of facts, remanded the case for a new trial. In the Fifth Circuit alone there have been four or five cases in particular on the same facts that had been remanded for a new trial.

And certainly the proposition that the government offers, that in some way this case should be sent back to a Jury and the Jury be instructed that these two particular defendants are guilty of something, either possession or robbery.

And it is your duty to find either-or, that I find no precedent for that and—

Justice William H. Rehnquist: Well one can reject that is take it without necessarily feeling that the thing ought to be sent back for a new trial at all.

Do you think it makes much sense in the Administration of Justice when a Jury has found these clients of yours guilty on two separate counts, to simply say they are entitled to a new trial on both counts?

Mr. Tommy Day Wilcox: Yes I do, Your Honor.

Simply from the standpoint of a rule of law, because if in fact we decide or a court decides that there was a distinction to made here, robbery or possession and we will make that now given this record.

That this is a beginning of the usurpation of the Jury’s function, which was in fact finder.

Justice William H. Rehnquist: Well but all that Jury did was found facts, that seems to me that Heflin and Milanovich do not say anything more that, and as a matter of law, not as a matter of fact.

These two offenses can't subsist side by side.

And so your client is getting a good deal, if he is let off to hook on either one of them, that is what it boils down to.

Mr. Tommy Day Wilcox: Certainly, that is a hard proposition to argue with.

If in fact like -- as in the Sellers case, the case is returned as the government argued before the US Court of Appeals for the Fifth Circuit, there contingent there was dropped the robbery count and re-sentence these two particular defendants on the possession count.

I would not concede that point, but—

Unknown Speaker : (Inaudible)

Mr. Tommy Day Wilcox: That is correct, Your Honor.

Certainly we would rather have a return of the case and upholding the possession as opposed to dismissing the possession as the government now suggests would be proper and leaving intact the robbery conviction.

Justice Potter Stewart: Is there some suggestion that Davis now refuses to testify of any new trial?

Mr. Tommy Day Wilcox: Your Honor, let me respond to that question in this way.

Certainly, to give the court a new ratification about these particular parties as this remains our discussion here today.

There is not much question that Mr. Davis will testify against Mr. Birt and Mr. Gaddis in our opinion.

And that since the trial of this case, as to these two particular defendants, certainly I am here to discuss a rule of law.

Mr. Davis has testified in a trial—a murder trial, charging both Gaddis and Birt with a double murder, they were convicted in that trial and are now have been given a death sentence, two death sentences in the State of Georgia, and of course that case is on mandatory appeal in the State Courts.

Unknown Speaker : (Inaudible)

Mr. Tommy Day Wilcox: Yes it was, Your Honor.

And of course Mr. Davis participated in that particular trial, I know Your Honors concern with the footnotes that the government has put in several briefs before this court, Mr. Davis now had said that he would not testify.

But I can only give you my opinion on that, he had no reluctance to testify in the State Court.

As a matter of fact I am informed at this point now that the government seeks help from Gaddis to implicate Davis in some crimes in that general area, and this all goes to really of course who Mr. Davis really is.

Justice William H. Rehnquist: It sounds like a good part of Georgia to stay away from?

Mr. Tommy Day Wilcox: Well, (Laughter) Your Honor, Your Honor, began the discussion where the question might not object and are asking for the either-or instruction.

I might add in that vein, Mr. Davis’ Attorney at this particular trial, was also indicted for murder with Birt and Gaddis.

And subsequent to the, the District Attorney, I understand, has certainly decided not to prosecute and that there is nothing to connect of the attorney.

But Mr. Davis was dissatisfied with his representation, so yes, Your Honor, I have a reason to question Mr. Davis.

Justice William H. Rehnquist: Suppose the court does not agree with you that a new trial is required, but the that the defendant may be sentenced for only one of the crimes, do you make a separate point that there must be re-sentencing here or just cancellation of the one sentence?

Mr. Tommy Day Wilcox: The proper method, Your Honor, in my opinion if the court concluded that, that would be proper would be to remand this case to—

Justice William H. Rehnquist: Why the --the sentence was, the sentences were separate on each count?

Mr. Tommy Day Wilcox: In the end, the court concluded that this was a general sentence of 25 years and that all of these counts merged.

And of course—

Justice William H. Rehnquist: But he did say, he did sentence separately on that?

Mr. Tommy Day Wilcox: He did sentence separately, ten years to the possession and then had them merged.

I certainly can find no objection but—

Chief Justice Warren E. Burger: What is a (Inaudible) there are legal basis for that, is that just where they discuss sentences?

Mr. Tommy Day Wilcox: The courts had considered; of course, the legislative history of the statute says that it cannot run consecutive.

So several courts concluded after the passage of the statute, that subsections (a), (b) and (d) for purposes of sentencing were all merged into the sentence, the most severe sentence of 25 years was proper.

That is the terminology but of course the same court has said that subsection (c), a possession count will not merge.

And of course to completely answer the Justice’s question about retrial.

As to these two particular defendants, there is some doubt if in fact this court concluded that a new trial was warranted, given the two trials that I have just alluded to, whether or not these two particular defendants would be given a new trial.

My point here today is that we have an issue of law, and I am here to discuss some of that, I want to make that clear if I might.

In concluding, Milanovich v. United States is a sound decision and is appropriate in my opinion for consideration here.

We respectfully submit, that this court one should not overrule that decision.

And second of all should not in some way formulate a procedural cure for the error that was committed at the trial court, and that rather this case should be remanded for a new trial under the purview of Milanovich and Heflin.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Do you have anything further Mr. Frey?

Rebuttal of Frey

Mr. Frey: Just one or two points.

With respect to Justice Brennan’s question about whether the statute did not indicate that there should be rather than this equal either-or instruction, perhaps a priority instruction that asks the Jury first to consider robbery --

Unknown Speaker : (Inaudible)

Mr. Frey: Right, well Heflin—

Unknown Speaker : That Heflin (Inaudible)

Mr. Frey: Yes, it certainly was a statutory construction.

What is not clear was whether the thrust of Heflin was to the pyramidal punishment that existed in Heflin or whether it was to the entry of dual convictions—

Unknown Speaker : (Inaudible)

Mr. Frey: He made both points that it was a separate class of offenders.

My point is that in effect counsel concedes away his case here to agree with your suggestion, because if it is true that the Jury ought first to consider robbery, and if it finds the defendant guilty of robbery, or admits its consideration of the possession or receipt offense, then the remedy surely is simply to vacate the possession.

Conviction, but not certainly to grant a new trial.

Justice Potter Stewart: If the government’s interest be adequately protective, if the Jury was instructed to return a verdict on only one of these counts?

Suppose that it was instructed that, if you find these people guilty of robbery, bank robbery, return no verdict on the possessions?

Mr. Frey: Well that would certainly be better than returning an acquittal on the possession count.

That would at least theoretically leave the possession count open, but the question is why is a matter of sound judicial administration should the Jury be told that?

Justice Potter Stewart: Well then, but, and then -- if you had both counts in the indictment you would just tell the Jury that you do not that, if you find, unless you find the person guilty of robbery you may convict him for possession if the evidence warrants it?

Mr. Frey: But, but the robbery conviction maybe ultimately overturned for reasons that would not infect a possession conviction.

And it seems to me as a matter of sound administration of Justice, you allow the Jury to return verdicts on both, and then it is the Judge who enters no judgment of conviction on the possession count but only on the robbery count.

Justice Potter Stewart: It seems to me then you are, you are disagreeing with the construction of the statute that the court has adopted in.

Well, it is namely that there isn’t any crime of possession on the part of one who robs?

Mr. Frey: No, all that I am saying is that-that one, that at law there is no crime of possession for one who robs—

Justice William H. Rehnquist: Well, that is what I am talking about the law.

That is what instructions do, they state the law?

Mr. Frey: No, I do not think that is correct in this case because whether or not somebody is one who robs has only determined at the conclusion of the litigation.

And possibly even amendable to collateral --

Justice Potter Stewart: Well, you tell me Mr. Frey, who should be held guilty?

Let us suppose you had an indictment that had separate robbery and possession counts in it.

Mr. Frey: Yes.

Justice Potter Stewart: And you instructed the Jury that if you find the person guilty of robbery, do not find him guilty of possession?

But you may find him guilty of possession if you do not find him guilty of robbery.

Now you tell me, what people do you think ought --the government ought to be able to hold guilty of possession who, wouldn’t be covered by the second count of possession?

Mr. Frey: I am not sure that I understand that—

Justice Potter Stewart: Well you are saying that there are three crimes involved now in this statute.

One, one a class of persons who just received, but then there are two crimes that maybe committed by another group of people, either they posses or they rob?

Mr. Frey: No, we do not challenge the ultimate conclusion that ultimately one who is convicted of robbery ought not to have a conviction on his record for possession.

But we are saying that as a matter of the Administration of Justice, you ought to let the Jury find the facts.

In most cases you will have quite separate evidence of possession independent of the evidence of robbery.

And if you do not have the Jury return a verdict with respect to that, you run the risk of having to have a later trial or of having double jeopardy objections if there is something wrong with the robbery conviction that would not taint the possession conviction.

If, it is only one who is convicted of robbery who is immune from possession.

It is not, not one who is a robber, it is only one who is convicted of robbery who is immune from the possession conviction.

That is we strenuously disagree and we have a petition pending before the court in the Phillips case that you cannot setup as a defense to a possession charge that you are robber.

It is only after conviction that the preclusion of the possession charge comes into play in our view.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

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Featured:

Heflin v. United States - Oral Argument, Part 1

Tue, 04 Dec 2012 20:36:44 +0000

Case:

Heflin v. United States

Media File:

137_19590114-argument-1

Related Transcript:

137_19590114-argument-1

Transcript:

Argument of Jerome A. Cooper

Chief Justice Earl Warren: Number 137, Lurton Lewis Heflin, Jr., Petitioner, versus United States of America.

Mr. Cooper, you may proceed.

Mr. Jerome A. Cooper: If the Court pleases.

We are here on a petition for certiorari, a writ of certiorari to the Fifth Circuit Court of Appeals in a matter arising under the Federal Bank Robbery Act.

The petition seeks review of a judgment of the Fifth Circuit which in turn had affirmed a decree of the District Court, Northern District of Alabama which refused to vacate or reduce or correct a sentence which as then existed was in three counts before the District Court.

There is a little history to this case prior to the action on that motion to the District Court, which was a 2255 motion and, which I mentioned parenthetically, was not opposed on any procedural or jurisdictional ground by the U.S. Attorney who had notice and appealed and argued and was not -- when it eventually reached the Fifth Circuit challenged on any jurisdictional or preliminary or premature argument and was read by the U.S. Attorney in the Fifth Circuit.

Prior to the action of the District Court of which we complain here, there had been, in 1954, a trial on a five-count indictment arising out of a single bank robbery and charging three individuals on five counts with participation in a bank robbery and receipt and disposition and so forth of the stolen funds.

An appeal was taken from the conviction of guilty on all five counts by the counsel who were -- who was appointed by the District Court to serve the then appellant before the Fifth Circuit.

In the Fifth Circuit, on the direct appeal from the conviction, various arguments were raised by the appellant including the argument that he had been subjected improperly to successive sentencing when that was not allowed by the statute.

The Government confessed there apparently in that appeal to the Fifth Circuit, and two counts were found by the Fifth Circuit then to be incorrect and were ordered eliminated.

Those were counts which charged the defendant with both being guilty under the provision of the statute making robbery a crime and the provision making larceny a crime, so that on remand, from the Fifth Circuit then, the District Court was ordered to eliminate two counts and we were left with three counts.

Justice William J. Brennan: Well, how many had the petitioner wanted to eliminate?

Mr. Jerome A. Cooper: All five.

Justice William J. Brennan: Wanted all five.

Mr. Jerome A. Cooper: Yes, sir.

And as will later appear, the -- the Fifth Circuit enacting in the -- in the decree, which I now challenge, in part rested its present decision on the fact that this was a repetition of the argument which had been made in the first direct appeal to it.

So that when we got back to the -- when they got back to the District Court, I have not yet in the case, the sentence was reduced from 20 years and two days to 10 -- to 14 years and one day which results from the three counts based on robbery, aggravated robbery, that is robbery in which an assault upon an individual was committed, conspiracy and the count, which I now challenge here, the count based on subsection (c) for receiving and possessing and disposing of the funds which were taken in the robbery.

On that count, we were given a year and a day, basically, therefore, the issue we --

Chief Justice Earl Warren: That's the only one that's in issue here?

Mr. Jerome A. Cooper: That's the only one that's in issue --

Chief Justice Earl Warren: Yes.

Mr. Jerome A. Cooper: -- issue, yes, sir.

Basically, therefore, we have the -- the question under the Bank Robbery Act can the crimes of robbery and the crime of the receipt of stolen money be made the basis of separate indictments and separate sentences -- separate counts, excuse me.

Unknown Speaker: Disposition.

Mr. Jerome A. Cooper: I beg your pardon?

And disposition, yes, sir.

I -- I would say though in regard to that there's very little evidence in this matter of what disposition if any was made.

And I am -- although I am getting little ahead of it, I -- I'm prepared to say that in this case, it seems to me that the Court can do one of two things, it can decide and dispose of the question of the validity of Count 4, the one that I am now challenging because the indictment itself in the record, the -- the true record that's before this Court shows that they were considering -- both courts below were considering a single robbery, a single transaction or single impulse, however you wish to put it.

And if, as I was surprised to find, that it is possible to bring before this Court now, as the Government is doing, a transcript of the evidence taken in the first trial at this late hour, I would technically think that's wrong.

The Circuit Court of Appeals did not consider it.

I think that that is -- that creates a situation in which a petitioner likely might be prejudiced, but I don't feel that we are here.

I don't think the facts are much in dispute.

I am prepared either to stipulate the facts, although I have not been invited to do so and only learned quite recently that the Government wished to file here a transcript of the evidence.

And when I use the term “transcript of the evidence” I am talking about the testimony that was taken in the trial as distinguished from what I considered to be the -- the true record that's before this Court.

There is a printed record here.

That transcript of evidence will show that our position, I think, is unassailable.

Justice William J. Brennan: That transcript is not printed, I gather.

Mr. Jerome A. Cooper: No, sir, it's just in the folios of the court reporter, and I might say that we had a problem about that because when I got into the case and decided that that record was not before the Court, I sort of dismissed it from my mind.

But later, I thought that I ought to know what had taken place in the trial, and I said about trying to get hold of the transcript of the evidence.

None was available.

Apparently, the Government had lost it, so I didn't get one.

The only one that we could find was the one that's filed in the Clerk's Office of the District Court.

And the Court was kind enough to let me withdraw that so that I might read it.

And then the Government -- the Attorney General's Office got after us to let them use the copy that we had withdrawn, which we were glad to do.

And now, they want to file that with the Court over my objection, but I am really not objecting because I don't think the facts are here us at all.

Justice Felix Frankfurter: How big a record is it?

Mr. Jerome A. Cooper: It's about 800 somewhat pages.

It's four folios of -- that does include, Mr. Justice, the argument and, as I recall, and the Court's charge.

The Court's charge unfortunately for my client was more or less just a reading of the statute.

There wasn't much discussion of the problem of whether or not you can convict a man twice for robbing a bank of money and then for receiving that money that you -- that he -- he took in the robbery.

Justice Felix Frankfurter: That wouldn't be a jury question.

Mr. Jerome A. Cooper: Sir?

Justice Felix Frankfurter: That wouldn't be a jury question.

Mr. Jerome A. Cooper: Wouldn't be a jury question but I think it would have been helpful to the defendant if the jury had -- had explained to him.

Justice Felix Frankfurter: (Inaudible)

Mr. Jerome A. Cooper: That problem, yes.

Justice Felix Frankfurter: Unless you take special verdict, unless you -- unless the facts were in dispute (Inaudible)

Mr. Jerome A. Cooper: Well, the facts were in dispute because my man denies and still denies guilt.

And there was a total issue.

Unknown Speaker: (Inaudible)

Mr. Jerome A. Cooper: He was convicted of both, as we now stand --

Unknown Speaker: Both.

Mr. Jerome A. Cooper: Yes, sir.

We -- we now stand on -- through -- with three counts.We are convicted of aggravated robbery, that's section (d), as I recall, of the Act where a man commits a robbery and an assault takes place in the course of it.

We are convicted of the receipt disposition and so forth of the stolen money on a second count and then a third count under the conspiracy statute.

I am not in position to raise the question of the conspiracy because that was not raised in the petition for certiorari which I did not file and -- and so, I -- as I indicated before, we -- we have a limited problem.

Justice Felix Frankfurter: What was he given under (d)?

Mr. Jerome A. Cooper: He -- he was given 10 years under the aggravated assault and three years on the conspiracy and a year and a day on the count which I am --

Justice Felix Frankfurter: (Inaudible)

Mr. Jerome A. Cooper: Yes, sir.

And the reason -- one reason that impels me as -- as litigant to be willing to admit the facts or stipulate that other record is that my man, if he is to get some relief, can only get a year and a day reduced from his sentence.

And I don't want to go back to the District Court and litigate anything with respect to what the facts are or to the Circuit Court because we are getting near the point at which we'll be eligible for parole, as I understand.

And if we don't get the benefit of the decree now determining that Count 4 is invalid and we will win rather empty victory, assuming that we'll win at all.

And for that reason, we -- we think that you -- you are in position to do just what you did in Prince.

You are in a position to say here that you've got a -- a typical bank robbery that has then, for purposes of Congress, dealt with in stages but for purposes of punishment, does not warrant imposition of -- of successive sentences where all the man does is rob the bank and take the money at the time and put it in his pocket so to speak.

Now, we think that our argument is supported a little bit better in this instance by the history of the Act and by what the Act itself says.

The Government belittles the fact that the 1948 codification eliminated from the provision of the statute that deals with receipt and disposition and so forth, a provision for $5000 fine and so forth and instead, merely says in effect that a man who receives the stolen money should be punished in the same manner as the taker.

In common ordinary English, that dealing with one, the receiver and two, the taker.

It -- you can't mean anything else.

The Government has found some difficulty itself in deciding what this Act provides with respect to successive sentencing because they went into the Fifth Circuit, as I understand, in the Heflin -- in the case, the Heflin case on the first appeal and confessed error, said, “You're right, you can't convict a man for robbery and larceny at the same time.”

And then according to one of the footnotes as I recall in the position of this Court in the Prince case, they said we were wrong in doing that, we still think now that you can sentence him for everything, for entering, for robbery, for larceny and aggravated larceny -- robbery and so forth.

So that the Government finds itself unable, at all times, to be sure just what this Act provides.

And I think probably a little more, definitely than -- it occurs in most of the legislative history that was considered in Prince.

Our legislative history shows what Congress had in mind.

The Senate Report, for instance, and we've set it out on page 9, we refer to it, of our brief, it says, captions, “Senate Report Number 1801” which was the report from the Senate leading to the 1940 amendment which added the crime that we are concerned with in the receiving count.

That Senate Report was captioned “Punishment for Receivers of Loot From Bank Robbers.”

And I think a common sense reading of that obviously means that they were dealing with the receiver distinctly from the man who is the robber and that basically is our case.

Now, certainly, in view of the doubts which the Government has had in view of the -- at best, ambiguity in the statute, the doctrine of lenity has some -- has some real application here.

The Court has been considering that problem and has heard argument about it for two days, and I'm not going to go back over those cases.

However, I -- I think that if ever there was a -- a perfect case for the application of that doctrine of construction, this is it, which leads me finally in -- to consideration of the Prince case itself.

We've said frankly to the Court in our brief, we think the Prince case decides this.

We think it does.

We think that as near as possible, the Prince case has said, “You've got a statute here that deals with bank robbery.”

It -- it deals with all phases of bank robbery.

However, although Congress has seen fit to deal with a bank robbery as a crime which can have various phases before, during and after, those phases are not, when committed by one who completes a bank robbery, each entitled to be made the basis of a separate count and a separate sentence.

In Prince, of course, the man committed the first phase.

He entered the bank and then the robbery occurred, and he was found -- and this decision -- the Court -- the decision of this Court in Prince holds that he couldn't be sentenced twice for that.

Well, what we are looking at here is what happened after he robbed the bank and he left and put the money in his pocket so to speak.

If there is any distinction between Prince and my case, it's chronological and nothing else because in -- in the amendment that we are dealing with, the 1940 amendment, Congress reached out to be sure that it brought within the net people who deal with bank loot after the robbery has been completed.

In the 1937 amendment, as I recall, that was before the Court, Prince, Congress was dealing with -- with people who were intended felons but for some reason, did not complete their bank robbery.

And I submit that it's perfectly reasonable to assume that a man in Prince, for instance, might enter a bank and remain there several hours and decide not to complete the robbery or the -- his confederates fail to appear or the -- the strategy doesn't work out, and he'd be guilty if proven to have had this plan underway.

And he may spend -- he may very well spend considerably more time than was spent after the bank robbery by my -- by this petitioner who, as the record will show if the Court does look at this transcript, immediately after the robbery which occurred in the West End branch of the First National Bank of Birmingham in West End, they drove using two cars, drove several blocks to their apartment and they proceeded immediately within a matter of an hour or two to divide up the loot according to the testimony.

Justice Potter Stewart: Mr. Cooper --

Mr. Jerome A. Cooper: Yes sir.

Justice Potter Stewart: -- with respect to the Prince case, what if the man who enters the bank, national or federally insured bank today, then robbing the bank and for some reason, his plans go arise, so he walks out of the bank and then he and his confederate plan to do this whole thing all over again the next week, he enters the bank and this time, he's successful in robbing it, suppose proof of all that under the Prince case, is that still all you want to (Inaudible) don't you think?

Mr. Jerome A. Cooper: I think it might be.

I am prepared to go that far for this reason, nothing is being sacrificed by that.

If this -- if it's the same bank and the same plan, the same intended robbery, nothing is being sacrificed from a public policy point of view because they are going to convict this fellow as being a bank robber and they can give him the maximum as a bank robber anyway, and you won't have the problem that -- that might trouble us of someone of -- state in punishment.

If -- when they --

Justice Potter Stewart: (Voice Overlap) --

Mr. Jerome A. Cooper: -- complete the robbery the second time, he is -- he is liable to 25 years and he will probably get it, if -- and he will get it if he is guilty so that --

Justice Potter Stewart: Omitting that question to your case, the present case, what if the man robs a bank today and hides the money for a week, for a month and then disposes them, would he then be guilty of a separate offence under subsection (c) of the statute?

Mr. Jerome A. Cooper: Well, Mr. Justice, when I started worrying about this case, that was one of the problems that worried me and I was grateful after I read the transcript to find that I didn't have that problem in my case.

Justice Potter Stewart: (Inaudible)

Mr. Jerome A. Cooper: However, my personal opinion is that -- that if he is dealing with the same loot that he robbed, it's this -- I give the same answer I gave a while ago, he can -- they can't -- they can't prove that he is disposing of loot unless they prove that it is loot which he stole and therefore, at any -- I mean and -- and get a conviction so that there is no public --

Justice Potter Stewart: Well, unless, they prove that it's loot -- it's been stolen on receipt (Voice Overlap) --

Mr. Jerome A. Cooper: Well, if they've proven it -- proven it was stolen by somebody else, we don't have the problem because there, he -- that's -- that's entirely different set of facts.

I am assuming you are addressing your question to the situation where the man robs a bank --

Justice Potter Stewart: And then a month later --

Mr. Jerome A. Cooper: -- takes the same loot and does something with it.

Justice Potter Stewart: (Voice Overlap) --

Mr. Jerome A. Cooper: In -- in that event, I say the maximum punishment he gets is as a robber.As long as the criminality that they are trying to impose upon him relates to the money that he stole.

I think Congress has given him a maximum sentence -- subjected him to a maximum sentence.

I think the Government has got to elect that.

That's what they want to try him for.

That's all they could try.

Justice Potter Stewart: But you do say that we don't need to answer that question in this case, is it not?

Mr. Jerome A. Cooper: I do, yes, sir, because the facts are, as I put them to you, roughly, and they -- the -- I didn't mention that in my brief.

I -- at the time I wrote the brief, I didn't understand this practice of presenting to this Court in 2255, in fact, I didn't understand 2255 of the fact but [Laughter] matters that had not been considered by --

Justice William J. Brennan: (Inaudible)

Mr. Jerome A. Cooper: Sir?

Justice William J. Brennan: You have a lot of (Inaudible)

Mr. Jerome A. Cooper: Well, I [Laughter] -- I'm in the less select portion of the company because I hadn't heard of it.

I mean there may be others who heard of it and didn't understand it.[Laughter]

Justice Felix Frankfurter: That's because you -- that's because you're not even younger than you really are so -- that you have been later (Inaudible)

Mr. Jerome A. Cooper: Yes, that's true.

Justice Felix Frankfurter: [Laughs]

Mr. Jerome A. Cooper: I should have heard of it, however, we feel that --

Justice Felix Frankfurter: (Inaudible) later, you would have.[Laughs]

Mr. Jerome A. Cooper: We -- we still in Alabama just have -- the old fashion habeas corpus in that -- before we are very familiar with --

Justice Felix Frankfurter: Well, now, may I ask this question?

If I understood your answer, do I understand you to say that you're happily aren't confronted with the problem of robbery one day, secreting the loot and then coming back a month later or a week later and disposing of it?

You're not confronted with that question you say, is that right?

Mr. Jerome A. Cooper: That's correct.

Yes, sir.

Justice Felix Frankfurter: I -- may I suggest that you are confronted with that question, well, not explicitly because of your claim that (d) applies to somebody else but not the robber.

You say you partly rely on the caption and you say that -- that (c) deals with another person than -- than the other fellow?

Mr. Jerome A. Cooper: Well --

Justice Felix Frankfurter: Thereby -- I should think -- I suppose it's right, you're not confronted with it.

Mr. Jerome A. Cooper: I'm not.

Justice Felix Frankfurter: But -- but if you're right about that, then the answer ought to be simple.

If it's the same person, it doesn't matter if it's same day or two weeks later.

Mr. Jerome A. Cooper: It does not.

And I -- I meant to take that position in response to Justice Brennan's question.

Justice Felix Frankfurter: I see, I see.

All right.

Mr. Jerome A. Cooper: The Government has -- has not made much of the facts in this case.

And after I read the brief and heard the argument that my colleague has made preceding me, I can understand why they wanted to argue most about the facts in the Woody case.

They -- the Government gets considerable comfort as they frankly admit it from the facts in the Woody case but they don't get much comfort and they relegate the facts to a Footnote Number 7 on page 22 of their brief in my case.

There, they make this argument.

They say that the record shows that the petitioner did not even carry the money from the bank.

I don't know what the relevance of that is because he was convicted of it.

He was the head of [Laughter] group of men that were carrying it for him.

The loot consisted of currency and redeemed t-bonds.

It was counted later.

Now, that was within -- that was right afterwards not just later.

They got in their car and drove over to the apartment and divided up the loot.

I think I now too may have a lapse because they left part of it in one escape automobile and had to go back and get that.

Justice John M. Harlan: The division of it is among the -- among the robbers, wasn't it?

Mr. Jerome A. Cooper: That is the testimony that the jury heard, yes.Of course, the petitioner -- I -- it isn't relevant and we're not litigating it but the -- the petitioner denied all participation in -- in this.

Justice Charles E. Whittaker: Is this the case in which the loot never was recovered?

Mr. Jerome A. Cooper: Yes, there was testimony by the -- I think, by one of the bank officers that it had never been recovered, and they mentioned that in -- in this footnote.

But the interesting thing that I wanted to call the Court's attention to, and I am not being facetious is that they -- they found it necessary to point out that they concealed it in brown paper bags.

Well, actually, it was a lot of money according to the testimony, and they had to pick it up.

So they picked it up, put it in paper bags out of a gripper or briefcase, something they were carrying which is a same act as putting it in -- in the robber's pocket obviously.

Now, that's a long way from committing, it seems to me, subsequent acts of concealment involving independent impulses or involving independently begun transactions subsequent to the main robbery.

Justice Charles E. Whittaker: Under your theory of these, doesn't make any difference?

Mr. Jerome A. Cooper: It does not.

No, sir.

I -- I thought, however, that I might point out -- it -- it might be helpful to the Court to indicate that the Government had not borne down very hard on the facts in this case at all because they -- they get very little -- little aid from them.

Now, as I say, I was surprised to learn of this procedure or I've learned from reading the briefs and looking at the proceedings in the Gore case that the Government or the parties do make available to this Court the trial transcript at the time and -- and I am agreeable to that here because for the reasons that I have already indicated.

I think that the evidence will at least sustain me in part in the argument that I have made briefly to the effect that this is the -- this -- most appealing type of situation in which a doctrine of lenity will be applied in construing what is, at best, an ambiguous statute.

Justice Felix Frankfurter: But you make -- you make two arguments, as I understand it, that (c) only applies to a person other than the robber.

Mr. Jerome A. Cooper: That's correct.

Justice Felix Frankfurter: And two, that if words like receive, possess or conceal, stores, barters, sells or disposes maybe applied to the robber, there must be some discontinuity in the -- in the activity involved, is that right?

Mr. Jerome A. Cooper: I haven't found it necessary actually to go -- to make that concession that there may be some discontinuity.

Justice Felix Frankfurter: (Voice Overlap)

Mr. Jerome A. Cooper: I have -- I have adopted the conception of this crime as being -- as I tried to explain before.

If the criminality -- if -- if the culpable act of the defendant, who is charged, relates to the money that he stole, they're going to have to prove in that proceeding that he stole the money and therefore, I say the maximum and only punishment for him is as a stealer of money, a taker.

Justice Felix Frankfurter: Well, but that's -- that wouldn't apply to robbing today and getting away with the loot to extent, I mean your argument I understand --

Mr. Jerome A. Cooper: I -- I would reply to that.

I would reply to that.

Justice Felix Frankfurter: Yes.

Yes.

Mr. Jerome A. Cooper: As long it's the same loot because he is still the bank robber and he's --

Justice Felix Frankfurter: But you don't -- you don't say even though, you don't even argue.

You stand on that proposition --

Mr. Jerome A. Cooper: Yes, I do.

Justice Felix Frankfurter: -- comprehensively and you don't even fear assuming it could be applied to this situation, it doesn't -- the record here doesn't --

Mr. Jerome A. Cooper: Well, I -- I meant --

Justice Felix Frankfurter: (Inaudible) shows an organic single thing contemporaneously transpired.

Mr. Jerome A. Cooper: I meant to suggest, of course, I was saying the matter that -- that's why I'm willing to -- in oppose, no objections to considering the -- the evidence and so forth.

But what I meant to conclude with was the fact that reading this record, it makes such an appealing case for the doctrine which this Court has -- has evolved in Bell and the Universal C.I.T. case and -- and has repeated in the Ladner case recently that here, the -- the disadvantage is, in this type of proceeding, are all against the -- the accused and largely with the Government.

It's -- it's an eye opener to read a record like this and realize that this man, and here again, his guilt is not before, but he was convicted largely over his denial, largely on the testimony of an accomplice who was indicted with him and turns state evidence.

It was -- the Court of Appeals found some corroborative evidence in the -- at best, I would call sort of tremulous uncertainty of the ladies in the bank whose testimony was -- was hardly positive.

They -- the -- the jury convicted this man largely on the testimony of that accomplice who was brought there by the Government from some federal institution, as I recall, in Indiana or somewhere, and whose wife was under sentence at the same time, whereas, the defendant, represented by the court-appointed counsel, was unable to obtain the testimony of the other -- the other co-conspirator who was at the time waiting the imposition of the death penalty in a Florida institution and who, according to a showing which the Court permitted, was prepared to say, as he faced this maker that -- that this man, Heflin, was not a participant in the robbery.

And the only way that information got to the jury was through a showing.

It would permit it -- the counsel was permitted to read, which is considerably less effective as we all know.

Justice Charles E. Whittaker: You mean an offer of proof that (Inaudible)

Mr. Jerome A. Cooper: It was what we call a showing, Mr. Justice.

In other words, counsel for the accused was permitted to read a statement and say to the jury, “If I could get this man here, he would testify to this effect.”

And, of course, the Government, by agreeing to that showing, does not wave its right to impeach it or attack it and does not actually do anything more than agree that that's what the man would say.

However, after that showing was in, and I'm getting pretty far-field but I think it's very interesting.

After that showing was in, the Government was permitted to put the wife on of the man, whose statement had been read, to testify over objection of the accused that that was not a correct statement of his views and that he had previously stated something to the contrary.

That was obvious hearsay and inadmissible, incompetent.

And counsel did at best to keep it out and later, the judge charged the jury -- reconsidered and don't consider that.

That -- that was incompetent ever, saying we should not have heard it but juries are -- juries, they -- that -- that was a -- a sort of thing that, I think, happens in the course of trials frequently and the judge was doing the best he could ruling hurriedly.

But I say that this fellow has been put to enough burden without having a strict construction of the statute imposed on him.

I don't think Congress meant for him to be subject to consecutive sentences for what the indictment shows and what the evidence will show.

Justice Felix Frankfurter: But if you -- if you concede in your position, you will be going beyond what you're doing for this fellow, you'll be (Inaudible)

Mr. Jerome A. Cooper: Well, I -- I think that because we are having so much trouble in this field, I didn't realize until I started reading all these cases that perhaps a pronouncement, a little more general than the facts of my case require for, would be helpful to the bar.

Justice Felix Frankfurter: Well, they have to construe the statute, don't you think?

Mr. Jerome A. Cooper: Yes, thank you.

Chief Justice Earl Warren: Mr. Gilinsky.

Argument of Theodore George Gilinsky

Mr. Theodore George Gilinsky: Mr. Chief Justice, Associate Justices of this Court, may it please the Court.

I believe there is a preliminary question for decision which I feel obligated to call to this Court's attention before I discuss the matters of multiple sentencing here.

Very briefly, petitioner has filed a motion under either 2255 or Rule 35.

Very briefly, it is the Government's position that under either case, there is no jurisdiction to hear the matter.

Under 2255, we feel that this is an outgrowth of habeas corpus.

As such and as the statute, itself, notes --

Justice William J. Brennan: (Inaudible)

Mr. Theodore George Gilinsky: We did not raise this in the District Court in those terms and it was not raised in those terms in the appellate court.

However, I don't believe that makes any difference on jurisdiction because McNally versus Hill upon which we rely also very clearly noted that the jurisdictional question was not raised below.

Under 2255, it's premature because he is presently in custody under an admittedly valid 10-year sentence to be followed by a sentence which he is not contesting of three years or a total of 13 years, that he is uncontesting here, to be followed by the year and a day sentence which he is presently arguing about.

Therefore, under habeas corpus as well as well as, we believe, under 2255, since he cannot be released from custody, he has no standard either in habeas corpus or 2255 to bring this type of motion under that section.

Under Rule 35, which is unrelated, as we feel, to the question of custody, however, is a rule of a federal criminal procedure and has so been held by this Court.

As such, if this is under Rule 35 where we think most probably this type of matter lies, he is also late in coming to this Court because he has filed an untimely petition for certiorari.

I say parenthetically that this is no fault of his present counsel because his present counsel was not in the case, so the fact that he is late, however, is not to be relegated to his present attorney, nevertheless, he is late.

As such, we feel that there is no jurisdiction then.

Justice John M. Harlan: Couldn't he go back and make a motion all over again?

Mr. Theodore George Gilinsky: He can go back and make a motion all over again under Rule 35.

That is true.

That does not -- I assume that is --

Justice John M. Harlan: We're -- we're powerless to -- we should disagree with the Government's position.

We're powerless to anything except go through that rigmarole.

Mr. Theodore George Gilinsky: If Your Honor please.

I -- I believe it's a little more than rigmarole.

The petitioner here has already gone through, for example, a rigmarole because what he has done here is sought review of a 1955 ruling by starting all over again.

In 1955, at the Court of Appeals, he directly attacked exactly the same thing he is attacking now, and he got partial relief.

He didn't seek review of that.

But what he did was go through the rigmarole of starting all over again by -- and incidentally, consolidating his gains, he started all over again in the District Court with a 2255, Rule 35.

In other words, this is a practice which has gone through.

I think it also possibly has some merits however because after all, this is a rule of this Court, Supreme Court rule of 30 days.

Justice Felix Frankfurter: May I ask you this?

Under -- a motion under Rule 35 brought before the concededly valid terms whether or not he is in confinement, a concededly valid term, he brings -- applies under Rule 35 for the exertion of an allegedly illegal extension of that term if and when it expired for the District Judge deny that motion, is that appealable?

Is that a final judgment or appealable?

I should think it's not.

Mr. Theodore George Gilinsky: I think I have difficulty with it.

But I do know this, that that is what happened in Prince, so that it did get here.

In Prince, if this Court will recall, the Court -- the District Court considered the motion under Rule 35 in this Court's opinion in Prince, very carefully, I -- at least, I thought, noted that that was a motion under Rule 35.

Also, I should mention, although it's not in our brief, Holiday versus --

Justice Felix Frankfurter: (Voice Overlap) we -- we --

Mr. Theodore George Gilinsky: Pardon me.

Justice Felix Frankfurter: -- we review the Court of Appeals.

Mr. Theodore George Gilinsky: That's correct.

Justice Felix Frankfurter: I was just wondering -- I'm just interested whether because that makes it less than a -- I should think that, I maybe all wrong, but I don't think that would be a final judgment.

I don't think it would happen anyhow until the fellow's full term has expired (Inaudible) 2255 or -- or on the other hand, it might be argued that it's the motion, since Rule 35 is intended to serve some purpose, perhaps, the ability is implied.

However, we haven't got the proper --

Mr. Theodore George Gilinsky: Well, this Court once had (Inaudible) which had this problem.

And while it doesn't deal directly with this issue that you raised -- treated it, and -- so I -- I can't answer any further on that -- on that point.

But I -- I feel called upon at least to bring either of these to this Court's attention.

Lest, however, as we say, petitioner be mislead into thinking that an otherwise meritorious contention which first was turned down in 1955 is again rejected solely because of some procedural defect -- defect which he has been noted, he can start all over again.

We submit that petitioner's great reliance upon the Prince decision, the facts or the legislative history therein is in this context misplaced and this bring us to the second issue, whether one, who has successfully consummated a bank robbery of a bank which either is insured by the United States or is a national bank, can then proceed to conceal for future use or dispose of the fruits of this crime to the detriment, obviously, of the United States without any fear of prosecution or punishment for such further separate activity.

And this -- there are two very clear points to be made, we feel.

Usually a defendant in a criminal case insists upon a strict construction of the penal statute.

We feel that what the petitioner here desires is to the contrary.

He wishes to write into subsection (c) an exception to the fact that he was the bank robber.

And I suggest to this Court, and this is not what Congress did in the statute, he used all inclusive language and they did not write in the exception that this property must be first stolen by any other person.

Now, I go further in this case or we can always imagine and figure out words to be placed in statute to create a favorable situation.

In this particular instance, however, Congress did have a prototype.

Now, this, unfortunately, is not in our brief but we feel that because of what has been discussed in regard to what language could go into statutes, it is very necessary that we call this to the Court's attention.

In 1940 when this statute was passed, there was on the books, Title 18 United States Code, 1946 edition, 101 also 35 Statute 1098.

Now, I emphasize the 1946 Code because it has been subsequently changed.

But in other words, this statute that I have now cited was on the books in 1940 when subsection (c) was added to the bank robbery statute.

Now, this section held in connection with the theft of government property in regard to the receiver and it had this wording, “Whoever shall receive, conceal and so forth,” the typical wording, “with intent to convert to his own use and so forth, any money property and so forth of the United States which has heretofore been embezzled, stolen or purloined by any other person, by any other person,” I emphasize, “knowing the same have been embezzled and so forth shall be punished.”

In other words, what we are saying to this Court is what petitioner is asking this Court to do is to write into subsection (c) of the bank robbery statute, whoever does these things with money which has been stolen by some other person shall be punished and so forth, but we suggest not only is that not what was done by Congress but we further suggest that if that was what they wanted to do, if that's what they wanted to do, they have the prototype at the time in the context of not just transporting, which gets to another jurisdictional constitutional problem, but in the context of theft which is what we have in the bank robbery statute.

Justice Felix Frankfurter: May I suggest that when you say they had a prototype, you are implying a process of rationality to congressional legislation that I wish were justified, but I don't think is, I don't know anything about your statute except what you told me and the 35 Stat.

That means somewhere 1900 and whatever it is.

Mr. Theodore George Gilinsky: 1909.

Justice Felix Frankfurter: 9, somewhere around there, is that it?

Mr. Theodore George Gilinsky: That -- it was in before that.

Justice Felix Frankfurter: So that you've got a statute passed some 30 years before, at least 30 years before, coming out of, the Lord knows what, committee of the Congress, framed by, the Lord knows, what draftsman and when you say prototype, you assume that Congress dealt with this problem in 1940, the draftsman of this committee has that before it and said, “Ah, this is my example I shall not follow.”

That's a -- that's a little too irrational, what goes on under Hill, isn't it?

Mr. Theodore George Gilinsky: I -- I agree that that is not the type of thing that -- as a matter of fact, that is not what happened.

So I mean we don't have to speculate because I think the legislative history, as I will get to in a moment, is much clear than that, so we don't have to speculate.

This -- this was not said in so many words, as I am saying.

But what I am saying is that this is what the petitioner is reading the statute to read, and I am saying that in the usual criminal case, it's just the opposite.

He doesn't want to have anybody change any words.

He wants to read it as it is.

And I suggest as it is, as it is, it covers “whoever” and as such, covers bank robber and anyone else.

Justice Felix Frankfurter: But do you not think (Inaudible) argument is that you don't read any statute that I do not know maybe criminal statute literally just as a matter of words.

Mr. Theodore George Gilinsky: That's correct.

Justice Felix Frankfurter: And therefore, in connection with this, he gave it.

He says this contemplates the first (Inaudible) not the original robbery.

You are going to tell us why the legislative history (Inaudible) aren't you?

That's what you have to do.

Mr. Theodore George Gilinsky: I am going to come not quite in that context but it will come close.

Justice Felix Frankfurter: All right.

Justice Hugo L. Black: Did you cite that 35 statutes in your brief?

Mr. Theodore George Gilinsky: I did not.

Justice Hugo L. Black: (Inaudible)

Mr. Theodore George Gilinsky: I will give it again to you.

Justice Hugo L. Black: I -- I have them.

Mr. Theodore George Gilinsky: Oh, I -- I did not say it in brief.

Justice Hugo L. Black: I was looking to see what point (Inaudible)

Mr. Theodore George Gilinsky: Yes, sir.

This statute -- first I give the United States Code, it's 1946 edition, 18 United States Code 101, 35 Statutes 1098.

This, by the way, is now 18 United States Code 641.

It does not contain that language.

I move on to the legislative history because I think this also is not as simple as petitioner would have this Court believe and does not lead us into the same type of problem that Prince led us into.

The legislative history of this subsection is brief but it is very much to the point.

It is based almost entirely, almost entirely upon a letter which was sent by the then Attorney General to both the House of Representatives and the Senate.

There was no debate on the floor of the House or the Senate.

There were no amendments made to the proposal.

I can find no discussion of it.

We are therefore left with solely this letter, which, by the way, composes almost the whole of the Report of the Senate and composes almost the whole of the Report of the House.

In this letter, which we have set out for the greater part on page 15 and 16 of our brief, the Court will note that one thing -- that certain things are made very clear.

First of all, the letter clearly called for a separate substantive offense In specific language, it called for that and I assume that's what it meant, number one.

Number two, unlike Prince, this was not a problem that arose because somebody got into a bank that they weren't able to convict him of.

This clearly came from two other statutes, the wording of -- of the bank robbery receiving statute, in other words, clearly came from the National Stolen Property Act and the ransom provision in the Federal Kidnapping Act.

I say “clearly came” because the present statute contains seven verbs and the only way you can get them is to put these two together.

But the legislative history clearly says that's where they got this provision.

I should also mention at this time then in order to relate it to the previous case that there is also no question that the National Stolen Property Act wording came directly from the Dyer Act.

So what we have, what we have in this section are a series of words which, I assume, have some meaning then in relation to theft of cars, transportation of cars, interstate transportation of other property and securities in relation to the disposition of ransom money and although it's not mentioned here, it's quite clear that the same provision is also involved in receiving stolen cattle.

And there are numerous others federal statutes, in other words, that have exactly the same meaning.

Now, this becomes important in this sense.

This statute, subsection (c) was passed in 1904.

The bank robbery provisions which this Court considered in Prince were substantially completed by 1937 with almost all their amendments.

This came in, in other word, at a separate time and at a time when these same words, these same words in the context of some of these other acts had -- we believe already had a uniform consistent interpretation.

In other words, by 1940, for example, there was no question, at least it had not been raised as a question which had been cited adverse to the Government that the transporter as well as the receiver could be the same person under the Dyer Act.

As such, we suggest then, if these are the same words, and it's such a much later date and written and suggested coming from Attorney General who we suggest most probably knew of these other cases, then if we read anything from this, as to intent of the legislation, we suggest it should be read that they intended, that they intended then that both sections could apply to the same one and the same person.

Justice Felix Frankfurter: Aren't you making a jump there?

It means -- it means saying that the Attorney General recommended that Congress exceeded his recommendations.

We had a separate substantive offense, we still have to decide what the scope of the offense is which they created.

And automatically, it doesn't follow that -- doesn't reject the view that the new section dealt with recipient of loot, that there was already enough -- there were enough penal provision, penal feature being with the perpetrators of -- of the -- getting the loot.

Mr. Theodore George Gilinsky: I agree with what you have said.

I am not sure that I -- I understand what you mean by made an extra jump because to my mind --

Justice Felix Frankfurter: Well, I mean the fact you emphasize -- you emphasize very strongly that (Inaudible) that Congress meant to create a new substantive offense.

The Attorney General said that the (Inaudible)

Mr. Theodore George Gilinsky: Well, as I -- I thought I mentioned.

Maybe this is not an answer.

At the time, I don't mean to be repeating but I am not sure, at the time I feel these words did have a regular meaning --

Justice Felix Frankfurter: But did they have a --

Mr. Theodore George Gilinsky: -- 1940.

Justice Felix Frankfurter: -- did they have a regular meaning?

Mr. Theodore George Gilinsky: Because there were a number of cases by 1940.

In other words what I am saying is that by 1940, when this section came in, there were already a number of cases which had been decided under the similar wording in these other statutes.

Justice Felix Frankfurter: The National -- take the National Stolen Property Act, what is quoted, was --

Mr. Theodore George Gilinsky: Well, I --

Justice Felix Frankfurter: -- that a U.S.C. Title 18, Section 460 (Inaudible) that must be different from your 1940 101, is that right?

Mr. Theodore George Gilinsky: It is.

Justice Felix Frankfurter: If that section --

Mr. Theodore George Gilinsky: But it is --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Theodore George Gilinsky: -- sir.

But it is.

Justice Felix Frankfurter: (Voice Overlap) that section, 416, and the Federal Kidnapping Act, 18 Section 408 (a) and (c) (1).

Was the proposal of the Attorney General Jackson based on legislation then on the books for all practical purposes, it then would be a prototype for all practical purposes as (d) is now phrased which had been construed by court to include as a disclosure the original purpose, is that what you are saying?

Mr. Theodore George Gilinsky: And that's what I am saying.

But I am saying it a little further because I must go one more step and that is I have said that the National Stolen Property Act in turn came directly from the Dyer Act.

Now, the Dyer Act is the one that was involved in the Woody case.

But I say that because by 1940, the bulk of the cases are obviously transportation of stolen motor vehicle rather than of securities.

But I say this, that by 1940, it was a consistent and only one that the perpetrator of the transportation could be the same person who also could be charged and convicted as the receiver.

Justice Felix Frankfurter: Your -- your brief, I take it --

Mr. Theodore George Gilinsky: Cites on --

Justice Felix Frankfurter: -- documents -- documents the cases --

Mr. Theodore George Gilinsky: -- on page --

Justice Felix Frankfurter: -- which construe legislation and you're arguing that when the Attorney General opposes legislation to fill a gap which he found to have been filled in other domains of national concern.

Presumably he took along the construction (Inaudible)

Mr. Theodore George Gilinsky: That's correct.

Justice Felix Frankfurter: (Inaudible)

Mr. Theodore George Gilinsky: On page 17 of our brief, Your Honor, we cite from three jurisdictions, Court of Appeals, at various times before 1940 what we think are representative examples.

And I -- I can't say that I checked every case but all that I have read, I find that this is the consistent position.

And as a matter of fact, the Court will recognize that we have gone still further and said that even up to now and as many courts have understood there has still been no radical change from this in these transportation and receiving cases that should have bothered any one up to now.

So that certainly, by -- by 1940, what I am saying is, a construction had been put on these words, and the Attorney General, I assume and I -- I think should assume this, knew that.

And when he recommended these words and directly from these statute he says so that that's what he meant at least.

Justice Potter Stewart: Mr. Gilinsky --

Chief Justice Earl Warren: Is there any helpful legislative history on -- on the National Stolen Property Act or the Federal Kidnapping Act, Mr. Gilinsky?

Mr. Theodore George Gilinsky: Not as far as I could find that is helpful in the context of our problem.

Chief Justice Earl Warren: Is there anything in there to show whether these -- these two Acts were -- were enacted to apply to offenses rather as -- as to where it is in the underworld as distinguished from the thieves themselves?

Mr. Theodore George Gilinsky: The statutes of the National Stolen Property Act as well as kidnapping came in at a time, I believe it's 1934, when there were a number of anti-gangster statutes, I believe they were called.

And as I recall, there were seven or eight various Acts which were put in all at one time in this one period.

Justice Felix Frankfurter: I think Attorney General Cummings that was --

Mr. Theodore George Gilinsky: That's correct.

Justice Felix Frankfurter: -- was the prime mover of that.

Mr. Theodore George Gilinsky: That's correct.

And if this Court will recall, that -- that was the background of these two statutes, but there is no question that the National Stolen Property Act came from the Dyer Act, that is the motor vehicle which is much older because all the way through that history, they say that all we are doing is extending the Dyer Act to the National Stolen Property situation.

I might say here there is good reason to suppose that the Attorney General wasn't -- could not get at the same result by using the National Stolen Property Act.

Although in a typical bank robbery case are -- there is no doubt, I suppose, that in an ordinary run, there is an interstate transportation also so that they would have another receiver clause that he could have used.

Although, I think it's clear that what he wanted here was something that was not limited by an interstate jurisdictional problem, one.

And two, they didn't want to have any limitation as to amount which the National Stolen Property Act has a limitation on in order to avoid every offense that goes across state lines.

Justice Potter Stewart: Mr. Gilinsky, the risk of confusing two separate issues in this case, two separate arguments, may I ask you this?

Is there any language in either the -- in the Dyer Act or the National Stolen Property Act or in the so-called Lindbergh receivers part of that Act, similar to the language that we have here imposing by reference the punishment provided by another subdivision for the taker?

Mr. Theodore George Gilinsky: I think I better explain if we go back a little bit and explain how this gets in there first.

I think --

Justice Potter Stewart: All right.

Mr. Theodore George Gilinsky: -- that might explain it.

This is another part of legislative history.

The Act -- subsection (c), as originally passed, did not have this language in it.

Now, we have set this out also in our brief.

It had a separate penalty clause, unrelated to this question and the taker.

In 1948, in the general codification of the whole criminal code, a number of changes were made in all -- in other sections including this section.

The thought being to make a uniformity of punishment, in other words, the reason this word gets in there now at least as far as we can see is this.

Prior to this -- to the 1948 re-codification, there was a possibility, you see, under the change in the robbery provision that a difference in amount robbed could lead to different sentences.

This was not in the receiving clause because it had its own penalty provision.

As explained in not only this statute but in all the others in the attempt to make uniformity without separately spelling out the uniformity, this was one of the means.

In other words, to put this phrase in then made it so that whoever receives and so forth under this amount will not be punished by the greater penalty.

That -- now, we don't think it has -- makes one -- helps one way or the other.

And we further cite in our -- in our brief but we -- we suggest that at the time of the 1948 codification, not only in the report, but on the floor, Senator Taft asked the question of what -- what is this huge bill?

Is there any real changes in here?

And he was told that in the 1948 codification, the intent of Congress was not to change the purpose, not to change the purpose of any of this legislature.

Whatever we can draw from, we suggest that the words in the penalty clause now do not help us one way or the other in regard to construction as to what the purpose of the present statute is.

Justice Potter Stewart: In --

Unknown Speaker: (Voice Overlap) --

Justice Potter Stewart: Excuse me.

Unknown Speaker: (Inaudible)

Mr. Theodore George Gilinsky: They mean this.

They mean that whoever receives, disposes, conceals and so forth shall be punished depending upon the amount, depending upon the amount that he disposes, conceals and so forth which is as the taker because as the taker, you see, can be punished now differently depending upon whether he takes more money or less.

Justice Potter Stewart: And your point is -- and your point is just like -- let's see if I have it, that these other statutes do not have this language in it, this language as you say did not come until the re-codification of the law because in these other statutes, there is no difference in the -- in the punishment to be imposed dependent upon the amount, is that it?

Mr. Theodore George Gilinsky: I can't answer that for sure because I've not made a detailed analysis for that.

But I -- I think I'd be called upon to make -- to answer for sure.But one of the problems, you see, is this.

There are very few federal crimes of theft.

As such, you don't -- you don't find the taker in the ordinary statute because we -- we don't have a constitutional basis to grab on to the jurisdiction.

Justice Potter Stewart: It's usually transportation.

Mr. Theodore George Gilinsky: That's right.

Justice Potter Stewart: Yes.

Mr. Theodore George Gilinsky: So that we don't -- we -- we just -- chances are we don't get this type of relationship so that I -- I can't positively say without studying many of the others.

Justice Potter Stewart: But in any event, in answer to the question I originally asked you, I -- the answer I expect is no.The other statutes do not have this language in it.

Mr. Theodore George Gilinsky: I suspect that's correct.

Justice Potter Stewart: Is -- is that --

Mr. Theodore George Gilinsky: I suspect that's correct.

Although they would have -- there are other codifications which have taken out penalty provisions and referred them to other section which I -- so far as I'm concerned, that's all this does.

It refers to penalty to another section.

Chief Justice Earl Warren: Well, Mr. Gilinsky, it's your theory as -- that the moment that the robber scoops up the money in the bank that he commits two crimes in that -- at that precise moment, he both took and received the money.

Mr. Theodore George Gilinsky: No, that is not my position.

Chief Justice Earl Warren: Where then -- where then is the dividing line?

Mr. Theodore George Gilinsky: Your Honor, this -- as I understand, the same type of question we had in Woody and I think --

Chief Justice Earl Warren: Well --

Mr. Theodore George Gilinsky: -- I think it's consistent to say.

Chief Justice Earl Warren: I don't think you've got -- I don't think it's exactly --

Mr. Theodore George Gilinsky: No, it isn't exactly the same.

Chief Justice Earl Warren: (Voice Overlap) on the facts not that the --

Mr. Theodore George Gilinsky: That's right.

Chief Justice Earl Warren: -- same but can you answer that precise question?

Mr. Theodore George Gilinsky: Yes, I think what we have here is a problem of offenses.

Now, I may explain it in different terms and it has been explained before, but I'm trying to say the same thing.What we have here are different offenses.

To me, to my mind at least, it requires something other than an initial impulse.

In other words, I would say to you if receiving means the same as when he scoops up the money, and I don't believe it does, but if it means that, then I would say no, you cannot convict a man twice --

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: -- who robs the bank.

You cannot do that.

Under this statute, I don't --

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: -- think you do either.

To -- let me start here.

Although these are not dictionary words, to my mind, they -- to start with, they have a different -- they have somewhat of a different meaning.

In other words, when a man receives something, at least, I assume there's been a tender.

You don't have that with a taker.

A taker -- there's no tender to a taker.

But more -- and a more -- but more important, I think the word “receiving” in this statute takes on meaning from the rest of the words in the statute as well as the whole purpose and purport of the section.

In other words, what we had in the previous sections, as you stated in Prince, I believe, was the gist of the crime is to steal.

All of the words, entering or robbing, all relate to this -- to this intent of stealing.

But these words, I suggest, Your Honor, do not relate to this.

These words are a group of words intended to cover all possibilities, not necessary that they all apply it once, but all possibilities of people who are dealing with funds which had been taken from banks and, I suggest, which the Government obviously in the case of insured or a national bank has certainly a perfect right to deter.

In other words, if they're taking our money and disposing of it, certainly, the Government should have the right to penalize someone.

Chief Justice Earl Warren: Oh, yes, of course.

No questions that if the Government wanted to do it --

Mr. Theodore George Gilinsky: Yes.

Now, there's --

Chief Justice Earl Warren: -- especially that the Congress did it.

Mr. Theodore George Gilinsky: Right.

Chief Justice Earl Warren: Now, where -- where in this case, Mr. Gilinsky, would you say that the -- that the receiving entered into -- into the case of this petitioner?

Mr. Theodore George Gilinsky: I don't think it did.

Chief Justice Earl Warren: You don't think, then he -- then how could he committed that crime?

Mr. Theodore George Gilinsky: Well, let's -- let's just before careful.

Let see what he was charged with.

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: You see, he is charged -- he -- he is also charged with disposing and concealing.

Now, if -- if we get to the facts, counsel has said that they are not -- that -- that they -- they don't hurt him, I think they do.

Let me call this Court's attention to this.

He -- he doesn't seem to think there -- as much to the fact that the Government didn't get back or the bank didn't get back its money, didn't get it back.

I suggest that this is really evidence of disposition.

This is more than -- than an ordinary type of thing.

This isn't a question of a man who just robbed a bank.

This is a man who has done something entirely separate.

He is disposed of the money.

He is concealed it or disposed of it.

Now, it's true, the Government can't prove maybe where he has buried it or can't prove where he has got rid of it but certainly, we can prove that we didn't get it back.

Now, he has done something to it.

We think this is --

Chief Justice Earl Warren: He sold it.

Mr. Theodore George Gilinsky: Or sold it.

Let's say he sold it --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Theodore George Gilinsky: -- or -- or handed it somebody else to get rid of it because he was afraid that there was -- that the serial numbers would be found out or he is -- maybe he has got it still buried.

Chief Justice Earl Warren: Sure.

Mr. Theodore George Gilinsky: But in any event, certainly, this came as a separate matter.

It -- it comes as a separate impulse.

It could -- there could be more than one crime here and certainly, the Government having insured the bank or if it's a national bank has a right to deter this action.

Now, we think that when you get a separate impulse or separate facts, and as previously mentioned in Woody, most of these cases have separate facts, then you certainly do have two crimes.

Chief Justice Earl Warren: Well, can you conceive of a man who -- who robs a bank, who doesn't, at the same time, have the -- the impulse to -- to conceal the -- the property that he steals --

Mr. Theodore George Gilinsky: Let me --

Chief Justice Earl Warren: -- at the precise moment?

Mr. Theodore George Gilinsky: I -- I think the problem is this, Your Honor.

The question is whether someone who starts on a course of crime doesn't really consider some of the end results.

And I think that's true.

In other words --

Chief Justice Earl Warren: But I don't think it's that by -- isn't the most evading instinct, the most evading impulse of the man when he stills it to take it for himself and keep it?

Mr. Theodore George Gilinsky: Very true.

Very true.

Chief Justice Earl Warren: Not -- it isn't collateral thing, it's -- it's not something he doesn't think through.

He does it because he wants it for himself when he takes it.

Mr. Theodore George Gilinsky: But there is also this, Your Honor, that I think -- and I think it's probable and possible that after committing that act -- and I -- I will say this.

He is -- he is going to rob a bank and there is no question that he is going to get some profit out of it.

He is either going to sell it or something.

After he robs the bank, then the next question is what does he do?

I am not so sure in the typical case he has thought the whole thing through.

And if this is possible, then we may be able to show separate acts of concealing which are -- as a matter of fact, could very well be thought of afterward separate acts, as a matter of fact, which do not relate even to the same sum of money because he is obviously now relegated to do it, for instance, in this case.

Well, I -- it's hard to tell whether it's a four but they split it up some way, so he isn't dealing even with the same amount when he is concealing as when he was stealing.

He may do even further.

He may conceal part of it and he may spend part of it.

Chief Justice Earl Warren: But where in the -- in the facts of this case do you consider the concealment to have started?

Mr. Theodore George Gilinsky: Well, I think, Your Honor, that the facts of this case were these, that the -- that the concealment came into effect after the bank robbery had been committed.

What are facts of concealment?

Number one, I think, is the fact that a number -- two witnesses here testified that over a year and three or four months later, none of this money has come into -- has come back.

Number two, I think that the evidence in this case showed that he -- they went to this house that night and they spent considerable time dividing the money and the next day, the next day, they packed it away separately into these bags and in the cars and took off.

The evidence produced in this particular case shows that on the following the day, they arrived at a place where they picked his wife and there is some more talk now about.

And one of the accomplices is with them about where the money was at that time because the landlady who helps put him some luggage doesn't see the money in the car.

He -- it has been concealed as more evidence of purposeful now not just part of scooping up but purposeful concealment.

Now, certainly, it's been disposed of.

Chief Justice Earl Warren: You don't think -- you don't think they didn't take the same trouble to conceal it when they took it to this place where they divided up an hour later?

Mr. Theodore George Gilinsky: I know they didn't because the facts are that petitioner did not take any of the money from the bank, he did not conceal anything because he walked out of the bank without any money.

The -- of -- some of the others took the money.

They took it in two stolen cars as getaway cars in separate directions.

They got the money --

Chief Justice Earl Warren: For the purpose of concealing.

Mr. Theodore George Gilinsky: Purpose of concealing.

But we can't charge him with that.

They also get into this house and they don't bring all the money in at the same time.

And he doesn't have it even then.

They talk about splitting the money as to what division should be made, so I assume that the jury has a right to suppose they weren't even sure how they were going to divide it yet.

So that even at this point, petitioner doesn't know how much money he is going to profitably get rid of.

It is split and part of it is not split evenly because there is some talk about whether others have debts.

And I only mention this because I think that is an indication of a possibility of disposing of something prior to the time even he even have it so that there wasn't possible talk of a crime then.

In other words, what I am trying to say is there are number of acts, I think, that anyone and at anytime could have been suffered.

And I am saying further that from this whole set of facts which goes on for a period of time after the bank robbery.

And certainly, none of this is admissible if all we have is a bank robbery because anything happens after it becomes irrelevant really, if all we are going to do is charge a man with bank robbery.

All this becomes -- all of this evidence becomes irrelevant as a matter of fact.

So that -- what -- what all this evidence adds up to is this, that a year and four months later, the Government still hasn't found the money, so it has been concealed part of it.

And I emphasize not the money that has been robbed but the part of the petitioner has as not been returned to the (Voice Overlap) --

Chief Justice Earl Warren: Well, then, in your -- under your theory, did they catch him -- a robber immediately after the robbery is committed one crime but they don't get you --

Mr. Theodore George Gilinsky: That's correct.

Chief Justice Earl Warren: -- for years committed to.

Mr. Theodore George Gilinsky: Not -- not necessarily.

Chief Justice Earl Warren: Well --

Mr. Theodore George Gilinsky: I --

Chief Justice Earl Warren: -- he's -- he's concealed it for a year (Voice Overlap) --

Mr. Theodore George Gilinsky: Yes, if -- if there is some evidence of that.

Chief Justice Earl Warren: -- as -- as you say and if that's -- if that's --

Mr. Theodore George Gilinsky: If there is some evidence of that.

Chief Justice Earl Warren: -- the evidence that --

Mr. Theodore George Gilinsky: If there is some evidence.

Chief Justice Earl Warren: -- you rely on for concealment, you say the things that happened right afterwards don't count if -- so -- since --

Mr. Theodore George Gilinsky: Well, it isn't solely a matter of time, Your Honor.

At least, I don't relate this problem solely to a matter of time.

I think time is a factor but I think it has to do with what --

Chief Justice Earl Warren: What was the main factor in this case?

Mr. Theodore George Gilinsky: I think it's separate acts, entirely, separate acts.

Chief Justice Earl Warren: I know, but what acts?

Mr. Theodore George Gilinsky: Acts of putting it into a bank and concealing it in a different form than it was because -- let me -- let me pose this.

I think that in an ordinary case, if you see a brown paper bag, a brown paper bag in a backseat of a car, this -- an ordinary shopping grocery bag, this is not a suspicious article.

This is not a suspicious article.

I think, in other words, that that is not just an innocuous or a happenstance that they did that.

I think this is a purposeful concealment --

Chief Justice Earl Warren: Well, of course, there's a --

Mr. Theodore George Gilinsky: -- just as painting of the car in the stolen car case is a purposeful concealment while not the mere driving of the car across the line.

Driving may not be the concealment, although it has -- has been suggested it could be.

And that's not a separate one.

So that -- but, in any event, I think that's -- that's what the acts are.

But furthermore, in this case, and I -- I should say this to the Court, the reason we didn't put a lot of facts into our brief is not because we don't believe they substantiate our position, we do believe they do, we think what -- we didn't want to be inconsistent with Woody and just not bring this case here because that would be suspicious.

But we think that petitioner and rightfully so, petitioner's counsel has posed the question here unrelated, unrelated to the factual context.

In other words, after -- you couldn't tell this from the petitioner's petition as he wrote it to United States but in counsel's word and as the brief is prepared, we feel that he has presented a question which is unrelated to the facts.

In other words, he is saying no robber regardless of the factual situation, no robber can ever be charged and indicted for the crime of concealing and disposing.

And in that context --

Justice Potter Stewart: Well, I think his argument is a little different.

Wasn't it that the Government had to take its choice between these sections?

Mr. Theodore George Gilinsky: That was a subsequent argument.

I think the argument in the brief is directed to this.

Now, the question of choice of -- and -- and this -- and I will say this, this question of choice came up, I think, in the relation to some other suggestions in Prince because that was the type of situation suggested by Prince.

And if that is so, I would like at this time to go to this case and point out what we feel are some of the distinguishing factors.

Why this is not Prince?

Perhaps, that would in turn show why the -- the question of multiple choice on the Government's part is not the answer to the question.

Justice Felix Frankfurter: Before you do that and -- and perhaps before the hour is up, I -- I need your help, Mr. Gilinsky.

I now looked at the two sections to which Attorney General Jackson refers in his letter, namely, the National Stolen Property Act and the Lindbergh Act, I find that this section (c) which is, as I understand, what he submitted and what was passed, is that correct?

Mr. Theodore George Gilinsky: That's correct.

Justice Felix Frankfurter: Has sudden -- the --

Mr. Theodore George Gilinsky: Right.

Justice Felix Frankfurter: -- sudden -- sudden condemnation.

I find that 416 and 408 respectively have difference but he is taking -- he has clubbed all the verbs from the two sections.

Mr. Theodore George Gilinsky: I -- I can make --

Justice Felix Frankfurter: Now --

Mr. Theodore George Gilinsky: -- it simple, I believe.

I can say this.

Justice Felix Frankfurter: Before -- that is -- my point is that as I understand you, you say that there were rulings certainly in the lower court under 408 (c) and 416 respectively and with the Chief Justice's permission I would like very much if you could submit a memorandum indicating what decisions there were which construed those two respective sections.

All of which was then compounded into present (c).

Mr. Theodore George Gilinsky: I am afraid I can't --

Justice Felix Frankfurter: Or did I misunderstand you?

Mr. Theodore George Gilinsky: I -- I didn't mean to say that if that's what I said, although the reasoning is the same.

I -- I said that the subsection (c) in the bank robbery statute came from the two that you have recited.

I made a further statement though that I think is essential here, and that is that the National Stolen Property Act came from the Dyer Act.

Now, I say that because a great bulk of cases, down to 1940, that arrived at the Court of Appeals are under the Dyer Act and are not under the National Stolen --

Justice Felix Frankfurter: All right.

Mr. Theodore George Gilinsky: -- Property Act.

Now, I have documented --

Justice Felix Frankfurter: The Dyer Act is the parent of the National --

Mr. Theodore George Gilinsky: Right.

Justice Felix Frankfurter: -- Stolen Act --

Mr. Theodore George Gilinsky: Right.

Justice Felix Frankfurter: -- and you said (Inaudible) under the Dyer Act --

Mr. Theodore George Gilinsky: Right.

Justice Felix Frankfurter: -- which, presumably (Inaudible) that was taking your words (Inaudible) does apply.

Mr. Theodore George Gilinsky: Right.

Justice Felix Frankfurter: And therefore the fair -- they could say that the encrustation of the decision under the Dyer Act would apply to the Stolen Act and therefore, your argument is to this Act.

Now, what about the Lindbergh Act, any decision under that?

Mr. Theodore George Gilinsky: There is only -- there is only one decision, which I attend gently, uses this section and it's not in point.

For your benefit, it is Ben Laska versus United States.

I say I attend generally because Laska was convicted of conspiracy and really was convicted prior to the -- unconnected with the ransom section.

Justice Felix Frankfurter: So that we -- so that we would have to decide -- we may have to decide in the future whether a group of kidnappers (Inaudible) finally get a ransom of $50,000.

One of them does all the operating and they then divide the $50,000 whether they could be convicted both for the attempted kidnapping, assuming there was no death, as I happily assume, and also under 408 (c) for the disposition --

Mr. Theodore George Gilinsky: I'm --

Justice Felix Frankfurter: -- but that -- we -- we have to construe that, wouldn't we?

Mr. Theodore George Gilinsky: I believe so.

I believe it's the same problem.

Justice Felix Frankfurter: Yes, so that -- so that -- unless the Dyer or National Stolen Property Act helps you out a little, we still have the problem of what the -- of what the meaning of the two statutes relied upon means.

Mr. Theodore George Gilinsky: Well, I think all the -- I think all the problems are the same.

Justice Felix Frankfurter: Yes.

Mr. Theodore George Gilinsky: If -- if they are all the same, Your Honor, then I suggest I have a right to rely upon the cases that I have cited down to 1940 --

Justice Felix Frankfurter: You mean the Dyer cases.

Mr. Theodore George Gilinsky: The Dyer cases.

Justice Felix Frankfurter: All right.

Well, are -- those are the only ones then and they are all --

Mr. Theodore George Gilinsky: The only one that they have found.

Justice Felix Frankfurter: -- they are all in your brief.

Are they all set forth?

Mr. Theodore George Gilinsky: They are.

Now, I'll -- I can explain perhaps --

Justice William J. Brennan: (Inaudible) in the Woody case.

Mr. Theodore George Gilinsky: Well, except the Woody brief goes beyond 1940.

Chief Justice Earl Warren: You cite your cases.

Mr. Theodore George Gilinsky: That's right.

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: You mean --

Mr. Theodore George Gilinsky: That --

Justice Felix Frankfurter: (Inaudible)

Mr. Theodore George Gilinsky: -- that is not -- oh, I take it back.

That is not all the cases down to 1940.

This is -- these are cases from three separate circuits, three different times.

I mean I didn't -- I do not have all.

Justice Felix Frankfurter: Have you then readily available in -- in the department?

I mean (Inaudible) you could have a memorandum tomorrow?

Mr. Theodore George Gilinsky: I -- I have not --

Justice Felix Frankfurter: If you have them --

Mr. Theodore George Gilinsky: No, no.

Justice Felix Frankfurter: -- it's -- all right, I thought you might have it.

Mr. Theodore George Gilinsky: I might check the others but I have not.

Justice Felix Frankfurter: All right.

Mr. Theodore George Gilinsky: I was going to mention briefly a fact.

This is not Prince for a number of reasons.

One, I think this is not the unique type of statute that we had in Prince.

There is not conflict below by the way.

There is one other bank robbery case of a consecutive type and I should mention this because they also do not get the money again, so that they have a similar factual problem.

But I think we noticed in Woody that is the typical problem where there are other facts.

This also is not Prince because it was not put into -- cover any loopholes somebody trying to rob a bank, they got away with it.

It has no connection with that.

So -- so it was put in at a separate time for different reasons and is clearly to -- at least in my mind, is related unlike some of the Prince section.

This section is clearly related to other statutes.

I mean regardless of how you may interpret the other statute, certainly it is the same words that are used in other statutes, and I would assume we cannot give to these words one meaning here and a different meaning in the other statutes.

Now, one brief word on a problem posed but not argued too greatly about petitioner in regard to double jeopardy.

I do not believe this case poses this question either under the Constitution as an offense and I suggest that Holiday versus Johnson clearly rules that this was not a double jeopardy problem as well as that case holding that it is a -- not a habeas corpus question but a Rule 35.

In conclusion, I would say that in all of the three questions which we have submitted, one, jurisdiction, two, the meaning of subsection 3 and (c) on the double jeopardy.

In each instance, we can go to the statute and the jurisdictional statutes, we think, like we are reading of it that what we have suggested is there is no jurisdiction under 2255, that a clear reading of subsection (c) includes the robber and does not have any language which excludes the robber and that so far as double jeopardy, the Constitution has a separate offense.

The legislative history here, if there is this power, has clearly said at least that this is a separate offense.

Justice Charles E. Whittaker: May I ask you one (Voice Overlap) --

Mr. Theodore George Gilinsky: Yes, Your Honor.

Justice Charles E. Whittaker: I thought your (Inaudible)

Mr. Theodore George Gilinsky: That's correct.

Justice Charles E. Whittaker: (Inaudible) is that right?

Mr. Theodore George Gilinsky: He -- he is subject to parole.

That's correct.

Justice Charles E. Whittaker: (Inaudible) Now, but suppose there is one bad sentence (Inaudible) he would be entitled to consideration for such release (Inaudible)

Mr. Theodore George Gilinsky: That's correct, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore George Gilinsky: That's correct, Your Honor.

The case which clearly, by a unanimous court, held that and solely on the question of parole because I am sure the petitioner is not in that position yet, but solely on that question is McNally versus Hill in the 293rd United States.

Justice Charles E. Whittaker: (Inaudible)

Justice Felix Frankfurter: What is it hold?

Mr. Theodore George Gilinsky: Not only that this is consistently refused to review this type of thing upon habeas corpus but the petitioner in McNally claimed that the reason he had a right to bring the habeas corpus was because he was being denied a right, you see, on a parole.

He said, "Well, I can -- he made exactly the argument that Your Honor has made.

He said, "Well, I can't get my parole going."

And the Court unanimously held that "You cannot be released from custody," which is the purpose of habeas corpus and that is not -- does not go to the question of whether someone will give you a parole.

And there -- that's the case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore George Gilinsky: It might except that United States versus Hayman, I feel, said that 2255 was put in, in order to -- to take the place of a habeas corpus in a different forum.

But the purpose of 2255 was that all of the habeas corpus petitions not be presented out of Alcatraz but be presented in a forum where the prisoner had been convicted.

So that what we had in 2255 both by history and as a long judicial conference history as well as anything else as well as Supreme Court case law is to the effect, I believe, that 2255 is merely a substitute for and not an extension of habeas corpus in a different forum.

2255 also provides for habeas corpus in its last section, if there is something else that comes up that can't be handled.

Justice Felix Frankfurter: But listen -- but you're quite right in saying that and there is language in Hayman which justifies you, but the great point that is decisive, importance of 2255 is the one that you just indicated, namely, that the matter should be brought before the sentencing court and not where the man is detained.

And I suggest that the question raised by Mr. Justice Whittaker is not -- is not foreclose by the talk or what said in Hayman, in that you have got a different situation that 2255 isn't habeas corpus, it doesn't require custody of the person.

So that if we have -- if we -- if a problem of not releasing from custody, which is what habeas corpus would mean, habeas corpus would mean he is let out.

2255 doesn't mean such thing at the time.

It's a declaration of rights in a way, isn't it?

And therefore, I think the point that Justice Whittaker raises is of detention, whether a rule which you rightly say was the rule under habeas corpus isn't affected by the difference, the -- the important difference that 2255 introduced.

Mr. Theodore George Gilinsky: Well, I believe my time is up.

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Theodore George Gilinsky: I shouldn't --

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: -- take time to answer.

Chief Justice Earl Warren: Mr. Cooper, the -- we've arrived at adjournment time but if would you like to finish tonight, we'd be very glad to accommodate you under the circumstances.

Rebuttal of Jerome A. Cooper

Mr. Jerome A. Cooper: Well, I appreciate that very much, Chief -- Chief Justice --

Chief Justice Earl Warren: Yes.

Mr. Jerome A. Cooper: -- but I -- I don't think my time is important enough to ask the Court to (Inaudible)

Chief Justice Earl Warren: No.

Well, no, you -- you do --

Mr. Jerome A. Cooper: -- and --

Chief Justice Earl Warren: -- just as you please.

We'll be willing to hear you now if -- if --

Mr. Jerome A. Cooper: If it is convenient and if it will not inconvenient --

Chief Justice Earl Warren: All right.

Mr. Jerome A. Cooper: -- the Court, I will --

Chief Justice Earl Warren: You --

Mr. Jerome A. Cooper: -- undertake --

Chief Justice Earl Warren: -- you may.

Mr. Jerome A. Cooper: -- briefly to reply but I --

Chief Justice Earl Warren: You may take.

Mr. Jerome A. Cooper: -- I hesitate to do it.

It will not inconvenience me greatly to return in the morning, and I'll be happy to take a few minutes in the morning, if I may do so, to reply --

Chief Justice Earl Warren: Very well.

Mr. Jerome A. Cooper: (Inaudible)

Chief Justice Earl Warren: All right.

Featured:

Heflin v. United States - Oral Argument, Part 2

Tue, 04 Dec 2012 20:36:44 +0000

Case:

Heflin v. United States

Media File:

137_19590115-argument-2

Related Transcript:

137_19590115-argument-2

Transcript:

Argument of Jerome A. Cooper

Chief Justice Earl Warren: Number 137, Lurton Lewis Heflin, Petitioner, versus United States of America.

Mr. Cooper, you may proceed with your argument.

Mr. Jerome A. Cooper: Thank you, sir.

If the Court pleases, at the close of the day yesterday, I think the Court was giving some attention to the argument which the Government has suggested that our case is premature under Section 2255 and late, under Rule 35 of the Criminal Rules.

We did not argue this in our brief.

We were not at -- in the preparation of that brief, aware of the tenacity of the Government on this point.

We thought, and I think with good reason, that that matter was sufficiently at rest.

We drew some comfort from the fact that the argument was made at length in opposition to the petition for certiorari, which was granted over that opposition.

We realized that Gore against the United States had proceeded as a case under 2255 and had been entertained although custody under successive sentences there was precisely involved.

And finally, we relied on what the statute itself says that it may be -- that relief under it may be sought at anytime.

Justice Charles E. Whittaker: That's the rule.

Mr. Jerome A. Cooper: Both the statute and the rule provides substantially the same, Mr. Justice.

Of course --

Justice Felix Frankfurter: The statute, you mean 2255?

Mr. Jerome A. Cooper: 2255, yes, sir.

And I think there's one Court of Appeals, I believe, it's the District Court of -- the Court of Appeals of the District of Columbia in -- in the Holloway case, I think, which doesn't involve the problem we have here but saw fit to comment that under Rule 35 of the Criminal Rules and under 2255, the party concerned was entitled to seek relief at any time, and that that's what Congress meant when it used those words anytime.

Now, I think we have trouble with Rule 35 if this is precisely -- if this is only a proceeding in the original criminal case, then we are probably caught by the Rule 22, as I recall, of this Court.

However, I don't think that Rule 35 of the Criminal Rules, although it appears in that section of -- of the rule, should be dealt with as only a -- a provision for further proceedings in the original criminal case.

I -- I think there's a good reason and some authority to say that that rule, just like 2255, invites a collateral inquiry into a criminal judgment.

And collateral inquiry into a criminal judgment traditionally by habeas corpus has always been considered in the nature of -- of a civil proceeding, not a criminal proceeding.

And so, I think we're -- we're -- actually we are here in a something like a civil proceeding and therefore, we should not be caught by Rule 22 of this Court, if that is the Government's contention.

And I think certainly, that we are not premature under the statute.

I think it's the most harsh suggestion on the part of the Government that this statute that obviously was designed to create benefits and to make it easier and more simple for people under sentence to obtain relief against illegal and incorrect and invalid sentences.

It's the most harsh thing for the Government to say that before you get that benefit, you've got to serve part of the illegal sentence that this statute was designed to relieve against.

So as I say, we --

Justice Potter Stewart: Isn't it a mere suggestion though, isn't it, on the part of the Government? Isn't that -- hasn't that been the square holding of, at least, some of the Courts of Appeals?

Mr. Jerome A. Cooper: I don't think so.

I could be in error about that.

I think --

Justice Potter Stewart: (Voice Overlap) --

Mr. Jerome A. Cooper: -- for instance, the language of this Court recently in Ladner indicates certainly that this type of thing is not jurisdictional.

And if the Government doesn't see -- see fit to raise it below, it's -- the Government, itself, is untimely in making the argument that our case is premature because we are not as yet serving time under the consecutive sentence that we ought to --

Justice Tom C. Clark: How many -- how long is it served?

Mr. Jerome A. Cooper: I think the -- there was a temporary commitment.

The trial was 1954.

And I think there was a temporary commitment then -- and -- and as far as I can determine from the record, approximately four and a half or possibly five years, Mr. Justice.

Justice Felix Frankfurter: Is it --

Justice Tom C. Clark: (Inaudible) basis, you had served a couple more months.

Mr. Jerome A. Cooper: Yes, sir, we are getting close to the --

Justice Tom C. Clark: (Inaudible)[Laughter]

Justice Felix Frankfurter: Mr. Cooper, I -- I think you do well to take the vigorous line that you are taking on this point.

On the other hand, on the other hand, in view of the still cloudy condition in which the construction or the scope of 2255 remains, what this Court said and what it didn't say in Hayman, etcetera, etcetera, the only way of -- of, perhaps, getting a rationale and a clear system for practice or ruling in this deal is for the Government to raise these questions instead of leaving it all to -- to laxity and to oversight or -- etcetera, etcetera.

Mr. Jerome A. Cooper: Yes, sir.

I -- I will say that I have the impression from reading the record that neither the District Judge, who is a -- an able and experienced District Judge, neither he nor the parties nor the Court of Appeals were troubled by the thing.

Justice Felix Frankfurter: People aren't troubled if the trouble isn't put before them, you know.

Mr. Jerome A. Cooper: That's correct.

Of course, I think that I can agree with you that the Government ought to explore these problems --

Justice Felix Frankfurter: Yes.

Mr. Jerome A. Cooper: -- so we'll know, at least so that other parties will now.

Justice Tom C. Clark: What was the time when it -- the time lapse on the serve?

Mr. Jerome A. Cooper: Sir?

Justice Tom C. Clark: The time lapse on the serve?

How many?

Mr. Jerome A. Cooper: It was not within 30 days, as I recall, so that we would be caught under Rule 22 if we --

Justice Tom C. Clark: (Inaudible)

Mr. Jerome A. Cooper: It was within the several time.

There's no question about that.

And the petition was prepared, as I understand, by the individual, himself, in prison.

And he was proceeding as I read it on the assumption that he was timely and I think he was correct certainly sufficiently filed first.

The -- there is another matter suggested, I think, yesterday by counsel for the Government relative to this statute which he has finally found.

That was 18 U.S.C. 101 at 35 Stat. which he -- he suggests then some support to his contention that Congress can, when it sees fit, use very definitive language about who is a receiver and who is not.

With all due respect to my colleague here, I -- I think that this is almost a reminder of the devil quoting scripture.

They finally have found a -- a statute which was obscure up -- in this case up until just now, which they suggest may lend some help to them.

Actually, however, I -- I heard they ran that statute down.

And I think it's interesting to know that -- that the 1946 edition of the Code was amended in 1948.

And that Section, which was 101, became 18 U.S.C. 641.

And in 18 U.S.C. 641 in 1948, the draftsmen dropped out this little phrase about which has theretofore been stolen by any other person.

And they did something else.

They -- they combined in 1948, they combined prior sections of the Code which had dealt with the principal robbers or thieves who dealt with government property.

So that after 1948, the Code, in one Section, deals with the receipt of stolen property and also, the stealing of property.

And it only uses the phrase "receiver of stolen property".

It doesn't say a receiver of stolen property stolen by another person.

Now, no one paid much attention, apparently, to the dropping out of that phrase.

And I'm sure that prosecutions have -- have continued on to the amended section just as they did under the old Section 101, which -- to which reference was made.

But it does indicate to me something, I think, that is helpful in trying to find out if we can what Congress was doing.

In that in 1948, the Code was further amended to provide a separate section which is under the heading of "Arraignment, Pleas and Trial" that reads, “Receiver of stolen property triable before or after principal”.

Now, that is now 18 U.S.C. 3435 and it reads, “A person charged with receiving or concealing stolen property may be tried either before or after the trial of the principal offender.”

Now, the interesting thing about that is that there was a provision like that in old 101 which would have been limited to the receiver that dealt with.

But now, we have a general statute under Federal Criminal Procedure, Arraignment, Pleas and Trial that indicates that at least procedurally, Congress knows how to deal separately with the receiver and with the principal offender.

And that Congress all along has meant to do so, I think, is the only logical deduction you can make from the history of that little statute which they found and -- and cited to the Court yesterday.

One other matter that was somewhat newly stressed in argument is the reference to the decisions in the lower federal court under the Dyer Act and under the Stolen Property Act prior, as I recall, to 1940, I think, was the date the Government was considering.

I didn't -- I was unable to run all of those down but I did take another look at the two that are cited in the Government's brief.

One of them is Johnson against Zerbst in the Tenth Circuit.

And what that case held sometime ago was that an individual may be convicted and sentenced under two counts, one, for transporting a stolen automobile and two, for receiving and concealing that same automobile as part of a single transaction.

So that, actually, if I understand the Government's position now that is authority for a type of situation to which they would not even apply the statute in its present form.

In other words, that Court said that although you have a -- a transporting of a car and the receipt of a car simultaneously in one transaction, that Court, the Tenth Circuit thought consecutive sentences could be imposed under that -- under the Dyer Act.

I don't think that's very helpful in -- in trying to ascribe a purpose to Congress to read an undisclosed knowledge of the Attorney General that at the time of the passage of the 1940 amendment, section (c) in the statue now with which we are concerned, there had been some consideration of the problem by lower courts.

Neither do I think we are aided very much by the other case cited in the Government's brief which is a Sixth Circuit case.

New York against the United States in 199 Federal because there, a man tried somewhat, it seems to me, as the petitioner here was tired, was found to have been denied the type of complete trial.

The Court of Appeals thought he was entitled to and his conviction was reversed, a conviction based primarily on the testimony of an accomplice and -- and in which the Court of Appeals found the District Court had injected himself a little bit too much into the trial of the case in order to let the conviction stand.

And the conviction was reversed.

And then by way of advice, the Court of Appeals in its opinion at page 780 said, "We note by word of caution our disagreement with the Court and counsel that a verdict of guilty on one of the two counts is inconsistent with a similar verdict on the other."

In other words, there was some confusion even in that case between the District Court and the Court of Appeals as to whether or not you could convict a man for both -- and sentence a man for both transporting and receiving an automobile that had been stolen, transporting in interstate commerce.

Justice Felix Frankfurter: Of course, if -- if the cases don't bear out, as I understood to be the Government's claim, that it had been the settled construction of the Dyer Act that a thief, that he is also through an independent act of concealment, not inherent in (Inaudible) be punished, subject to punishment if the cases don't bear that out as -- as fact.

Mr. Jerome A. Cooper: That's --

Justice Felix Frankfurter: But if they -- if they do, then there's a very serious question, as least to my mind, when the Attorney General makes a suggestion, asks Congress to pass a statute based on other statutes derived from a series of rulings, although he doesn't disclose it, he would say undisclosed, one knows how the Attorney General and particularly this one operated.

This is a suggestion that was made to him by the Criminal Division of the Department.

They refer to past statutes, any lawyer except a stupid or a lax one, in dealing with a statute would consider the instructions given to that statute and therefore, there is a gloss put on it by prior decisions.

Now, if there is no such gloss, then -- then you are all right.

Mr. Jerome A. Cooper: Well, I think -- I think still that the best evidence of what the Congress was doing in 1940 is what it -- what the Senate Committee's Report said in its caption, that they were dealing with receivers of stolen property from bank robbers.

And I think that's considerably more persuasive.

Then the long jump, the long double jump that you have to make, one that Congress was giving any attention to the Attorney General's thoughts at all --

Justice Felix Frankfurter: It's argumentatively -- it's argumentatively persuasive but the fact is that captions of legislation very often only give one part of the subject matter of the statute --

Mr. Jerome A. Cooper: But it's --

Justice Felix Frankfurter: -- as you well --

Mr. Jerome A. Cooper: -- the most definitive part of this particular report I think.

Justice Tom C. Clark: Do you think the fact that they -- he didn't get the money until after (Inaudible)

Mr. Jerome A. Cooper: Well, he got it simultaneously with the division according to the record, Mr. Justice.

Justice Tom C. Clark: (Inaudible)

Mr. Jerome A. Cooper: No, sir, I don't think so.

The -- the robbery was his act.

They were all confederates.

He was convicted and -- and tried as a bank robber because, of course, he was part of the bank robbery.

And I -- I think he as much -- if -- if the verdict stands, he is as much a robber whether he actually holds the hand of the man that's carrying the loot out of the bank or whether he is just one of them in the party committing the robbery.

I -- I don't see any distinction there at all.

Justice William J. Brennan: Mr. Cooper, does it appear that the -- a bill was prepared by the Attorney General?

Mr. Jerome A. Cooper: No, sir, it does not.

I --

Justice William J. Brennan: You don't whether --

Mr. Jerome A. Cooper: -- but I maybe wrong.

I don't remember exactly what his letter said.

I believe his letter said that a -- that it could have said, "I'd have to -- I don't trust my memory that a bill was accompanied it when he sent the letter --

Justice William J. Brennan: That's the issue.

Mr. Jerome A. Cooper: I -- I believe it probably did.

Justice William J. Brennan: Well, if it did, then perhaps, this caption that you rely upon was supplied by the Attorney General.

Mr. Jerome A. Cooper: The caption is on the report, Mr. Justice.

Justice William J. Brennan: On the report.

Mr. Jerome A. Cooper: Yes, sir.

Justice William J. Brennan: Not on the bill.

Mr. Jerome A. Cooper: No, sir.

That -- that caption was put on by the draftsman of the report.

Justice William J. Brennan: I see.

Justice Tom C. Clark: Attorney General (Inaudible)

Mr. Jerome A. Cooper: Yes, sir.

Well, this --

Justice Felix Frankfurter: (Inaudible)

Mr. Jerome A. Cooper: Well, as I say, I don't think the two cases, which have been cited, are very helpful.

And I don't think they hold or establish any concert in the courts below prior to 1940 whatsoever.

I think that we are left with the situation that apparently, if the Government's view is correct, the Court and the prosecutor and the interested parties must guess when the bank robbery has reached a sufficient point in time or in nature that it becomes a second transaction.

And I submit that if you've got to guess about that sort of thing as to when a second transaction occurs or when a second impulse arises to commit a criminal act, that you've got the most typical -- the most questionable type of ambiguity in a statute.

If you -- if -- if, as they now admit, that the actual receipt immediately on the commission of the bank robbery is not a second offense, then everytime the statue is applied, somebody is going to have to guess, have they carried the bank robbery far enough away from the bank to justify the imposition of a second sentence.

We think that --

Justice Potter Stewart: That's not unlike factual issues that juries are called upon everyday to determine, is it?

Mr. Jerome A. Cooper: Well, it's unlike most factual issues, I think, that a jury should have to determine under a statute, which is a criminal statute.

I think criminal statues are required to have a sufficient definiteness so that it -- it we can understand in advance.

Someone can understand in advance --

Justice Potter Stewart: Well --

Mr. Jerome A. Cooper: -- reasonably whether the crime has been committed.

Justice Potter Stewart: -- we can understand what the legal test is under the statute and then leave it to the jury to find out what the facts are.

Mr. Jerome A. Cooper: That may be, but you're going to have the result that in one trial of a -- of a bank robbery, punishment may result from two sentences whereas in almost identical circumstances in another trial, you'll have one sentence or three or four.

And I think the -- you'd -- you'd be almost -- you'd be running a pretty good risk that the uniformity of punishment that -- that Congress must have intended, we think, would just be impossible of accomplishment.

And I think you run one other risk --

Justice Potter Stewart: And in another case, you might get an acquittal and there would be no punishment at all.That happens every day, doesn't it?

Mr. Jerome A. Cooper: I don't know, sir, I assume it does.

But the problem is not what -- what do you do for the man who had been acquitted, the problem is -- we have two problems, what do you do with the man who is charged before trial, what are -- what can he reasonably expect and two, what do you do with the man who has been found guilty under two counts and then you have to decide, do those two counts actually relate to sufficiently separate sets of facts to be valid, one under the statute and two, to be constitutional as not imposing -- not violative of the provision against double jeopardy?

And I don't -- I am serious -- we were serious in our brief that you can have a problem of double jeopardy if a mistake is made, and two sentences are imposed when, in fact, there should only have been one.

I would like to close with reminding the Court, if I may, that, at least, in our case, there isn't much question about what the set of facts was.

The Court of Appeals on the first appeal had this to say about it.

This is in the first appeal, 223 F.2d 374, on January 23rd, the robbery was executed according to plan, the getaway was made and the loot divided, all at one time.

That's the situation they dealt with.

And then, on this appeal, on our motion presently before the Court, the Fifth Circuit Court of Appeal repeated again what it had decided on the first appeal, its opinion that receiving stolen money and conspiracy are offenses separate from bank robber.

And the only proof that ties this petitioner to that stolen money was, as we've outlined previously, namely, the he is charged with being in the bank and was shortly thereafter receiving his share of the loot.

There isn't a word of evidence in this record after that, that he ever had anything whatsoever to do with the money, that he disposed of it, sold it or concealed it.

And I think it's an unwarranted position of the Government to say that the mere fact that there is an isolated statement in the record that the money had not been recovered, creates some kind of presumption that this man, thereafter, had committed culpable acts.

Chief Justice Earl Warren: Mr. Cooper on behalf of the Court, I would like to express our thanks for the services that you have rendered in this particular case.

We know it took some sacrifice to you.

And I -- I can't help thinking of the fact that, as I stated in an earlier case, that in this week's argument, there are four people who are unable to come to this Court, although they are totally without means because of the public spiritedness of lawyers who are willing without compensation that the assignment of this in other courts to conduct their defenses for them, and we are deeply grateful for it.

Thank you.

And thank you, Mr. Gilinsky, for your able representation of the Government in this matter.

Justice John M. Harlan: Chief Justice, could I ask a question?

Chief Justice Earl Warren: Yes, indeed.

Justice John M. Harlan: Do I take it now that the transcript, the trial transcript by agreement is part of this record before us?

Mr. Jerome A. Cooper: Yes, sir, we have noted that we have no objection here.

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Prince v. United States - Oral Argument

Wed, 28 Nov 2012 22:42:18 +0000

Case:

Prince v. United States

Media File:

132_19561211-argument

Related Transcript:

132_19561211-argument

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