Cases by Issue - Hobbs Act

Immigration And Naturalization Service v. Doherty - Oral Argument

Fri, 09 Jan 2009 14:49:30 +0000

Case:

Immigration And Naturalization Service v. Doherty

Media File:

90-925_19911016-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF MAUREEN E. MAHONEY ON BEHALF OF PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Case No. 90-925, The Immigration and Nationalization Service v. Joseph Patrick Doherty.

You may proceed, Ms. Mahoney.

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

In this case, the Court of Appeals for the Second Circuit found that the Attorney General of the United States abused his discretion in denying Mr. Doherty's motion to reopen his deportation hearing.

The court of appeals accordingly remanded the case for an evidentiary hearing on Mr. Doherty's claim that he should be granted asylum in the United States and that he should be deported to some country other than the United Kingdom.

We request this Court to reverse the decision of the Second Circuit on two independent grounds that I would like outline briefly in order to clarify what the issues are for this Court to decide today.

First, we ask this Court to hold that the Attorney General had discretion to deny reopening because Mr. Doherty did not establish that he had good cause for failing to raise his claims for asylum and withholding of deportation at his deportation hearing in September of 1986.

The Attorney General determined that he had a full and fair opportunity to raise those claims at that hearing and that he deliberately abandoned the claims as part of a tactical strategy that ultimately failed.

If this Court finds that the Attorney General properly denied reopening on this ground, and that this was not an arbitrary or unseasoned abuse of discretion, then it need not reach any of the other issues in this case, because that ground would in and of itself would be dispositive under this Court's decision in INS v. Abudu.

As a second and independent ground of reversal, we ask this Court to find that the Attorney General properly exercised his discretion in determining that Mr. Doherty's claims for withholding of deportation and asylum were just simply not sufficiently meritorious to warrant the extraordinary remedy of reopening.

I'd like to turn first to the issue of whether or not Mr. Doherty established good cause for failure to file his claims or pursue his claims in September 1986 at his deportation hearing, since we submit that this Court's decision in INS v. Abudu is in fact controlling on this ground.

On three prior occasions in the last 10 years, this Court has looked at the question of what the Attorney General or the Board of Immigration Appeals' discretion is to deny reopening for failure to show good cause to raise the claim at the initial deportation hearing.

In all three occasions in this Court's decision in Rios-Pineda, in the Wang decision, and most recently in Abudu, this Court found that the denial of reopening on these grounds must be sustained unless the decision is arbitrary and unreasoned.

We submit that there is simply no way that the Attorney General's determination on this issue in this case was arbitrary or unreasoned.

This Court's decision in Abudu illustrates that there are essentially two interrelated requirements for establishing good cause to file an application for withholding of deportation or asylum after the deportation hearing has been closed.

And these requirements are, first, under the regulations, Mr. Doherty is required to reasonably explain, to provide a legally sufficient explanation of why he did not raise the claims or pursue the claims at the initial deportation hearing.

And second, he must also show that his claims for withholding of deportation and asylum are based upon evidence or circumstance that arose subsequent to the hearing.

I'd like to turn first to the issue of whether or not Mr. Doherty has ever provided a reasonable explanation of why he didn't pursue these claims in September of 1986.

The Attorney General found that the reason that he didn't pursue the claims in September of 1986 was that he had an opportunity to do so, but he was... it was part of an effort on his part to designate Ireland as the country of deportation, to withdraw his claims for asylum and withholding of deportation, and to try to expedite his deportation so that he could reach Ireland before the supplemental extradition treaty took effect.

Justice O'Connor: Was it customary that people faced with deportation could indicate the country they'd like to go to, and if the country were willing to accept them that normally that's where the person would be sent?

Was that the standard practice?

Ms Mahoney: Your Honor, under the statute, under 243(a), an alien has the opportunity to designate the country that he wants to be deported to.

But the statute specifically provides that the Attorney General may reject that designation if, in his view, it would be prejudicial to the interests of the United States.

And the standard practice before the immigration judges that's been in effect for many years, in fact probably 50 years, is that when a national of a country designates a country other than his country of nationality, the immigration judge gives him an opportunity to submit a claim for withholding of deportation or asylum to the country of nationality.

The whole idea here is that it is critical to the process that all of the defenses to deportation be asserted at the time of the deportation hearing in order to avoid piecemeal appeals.

Justice O'Connor: Was it at all a surprise that the Attorney General designated the United Kingdom instead of Ireland as had been designated?

Ms Mahoney: Your Honor, I do not believe it was a surprise.

The INS took the position at the hearing in September of '86 that it was the position of the United States that Mr. Doherty should not be deported to Ireland, that it would be prejudicial to the United States' interests, that this was an issue of serious concern at the highest levels, and when that argument was rejected by the immigration judge, the INS indicated that it would appeal that decision because it was sufficiently concerned that deportation to Ireland would be prejudicial.

So there really can be no question that Mr. Doherty understood in September of 1986 that he was at risk.

And similarly, Your Honor, there was no reason why he couldn't plead in the alternative.

In this Court's decision in Abudu, Dr. Abudu was in precisely the same kind of circumstance.

He designated England as the country that he wanted to be deported to, but he was a national of Ghana.

So the immigration judge in that case, just like the immigration judge in this case, gave him the opportunity to apply for withholding of deportation to Ghana and for asylum, an opportunity that Dr. Abudu did not avail himself of.

And thereafter when he sought to reopen the proceedings in order to do that, this Court found that he was barred, because you are permitted to plead in the alternative.

There's simply no reason... the issue in September of 1986 that was presented--

Unidentified Justice: Of course in that case he didn't have the reason that's advanced here.

Ms Mahoney: --Your Honor, he did have the reason that's advanced here.

Unidentified Justice: No, his reason was some dentist had called on him or something like that, and that was the only new development.

Ms Mahoney: Oh, in Abudu?

Unidentified Justice: In Abudu, yeah.

Ms Mahoney: Oh, in that it was an official in the foreign government who had come to his house--

Unidentified Justice: Oh, and said they needed a doctor in Ghana.

Ms Mahoney: --They said they needed a doctor.

And this Court--

Unidentified Justice: And we said that wasn't enough to justify it.

Ms Mahoney: --Well, this Court found that it may well have been new in material evidence, but that he actually had a sufficient basis to assert his claim at the time of the hearing, and therefore, it couldn't constitute a reasonable explanation for having failed to raise the claim at the time of the initial hearing.

Similarly in this case, Mr. Doherty has never contended that he did not have adequate grounds to claim that he fear persecution in the United Kingdom.

Essentially--

Unidentified Justice: But even if he had adequate grounds in the first place, if there was a new development that was sufficiently significant, Abudu wouldn't have said he couldn't have raised a new ground.

Ms Mahoney: --The board decision in Abudu did say that, Your Honor.

The--

Unidentified Justice: But we didn't say that.

Ms Mahoney: --Well, this Court in Abudu didn't--

Unidentified Justice: Because I remember the case.

Ms Mahoney: --This Court in Abudu didn't clarify the precise bounds of the discretion that the board would have or that the Attorney General would have, but this Court did assume in Abudu that the new evidence was material, but that--

Unidentified Justice: But not sufficiently important.

That's the last part of the opinion, as I remember.

A separate question was whether the new evidence had sufficient significance to justify withholding, even though he'd had sufficient basis originally.

Ms Mahoney: --That's correct, Your Honor.

Unidentified Justice: So in this case, though, there's a difference in what the new development is.

And is arguably more significant than the visit from the man saying they needed another doctor in Ghana.

Ms Mahoney: Your Honor, I believe that it's less significant.

And the reason I say that is essentially what happened here, the change was that Mr. Doherty lost on appeal.

The issue in September--

Unidentified Justice: Well, and the law changed and he's going to go to England in any event now, which he wouldn't have... which would not have been the fact at the time that you say he had to make his election.

Ms Mahoney: --Well, Your Honor, at the time that he had to make his election... you're referring to the change in Irish law?

Unidentified Justice: Yes.

Ms Mahoney: Well, first of all, I think that it's difficult for Mr. Doherty to claim that Irish law changed in a way that was in fact prejudicial to him since he in fact represented to the board in December of 1986 that decisions of the Irish Supreme Court had, quote,

"vitiated the political offense exception, thereby removing any obstacle. "

end quote, to his extradition from Ireland to the United Kingdom.

So I think that the issue of the change in Irish law is really one that is difficult to understand how he could be making.

Moreover--

Unidentified Justice: Are you saying if he'd, even at the time of the election, if he'd been deported to Ireland at that time, he still would have gone right to England in any event?

Is that what you're basically saying?

Ms Mahoney: --Saying that the law of extradition in Ireland at that time is not fundamentally different to what it is now.

Unidentified Justice: Well, does that mean that the net result of it is that if he'd gone to Ireland he still would have gone right away to England?

Ms Mahoney: No, Your Honor, that isn't what we would say.

Unidentified Justice: Well, then that's different, isn't it?

Ms Mahoney: No, because both before the change in Irish law and after the adoption of the European Convention on Terrorism, there was the possibility that the Irish Government would not extradite him.

In fact, the Attorney General noted in his opinion that there was recently a member of the PIRA who was not extradited to the U.K. under the new extradition act--

Unidentified Justice: Let me ask you... it's very difficult to sort out all these things.

But cutting through everything, is it not more probable now that if he goes to Ireland he will immediately go to England than it was at the time he made his election?

Ms Mahoney: --I don't believe so, Your Honor.

Unidentified Justice: You don't think so.

Ms Mahoney: Because even the new law has exceptions in it that allows the alien, or excuse me, the person subject to extradition in Ireland to try to establish that he's being... the reason for the extradition is for persecution reasons.

Unidentified Justice: Well, of course the court of appeals didn't agree with you.

Ms Mahoney: No, but the court of appeals really--

Unidentified Justice: On this issue either.

Ms Mahoney: --Well, the court of appeals rested more on the question of whether or not the rejection of the designation by the Attorney General provided a reasonable explanation for Mr. Doherty's failure to pursue his claims for withholding of deportation and asylum at the time of the hearing in 1986.

Maybe the best way to try to put this in perspective is--

Unidentified Justice: Before you do that, if it is as you say, why would he have had this change of heart?

Is there a change in the attitudes of the Irish Government recently or in the makeup of the Irish Government?

Ms Mahoney: --Why would he no longer wish to go to Ireland?

Is that the question?

Unidentified Justice: Yes.

Ms Mahoney: Your Honor, that question is not answered by the Attorney General or by the courts in this case, but I would note that he filed his motion to reopen the proceedings based upon the change in Irish law less than 1 month after the Attorney General Meese sent him a letter stating that he had accepted the INS appeal from the board's rejection of the designation letter.

And therefore, he may well have surmised that it was likely that the Attorney General would overturn the board's decision allowing him to go to Ireland.

Unidentified Justice: I thought that... didn't Attorney General Meese order him to be sent to England?

Ms Mahoney: Yes, he did, Your Honor, but the motion to reopen based upon the change in Irish law was filed less than a month after the Attorney General, Attorney General Meese notified Mr. Doherty that he had accepted the appeal of the INS from the board's decision.

Therefore, one inference that we could make is that--

Unidentified Justice: You think he was rolling the dice, that what he'd like most of all was to stay in this country, not be deported at all.

And he went whole hog for that initially.

Then when it seemed he wasn't going to get that, he'd say I better have a... I'd better have a fall-back position, and that's when he said send me to Ireland, even though it was no more attractive later than it was originally.

Ms Mahoney: --One intermediate step, Your Honor.

I think initially he wanted to stay in the United States.

In the summer of 1986 when the United States Senate adopted the supplemental extradition treaty, he very much wanted to leave the United States as quickly as possible because he was concerned that he would be extradited under that treaty.

So then he designated Ireland.

Then when it... and that designation was accepted, but then when the plan failed and he was not deported to Ireland as quickly as he wanted to be, and it became at least possible that the Attorney General was going to reject that designation, I think he then changed strategy again, and filed the motion to reopen.

Unidentified Justice: May I ask another question?

I don't have the dates as well in mind as I should, but I was under the impression that the Attorney General objected vigorously to his being deported to Ireland because he thought it was a matter of important American national policy that he go to England, which assumed... made me think the Attorney General thought there was some difference.

And as I understand your argument now, everybody should have known he'd end up in Ireland... in England right a way, no matter which place he went.

Ms Mahoney: No, Your Honor, the Attorney General did not find that he would certainly end up in England no matter what.

He simply found that the--

Unidentified Justice: But that's my point.

But you're saying he would have.

That's what I think you're telling me today.

Ms Mahoney: --I'm sorry, Your Honor, I'm not being clear.

I'm saying that there wasn't a material difference in the extradition law of Ireland either before or after the adoption of the new extradition act.

In other words, that there was a chance that he would not be extradited to the United Kingdom under the old law and also under the new law.

The Attorney General in fact noted that a member of the PIRA was not extradited under the new law, just as sometimes they had not been under the old law.

I think the key thing here is that Irish law really isn't germane to the question that was before the immigration judge in September of 1986.

The issue in that proceeding was should Mr. Doherty be deported to the United Kingdom.

And Mr. Doherty had several defenses to that available to him, and consistent with standard pleading and INS practice, he was required to assert all of them in the alternative.

He could claim withholding of deportation, he could claim a right to designate Ireland, he could claim asylum.

And that was the procedure that was followed in Abudu, and it is the standard procedure that has always been followed.

This Court recognized in 1963 in United States v. Foti, that Congress very much wanted to encourage the consolidation of all defenses to deportation in one hearing on the merits.

So we are back to the question, why didn't Mr. Doherty simply plead in the alternative?

Unidentified Justice: Do you have a better reason than just failure to plead for sustaining the Attorney General's discretion?

Ms Mahoney: Well, your Honor, it wasn't just that he failed to plead.

He failed to plead for a tactical reason, a deliberate reason.

He was trying to expedite his deportation.

Unidentified Justice: Well, that may be so.

But I just wondered if there was another reason.

Ms Mahoney: Yes, Your Honor, there are additional reasons.

Unidentified Justice: Well, your time is certainly running.

Ms Mahoney: The... if we look to issue of the merits, we can look first at the issue of asylum.

Now this Court has indicated on a number of occasions that it is appropriate in considering motions to reopen to determine whether or not the alien has a sufficient claim on the merits that the extraordinary remedy of reopening is warranted.

With respect to the asylum claim, the Attorney General determined that reopening would in effect be futile because he... there were three grounds on which he could exercise his discretion to deny asylum.

And the first of those was that the nature and number of criminal acts that Mr. Doherty had committed were such that he would not be entitled to this humanitarian relief under the asylum laws.

I'd like to emphasize here that the language of Section 208 specifically provides that the Attorney General may, in his discretion, grant asylum.

There are no conditions in the statute, whatsoever, limiting the exercise of discretion.

The court of appeals, nevertheless, found that the discretion was substantially circumscribed, and that the Attorney General was not allowed to exercise his discretion in this case to deny reopening without granting an evidentiary hearing.

With respect to the question of whether or not--

Unidentified Justice: May I ask... again, I should be better advised as to facts than I am, but is one of the grounds by the Attorney General exercised his discretion was because the Attorney General's believe that he was ineligible for asylum?

Ms Mahoney: --No, Your Honor, he did not find that he was ineligible for asylum.

He simply found... he assumed that he would be eligible, that he would meet the definition of refugee.

He didn't make a factual finding, but was willing to assume it for the purposes of resolving the issue.

But he did find that it would be... that in the exercise of his discretion that he would deny asylum for reasons relating to Mr. Doherty's prior criminal activity, which was established by his own admissions in the transcript of the extradition hearing, which was a part of the record in this case.

And second, he also found that it was appropriate to deny asylum in his discretion because of his political determination that it would be contrary to the foreign policy interests of the United States to give sanctuary to Mr. Doherty.

The United Kingdom and the United States had been engaged in a collaborative effort to try to stem the tide of terrorism throughout the world, and believed that it would simply be incompatible with the United States' position in that effort to give sanctuary to Mr. Doherty.

Unidentified Justice: And it's your submission that this ground was an independent ground?

Ms Mahoney: Yes, Your Honor.

Unidentified Justice: And that if we said... sustained the exercise of the discretion of what you said before this, we don't need to get to the foreign policy issue?

Ms Mahoney: That's correct, Your Honor.

You could sustain it simply on the basis that there was no cause.

Unidentified Justice: On either one of them.

Ms Mahoney: Or on asylum, you could sustain it on the basis that the fact that Mr. Doherty was... had admitted that he had been convicted for a number of offenses was sufficient to allow the exercise of discretion to deny asylum.

Justice O'Connor: Or on grounds of waiver.

I thought you had argued that.

Ms Mahoney: Well, waiver really... I referred to, in this argument, as failure to establish good cause or reasonable explanation for asserting his claims for withholding an asylum at the time of the September 1986 hearing.

It's really the same argument.

Justice O'Connor: Well, is it quite the same?

Did he not make an initial affirmative waiver of any desire to have asylum or deportation?

Ms Mahoney: Yes, he did.

He deliberately and tactically abandoned those claims at his September hearing in order to expedite the proceedings.

Unidentified Justice: If you lose on that, I take it you still have to address the withholding.

Ms Mahoney: Yes, Your Honor.

In terms of withholding, the issue is whether or not the Attorney General could also find that there wasn't a sufficient showing on the merits of this claim either.

And the reason why we certainly believed that it was appropriate for the Attorney General to reach this conclusion is that withholding of deportation requires two showings, two mandatory showings.

One is that you in fact are... there is a probability that you would be persecuted if returned to the... or sent to the country of deportation.

And the second is that the Attorney General does not have serious reasons for believing that the alien has committed serious nonpolitical offenses.

That's the language of Section 243(h)(c).

And if there are reasons to believe... serious reasons to believe that he committed serious nonpolitical offenses, he simply is not entitled to--

Unidentified Justice: And is it your position that the Attorney General can make that determination without any kind of a hearing at all?

Ms Mahoney: --Yes, Your Honor, in this case he can.

And the reason he can is first of all, this comes on a case for reopening.

And the question is whether or not--

Unidentified Justice: Yes, as I understand your position, he could have denied it outright, even without any hearing at all because even though... you're not now relying on the breadth of discretion.

You're relying on the argument he comes within subparagraph (c) because he's statutorily ineligible for withholding.

Ms Mahoney: --Statutorily ineligible because of the undisputed facts from... established in the extradition transcript showed that he simply would not be able to satisfy showing--

Unidentified Justice: Even though the hearing officer in that transcript, the judge, came to the conclusion that the nonpolitical language did not apply.

It's not the same language, of course, but it's the same concept.

Ms Mahoney: --Well, although the judge in that case, Your Honor, acknowledged... said right out that the facts were not really in dispute.

The issue was simply whether or not as a matter of law under the political offense exception for the extradition treaty, he had... whether or not those facts established that it was a political offense.

And that issue, we submit, is different that the legal characterization that the Attorney General was required to make under Section 243(h), where he determined that acts which are directed at the civilian population, even if done for political purposes or as part of an uprising in Ireland, in Northern Ireland, are nevertheless serious nonpolitical offenses.

Unidentified Justice: Counsel, is there, in your view, any limit to the Attorney General's discretion to deny asylum?

Ms Mahoney: Your Honor, that limit would be the limits of irrationality, wholly arbitrary--

Unidentified Justice: Did he deny it on the basis of a race, pure and simple?

Ms Mahoney: --Your Honor, I believe that the Attorney General would find that it would not be appropriate to deny asylum on the basis of race.

In the case of Jean v. Nelson, the Attorney General did take the position under a different section of the immigration law that it would be inappropriate to exercise discretion based upon race.

Unidentified Justice: So you are saying there are some limits somewhere out there.

Ms Mahoney: Well, Your Honor, I think that it is fair to say that when the Attorney General exercise his discretion under the asylum provision for reasons such as foreign policy or other political reasons, that the decision is essentially unreviewable, much for the same reasons that the Second Circuit in this case found that Attorney General Meese's decision that it would be prejudicial to the interests of the United States to send Mr. Doherty to Ireland would--

Justice O'Connor: Would you take that position even if the Attorney General determined that the refugee would be subject to persecution on his return and that that would be wrong, but nevertheless that persecution furthered U.S. interests.

Do you think that's within the scope of his discretion?

Ms Mahoney: --Your Honor, I think that the Attorney General could properly find that Mr. Doherty's interests in sanctuary in the United States were not paramount, even if he was potentially going to be subjected to persecution in the United Kingdom.

And that the national interest in foreign policy and leadership in combatting terrorism did in fact require the... or at least that he found it appropriate to exercise his discretion in that regard.

I would note that in this Court's decision in Abudu, this Court was willing to assume that Dr. Abudu had made a prima facie case of persecution in Ghana, but nevertheless found that because he hadn't raised the claim, that it was sufficient to go ahead and send him back to Ghana despite that prima facie showing.

I'd like to reserve the rest of my time--

Unidentified Justice: If I could, counsel.

In your colloquy with Justice Stevens, you were talking about the Attorney General's authority, under your position, of withholding deportation as an initial matter because there's no substance to the case.

I take it you don't have to go that far here because this was just a denial of a motion to reopen, and that would be a much simpler position for you to defend, I take it.

Ms Mahoney: --Your Honor, I do think there is a difference, yes.

I think that the burden that the alien has on reopening... of showing a meritorious claim is higher than it would be if this were at the initial deportation hearing.

Unidentified Justice: What's your best case for that?

Ms Mahoney: Excuse me?

Unidentified Justice: What's your principal authority for that?

Ms Mahoney: I believe that in Wang this Court--

Unidentified Justice: In Wang.

Ms Mahoney: --In Wang this Court indicated that it was important to give the Attorney General discretion to come up with--

Unidentified Justice: Was that a withholding of deportation case?

Ms Mahoney: --No, it was not, Your Honor.

Abudu was the only withholding of deportation.

Unidentified Justice: Justice Blackmun I think had a question.

Let me be positive that I understood you.

Did you say that even though there's a convincing showing of persecution, the Attorney General nevertheless may deny asylum in the interests of foreign... U.S. foreign policy.

Ms Mahoney: Absolutely, Your Honor.

Unidentified Justice: And I had this one question, too.

Going back to withholding for a minute, in so far as you rely on subsection (c) in the nonpolitical nature of the crime, do you... what is the standard of review on that?

Do you think that's an abuse of discretion or is that a question of law as to whether these facts show that kind of--

Ms Mahoney: On a motion to reopen, we submit it should be an abuse of discretion because it is a mixed question of whether or not... of fact and law.

And we also believe that this Court should give deference to the Attorney General's... characterization of conduct as a nonpolitical offense.

Unidentified Justice: --So it's deference, abuse of discretion, and a mixed question of law.

Ms Mahoney: Thank you.

Unidentified Justice: Thank you, Ms. Mahoney.

Ms. Pike, we'll hear now from you.

ORAL ARGUMENT OF MARY BORESZ PIKE ON BEHALF OF THE RESPONDENT

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

This case raises a fundamental question about the circumstances under which the Attorney General can deny the relief of withholding of deportation, a form of protection that is mandatory under the Refugee Act, to an individual who has been found to have established prima facie entitlement to it.

For now almost a decade, the executive branch of the United States Government has labored to hand over to the British Government the individual that we have represented, Joseph Doherty.

Its efforts have been consistently rebuffed, both judicially and administratively.

The litigation has been fueled by executive branch displeasure with a 1984 decision by a United States District Court judge denying the request of the British Government for Mr. Doherty's extradition.

That decision categorically denied the request.

The district court judge, in rejecting the request, stated that the acts for which Mr. Doherty was sought were not common crimes, nor were they capable of being categorized as acts of terrorism, but rather they were political offenses and verbatim in their most classic form.

The issues that are now before this Court--

Justice Scalia: What did those... what did those acts consist of that he so found?

Mr. Pike: --There were two sets of acts, Justice Scalia.

One set were acts of which Mr. Doherty had been convicted in absentia.

The other set were acts with which he was charged.

The first set of which he had been convicted involved the shooting death of a member of the Secret Air Service, a member of the British Army, in an encounter between the IRA and the British Army in North Belfast.

Mr. Doherty was one of the members of the IRA that was engaged in that operation.

And the district judge found that it had been an ambush set up to engage and attack a British military convoy.

The second set of offenses had to do--

Unidentified Justice: May I interrupt?

What was Doherty convicted of in that in absentia trial?

What offense?

Mr. Pike: --In that trial, Your Honor, he was convicted of murder, attempted murder, possession of weapons, and for being a member of a proscribed organization.

The second set of offenses, to return to your question, Justice Scalia, had to do with Mr. Doherty's escape under orders of the IRA with seven other members of the IRA from a British prison in Belfast.

The district court judge determined that both sets of offenses were political and his extradition could not be had for any of the offenses for which his extradition was sought.

The issues, however, before this Court now are the outgrowth of executive branch displeasure with that decision, and its long campaign to escape the force and effect of the decision denying Mr. Doherty's extradition to the United Kingdom.

These issues, therefore, cannot properly be understood apart from the tortuous history of this case, now almost a decade long.

For with each decision adverse to it, the executive branch has resorted to legal positions more singular and more extreme.

Thus it is that the Attorney General now claims the power to withhold from an individual the relief of withholding of deportation, even though that individual has established prima facie entitlement to it, and even though that form of protection is mandatory under the Refugee Act.

And the Attorney General is utterly without discretion.

Once the standard is met--

Justice O'Connor: Well, we are dealing though here, Ms. Pike, I think with a motion to reopen.

And there is discretion there, is there not, on the motion to reopen?

Mr. Pike: --Your Honor, motions to reopen, of course, are committed to the discretion of the decisionmaker.

But the fact of the matter is that in order to be interpreted consistently with the convention and protocol that literally gave birth to the concept in American domestic law of withholding of deportation, that discretion is not in this case absolute or without limits.

And the reason for that is this very, very significant holding of the Board of Immigration Appeals in conjunction with a motion to reopen.

And that is, Your Honor, the Board of Immigration Appeals established that Mr. Doherty had met the initial threshold.

He had established a prima facie case of entitlement to that relief.

Unidentified Justice: That's under (h)(1) that he determined the alien's life or freedom would be threatened?

Mr. Pike: The Board of Immigration's order clearly directs that the case be reopened to allow him to apply for both.

Unidentified Justice: But I take the Attorney General says that he has an insubstantial case to resist the Attorney General's determination that the exceptions apply, the (a) and the (c) exception.

Is that the... is that the Government's position?

Mr. Pike: Yes, that is, Your Honor.

I mean, they in effect, though, do not dispute that he met the threshold he had to show, and that he established prima facie entitlement.

Now what they want to do is to ignore the fact that he did establish that he fit within this narrow category.

It is a very high standard.

And in effect, to deny him that relief without even granting him a hearing.

Chief Justice Rehnquist: But you agree, Ms. Pike, that the Board of Immigration Appeals is pretty much a creature of the Attorney General, isn't it?

Mr. Pike: Your Honor, I--

Chief Justice Rehnquist: Perhaps in more ways than one, you may feel at times.

Unidentified Justice: [Laughter]

Mr. Pike: --I could not, Chief Justice, stand before you and with a straight face deny the proposition that the Board of Immigration Appeals is not a creature of the Attorney General.

Chief Justice Rehnquist: But he isn't bound by its rulings, is he?

Mr. Pike: The Attorney General is not bound by the rulings of the Board of Immigration Appeals.

But against the history of this case, Chief Justice, he cannot simply disregard them.

Chief Justice Rehnquist: Well, why not?

Mr. Pike: Because, Your Honor, the concept of abuse of discretion means just that, discretion can be abused.

And here it was.

Unidentified Justice: Why would it be an abuse of discretion if he were to disregard a finding of a subordinate body?

Mr. Pike: Because when he disregarded it, Your Honor, given the state of the record in the case, he did it in a manner that was fundamentally unfair.

Despite the fact that we had met the threshold that we had to meet, the threshold that entitled us to a hearing, he went ahead and made a determination as to the ultimate merit of our claim without ever giving us an opportunity to in any way respond to the negative features that he found in Mr. Doherty's background.

Unidentified Justice: Well, do you think on a motion to reopen you're entitled somehow under the statute to an opportunity to respond in that way?

Mr. Pike: Your Honor, absolutely, I do, when the relief that is at stake is withholding of deportation.

I do not think that in fairness I could state that as certainly if there was another form of protection that was here implicated.

But we must focus on the fact that it is withholding of deportation, that we did meet that threshold, and that that form of protection is mandatory.

And for that reason, I think that we are in a position where having been deprived any opportunity to put forward our side of the case, that is an abuse of discretion by the Attorney General.

Unidentified Justice: Did the Attorney General justify his decision not to reopen under the withholding section just on the ground that the threshold hadn't been met?

Or that even if it had, he would make the determination under (a) and (c) that the relief was not available?

I don't know why you're so emphasizing the threshold, because it seems to me the Attorney General prevails if he has discretion to find that you have an insubstantial case under (a) or (c).

Mr. Pike: Your Honor, I have to disagree on that, because the fact of the matter is, is that once we do meet the threshold, it really does become at the very least an abuse of discretion to leap ahead and make the ultimate determination as to relief that is mandatory without affording us a hearing on this record.

Because the very things that the Attorney General asserted as the basis on which he premised his denial were the very acts that were found by another factfinder in the basis of an adversarial context where we did have an opportunity to put forward evidence and contest them.

Unidentified Justice: That was in the extradition?

Mr. Pike: That's right.

But of course, the fact of the matter is, is that it is accepted that the political offense exception is really the mirror image of the nonpolitical crimes aspect of asylum law.

Both exist to provide protection that is viewed under the law as being legitimate to people who commit political offenses, or who in the asylum context may even commit crimes, but still under withholding of deportation, be entitled to protection.

So we think that on the basis of this record, Justice Kennedy, that's what makes this wrong.

This is a case that comes before this Court with a history of now almost 9 years.

And that history cannot be ignored because time and time again the integrity of Mr. Doherty's positions have in fact been sustained.

Now, it may have been a different case, were there not this background.

But it is there.

Unidentified Justice: That might be true, Ms. Pike, but I don't see how that goes to whether it was arbitrary for him to deny reopening.

Now I think what you've established is a district judge had come to a different conclusion about whether (a) or (c) applied.

But the basis for which he came to that conclusion was surely a basis of law, not a basis of fact.

The facts were out.

And additional hearing wouldn't have established any... you're not asserting they would establish any new facts.

The question is whether that offense met the meaning of (a) or (c).

Now what you've established is that the Attorney General's interpretation differs from a United States district judge's.

That may well be good cause for a lawsuit, but I don't see why it's an abuse of discretion for the Attorney General to say, look, it's no use reopening, we're just wasting time to reopen because I know, I may be wrong, but I know that I'm going to find this comes within (a) or (c).

Now if you think it absolutely doesn't, maybe you have some appellate recourse.

But why should he waste his time reopening when he knows that he's going to find that (a) or (c) applies?

I find it hard to call that an abuse of discretion.

Mr. Pike: There are several reasons, Your Honor.

To start with, first of all, there may well be new facts here.

In the context, not only mind you, of withholding of deportation, but also of asylum, under the regulations, even when there is a mandatory ground for denial put forward by the Attorney General or by an immigration judge, the regulations see that as serious enough to require that the alien be afforded a hearing at which he can prove that the mandatory ground for denial does not apply.

Unidentified Justice: As an original matter, but surely not when those facts aren't brought forward during the course of a long proceeding, and the issue is whether to reopen the proceeding, which is what we have here.

You're not entitled to a full factual inquiry before he decides whether to reopen or not.

Mr. Pike: We think in this case were are, Your Honor, because the facts are extraordinary, and the case is extraordinary.

Unidentified Justice: Well that just means that the proceeding, the matter is reopened if you're going to just have the whole thing out on the table.

In effect, it's just reopening it.

Mr. Pike: Once reopening is granted, yes, it would be reopened for the purposes the board had deemed.

Unidentified Justice: What would happen if it were reopened that would be different if you had the hearing you wanted?

Mr. Pike: We think, Your Honor, based on past history in the case, we would certainly be able to establish that Mr. Doherty had not engaged in any serious nonpolitical crimes, and that he had not engaged in any acts of persecution.

Unidentified Justice: But your whole point is that you're relying on the extradition record.

It seems to me that almost cuts against you.

Mr. Pike: I don't see that it does, Justice Kennedy, because of the close fit between those various concepts.

I think that at the very least, that extradition record has to rest very firmly against the Attorney General's diametrically opposed conclusion.

Unidentified Justice: Well, but it seems to me that's a question of law.

Did you allege at any point in the proceedings what new evidence you would have to adduce to show nonapplicability of the (a) and (c) exceptions for subsection (h)?

Mr. Pike: We never had the opportunity.

That's exactly what we're saying.

We never had that opportunity.

And that is what would have been dealt with in the context of the reopened hearing.

Unidentified Justice: Well, don't you have that opportunity in connection with your submission for the motion to reopen, to just make an offer of proof?

Mr. Pike: Your Honor, what we established for the motion to reopen was that which we were required to establish.

Our prima facie eligibility or entitlement, more correctly, in the area of withholding of deportation, to the relief that we sought.

And in addition, we established the changed circumstances and the new facts that once excepted provided us the avenue for going forward with the rest of our case.

Yet, because of the determination that the Attorney General made, that hearing process was in effect pretermitted.

We never got to that.

And I think that again, in the context of withholding of deportation, that's a very serious matter because, as for example, the opinion of this Court in INS v. Abudu had indicated, that you cannot leap ahead in the context of relief that is nondiscretionary, that an ultimate determination on the merits can be rendered in the case of asylum, for example, or suspension of deportation or adjustment of status.

But not, not in the case of withholding of deportation.

Because it is mandatory, it is so significant.

And yet that's exactly what happened here.

Unidentified Justice: Ms. Pike, can I just ask this question?

In so far as the Attorney General relies on subsection (c), that they're a serious nonpolitical crime, is the Attorney General assuming that the facts stated and developed in the extradition proceeding are all correctly... are all correct as in that proceeding, or is he relying on some other record?

Mr. Pike: Well, Your Honor, the answer to that is... the first part of your question is yes, he does assume that those facts are correctly established in the record.

Unidentified Justice: And you take the position those facts are sufficient to establish the nonpolitical character of the crime.

Mr. Pike: We take that position, but our alternative position, if you will, is that at the very least, they entitle us to a hearing.

Unidentified Justice: But why isn't that record sufficient to let a reviewing court decide as a matter of law whether that subsection (c) is applicable or not?

Mr. Pike: We think, Your Honor, that under the circumstances as a matter of law, the decision cannot be made because absent the additional facts that could be adduced at the hearing, the proper balancing that is required in terms of the determination of the entitlement to that relief and possible exclusion from the protection of that relief can't be made.

And it is clear from the handbook that construes the convention and the protocol that the withholding of deportation section is fashioned on, that that process is absolutely central to the whole determination of claims for withholding of deportation.

So absent our part of the equation, we are in effect having a decision being made against us that does not involve our part of the case.

Unidentified Justice: I understand.

Mr. Pike: If I might continue, though, to respond to what really was the second part of your question as well.

There is a very curious aspect of the Attorney General's decision here which your question alluded to.

And that is that although the Attorney General accepts that the facts that he chose to rely on from the extradition proceeding were correct, he admits in his opinion that in effect, he does not have to find that Joseph Doherty himself committed serious nonpolitical crimes, that it's adequate if he can find that the Irish Republican Army committed serious nonpolitical crimes.

In effect, it is a tacit admission that there is not in this record any evidence that Joseph Doherty committed serious nonpolitical crimes.

And the thing that is most compelling about this, and indeed most chilling, is that the Attorney General ultimately bases his decision on what he refers to as material that is exhaustively documented... that's his phrase, exhaustively documented, in the record of another case, another immigration case altogether to which we were not a party, and which did not involve issues that were even remotely identical to the issues in this case.

Consequently, we think to have relied on that and to have made the determination, number one, without letting us have a hearing, and then on the basis of facts that are in another record altogether, really did deprive us of any opportunity to establish entitlement.

Justice O'Connor: Well, Ms. Pike, if, however, the Attorney General did not abuse his discretion in relying on the waiver and denying the motion to reopen, I just don't see how you get to those other reasons at all.

You may have something valid to argue about there, to the extent that we get into it, but I'm not sure we do.

Mr. Pike: Justice O'Connor--

Justice O'Connor: I thought these were alternative grounds asserted by the Attorney General.

Mr. Pike: --They are, but again, I must return to the basic point.

This is mandatory relief and we stepped into the circle that entitles us to go further.

If it were not mandatory relief, there might be a different result.

Justice O'Connor: But certainly your client waived the right to deportation.

He waived it.

So the question is whether that can be excused on this record and the Attorney General says no, that the decision was calculated, was an attempt, perhaps, to manipulate the system, and so forth.

Mr. Pike: I would appreciate the opportunity to respond to that.

This notion that Mr. Doherty had manipulated the system in a cynical or self-serving way I think is absolutely incorrect, and I do not think the record can be construed in that way.

The fact of the matter is that all that Mr. Doherty was doing was making an effort to avoid being deported to a country where he had a well-founded fear of persecution.

That I do not think constitutes manipulation of the process.

And in an effort to do that, Justice O'Connor, he availed himself of an option that is available under the statute to designate a country of deportation, in effect to accomplish his own removal from this country at the expense of at that time going forward on an asylum claim because he knew that he would not be rejected by Ireland.

And it is that fact that is central here, and what distinguishes this case from other cases, because under other cases... if I might just step back one moment.

First of all, you had queried earlier was this standard procedure.

Absolutely not.

The BIA said in its own decision it had found no other case where this had ever happened.

And given that fact, Mr. Doherty's expectation of deportation to Ireland was under the circumstances reasonable.

Justice O'Connor: Well, do you say that the Attorney General's order for deportation to the United Kingdom was itself a material change in circumstances, or that the order made enactment of the Extradition Act somehow material?

Mr. Pike: We did not say that at the time, Your Honor, because our motion to reopen had been filed in advance.

And Mr. Meese's decision came down afterward.

Justice O'Connor: Well, what are you saying now?

Mr. Pike: Absolutely.

No question about it.

Justice O'Connor: Which?

Which is it?

Mr. Pike: Let me think.

Absolutely, it was a change in circumstance.

Justice O'Connor: What?

Was it the Attorney General's order itself or that the order made the Extradition Act amendment somehow material?

Mr. Pike: Both are material for separate reasons, but ultimately they dovetail.

Mr. Meese's order was material because what it did was to transform the possibility that Mr. Doherty would not be... let me start again.

The significance of the Meese decision was that it in effect ensured that Mr. Doherty was going to be returned directly to a country where he feared persecution.

That was the significance of it.

We had filed the motion to reopen within 48 hours of the implementation of the Extradition Act of 1987 because under that act, Justice O'Connor, what we feared was indirect return, but certain return to a country of persecution.

So both of those were absolutely material under the reopening standards that the regulations set forth.

And we do not think in any way that the Meese decision vitiates what had been the original integrity of the claim under the Extradition Act.

Unidentified Justice: Well, did the court of appeals affirm Attorney General Meese's order?

Mr. Pike: Not as to the need for a hearing on the motion to reopen for withholding of deportation and asylum.

Unidentified Justice: I know, but did it say that he properly ordered... he properly refused deportation to Ireland?

Mr. Pike: Absolutely, Your Honor.

Unidentified Justice: And properly ordered Doherty deported to England?

Mr. Pike: That is correct.

But--

Unidentified Justice: You don't challenge that here?

Mr. Pike: --We do not, Your Honor.

But he made that order, and the Second Circuit appreciated that order as being made in the context of a motion to reopen that also involved claims for relief from deportation.

So the fact of the matter is that even though that order directed his deportation to the United Kingdom, that order is not subject to being acted on until Mr. Doherty's claims for relief under the Refugee Act are properly adjudicated.

And if I might, in a desperate attempt to try to finish the notion of why the waiver did not here obtain, under the normal situation, which everybody agrees did not happen here, if indeed there had been any perceived risk of deportation to the United Kingdom, the country where Mr. Doherty feared persecution, the immigration judge would have been obligated to go forward, to afford him the opportunity then and there to proceed on his asylum claim.

The record reveals that that never happened.

And it never happened because unlike other cases, in this case, it was already known at that point in time, there was no uncertainty, the Irish Government had indicated it would accept him into the national territory.

That was where he was going.

That was the country he had designated.

And therefore, the immigration judge saw no purpose to go forward on a claim for asylum to prevent deportation to a country where he wasn't going to be deported.

It was that simple.

And the asylum claim, the asylum hearing did not go forward at that point in time for that reason.

I would like finally to respond in this point to one other point that had been made by our adversary relative to the Extradition Act and the fact that there was no material change in the law as to that.

The fact of the matter is that there was indeed a very material change that was worked by the Extradition Act, and that has to be appreciated in the context of providing the adequate basis for Mr. Doherty's motion to reopen.

The Extradition Act, 1987, as a matter of black-letter law, wrote out of existence the political offense exception to extradition.

Whatever the Irish courts may have done prior to that really does not in any way obtain in terms of the finality that was accomplished once the Extradition Act was implemented.

Once it was, there was no question.

That defense was not available.

That was the defense that Mr. Doherty had successfully defended against extradition with here, and we had every reason to believe that he could have successfully defended against extradition there.

Certainly he had a strong case.

But with the passage of the Extradition Act--

Unidentified Justice: You argued... I thought you had argued that he couldn't.

I thought you had argued that.

Mr. Pike: --Your Honor, we had acknowledged that the Irish courts had made decisions that had made savage inroads into the political offense exception.

There is no question about that.

We did.

But the defense still existed.

It was capable of being raised.

And we felt that given the facts of Mr. Doherty's case, that certainly he would still be able to go forward with that, and conceivably at least have the opportunity of defending against extradition on that ground.

Once the Extradition Act was passed, that was absolutely removed.

There simply was no possibility of doing that.

I see that I am out of time.

Thank you.

Unidentified Justice: Ms. Pike.

You have 2 minutes, if you have rebuttal.

REBUTTAL ARGUMENT BY MAUREEN E. MAHONEY ON BEHALF OF THE PETITIONER

Ms Mahoney: Thank you, Your Honor.

Just a few points.

First, with respect to withholding, I'd like to emphasize that there simply is no question of fact to be resolved at an evidentiary hearing.

Mr. Doherty's counsel had an opportunity before the Attorney General to put in whatever evidence they thought might be appropriate to show that there was an issue of fact, but there simply isn't one.

The admissions that Mr. Doherty makes in his extradition transcript establish that there simply are serious reasons for the Attorney General to believe that serious nonpolitical offenses were committed.

Therefore, a hearing would serve no purpose, and that should not require the Attorney General to reopen the proceeding.

In addition, I'd like to emphasize that the Attorney General did rely on a broader range of conduct in determining that serious nonpolitical offenses had been committed than those relied upon by Judge Sprizzo.

Judge Sprizzo focused very particularly on the basically the murder of the British captain, and simply mentioned in passing that no civilians were injured on May 2nd of 1980, whereas the Attorney General focused specifically on the fact that Mr. Doherty sought to pursue his own political motives not only through the killing of the British captain, but also through deliberate acts of violence directed at citizens of Northern Ireland on that day.

Unidentified Justice: It was the factual basis for that conclusion, the record in the other case?

Ms Mahoney: No, Your Honor, that was in the extradition hearing itself.

The facts surrounding the May '80 events that Mr. Doherty admitted were that his group hijacked a van, held the driver captive, forcibly seized a private residence in a residential neighborhood, held the family captive, and waged a gun battle with automatic weapons from the family's living room.

The Attorney General found that that conduct was precisely the type of conduct that endangered innocent civilians and could not... and had to be regarded as serious nonpolitical offenses.

I see my time is up.

Thank you.

Chief Justice Rehnquist: The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Monday next at 10 o'clock.

Attribution:

The OYEZ Project

Featured:

United States v. Culbert - Oral Argument

Sun, 08 Aug 2010 19:14:24 +0000

Case:

United States v. Culbert

Media File:

77-142_19780111-argument.mp3

Related Transcript:

77-142_19780111-argument.xml

Transcript:

Argument of Sara Sun Beale

Chief Justice Warren E. Burger: We will hear arguments next in United States v. Culbert.

Mrs. Beale you may proceed whenever you are ready?

Ms Sara Sun Beale: Mr. Chief Justice and May it please the Court.

This case comes before this court on the Government’s petition for review of a decision of the Ninth Circuit Court of Appeals, holding that although respondent’s conduct in this case falls within the language of the Hobbs Act, 18 U. S. C. Section 1951.

It was nonetheless not within the reach of that Act because it did not also constitute racketeering.

Accordingly the Court of Appeals concluded that respondent’s conduct fell within the exclusive criminal jurisdiction of the State of California.

Let me reiterate at the outset that there is no dispute that respondent’s conduct fell within the express terms of the Act which reaches the conduct of whoever in any way or in any degree obstructs delays or affects commerce by either robbery or extortion or who attempts or conspires to do so.

Chief Justice Warren E. Burger: You say there is no dispute except that the Court did not seem to follow that?

Ms Sara Sun Beale: Well, there is no dispute that it falls within that language.

The question is whether the Act should be construed to have an additional limitation to racketeering, but it falls within the express terms.

The evidence showed that in April of 1975, respondent and his accomplice attempted to extort a $100,000 from the federally insured bank that was doing business in interstate commerce.

Respondent’s accomplice telephoned the bank’s president and threatened to detonate remote-controlled bombs at both the bank and the home of the bank president unless certain instructions were followed.

The bank president then took a package of false currency that has been supplied by the Federal Bureau of Investigation and left it at the spot that has been designated by respondent’s accomplice.

The respondent and his accomplice never picked up this package because it was found almost immediately by two small children who opened it and tore apart the packages of false currency.

Following a Jury trial in the Northern District of California, respondent was convicted of both the violation of the Hobbs Act and also of attempted bank robbery.

Although the Court of Appeals reversed both of these two convictions, the government seeks review in this court only of its ruling regarding respondent’s conviction under the Hobbs Act.

The Court of Appeals concluded relying upon an earlier decision of the Sixth Circuit that conduct such as respondent’s, which was prescribed by the express terms of the Hobbs Act must also be proven to constitute racketeering in order to be within the reach of that Act.

The Court rested this construction on the Act on two distinct grounds; first on its reading of Congressional Intent and second on its view of the considerations of Federalism.

The Court did not in its opinion defined the term “racketeering” and that is the point to which I will return later in my argument.

It did however conclude that there was no evidence of “racketeering” in the present case.

Judge Carter dissented from the reversal of the conviction under the Hobbs Act.

I want to stress that the Court of Appeals did not suggest and respondent does not contend that Congress lacked the constitutional authority to prohibit all of the conducts which does fall within the express terms of the Hobbs Act.

The breadth of Congress’ power under the Interstate Commerce Clause is firmly established and it is in no way a questioned here.

The Court of Appeals simply concluded that considerations of Federalism militated against any conclusion that Congress had intended, what that Court viewed as a major incursion into areas of State concern and as a result that Court adopted the limiting construction of the Act which is at issue here.

The language of the Act itself, which is of course the primary guide to its meaning, contains no support for this construction.

The Act does not define nor does it even mention the term “racketeering” nor does it contain any qualifying words that might be thought to exempt conduct which may not amount to racketeering.

Instead, the Act is broadly drafted to reach anyone, who in anyway or degree obstructs or effects commerce by either robbery or extortion.

Accordingly, the high of this Case is respondent’s contention that the sweeping language which Congress employed requires the limiting construction of the Act in order to prevent a wholesale invasion of the criminal jurisdiction of the States, a result which respondent contends was not within the intention of Congress.

I would like to turn first to the question of the legislative history of the Act.

I will not attempt here to review in great detail the various Congressional Committee reports that were issued in connection with both the Hobbs Act and its immediate predecessor the Act of June 18, 1934, nor will I try and review in detail the debates.

These matters are discussed at length in our brief.

I do want to make two principal points in connection —

Unknown Speaker: I take it the theory your case is you do not need to look at the legislative history at all?

Ms Sara Sun Beale: Well, I think that the language of the Act is very plain, but when one looks at the legislative history one finds nothing that supports the conclusion that is really at variance with that plain and very broad language.

My first point in connection with the legislative history of the Act is that although it was an outgrowth of Congressional concern with so called “racketeering” that in no way indicates that Congress intended some unstated limitation which appears neither in the Act itself nor in the committee reports to some concept of racketeering whatever that maybe.

Unknown Speaker: Mrs. Beale, has the Government utilized the Act to in cases such as this only recently?

Ms Sara Sun Beale: I think there has been no substantial change in the enforcement of the Hobbs Act in some 30 years since it was enacted.

It has received no new construction and I am not aware of any substantial change.

Unknown Speaker: Has they believe it has been restricted to the way across the state line?

Ms Sara Sun Beale: Well, there are simple policies that are currently used by the Department to determine what are appropriate areas or appropriate kinds of cases in which Hobbs Act should be enforced and they differ according to whether robbery or extortion is at issue.

The Department at present and I am not certain when this policy was first promulgated, it is not of particularly recent origin, but in robbery cases, the Department as a matter of policy restricts prosecution in most instances to cases where there is either a showing of organized crime involvement or an extensive scheme of some sort.

Now, in practice there is also an attempt to limit other kinds of cases to areas where there is what is thought to be a substantial federal concern and a point that I want to discuss shortly is that concerns really the reality of the concern with the invasion of State interests and a point that I was going to mention is that there were only 166 nationwide indictments under the Hobbs Act in 1976 and that perhaps will give some kind of an idea of what the enforcement pattern currently is.

Unknown Speaker: Ms. Beale, you have mentioned as the Department limits its prosecution in the case where there is a substantial federal concern.

You have cited the States Act Case in your brief if you remember, what was the substantial federal concern there?

Ms Sara Sun Beale: Well, the States Act case was a prosecution under color of official right, portion of the Act.

Unknown Speaker: Because it is a zoning bribery case, would it not, local zoning?

Ms Sara Sun Beale: Right, I think one of that considerations is of course and a theme that recurs in legislative history of the Act is a real concern for offenses which (A) affects commerce and (B) where the States have not acted on those prosecuting offences.

Unknown Speaker: In other words, the substantial federal concern is that the State is not doing a good job of enforcing its own laws?

Ms Sara Sun Beale: Well, I think that where interstate commerce has interfered by means of extortion where color of official right is involved, that is an area, particularly were the concern that Congress expressed whether that the States were not acting is being initiative.

Unknown Speaker: There was not really a terrible interference with interstate commerce in that case, was it not?

Ms Sara Sun Beale: And then that Neary hospital was never built.

I would not disagree that States Act maybe a case that is on the fringes and that there may not among a 166 prosecutions in a year be some which are not on the edge of the commerce.

Such as the present case accruing in the main —

Unknown Speaker: Is it not true that the statutes frequently have been used, at least in the Seventh Circuit, to prosecute political-type crimes where the local law enforcement authorities were not enforcing the local law?

Ms Sara Sun Beale: Well, I guess I am not prepared to discuss particularly the Seventh Circuit enforcement.

I do think that it is clear that the Act itself contains this specific provision dealing with extortion under color of official right and that that fits quite comfortably with the concern in the legislative history and that where there are crimes affecting interstate commerce, and particularly where the States do not act, and that is very likely to happen in cases of official corruption, that that would be appropriate area of federal concern.

So I would not be surprised to see a pattern such as that in the Seventh Circuit.

Justice William H. Rehnquist: Well, why do you say you would not be surprised to see such a pattern in the Seventh Circuit? [Laughter]

Ms Sara Sun Beale: I am not sure I intended quite, that was only in response to the earlier question.

Unknown Speaker: Well, you are moving forward --

Chief Justice Warren E. Burger: You have mentioned 166 cases in a year and in addition you have 94 United States Attorney’s Offices and the police senior the monitoring, perhaps I should say the monitoring of the day-to-day decisions is not a simple task I suppose?

Ms Sara Sun Beale: Oh! I think that is quite right but there is and this is the only point and we raised this in our brief to suggest that there is an effort to try and exert some control on the part of the Department, which is I think wholly consistent when the Act is very broadly drafted and this merely in response to the question of how is the Act enforced.

Unknown Speaker: The Bank here, if I may interrupt, was a National Bank, was it not?

Ms Sara Sun Beale: Pardon me?

Unknown Speaker: The bank that was the subject of this extortion was a National Bank?

Ms Sara Sun Beale: That is quite right, it was a federally-insured bank and there was also evidence of its doing business in interstate commerce and I think that is not at all any —

Unknown Speaker: Well, if it had been a State Bank and not insured under the FDIC, would that admit it?

Ms Sara Sun Beale: Well, I think that it seems to me at least and we have argued in our brief, that the banking industry is one which really has occupies a special position in interstate commerce and it serves as one of the channels of interstate commerce and I think a prosecution for extortion of a State Bank would not be an inappropriate exercise of federal power and I think it could be shown to have an effect probably on interstate commerce in a given case.

Unknown Speaker: The proof in this case showed interstate commerce?

Ms Sara Sun Beale: That is correct.

Chief Justice Warren E. Burger: But the statutory authority and the motives of the United States Attorney dispositive or even very important?

Ms Sara Sun Beale: No, I think that they are not dispositive and as I say this was raised only in connection with trying to quantify what is the practice under the Act, how many prosecutions are there because that goes to the issues suggested by respondents and the concern raised by the Court of Appeals as to whether the broad language of this Act has resulted or will result in some widespread incursion into areas of traditional State concern.

I think it is only relevant for that reason because of the concern expressed below.

Unknown Speaker: Well, Ms. Beale, the literal language of the Act I suppose, would you not agree would color robbery of goods from a department store that were destined to move and had moved in interstate commerce and were destined to be sold to customers of the store?

Ms Sara Sun Beale: Well, I think an effect on interstate commerce could be shown and it is clear that the Act applies where in fact...

Unknown Speaker: And would it not apply to that case?

Ms Sara Sun Beale: Well, I think --

Unknown Speaker: Would it also apply to (Inaudible) in the home that has been shifted interstate commerce?

Ms Sara Sun Beale: I think we may be getting near the fringes here.

Unknown Speaker: What if it is robbery?

If it is robbery, it has to be robbery or extortion?

Ms Sara Sun Beale: Affecting.

Unknown Speaker: Affecting commerce?

Ms Sara Sun Beale: Right.

Unknown Speaker: Ms. Beale, I would like to get back to this question I have been trying to get a word and advice on here?

The Court does not relied on the Yokley Case, did not it?

Ms Sara Sun Beale: That is exactly right.

Unknown Speaker: And this was a robbery of a Kmart store?

Ms Sara Sun Beale: That is correct.

Unknown Speaker: Do you think that is a different kind of a case?

Ms Sara Sun Beale: Well, I see no reason for distinguishing either in terms of the legislative intent or the considerations of Federalism as to whether some kind of additional concept not stated in the Act, should be applied or construed into the Act.

The legislative history makes it quite clear that at the time the Hobbs Act was enacted those who opposed the Act argued that every state had laws covering both extortion and robbery and they argued that this Act should not be passed because it would be a wholly unwanted incursion into these areas of State concern that the State had laws.

The proponents of the bill did not in any way disagree with that.

They said yes this is an area, every state has laws regarding extortion and regarding robbery, but in so far as it affects interstate commerce, these laws have not been enforced.

In many instances there is a burden and effect on interstate commerce and Hobbs Act must be passed in order to protect the flow interstate commerce.

That is the argument that carried the day.

No distinction was drawn either in the legislative history or in these debates as to either robbery or extortion.

Unknown Speaker: Then let me ask you an unfair question?

Why did not the Solicitor General of Sixth Circuit in Yokley?

Ms Sara Sun Beale: I really cannot answer that question.

I think at that point --

Unknown Speaker: Because he was a Circuit Judge at that point.

Ms Sara Sun Beale: In fact the case I saw -- [Laughter]

Justice Thurgood Marshall: Could that be an embezzlement that would not be under this statute?

Ms Sara Sun Beale: An embezzlement?

Justice Thurgood Marshall: Of money because money travels in interstate commerce?

Ms Sara Sun Beale: Well, I would not think considering the [voice overlap]

Justice Thurgood Marshall: Would it not affect the interstate commerce, embezzlement of money?

Ms Sara Sun Beale: Well, the Act is limited to robbery and extortion affecting interstate commerce and I would not think that normal case of embezzlement would fall in the definition of the Act.

Justice Thurgood Marshall: But robbery would?

Ms Sara Sun Beale: Well, because robbery is specifically.

Justice Thurgood Marshall: But why would you draw a line between robbery and embezzlement, unless they stop Congress in passing on embezzlement?

Ms Sara Sun Beale: I see no Constitutional impediment against Congress passing such a law.

Justice Thurgood Marshall: Well, what about steeling from a will?

Can you steal the money?

I am just wondering what is left to the state?

Ms Sara Sun Beale: I am not certain what affect there would be on interstate commerce that could be relied upon by Congress in the case of stealing from a will.

Justice Thurgood Marshall: Then it is conceded, money rules in interstate commerce, it has too?

Ms Sara Sun Beale: Well, that is a very broad statement, whether that would support the exercise of.

Justice Thurgood Marshall: Well, California does make any money?

They do not mind if (Inaudible), do they?

Ms Sara Sun Beale: It certainly should not be.

Justice Thurgood Marshall: So the money in California has moved in interstate commerce.

Ms Sara Sun Beale: That is correct.

Justice Thurgood Marshall: Which is covered by the statute?

Unknown Speaker: Which is wrong?

Ms Sara Sun Beale: I am not sure that I...

Justice Thurgood Marshall: If you rob money in the state, you would covered by the statute?

Ms Sara Sun Beale: Well, it is not clear that merely because some article has that one time passed interstate commerce at will that that would provide sufficient basis for Congress.

The Congress really want to one would have the power to would be able to make findings that any robbery affected interstate.

Justice Thurgood Marshall: It says robbery in any way or degree obstructs, delays, or affects commerce.

Ms Sara Sun Beale: Right, that is correct.

Justice Thurgood Marshall: And so if you rob somebody money, you could at least affect the commerce?

Ms Sara Sun Beale: Well, an artful counsel might be able to make that argument.

I suspect that Jury would not find that there had really been an effect on interstate commerce, if I rob someone a $5.00 on the corner.

In anyway, I do want to make a few additional points.

One is that the legislative history clearly indicates that there was no settled meaning for the term “racketeering” although Congress was concerned in 1934 and in 1946 with a variety of problems that were described as “racketeering.

That term had no distinct meaning.

The committee which was investigating the problem of racketeering found it necessary to adopt a working definition to guide its investigation and it stated that it was necessary to adopt such a definition because the term “racketeering” was being used to refer to activities that were not even criminal, to activities that were immoral, to activities that were fraudulent, to wide varieties.

Another point that it seems inconceivable in that regard that a committee that was so aware of the vagueness of the definition of the term “racketeering”, would nevertheless have intended to make that a part of a federal criminal statute without mentioning it in the Act, without defining it, without making it as clear in the committee reports.

Another point regarding the legislative history of the Act, is that there is a suggestion both in respondent’s brief and by the Court below that because the originating committee was concerned with racketeering and because there are various expressions of support for the bill as an anti-racketeering measure, the bill should be construed as limited to this one kind of problem only to racketeering.

If that were true, it seems to me that all the ninety some bills that were proposed by the same committee at the close of its investigation on racketeering, which range from kidnapping to munity in Federal Prisons, to interstate transportation of stolen property, that all of those would likewise have to be limited to racketeering.

And it seems to be that it is simply not reasonable to construe all the committee’s work as limited to racketeering, when it never expressed the desire that that should be done and when this was not made an element of that particular statute.

I have already mentioned the fact that the debates on the Hobbs Act make very clear the fact that Congress was well aware of the fact that the crimes being defined in the Hobbs Act were crimes which are already punishable under State law and in deed it was recognized that the definitions which appear in the Hobbs Act were derived and were taken directly from the New York penal code.

Justice William H. Rehnquist: The Hobbs Act does not preempt State law, does it?

Ms Sara Sun Beale: No, that is exactly right.

No one has ever suggested that merely because the Congress found it desirable and necessary to define the theory to allow federal prosecutions that had intended that the State should not be allowed to prosecute robbery and extortion and indeed they do so today.

I think it is time to turn from the legislative history to the considerations of Federalism, which really underlay the Court’s reading on the legislative history.

The first point that I would like to make is one which I touch on somewhat earlier.

The Court of Appeals suggested that the limiting construction, which it applied to the Act was essential in order to prevent a really wide scale invasion and incursion on to the criminal jurisdiction of the States.

Just mentioning response to Mr. Justice Rehnquist’s question that the Act has never been interpreted nor was in intended to preempt the State.

In addition as I noted earlier, there has been no wide scale incursion into areas causing a general problem.

There were 166 prosecutions nationwide in 1976.

Again, turning to this particular prosecution, we think it is a good example of one where there is a strong federal interest involved.

The Federal Government (Inaudible) has a compelling interest in prosecuting under its own laws an attempted extortion from a bank that it ensures that serves businesses in many states and that is part of an industry that perhaps more than any other facilitates the flow of interstate commerce.

In any event, even assuming that there are factual situations that fall within the literal language of the Hobbs Act, but in which there is no substantial federal interest, requiring proof of “racketeering” would in no way serve to screen out those cases in which there is a minimal federal interest.

Although the Court of Appeals provided no definition of “racketeering.”

It seems clear that there is nothing inherent in their concept which suggests that racketeers prey only on businesses, on persons who are heavily involved in interstate commerce.

Indeed the respondent’s brief indicates and cites a good portion of the legislative history to show that many rackets are of essentially local character.

Therefore, limiting the Act to “racketeering” seems to have very little to do with a legitimate concern for state sovereignty.

Indeed the fact that the prosecution we have at issue here falls out five scope of the Act, as it was defined by the Court of Appeals, despite the vital federal interest, demonstrates the fallacy of assuming that limiting the Act to “racketeering” will somehow serves the purpose of screening out these cases which are less directly related to the federal interest.

Justice William H. Rehnquist: Ms. Beale, you said that many rackets are of purely local interest.

What did you mean by the term “rackets?”

Ms Sara Sun Beale: I was referring to the portions of a legislative history that are particularly cited and emphasized in respondent’s brief.

There are many problems in the legislative history which are so called “rackets” or “racketeering,” many definitions, but some of those with which Congress was clearly concerned, as shown by the legislative history seem to be of an essentially local nature.

And it seems clear that Congress took the working definition of the committee in 1934 and adopted that definition in the 1934 Act to make it suitable for use in a federal criminal statute and changed the definition in two primary ways.

The working definition was as an organized conspiracy to commit either robbery or coercion.

The committee added to that definition in the 1934 Act, the requirement that there be an effect on interstate commerce and they deleted the requirement that there be an organized conspiracy.

Justice Thurgood Marshall: Was there a considerable testimony by crossing the state lines turned to the debates on the Hobbs Act?

Ms Sara Sun Beale: There certainly were expressions of —

Justice Thurgood Marshall: Did Mr. Hoover testify on that reply?

Ms Sara Sun Beale: I am not entirely sure?

Justice Thurgood Marshall: My point is you say it was strictly local and I think you are wrong?

I think they were right about crossing state line.

Ms Sara Sun Beale: I think I perhaps I have confused two separate points.

One is that some...

Justice Thurgood Marshall: I am confused.

Ms Sara Sun Beale: No, one is that some things that were described in the legislative history as “rackets” were indicated to be areas of primarily local concerns, but as to what the Act has intended and the debates reflect it clearly as matters where there is some basis for federal jurisdiction where there is a crossing of state lines, where there was an institution such as the federally insured bank here, where there is a really substantial federal interest and certainly --

Chief Justice Warren E. Burger: Good, this might be a good time to remind us that Justice Frankfurt once said that when the legislative history is ambiguous and confused to turn to the clear language of the statute.

I do not remember the name of the case.

Ms Sara Sun Beale: In fact I think that a close examination of the legislative history, really it makes a stronger case than that.

There is simply is other than the fact that they are just expressions of concern regarding racketeering, there is no showing that any limitation that was unstated in the Act to some definition of “racketeering” was intended so it is even a clearer case than that, which you make.

So we believe that since neither the legislative history nor any concerns for Federalism justify importing a vague concept into the Act, which will simply make more difficult its enforcement, without in any way screening out cases in which there is a lesser federal interest shows that there is no grounds for the construction of the Act chosen by the Court of Appeals and we therefore respectfully submit that its judgment should be reversed.

Chief Justice Warren E. Burger: Mr. Hewitt.

Argument of James F. Hewitt

Mr. James F. Hewitt: Mr. Chief Justice and May it please the Court.

I suppose if (Inaudible) were to give a title to this Case he could title it, “The Lamentable Loophole” because I think that is what the Government is faced with.

When the Bank Robbery Act which came as the result of the anti-gangster program from the mid-30s, it was considered in conjunction with the “Racketeering Act” the title given to the predecessor of the Hobbs Act.

The ultimate statute that came out of the 1937 Amendments, involved a crime of bank robbery which included as an element, intimidation, the essence of extortion.

It required that this intimidation or the obtaining of the money to be from the person or presence of the bank officer and with the structure at that time with the bank laws in this statute, there was this gaping hole.

Unless the property was taken from the person or presence of a bank officer, it was not a federal bank robbery, nor would it be a loss in the FB taking or not trespassory in nature.

So we were left with one novel class of offence that was uncovered, Extortion not from the person.

The Government’s luck, there were three alternatives.

They could have gone to Congress and have that loophole filled, corrected by legislation.

They could find another statute that fits or they could leave the enforcement to the states.

Well, the Government has chose to take the second alternative and stretched commerce statute that was aimed at racketeering to fill the loophole and by doing so the inevitable consequence is a blanket intrusion into an area traditionally enforced by the states.

Justice William H. Rehnquist: When you say it was aimed at racketeering Mr. Hewitt, what do you mean by “racketeering”?

Mr. James F. Hewitt: I think the working definition adopted by the committee pretty well expresses what “racketeering” meant in the 30s and I suppose what it means to most people at the present time, an organized criminal conspiracy, perhaps an ongoing criminal conspiracy not certainly an isolated event.

Justice William H. Rehnquist: Do you think anyone could be punished under this statute then?

Mr. James F. Hewitt: As the statute is presently written?

Justice William H. Rehnquist: Yes.

Mr. James F. Hewitt: I think an isolated robbery of a corner liquor store is a violation of the Hobbs Act if we give it the interpretation as by the Government.

The Yokley case was a stickup of the Kmart department store.

Justice William H. Rehnquist: But you are saying neither of those can be punished under the statute, are you not?

You agree with the Yokley?

Mr. James F. Hewitt: Yes.

Justice William H. Rehnquist: Well, what I am asking you is if you take Yokley as the law and the decision of the Ninth Circuit, in this case as the law.

Do you think anyone can be validly indicted under this particular section in view of that if you have to read in the “racketeering” qualifications which to me is rather a Morpheus?

Mr. James F. Hewitt: Yes, I think that they could be indicted and prosecuted and convicted if they were found to be engaged in “racketeering” and I see no reason why the definition could not be the definition offered by the Copeland Committee as the working definition.

Justice William H. Rehnquist: Even though it does not appear in the statute?

Mr. James F. Hewitt: Even though it does not appear in the statute.

But Mr. Hewitt you considered the definition of Felony in the Gerone Case, the word Felony has the common meaning of a crime involving punishment in excess of the year, but the Court went beyond that to the legislative history and determined that it only pertain to felonies affecting National Banks.

Justice Thurgood Marshall: Mr. Hewitt, what is in the statute that where a criminal has to go to the legislative history?

Mr. James F. Hewitt: Well...

Justice Thurgood Marshall: What hold that phrase?

Mr. James F. Hewitt: I think it is the obvious breadth of the statute.

Justice Thurgood Marshall: The in terrorem effect?

Mr. James F. Hewitt: Yes, Your Honor.

The obvious...

Justice Thurgood Marshall: Are we allowed to do that?

Mr. James F. Hewitt: I think the Court must, because — I think what’s happened is that the evolution of the interstate commerce.

Justice Thurgood Marshall: Well, you say this is unconstitutional?

Mr. James F. Hewitt: No, I am not saying that, Your Honor.

Justice Thurgood Marshall: Well, then why do we have to do this?

Mr. James F. Hewitt: Because I think it is the duty upon this Court to make sure that there is no unwarranted intrusion or incursion into traditional state police power matters.

Now, when time...

Chief Justice Warren E. Burger: Where do we find that limitation?

Mr. James F. Hewitt: This Court made the suggestion in a number of cases —

Chief Justice Warren E. Burger: Where do we find it, in the Constitution somewhere?

Mr. James F. Hewitt: Just the Tenth Amendment, reserving the powers to the states, will certainly be a constitutional.

Chief Justice Warren E. Burger: And you think the protection of National Banks was reserved exclusively to the States then?

Mr. James F. Hewitt: Well, no Your Honor, National Banks is a different problem here.

Chief Justice Warren E. Burger: Is it not what we have got here?

Mr. James F. Hewitt: Well, we have a National Bank, but we do not have a National Bank that is protected by the national banking provisions.

We have a National Bank that is sought to be protected as an instrumentality of interstate commerce and it is clear that is not what Congress was thinking of in the 30s.

They were not aiming this legislation at National Banks.

They were aiming them at the Bank Robbery Act at National Banks.

This was aimed at interstate commerce as it was known in 1934 and 1937 and we know that in that era, in the new deal era, Congress was very sensitive about intruding into the state’s reserved powers.

Justice William H. Rehnquist: Well, how about the Fair Labor Standards Act, which was passed in 1938, would you say that was an example of Congressional sensitivity?

Mr. James F. Hewitt: I think that was, right, there was certainly recognition and discussion on it of whether or not this would be an intrusion in the vested powers of the states and the resolution I think was made that this is an area where the Federal Government does have an interest.

My concern here is that what has happened is that the definition of interstate commerce has evolved with the operation of the de minimis rule to cover just about any instrumentality, including the corner grocery store.

Chief Justice Warren E. Burger: Do we need to worry about the corner grocery store in a case where we are dealing with a National Bank?

Mr. James F. Hewitt: Well, I bet Your Honor.

I feel safer if I were here with the Kmart department store in Sixth Circuit.

Chief Justice Warren E. Burger: Or the corner liquor store?

Mr. James F. Hewitt: Yes, well if the statute itself could be so broadly interpreted, and if the only limitation upon its application where there is a threat of intrusion and upsetting of the balance of Federalism.

The only limitation is the digression of the prosecutor that he is not going to push, he is not going to enforce the statute as broadly as it is read.

But he would choose to limit it so as not to intrude upon the vested interest of the States.

I do not think that is a sufficient protection to preserve that balance.

Justice John Paul Stevens: Mr. Hewitt, I have another problem with your reading in this exception for “racketeering”, if “racketeering” is a conspiracy to use intimidation to extort money or whatever the language was.

Why is it not that what this was anyway?

This is two people involved in this plan to threaten this person with violence in order to get money out of the bank?

Why does it not fit with right within the “racketeering” definition anyway?

Mr. James F. Hewitt: Well, it was never prosecuted on that theory, nor was it —

Justice John Paul Stevens: Well, if (Inaudible) had violated the statute and you say no it does not violate the statute because it is not “racketeering” and then you describe “racketeering” in a way that I think fits these facts.

Or do I miss something?

Mr. James F. Hewitt: Well, I think the concept of “racketeering,” if were to give it the meaning of the Congress obviously intended in the 30s, must be an ongoing operation more than an isolated transaction, kind of an organized criminal conspiracy as they define it.

Justice Thurgood Marshall: (Inaudible)

Mr. James F. Hewitt: It may well be, it may well be that if these were evidence of the series of bank robberies by these same individuals, we might have some organized crime or racketeering that fits with that.

Justice Thurgood Marshall: Your observation would put a rather severe crimp on the federal kidnapping statute, would they not?

Usually you do not have chain store operations with kidnappings, you know as we did in the 30s.

Kidnapping is an isolated act, as this you can see it was an isolated act.

Mr. James F. Hewitt: Well, I think the legislative history behind the kidnapping act has certainly pointed that the isolated transaction rather than any ongoing enterprise.

And certainly Congress had indicated, in enacting the kidnapping statute that it was intruding into what would be ordinarily state police power, but it may specifically find that because of the mobility of the kidnapper, the states were powerless to have proper —

Unknown Speaker: Well it was not the same thing true about the loan sharking statute that you have sustained two or three years ago?

Mr. James F. Hewitt: Yes and I think Congress could be very well similar to, in the loan sharking statute, find that racketeering has such an effect within interstate commerce that all racketeering maybe punished federally.

Unknown Speaker: Is this further away from federal concern than loan sharking?

Mr. James F. Hewitt: I do not think so.

Unknown Speaker: This case?

Mr. James F. Hewitt: Oh! This case?

Unknown Speaker: Yes, this case, the statute?

Mr. James F. Hewitt: I think the primary federal concern here is incidental only, that is, that it was a National Bank of which the federal government has primary power and interest.

Unknown Speaker: Whereas in the loan sharking case you did not have any national aspect expect that it had some, as the dissenters thought, some very remote effect and impact on interstate commerce.

Mr. James F. Hewitt: The Congress there Your Honor, made a finding that loan sharking does affect commerce, either under the bankruptcy clause or the commerce clause, that it was very difficult to show as an element of proof of connection with commerce to justify jurisdiction.

Therefore, one of the classes of activity in which the legislation was aimed and for us loan sharking, it was sufficient to show that the person was a member of that class and nothing more.

Congress could have done the same thing here, but they did not.

My suggestion is that the legislative history indicates very clearly that Congress was frankly talking about labor racketeering.

Justice William H. Rehnquist: But you have a quote here Mr. Hewitt, with a constitutional basis for this particular prosecution that there was an insufficient basis for connecting this particular extortion with the movement of goods in interstate commerce?

Mr. James F. Hewitt: I do not think we can Your Honor, I think the predicate was laid in the course of the trial that most banks, in effect I almost say all banks, have a sufficient connection upon interstate commerce, sufficient connection with it under the depiction of assets there and many others.

Justice William H. Rehnquist: To me this is a better case for the Government than Perez, which I think frankly had I been on the Court I would have regarded it as quite doubtful in spite of the blanket Congressional findings, but here it seems to me you have factual findings by a trier effect?

Mr. James F. Hewitt: That facet does not bother me, I agree this is a much stronger case than Perez.

Unknown Speaker: Constitutionally?

Mr. James F. Hewitt: Constitutionally.

Unknown Speaker: But you are not making a constitutional claim?

Mr. James F. Hewitt: No sir, I am certainly not.

I am simply saying that in the legislative history it is clear that Congress was talking in Hobbs Act and the Copeland Act before about extortion and robbery affecting interstate commerce.

During the same legislation, at the same time the legislation was being considered, they were protecting National Banks with the Bank Robbery Statute.

They left a gaping hole, and the question is whether that hole can be filled without doing violence to the considerations of Federalism and we suggest that it can.

Justice Thurgood Marshall: Just exactly what constitutional right will deny the Yokley?

Mr. James F. Hewitt: Well, I am not really making a constitutional argument Mr. Justice Marshall.

Justice Thurgood Marshall: Well, what is the federal statute that was violated?

We are trying to find out what is the complaint here is that we can get to?

Mr. James F. Hewitt: The complaints is, and as the Court below.

Justice Thurgood Marshall: I know you have a complaint but (Inaudible) because you have not complained?

Mr. James F. Hewitt: I have certainly do.

Justice Thurgood Marshall: But I want to know something that we can address, well, I mean you say that it is not constitutional so it must be statutory?

Mr. James F. Hewitt: Well, yes, it is statutory.

He was convicted of the statute that requires showing more than simply an Act affecting commerce under the de minimis theory.

Justice Thurgood Marshall: Your theory is that by some provision of the Constitution, you read into a statute something that is in the statute?

Mr. James F. Hewitt: Well, I think that I am asking this Court to read into the statue a limitation that will prevent the statute from being applied, thereby intruding into the vested police power of the states.

Justice Thurgood Marshall: Well, then it seems to me it applies to show that if we do not do that, your client has at some constitutional provision violated.

If not, why are you here?

Mr. James F. Hewitt: No, I do not think there is any constitutional.

Justice Thurgood Marshall: You are saying it seems to me that unless we go with you, your client is being denied of constitutional right?

Mr. James F. Hewitt: Well, I suppose I can always use due process then like you brought it up, but the constitutional right would be to be tried and convicted by a state court for an offence against the state that is not a federal offence.

Chief Justice Warren E. Burger: What if the amount extorted or sum to be extorted was enough to render the National Bank insolvent, would you think then if the demand had been that large you would have a real impact on intestate commerce?

Mr. James F. Hewitt: Your Honor I am not concerned with the impact on commerce.

I think there is a sufficient impact here to support constitutional jurisdiction.

Chief Justice Warren E. Burger: Well, but then if there is a sufficient impact, does not that would be a federal concern and what seems to be the fulcrum of your argument that there is not sufficient federal concern here?

Mr. James F. Hewitt: No, that is not my argument either?

Chief Justice Warren E. Burger: I think the person wanted to be convicted by a state court?

Mr. James F. Hewitt: That is right, he wants to be convicted for a legitimate crime rather than have the Federal Law twisted around to inject the Federal Government into an area where they do not belong, unless Congress has specifically indicated we wish to inject federal enforcement into this narrow area.

Justice Thurgood Marshall: Of course if you really can't be tried and the state to it and the statute, right?

Mr. James F. Hewitt: No, I do not believe it has Your Honor and he could not be tried by the State only because California has a penal code provision that prohibits it.

If he were prosecuted in the State, he could be prosecuted again in the federal government or in the State in which no provision was made.

Justice Thurgood Marshall: But he has been indicted in the state court?

Mr. James F. Hewitt: No.

Justice Thurgood Marshall: And how long would the statute must take here?

Mr. James F. Hewitt: Five years, Your Honor.

Unknown Speaker: Are you familiar with the Caminetti Case, Mr. Hewitt?

Back in good many years ago in 1917, involving the Mann Act, where the legislative history of the Mann Act was very clear that it was directed at the so called White Slave Traffic, that where the literal terms of the statute covered, casual, fully non-commercial episode between Missouri and Kansas City, Missouri and Kansas City, Kansas I think and the conviction was affirmed here.

Mr. James F. Hewitt: Yes, Your Honor.

Unknown Speaker: Is it not the argument you are making is precisely the kind of argument that was rejected in that case?

Mr. James F. Hewitt: No, and for this reason I think that it is fairly clear that Congress was directing the Mann Act at that isolated a single.

Unknown Speaker: No, what was clear that Congress was directing it at commercialized advice, an interstate transportation so called White Slaves.

That was the, legislative history was crystal clear, but the literal terms of the statute covered this single, casual, non-commercial episode and this Court, in the opinion by Mr. Justice Day, I think he was affirmed the conviction.

Mr. James F. Hewitt: Yes, I recall that case, very close to in many regards to this, but...

Unknown Speaker: Maybe we are now in a different era?

That case, that decision had been greatly criticized actually.

Mr. James F. Hewitt: I can recall the hypothetical been used to driving across the Fourteenth street Bridge with evil intent would violate the Mann Act at that time because Congress in the 30s was very sensitive to the considerations of Federalism.

The Justice Department at that time, statements were made by Attorney General Mitchell and later by Attorney General Cummings that they were concerned with the fiscal consequences of injecting the Federal Government into the States of assuming too much responsibility, fear that otherwise, if they injected themselves too greatly into state law enforcement that the states would themselves stop beefing up their police and stop chasing after gangsters of the gangster era.

So I think it is fairly clear that the Racketeering Act of 1934 was aimed at the primary federal interest of interstate commerce.

But certainly a secondary interest was racketeering and having defined “racketeering” as an organized conspiracy to commit extortion, we suggest that the Court could turn to that definition as the definition that Congress obviously was using when it was considering those legislations.

As suggested before in this Court in Gerone, looked at the legislative history to define felony as that term which used in Gerone.

Unknown Speaker: But if as long as the goal as Mr. Justice Day’s opinion, it was thought by the Congress and accepted by the Court.

This was not an undue intrusion into State’s police power, has not the world become more complex and travel much swifter and all other things going opposite from the direction that you argue?

Mr. James F. Hewitt: It certainly has and I would have to concede if Congress were to consider this bill today, Congress would probably find that its advantages to assume this role and this responsibility in the states and I am sure that they would enact a statute as broad as this if not broader if possible.

But I do not think that we can consider what their intent might be today under similar circumstances.

I think the question is, what the intent of Congress was in 1934 and 1937, and later in 1946 when the Hobbs Act amended the Antiracketeering Act, and I submit that there is no indication.

Unknown Speaker: Well, I was speaking of the lapse of time between Mr. Day’s opinion and the late 30s?

That was the movement of all the legislation at that time, and suddenly the country discovered that automobiles and airplanes and a lot of other things had come on the scene and changed the whole pattern of criminal activity, especially if people could commit crimes near state borders and then slip across the next border.

Mr. James F. Hewitt: And I think this reflected in the outgrowth of the 30s legislation to have the mobility and the change in the world and like I say I think Congress could now do this if it made that decision that it is going to enact legislation —

Unknown Speaker: While they made that decision, did they not make that decision in the 30s?

Mr. James F. Hewitt: No, I do not think in this particular statute they did. I think in some areas it was debated, resolved that they would.

A racketeering and gangster activities were such that the Federal Government had to protect Federal Banks, therefore the Bank Robbery Act came out.

As we pointed out in our briefs there were 25 or 30 pieces of legislation that grew out of that crime package.

The only one called a Racketeering Act was this particular statute.

The refill was aimed at racketeering.

Unknown Speaker: Who calls it that?

Mr. James F. Hewitt: Pardon?

Unknown Speaker: Who calls it that?

Mr. James F. Hewitt: Congress called it.

Unknown Speaker: In the legislation itself?

Mr. James F. Hewitt: Yes, that was the title of this particular bill.

Unknown Speaker: In the language of the statute that.

Mr. James F. Hewitt: The Racketeering Act.

Unknown Speaker: No, in the language of the particular statute we are applying here?

Mr. James F. Hewitt: The title?

Unknown Speaker: No, I am talking about the statute?

Mr. James F. Hewitt: Within the statute, no, of course they did not use the term there.

Perhaps Congress assumed that everyone would now they were talking about racketeering.

I concede as the Government points out that when they passed the recent crime bill they defined “racketeering” specifically.

Unknown Speaker: They could have done all of that with this bill?

Mr. James F. Hewitt: They certainly could have Your Honor, if they felt that —

Unknown Speaker: And they did not?

We spoke with not what they could have done, but with what they did do.

Mr. James F. Hewitt: Well in 40 years, I suppose Congress realized that they may have to define terms more specifically then they did in the mid-30s.

At that time they thought that probably there be no encouragement upon state police powers since at that time a direct effect to put into interstate commerce was required.

They were speaking in terms of the Poultry Racket and the shake downs that gave rise to Court’s decision of local 807.

They were not thinking that interstate commerce would mean upon a grocery store or a small business with just a de minimis affect on commerce.

And I do not think that there is any suggestion in the legislative history that Congress dreamed that this Extortion Act aimed at labor racketeering would ever be use to fill the loophole in the bank robbery statute and I think that is precisely what has been done here.

I do not think that relying upon the Justice Department to limit itself will solve the problem.

I think that the Court has to find whether or not if this statute being broadly applied would be an intrusion into state sovereignty.

I think the Court should give it a restrictive blast and prevent any upsetting of that delicate balance.

No further questions, thank you Your Honor.

Chief Justice Warren E. Burger: Very well Mr. Hewitt.

Do you have anything further Mrs. Beale?

Rebuttal of Sara Sun Beale

Ms Sara Sun Beale: Just a few brief points, the first is that, despite respondent’s arguments there is not one shred of legislative history that indicates intent to place an unstated limitation on this broad language to limit it only to some activities called “racketeering.”

The 1934 Act was officially titled and I quote, “An Act to protect trade and commerce against interference by violence, threats, coercion or intimidation".

That word racketeering is not mentioned in either of the two Acts, it is not mentioned in the titles and we do not believe that fair reading of the legislative history indicates that it was intended to have some unstated limitations.

We think the fact that there is no definite definition of “racketeering” fully supports that point.

There is a definition of “racketeering” in Section 1961 of Title XVIII, that definition was adopted in I believe in 1970 and certainly it cannot be suggested that that definition was intended to apply in 1934.

The committee definition is clearly not what Congress intended to reach in either of the two Acts, the committee’s working definition, in view of the fact that the committee reports clearly reflect the fact that no limitations to conspiracy or to some kind of organized activity was intended to be required by this Act.

They purposely omitted that particular element and indeed I should note that the committee’s working definition was first publicly published in a report that appeared in 1937, detailing three years of its work.

That working definition does not appear in the committee reports which were put out to define the scope of the 1934 Act that we have in question here and they do not appear directly in connection with the legislative history of that Act.

It is simply a working definition of all of the work of a committee that introduced ninety some bills in 1934, bills relating to kidnapping, to mutiny in federal penal institutions, to interstate transportation of stolen property, as well as to the Act we had under consideration here.

Respondent seems to be arguing that what Congress ought to have done, is to have defined “racketeering” as it did in Section 1961 and then to have made that kind of activity punishable either generally because it found that all racketeering affects interstate commerce or only in so far that it affects interstate commerce, but Congress simply did not do that.

The legislative history does not reflect intent to do that and certainly language of the Acts does not reflect any such intent.

Furthermore the purpose, which respondent is suggesting a limitation of an Act is required; the purpose of keeping the Federal Government from intruding into the areas of state concern is in no way served by limiting this Act to racketeering.

It simply will not have the purpose of screening out cases where there is no very strong or very great federal interest, as it might be defined by individual Judges or Justices.

Indeed, we think as the questions indicated by the Court today, that this is a case of a very strong federal interest, but at least as the Ninth Circuit construes the Act with the racketeering requirement, this case falls outside of the scope of the Hobbs Act.

So we think it is not a sensible limitation to limit the incursion on state jurisdiction and there is no support for it in the language or in the legislative history, which is detailed fully in our brief, thank you.

Chief Justice Warren E. Burger: Thank you counsel, the case is submitted.

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Featured:

Callanan v. United States - Oral Argument, Part 1

Tue, 25 Sep 2012 22:35:39 +0000

Case:

Callanan v. United States

Media File:

47_19601115-argument-1

Related Transcript:

47_19601115-argument-1

Transcript:

Argument of Morris A. Shenker

Chief Justice Earl Warren: Number 47, Lawrence Callanan, Petitioner, versus United States.

Mr. Shenker.

Mr. Morris A. Shenker: Yes Your Honor.

Mr. Chief Justice Warren, Your Honors.

The question in this case is primarily whether the Court and -- and the racketeering, the so-called racketeering in this action of statute whether the Court would impose consecutive sentences for the offense of conspiracy as well as for the substantive offense.

The custody of this case is briefly -- briefly stated as follows.

In 1953, actually this indictment was in 1954, the defendant and four other individuals were indicted and were accused for violating Section 1951 of 18 U.S.C., that is the so-called racketeering statute or the Hobbs action.

The defend -- the indictment was in two counts.

One count, alleged at conspiracy and the other count alleged in the violation of a substantive offense.

The defendant as well as the other defendants were convicted of both -- on both counts in the indictment and the Court sentenced the defendant on the first count to 12 years in the penitentiary which was the first count was the conspiracy count and that it sentenced the defendant from the second count also for 12 years to serve in the penitentiary.

And -- but the Court suspended the survey with the second sentence for 12 years for a period -- first court ordered that it should be served consecutively but suspended the serving of the second sentence -- sentence and placed the defendant on probation for a period of five years, the period of probation to begin at the time the -- he had released and completed the first sentence of 12 years.

The defendant began to serve the sentence and was paroled in April of 1960 on the first sentence.

Three years (Inaudible) proceeding in 1900 -- in December of 1958 while the defendant was still confined on the Rule 35 asking the Court originally to modify the original sentence, the sentence for the conspiracy or on the alternative to grant us relief, it being our contention that that statute provides for a total punishment of 20 years and that is the maximum punishment that can be inflicted and that can be imposed by the Court, and that that is not possible under that statute to give consecutive sentences.

Insofar as the -- and that is to give consecutive sentences for the violation of the various provisions of that statute.

In order -- and at the outset, let -- let us say this because this pertinent there seems to be a considerable portion of the Solicitor General's brief spent on the idea that -- that Congress confessed legislation permitting the imposition of consecutive sentences insofar as -- as the -- as substantive charges well as the -- as the conspiracy.

We are not contending at all that Congress does not have that power.

We admit that Congress has the power and the authority to proscribe punishments that can be assessed for conspiracies as well as for the supplemental offense and that both punishments can be imposed consecutively.

The point that we are raising and that we are contending is that this action, that the history of this action is of such a nature that that was not the intent of Congress at any time that punishment shall exceed at any time, shall exceed the total sum of 20 years.

That would be no additional or consecutive sentences imposed.

Now the history of this section and the -- in order to get to really arrive at the intent of Congress, it is necessary to examine the legislative history and -- and see just how the beginning of this particular law.

In 1933, legislative hearings were began in New York, in other cities for the purpose of coping with the situation, at least that is what the newspapers claim, coping with the situation, dealing with organized racketeering.

And various hearings were held by Congress and as a result, in 1933, 92 bills were introduced in Congress, all allegedly and pertaining to this question of dealing with racketeering in interstate commerce.

Out of those 92 bills, 11 bills were ultimately passed.

The so-called racketeering statute, the statute which is the ultimately resulted and the statute of which we are concerned now was one of those.

Originally the first version that was introduced in Congress was in the Senate, but that was introduced, provided for a fine equal to the amount of money that was or the gain that was realized by the defendant and also provided for punishment up to 99 years.

That statute had no provision, no -- no conspiracy provision at all.

The legislative history in connection with that is the letter that was submitted by the Attorney General and was signed Mr. Homer Cummings, who was the Attorney General at that time that was signed by Mr. Reis who was the Assistant Attorney General and Mr. Reis at that time provided, stated and that is to be -- to be found on the -- in the petitioner's brief page 17 and it calls that the -- in the latter of (Inaudible) refers to it as the draft of the proposed federal racketeering statute, and he goes on to say that says that this Act was designed primarily to prevent and punish capitalistic combinations of Monopolies and he goes on to say that the -- that the statute that since -- that the Sherman Act was (Inaudible) that it only provides for a year punishment for a year in jail and a $5000 fine, and then it con -- it -- the States with reference to this so-called presently known object he says that the accompanied proposed statute is designed to avoid many of the embarrassing limitations and the wording and interpretations of the Sherman Act.

And then he goes on to say that the -- that offenses of this character are designed to be prohibited and that there are such a serious nature that they ought to be -- that it provides for the punishment of -- of a fine and also of not less than one year for a long -- the courts shall in its discretion shall determine.

And then the fine shall be commensurate, it shall be at least commensurate with the amount of the unlawful gain.

Now there was considerable discussion.

There was a considerable discussion pertaining to this -- to this section.

And it -- and the punishment that it provided and ultimately it resulted in the passage of -- of the Act in 1934 which was -- which was finally passed.

It was not passed in 1933 but that it was finally -- finally passed in 1934 and it provided at that time a punishment of up to 10 years in the penitentiary and a fine up to $10,000 and that became the law.

And during the discussion, the only -- there wasn't too much discussion about the punishment except that it was going -- there was -- it was moved that the punishment should be 10 years and that's what it was.

Now that remained the law until after this Court decided the Local 8th or 7th case which was decided by this Court and I believe it was March of 1942.

In that case, the Court felt that it did not apply -- the Court affirmed the lower court's decision holding that that Act does not apply to labor unions and so far as their dealings with employer is concerned even though force and violence may have been used.

And as a result of that, various hearings of the statutes began in the legislature and the various -- an attempt was made to amend this particular law so as to include labor unions.

And by virtue of that, they knew the Hobbs Act was passed.

The Hobbs Act is substantially in the same form.

It was substantially in the same form finally in 1946 in which it is today.

There was very little modification made during the revision, that was made for Title 18 in 1948.

Now the discussion was heard as to punishment and Congressman Hobbs stated that the maximum punishment, he stated that a numerous time that a maximum punishment permitted under that Act was 20 years and there was no discussion at any time as to any consecutive sentences to the contrary every time -- every time there was -- he was questioned pertaining to the length of the punishment and the Congressman contending that the punishment was too great, the 20 years was too great, he stated that he was (Inaudible) it after the Act -- after the New York racketeering statute and that the New York racketeering statute provided for a maximum punishment of 30 years and that he took the averages from various courts of the country and that -- and that he thought that 20 years was not an unreasonable amount since it dealt with robbery and extortions.

It is significant to note that at that time, the -- the conspiracy statute in New York at the time when -- when Congressman Hobbs stated that the 20 years was the maximum and that it is reasonable in view of the other statutes, that the New York statute had no conspiracy provision in it and that New York at that time, the only conspiracy that prevails with a general -- general conspiracy which provided only, it was -- which was a misdemeanor and the maximum punishment, I believe is one year in jail for that.

Now when that is taken into consideration and all the legislative custody shows that there was only the question that the only punishment that was talked about was 20 years.

And at that very time, during the time the Act was being considered, there was also -- there was also -- that is between 1942 and 1946 that it was finally passed, there was also considered an act of interfering with interstate commerce at war time and there was a special a separate section and a separate bill for that but a separate section but it was supposed to be a part of the same act.

And in considering that, the only point that was considered then was also 20 years, and there was no conspiracy section in the war, in the interference with interstate commerce during the war.

And certainly, it would appear that they would -- Congress would not have intended and would not intend to make it a greater -- to -- to have a greater punishment and to make it a greater offense to it appears with interstate commerce in any amount or whatsoever at peace time than it would at war time.

And -- and the only penalty as I've indicated was during the war time was supposed to be 20 years and no conspiracy sanction was involved there.

It is also significant to note that with Congress, when Congress devised and codified all of the laws under the Title 18 and 1948, that there they took the general conspiracy that there under the general conspiracy statute, that they pointed out that certain special conspiracy statutes remained, because they -- they had special application and they concerned themselves with greater punishment.

That there was no savings clause, in other words, there is no mentioned of this -- of the conspiracy in the Hobbs Act indicating definitely certainly that Congress did not intend that this conspiracy statute shall be treated separate, distinct and apart as being effective insofar as punishment is concerned but treating it at all times as a part of the entire statute and relating purely to the basic and to the basic and to the substantive offense.

Featured:

Callanan v. United States - Oral Argument, Part 2

Tue, 25 Sep 2012 22:35:39 +0000

Case:

Callanan v. United States

Media File:

47_19601116-argument-2

Related Transcript:

47_19601116-argument-2

Transcript:

Argument of Morris A. Shenker

Chief Justice Earl Warren: Lawrence Callanan, Petitioner, versus the United States.

Mr. Shenker, you may continue your argument.

Mr. Morris A. Shenker: Mr. Chief Justice, Your Honors.

At the conclusion yesterday, I called the Court's attention to the fact that the reviser of the 1948 Code, when that was -- and it's embodied in H.R. Bill 3190 and was reported to Judiciary Committee which -- which accompanied that bill and that at that time and the -- and that so far as conspiracies are concerned and if I may just read that long paragraph wherein the report states that a number of special conspiracy provisions relating to specific offenses which were contained in various sections incorporated in this title were omitted, because adequately covered by this section.

A few exceptions were made.

One, where conspiracy would constitute the only offense and two or where the punishment provided in this action would not be commensurate with the gravity of the offense.

Special conspiracy provisions were retained in sections and then it gives a number of sections and then it's the -- of this title and then it says, conspiracy provisions were added to certain sections.

Now, in each instance, it omits any reference to it that conspiracy to this section that is to -- to 1951.

We -- we state that the mere -- that even that fact, there's an indication that there was no intent at any time by the Congressional Committee or by Congress in passing that law to consider the conspiracy provision of this Act, as relayed into punishment any different than the Act itself.

And that all it considered was that it considered the entire Act that racketeering section was considered all and -- all as a force of one act.

And that the only reason that the various methods of violating the law were -- were prescribed was in -- in order to make sure that if a violation occurs, that a person could be considered as being guilty of a violation of law and could be punished.

Justice John M. Harlan: Was that quoted in your brief?

Mr. Morris A. Shenker: Yes, sir.

Justice John M. Harlan: What page is it?

Mr. Morris A. Shenker: The -- that's at page 41 in the middle of the -- bottom of that page.

Now it is -- of course, on situations of this nature, not considering the question even whether you could -- you can or it cannot have consecutive punishments for a conspiracy, as well as for the violation of the -- for a substantive violation.

Of course, the legislative history is -- is very pertinent because after all that is the -- the part that -- that was -- would -- would govern when it becomes a question of intent of Congress and the discussion, all of the discussions in the legislative history, I'm again referring to it, relates only to this question of 20 years.

I should like to, if I may, call attention to the -- some of the discussion that was had in the -- in the petitioner's appendix and referring to -- to page 12 on top of the page which is from the 1889 Congressional Record, where -- where Mr. Delaney has said, the fact of the matter is that this committee report was not unanimous.

Also in the committee it was indicated by those in favor of this legislation, that a legislation is too drastic that the $10,000 fine and 20 years in jail is too drastic.

They think a modified -- they think a modified bill might be more in consonance with present day thinking.

And then Mr. Fish continued on the same page and states, "I want to refer likewise to some of the excessive penalties.

The penalties in this bill in my opinion were too severe, 20 years, and $10,000 fine."

When we reach this section of the bill, there should be very careful consideration given to reducing both the extent of the imprisonment and the fines.

A reading -- and referring again to Congressman Celler and also on the same page on the -- on the appendix, at the bottom of page 12, Mr. Celler says, "Let me call your attention to one or two items in the bill which meet with my disfavor.

For example, the bill provides for a punishment of 20 years and/or a fine of $10,000."

Then it goes on to say, "Examine the antitrust statutes and you will find that malefactors under those statutes do not have to face a 20-year sentence."

Violations of the antitrust laws are equally detrimental to the body politic and or as much as crime as extortion or robbery as contemplated by the instant bill.

Now I'm citing this not only to show there was only 20 years but it also shows that in each instance, everyone, everyone of the Congressmen and the Committee rules and the discussion of the floors in each instance, they were treating this as a package.

They were treating this as -- as something that is -- that is to reach out to get group activity, that there wasn't a law that was passed for an individual, that it was -- rather it was a law that was passed to reach out to racketeering, to group activity rather than into individuals.

Then Congressman Celler goes on, "If the extortion or robbery is of such magnitude that it ought to be prosecuted as a felony instead of a misdemeanor, then the prosecution should be under state law, it goes on to say.

In so far as the instant bill is concerned, it does not intend to punish extortion or robbery, as such since that would be a -- usurpation of state's functions.

It intends to punish activities which interfere with interstate commerce.

In that respect, it parallels the antitrust laws. Punishment for violations of which are likewise based on interference with interstate commerce, but in the one case where capital is involved, you have the penalty of one year and the R.A. case where labor is involved, you have the penalty of 20 years.

Now, there is -- that shows all the thinking.

Then we go on in there where Mr. Springer in discussion, Congressman Springer says, "May I ask my distinguished colleague on the Committee on the Judiciary if it is not a fact that under the provisions of this bill the question of penalty is left entirely discretionary with the court trying the case?"

Under the provisions of this bill, a person could be penalized to the extent of 1 year or less than 1 year or up to 20 years.

All in the --

Chief Justice Earl Warren: Where are you reading from Mr. --

Mr. Morris A. Shenker: Oh, I'm sorry, page 13 of the appendix.

Chief Justice Earl Warren: Your appendix.

Mr. Morris A. Shenker: Yes Your Honor, page 13 of the appendix.

Chief Justice Earl Warren: Alright, you may continue.

Mr. Morris A. Shenker: And -- and then, going on, this question, Mr. Springer was addressed to Congressman Celler on the Committee and continued on the same page.

Mr. Celler goes on, "Or his sentence might be suspended.

I agree with the gentleman, but why do we single out labor and impose even a possible penalty of 20 years?"

Psychologically, that is a point.

To my way of thinking especially since innocent labor acts, lawful acts might be inter -- indicted especially if my amendment shall not prevail, that will be ceased upon by everyone who has any opposition to the bill and will be exaggerated a lot important.

Then -- then they go on and -- and just quoting a portion of Mr. Hancock's, which is in the bottom of the page, to illustrate as to just what this bill was attempt -- what were they attempted to reach with that bill and Mr. Hancock says about the sixth line after the beginning of the paragraph it says, "It had its origin in the activities of the Dillinger gang.

All this Bill does is to abolish a double standard which Justice Burns established and makes labor responsible for crimes just as well as those who are not laborers, that is all it does."

Again, pointing out that they're talking about group activity.

Then going on to -- to page 14 of the -- of the appendix, into the bottom paragraph, it says in there that Mr. Celler again, "Justice Burns in his decision stated there was no attempt on the part of Congress to interfere with the traditional activities of labor unions.

We put into Copeland Act a specific provision which favored the traditional activities of labor union.

Therefore, the original act as well as this bill is aimed at labor.

It seeks to do a way with the excesses or the racketeering of the Dillinger type.

That being the case, should not we have been more careful in providing penalties, rather than put a 20-year penalty in this bill, again showing that he is treating it as a group situation in the discussion and that all they're talking about is 20 years.

There's no mention that any time made of any consecutive sentences of any sentence that could possibly be in excess of 20 years.

And to Mr. -- Mr. Sadowski goes on, on page 15 of the appendix, he says, Mr. Sadowski, "The most highly publicized anti-labor bill now before Congress is the Hobbs Bill.

The sponsors of this bill call it an Anti-Racketeering Act.

We all agree that racketeering should be ended and that the punishment for racketeering should be severe.

However, there is already an anti-racketeering statute on federal law, which is called the Anti-Racketeering Act of 1934."

And then he goes on, "The trouble with the Hobbs Bill is that it can be construed by the courts to prohibit and punish most of the legitimate activities of organized labor.

On that its provisions, a man who voted for a strike or walked the picket line was arrested and being sentenced to a maximum of 20 years in prison or be fined $10,000 or - or both.

Whatever the proponents of the proposed measure may say, the language of the Hobbs Bill is so broad that it constitutes a serious manner to all that organize labor has struggled for, blood for and even die it for through many decades."

Again, only talking about the 20 years and the $10,000 fine, then skipping to page 16 and -- and Mr. Robinson of Kentucky states, "There are some objections to the penalties prescribed in this bill for robbery and extortion.

It has gone forth to the country that the penalty is 20 years."

That is not a correct statement and obviously Mr. Robinson was for the bill and he says, "That is not a correct -- the penalties range from 1 hour and up to 20 years, according to the offense, and to the offense and fines of $1 to $10,000."

In other words, the 20 years and the $10,000 fine were the maximum.

The Court can fix any length of time of imprisonment up to 20 years or any fine up to $10,000 or both.

Now, again, it illustrates the -- the thinking in -- in that matter.

Justice Felix Frankfurter: How does that illustrate it?

Mr. Morris A. Shenker: I beg your pardon.

Justice Felix Frankfurter: How does, what you just read, illustrate it?

How does that help you to decide?

Mr. Morris A. Shenker: Well, it helps you decide, Your Honor, in the following matter, that during all those discussions into what extensive discussions --

Justice Felix Frankfurter: Was that thing the last thing that you read?

Mr. Morris A. Shenker: That --

Justice Felix Frankfurter: What light has that shed on our problem?

Mr. Morris A. Shenker: It sheds on the following way, that -- that he says that the most that can be imposed is 20 years.

Justice Felix Frankfurter: Yes, but what indication abide that he was talking about a particular violation under the statute or a comprehensive omnibus statute?

Mr. Morris A. Shenker: Well if -- if --

Justice Felix Frankfurter: One knows how -- how casually and unspecifically Congressmen talk when they want to, not only Congressmen, but the rest of us talk.

And that's how -- introduce the record, the specific problem.

Mr. Morris A. Shenker: The only way -- the only way that you can -- that I can answer that is that if you read the entire -- the entire congressional history, it shows that they were talking about the entire bill.

Justice Felix Frankfurter: You -- you persist in saying they and I was addressing myself to a specific quotation which you submitted as argumentative consideration.

Mr. Morris A. Shenker: Right.

Justice Felix Frankfurter: Now, I find no light in that, whatever, on your problem, on my problem.

Mr. Morris A. Shenker: Well, if you read -- if you read the remainder --

Justice Felix Frankfurter: Could that (Voice Overlap) to the other things.

Alright, I understand that.

Mr. Morris A. Shenker: If you read the remainder of the congressional history and -- in the discussion that took place at that time, you will see that -- that all the discussion by this Congressman, Robinson, as well as the other members of the legislative committee were only talking about the entire bill, that they were not talking about the various sections of the bill.

Justice Felix Frankfurter: Is -- is there any authorized spokesman, who addressed himself specifically to the question?

Mr. Morris A. Shenker: Yes, sir.

Justice Felix Frankfurter: Would you give me one that is all grouped -- all the general talk to which I could get practically known.

Mr. Morris A. Shenker: I may call on Mr. Hobbs, Congressman Hobbs, who is the one that was the sponsor of the Act and who is referred to as the -- and the Act is referred as the Hobbs Act.

Justice Felix Frankfurter: You know one good argument is better than six neutral ones.

Mr. Morris A. Shenker: Well, I agree with the -- with the Court.

Now, here's what Congressman Hobbs says when -- on page 18 of the -- of the appendix and Mr. -- and -- in reply to a -- to a statement by Mr. Fish, Mr. Fish stated on top of page 18, "Mr. Chairman, I offer an amendment which I sent to the clerk's desk."

The clerk read -- the clerk reads as follows.

"Amendment offered by Mr. Fish, page -- Fish page 3, line 13, after the word, "then," strikeout 20 and insert, "then."

Mr. Fish --

Justice Felix Frankfurter: What -- what page -- what page is that again?

Mr. Morris A. Shenker: That's at page 18 on -- on the top of the page.

Justice Felix Frankfurter: Alright.

Mr. Morris A. Shenker: On the appendix.

And -- and Mr. Fish states, "Mr. Chairman, I've already required a minute to speak on this amendment.

When the bill was before the Rules Committee, it seemed to me at that time that these penalties were excessive.

Twenty years is just about as bad as a life sentence and I want to give the House the opportunity to reduce it by cutting it in half.

This applies to threat, a man may be sent to jail for 20 years merely for threatening extortion.

Such of drastic and severe penalty takes you back to the dark ages and it's not warranted or aligned with the offense."

Now, Mr. Hobbs --

Justice Felix Frankfurter: What -- what does it exactly mean?

What was Mr. Fish's objection?

Mr. Morris A. Shenker: Mr. Fish wanted to cut the penalty from 20 years to 10 years.

Justice Felix Frankfurter: Of one particular offense, he didn't say it all --

Mr. Morris A. Shenker: Of the Act, of the Act and here's what Mr. Hobbs said.

Justice Felix Frankfurter: He didn't say that.

He says, "Was threatening extortion."

Mr. Morris A. Shenker: What that's -- that's what he said.

Oh, well, very well, he -- he said at least, on that point.

No, he -- he wanted that --

Justice Felix Frankfurter: Well, at least he gave a specific -- he addressed himself to a punishment, a maximum punishment for one of the designated offenses.

Mr. Morris A. Shenker: That's not.

The amendment was to the entire Act but they said, at least 10 years for that warrant in his statement, but the amendment was to the entire Act.

Justice Felix Frankfurter: Yes, I know, but what he says, is a man maybe sent to jail for 20 years, merely for threatening extortion --

Mr. Morris A. Shenker: That's right.

Justice Felix Frankfurter: -- which was one of the contained offenses under the Act.

Mr. Morris A. Shenker: That's right.

Justice Felix Frankfurter: So that he didn't say, he could get 20 years for committing -- for violating the Act as such, he picked out one specific thing.

Mr. Morris A. Shenker: He used that as an illustration, is what he did.

He used that as an illustration.

Here's what Congressman Hobbs said which answers -- which answers your question as to someone -- one person making the statement, "Mr. Hobbs -- Mr. Chairman, arise in our position to the amendment offered by the gentleman from New York."

This is also on page 18, "Mr. Chairman, the -- the punishment fixed in this bill is a maximum.

The punishment fixed in this bill is a maximum and any punishments imposed by a judge, of one cent or one hour in jail would be covered by this maximum penalty just the same."

Justice Felix Frankfurter: And you think that sentence shows that he meant to cover the whole?

All the violations that are committable under this field are subject only to one punishment.

Mr. Morris A. Shenker: Yes, sir.

Justice Felix Frankfurter: That's what sentence means to you?

Mr. Morris A. Shenker: Involve -- with certainly, when you take it in line with everything else, there is no other way you can say it.

He has never, at no time, was there any suggestion by anyone in the discussion that there could be under any conceivable theory, an imposition of -- the imposition of a sentence greater than 20 years for any and all violations under that Act.

Justice Felix Frankfurter: Nor was there an opposite statement.

Mr. Morris A. Shenker: I beg your pardon.

Justice Felix Frankfurter: Nor was there a specific statement to the contrary.

Mr. Morris A. Shenker: Well I -- I consider that.

Justice Felix Frankfurter: You may argue that that's what it means.

All I'm saying there, is no statement in any of the things that you put before us in which any Congressman said, there can be only one punishment for all the violations that are prescribed in that Act.

Mr. Morris A. Shenker: Well is there any -- the mere fact that they thought that the most that they can inflict is a 20-year punishment.

That certainly and clearly -- clearly shows that and where -- where Mr. Hobbs went on even to say that, "May I point it out to the house."

That's what Congressman Hobbs said, again, that this Bill was copied substantially from the New York statute, which punishes first degree robbery for a minimum punishment of 10 years and a maximum of 30 years.

We took the average of 20 years as the maximum but no minimum.

I think the gentleman is amply protected and his desire for the penalty to be reasonable.

And we're -- doing -- and all we are doing is giving the Court that to make this punishment fit the crime and at each time, only talking -- only talking about 20 years.

Justice Felix Frankfurter: Have you -- have you printed a copy of the New York statute?

Mr. Morris A. Shenker: Do -- do we have a copy of the New York statute?

Justice Felix Frankfurter: Is it printed in one of these briefs?

Mr. Morris A. Shenker: We have not.

We shall be glad to furnish it to the Court, but how it -- and going on again along that discussion, we're in page 22 of the -- in page -- in page 22 of the -- of the appendix where Mr. Celler says, on top of that page, "Whether you place penalties in these -- on these legitimate activities of labor that go up to 20 years in jail and up to $10,000, if you look at the antitrust penalties against employers, you'll find that there are only $5000 or one year in jail.

This bill has direct relation to the antitrust laws, the Clayton Act, examine those acts and see what you do to the manufacturers and organizations."

And then he goes on, finally, skipping a little, you inflict the penalty of only $5000 but on the laboring men, you inflict the penalty of $10,000 or in the alternative 20 years in jail.

If -- if that is not a portion on justifiable penalty, I would like to know what is.

Again, only talking about the 20 years and it's certainly reasonable to assume that if there was any other consideration, here, you have a mandate that would oppose to the bill.

You have a number of Congressmen that would oppose to the bill.

And if they could have construed it and even thought that the bill could be construed, that in any matter at all as inflicting a punishment greater than 20 years, they would have said, now, not only can they get 10 -- 20 years on long part but if he's also guilty of conspiracy, he can get 20 years for conspiracy and 20 years for the substantive offense which would have made it 40 years.

Justice Felix Frankfurter: May I ask you a question, Mr. Shenker?

Mr. Morris A. Shenker: Yes.

Justice Felix Frankfurter: Is there any case either in this Court or in the lower courts, in which a man joined others in the conspiracy to violate the Sherman Law, but on his own also, entered into a contract which was executed of -- a contract for price fixing which held that he couldn't be punished both for joining in the conspiracy and for a price fixing contract.

Is there any question -- decision?

Mr. Morris A. Shenker: I -- I am not in a position to answer this.

I -- I cannot answer that question directly, but have --

Justice Felix Frankfurter: But if we have such a case that -- that might shed -- that would be a good footnote or proof of what Congressman Celler said.

But until you have such a case, it helps me very little to -- to apply his argument that it shouldn't be severe against labor than it should be against combination of -- of industries.

That's --

Mr. Morris A. Shenker: Well I -- I -- that -- that of course take us over then to another -- another facet of the discussion.

I'm pointing again this ad -- idealized that view of here on a limited -- for a limited purpose and that is the question whether you can have sentences in excess of 20 years, under this Act.

And -- and it appears -- it appears that with all these discussions and there's -- there's -- this is not a discussion that only goes on during one session of Congress.

It goes on into (Inaudible) from 1933.

It starts in 1933 and it goes on to 1946.

Justice Felix Frankfurter: And it just tells -- just as little in one session as in another so far as I'm concerned.

No more, no -- no less.

Mr. Morris A. Shenker: With the exception -- with the exception that with all these lawyers that were on the Judiciary Committee, if they could have construed it in any manner that it would be -- that would have been farther than his, they would have had ammunition against the proponents of the bill.

They are proponents that one as -- as -- that one substantial punishment.

Now, here, knowing where the lawyers are, they're looking for manners of attack and if they could have said and come up before the Committee and said, "Look, you're not only asking for a 20-year punishment, you are asking for a 40-year or a 60 or an 80 years, because that's what it is."If you take the four subsections, you could conceivably make it 80 years.

They would have certainly used that.

We must assume that those lawyers were looking for ways of attacking that -- that legislation because they certainly, that there's considerable legislative history, but at no time -- at no time, did they even mention that --

Justice Felix Frankfurter: But you -- you --

Mr. Morris A. Shenker: Which would mean that so construed it.

Justice Felix Frankfurter: But you would ask me to consider what Mr. Celler said.

So I'm considering it and he analogizes this statute to the Sherman Law and I'm putting it to use that under the Sherman Law, there could be probably -- at least we -- there's no reason to think otherwise, they could be double punishment, both the conspiracy and the substantive offense.

Mr. Morris A. Shenker: Well --

Justice Felix Frankfurter: Though I'm just -- I'm just trying to understand the material you put before us.

Mr. Morris A. Shenker: His analogy of course to that was for the purpose of showing the distinction between labor and management.

This contention was that management, if they do the same thing, they -- they put -- the statute provides for a -- for a fine of $5000 -- of five -- of 10 -- up to $5000 and one year and whereas labor, it would be something else.

That was an analogy.

Justice Felix Frankfurter: Now that's for him, that point is valid and he's made it, but that doesn't leave me to jump over that you can have only one punishment for labor, although you have two punishments and offer for violation of the Sherman Law.

Mr. Morris A. Shenker: But what -- do you think that I am unreasonable in arguing that with all those lawyers looking for excuses to attack the -- the penalty provision of this bill, that at no time, not even one mention that -- that could be a possible 40 or 60 or 80 years?

Justice Felix Frankfurter: I think that you're making the kind of an argument you ought to make.

Mr. Morris A. Shenker: I beg your pardon?

Justice Felix Frankfurter: You're making the kind of an argument that I think you ought to make.

Mr. Morris A. Shenker: Thank you very much.

Justice Felix Frankfurter: But I don't have to accept it.

Justice Charles E. Whittaker: Did you --

Mr. Morris A. Shenker: Thank you very much.

Justice Charles E. Whittaker: Did you ask -- did you ask Judge Weber to make the second sentence, a concurrent sentence.

I noticed that he suspended the imposition of service of it.

What's the situation about it?

Mr. Morris A. Shenker: Let me -- I -- I -- I'm very happy that that you brought it up.

Judge Weber was not the sentencing judge?

Justice Charles E. Whittaker: Who was it?

Mr. Morris A. Shenker: Judge Hulin was the sentencing judge and Judge Hulin died about 2 and a -- well, in fact Judge Weber took Judge Hulin's place.

Now, Judge Weber, in his decision which -- which we are submitting, he -- he sort of -- was uncertain as to which way he -- he really never -- never came out clearly inside.

At no -- at no time then he clearly said that -- that you can have a consecutive sentence.

He sort of went off on the sound battle on the theory that perhaps the -- the question as to whether the -- the consecutive sentence is proper is something to be gotten at later when the first sentence is completed and of course, our first sentence isn't completed as yet, because the defendant is out on parole which -- on parole and he wasn't on parole at the time he first -- the matter came up before Judge Weber.

And -- and Judge Weber sort of left that part still open.

It -- it hold on there both ways.

Justice Charles E. Whittaker: Well, that's what I was -- sort of thought, gathered here.

If as a matter of fact, sentence has not been imposed, you wouldn't be hurt, would you on second count?

Mr. Morris A. Shenker: Well, of course, the sentence was imposed.

In other words, when Judge Hulin imposed the sentence, he imposed 12 and -- 12 years and 12 years and suspended the second 12-year sentence on -- and put the defendant on probation.

That period of probation to continue after the first sentence has been complied with, which means in this instance, this -- the amount of -- of time that he served plus the -- the period of -- of full -- that -- the defendant is out on parole.

Justice Charles E. Whittaker: Did you actually -- one more question about it.

Mr. Morris A. Shenker: Certainly.

Justice Charles E. Whittaker: Did you actually move for Judge Weber, to advise this on before this -- Judge Weber to revise the sentence?

Mr. Morris A. Shenker: We did and we did this before Judge Weber.

We asked that he revise the first sentence rather the second sentence.

In other words, are not -- although we asked on a -- we asked on behalf -- specifically, we asked Judge Weber originally in our petition that he reduced the sentence.

In other words to treat it -- to treat as a general sentence if he wanted to and -- and make it 20 and to reduce the first sentence by four years.

That was the original but we also asked -- but we also asked him to change the sentence to comply with the -- without interpretation of the law.

And Judge Weber wrote that out of lengthy opinion on it, wherein he finally winds up and says that, "Well, that other question may be premature."

On the question of 20 years that -- be -- maybe premature that for -- possibly the time to raise that is after the defendant is put on probation for the others.

Thank you.

Chief Justice Earl Warren: Mr. Gilinsky.

Argument of Theodore George Gilinsky

Mr. Theodore George Gilinsky: Mr. Chief Justice and may it please the Court.

There is a preliminary question which this Court granted certiorari, which I will not discuss unless some Justices have some questions about it.

It has to do with the choice of the remedy in this particular case and the Government concedes that under Rule 35, if this is an illegal sentence that that is a proper approach to the problem and it can be settled under that rule and he didn't get in to the other problems of how to go at it.

Now, their main question and only one to which agree is here, is whether a person who has conspired to violate the Hobbs Anti-Racketeering Act and then also extorts money from the victim which is a violation of the Hobbs Anti-Racketeering Act, can be sentenced for both crimes under this Act.

Now, the facts, I think, while they've been mentioned, might take a little -- a minute to clarify.

There are two counts involved here.

First count was for was for conspiracy and the second count was a substantive crime of extortion.

The petitioner and others are -- were convicted by a jury.

The sentence was 12 years on Count I.

On Count II, the sentence was a consecutive sentence of 12 years which was suspended and then the petitioner was placed on probation for five years.

The five-year probation period begins at the end of the sentence on Count I.

As a matter of fact now, of course, the petitioner is out on parole even from the first sentence and it is our -- and the only reason we mention this is because while the petitioner originally was confined, when he started this proceeding and therefore he asked only for four years off of his first sentence.

Now that he is no longer confined, we can recognize that he has nothing as great to gain by getting only four years off the sentence. Consequently, both sides have somewhat changed since the beginning.

So that now, the problem is in total, we see it whether or not, you can have cumulative sentences under this Act, regardless of the length, the particular length that they may happen to have.

Now, we both use the same material, it's true.

We both cite the same cases.

We both have the same facts.

Now, we approach the problem from a different view.

If I may characterize --

Justice Felix Frankfurter: That is -- that is you don't draw different inferences from the same material but you -- but you subject them -- but you relate them different considerations.

Mr. Theodore George Gilinsky: Well, I think both.

Justice Felix Frankfurter: Both, which proves that it's in another great tribute to the ambiguity of language, doesn't it?

Mr. Theodore George Gilinsky: I suppose.

The petitioner feels as I -- as we see the petitioner's argument, he feels that if the statute or the Act as a whole, does not say in so many words that cumulative sentences may not be imposed and if the legislative history does not say in so many words that cumulative sentences may not be imposed, that therefore, there's an ambiguity and therefore, you use a rule of lenity and decide that only 20 years can be imposed.

Justice Felix Frankfurter: It will the more -- a more particular -- he makes a more ad hoc argument, not that -- that generally speaking, nothing is said in the legislative history about cumulative sentences, but if their briefs throughout they talk of Congressmen has suggested that only one sentence should be imposed, you do not have to be specific in saying that.

There's still a way around, Mr. Gilinsky.

Mr. Theodore George Gilinsky: It says both though.

I think on that part of the argument, I think all he's saying is that the people -- not -- this is not the original Act, the -- the quotations that he has given you.

Quotations from the legislative history that were recited here are from the Hobbs Act.

We already have the problem in 1934.

If there is a problem here, it arises long before the Hobbs Bill becomes the law because in 1934, this conspiracy clause is also here.

Now, this recitation of history to us should be read as merely the same thing that the bill says.

The bill says that a man should be punished for 20 years. Congressmen were saying exactly the same thing that the bill said.

We don't think this settles the problem at all, because just to reiterate what the Bill itself says doesn't add to the -- to our knowledge of what the intent was insofar as cumulative sentences are concerned.

Now, what do I mean when I say that the Government starts at the opposite end?

We feel that this great history, judicial history of conspiracy and substantive crimes and there are decades of judicial decisions on this as separate crimes, cannot be divorced from the passage of this Act.

In other words, would you read the 1934 Act, it wasn't passed in vacuum.

It wasn't passed by itself.

It had before it a long history of conspiracy crimes and a long history of substantive crimes.

That with this history and since they have always been treated in the federal courts and in this country as separate crimes, there was no occasion for Congress to say anything about cumulative sentences, if they meant to impose the same type of punishment they always had been imposing.

It --

Justice Felix Frankfurter: Out of what Committee did the Hobbs Bill come?

Is it the judiciary or commerce?

Mr. Theodore George Gilinsky: Yes.

No, it came out of the judiciary.

Justice Felix Frankfurter: And that's the Committee out of which penal legislations normally come?

Mr. Theodore George Gilinsky: I think -- I think you --

Justice Felix Frankfurter: Is that right?

Mr. Theodore George Gilinsky: That's right.

I think to get to the 1934 Act, I think we have the first clue.

First of all, the background is that in -- from 1879 on, this Court has maintained a consistent pattern of cases involving both the crimes of conspiracy and the crime of a substantive act and in each and every case since 1879, that this Court has had the problem.

This Court has held that the conspiracy is separate from the substantive crime and that the punishment can be accumulated.

Now, we have outlined in our brief from that first case, the various facets of the argument.

In other words, it made no difference how the argument arrived here, whether it arrived because someone claimed double jeopardy, whether it arrived because there was a different statute of limitations to be applied, whether it arrived because the person that was being tried for conspiracy could not be charged with the substantive or whether it arrived because there were different types of punishments for the substantive as compared to the conspiracy.

No matter how the case arrived here, in other words and I may I had it at this point, even if it's in the same Act, no matter how the case arrived, this Court always held that the conspiracy was separate from the substantive offense and could be cumulative punishment.

Justice John M. Harlan: What cases are there that -- that --

Mr. Theodore George Gilinsky: Well let me -- let me get to latter ones because I think they're the -- the closest in time.

The last two --

Justice John M. Harlan: I was going to ask you about cases that where that doctrine was applied, where the conspiracies offense was part of the same statute enacted that --

Mr. Theodore George Gilinsky: Yes, I can give you two cases of that.

The first case that we have is a case of Carter versus McClaughry.

This is a case in which the conspiracy and this -- and the substantive offense were both in the same Act.

They were an Article of War.

This was a court-martial.

The case arrived here as a habeas corpus case.

This Court held that he could be punished for both cumulatively and that Act is exactly the same type of wording and differentiation as the Hobbs Act.

But going further and getting more to the problem even that this case poses, is when you arrive at such things as the Sherman Act, Section 2 of the Sherman Act contains in its language, the same types of offenses namely, monopoly, attempt to monopolize or conspire.

That's all within one section.

This is somewhat similar to the present wording of this Act.

Even in this case then we find cumulative punishments and that's American Tobacco Company cited in our brief, where this Court held in so many words that they could be punished cumulatively, under Section 2 for the conspiracy as well as for the monopoly.

This Court held in that connection that the attempt merged into the monopoly, but they did not hold that the conspiracy merged into it.

Justice Hugo L. Black: And it was the --

Mr. Theodore George Gilinsky: That's American Tobacco, 328 U.S.

Justice Hugo L. Black: Well, was he indicted there for conspiring to conspire?

Was there to conspire --

Mr. Theodore George Gilinsky: American Tobacco had four counts.

Count I was under Section 1, conspiracy under Section I, Count II was monopoly, a substantive crime of monopoly, Count III was the attempt to monopolize and Count IV was a conspiracy.

American Tobacco was cumulatively fined.

Justice Hugo L. Black: Conspiracies to violate which Section?

Mr. Theodore George Gilinsky: Section 2, all within -- leaving aside Section 1, which is conspiracy, there were three counts under Section 2, two which survived for punishment purposes and received cumulative punishments.

If as my -- if as the petitioner feels, this Act came because of the -- the problem confronting the antitrust laws or the Sherman Act, then certainly, if this is part of the prototype for this Act, then certainly we should have the same type of interpretation of intent insofar as the Hobbs Act is concerned.

If you can punish for the substantive crime and the conspiracy in one Act and you say, you take part -- at least this is an impetuous to the second Act, then certainly you should be able to do the same under the second Act.

Justice John M. Harlan: Do you draw a distinction under the Hobbs Act between cumulative punishments where a conspiracy and a substantive offense is alleged in the situation where two substantive offenses under the Hobbs Act are -- do you think that line can be drawn or are you arguing that?

Mr. Theodore George Gilinsky: I think the line can be drawn.

I don't think it -- I don't -- we don't argue it because we think that any -- anyone who violates an Act a number of times, can get cumulative punishment.

I don't know that that has ever been the type of problem.

I mean, for instance, even in a -- a case which has a merger problem such as Prince or the Bank Robbery Statute, I don't know of anyone saying that if you rob a bank and then five, six months later, rob another bank, that you can get double sentence because of that.

Justice John M. Harlan: What I was really to asking you, do you lay special emphasis on your argument on the fact, on this conspiracy doctrine?

The general conspiracy doctrine or does your argument go to the --

Mr. Theodore George Gilinsky: We don't think there's any difference between the fact that this is all in one Act and whether it is or it isn't, we think they have to be treated the same, although, in answer to the problem which is being presented here, we -- we find even the cases under one Act, treating them as separate.

So, we don't see this difference in the fact that it's one Act would make any difference and we think, it's backed up for the legislative history that interpretation we think it's backed up by the cases or maybe I'm not understanding your question.

Justice John M. Harlan: What I'm -- perhaps I haven't made myself clear.

This is a conspiracy against a substantive offense, cumulative sentences in that context.

What I'm asking is whether you think there is a difference as to the proper interpretation of the Act in that kind of a context and what would be the case if cumulative sentences on two substantive offenses under the statute were involved?

Mr. Theodore George Gilinsky: I think those considerations go to punishment.

In other words, I think those considerations can be taken into account why the trial judge in determining how much punishment under an Act a man should get.

I do not think they go to the question of what can be given under the act.

Have I made myself clear on the -- in other words, I think there are considerations of punishment such as this case as an example, here, suppose we have in this case, only -- only one sentence of 20 years, this petitioner wouldn't even be out of jail because the Parole Board couldn't look at the sentence until he served at least a third.

That isn't what happened in this case.

Petitioner received a 12-year sentence so that Parole Board could look at the problem earlier and he did get out too.

In other words, I think on the related circumstances -- that was whether he commits number of crimes or whether it is a conspiracy with the objective which is the substantive crime, all of those considerations can go to the question of how much punishment.

I do not think --

Justice John M. Harlan: Now we're talking here about power not --

Mr. Theodore George Gilinsky: That's right.

Justice John M. Harlan: My question is this.

You lay great emphasis on the fact that Congress must be taken to have acted with reference to the established doctrine that conspiracies and substantive offenses or different crimes.

And my question is, do you think that that -- that the conspiracy versus substantive offense problem stands on a different footing under this Act than with a case of cumulative punishment involving only substantive offenses under the Act?

Mr. Theodore George Gilinsky: I think so.

Justice John M. Harlan: You do think so?

Mr. Theodore George Gilinsky: I think so.

I think I have to say, yes, because of this.

I think there is a greater legal history for the separation of conspiracy and the substantive crime of extortion, than there is for example, between two parts of this Act, one of which is violence and the substantive crime.

In other words, I think there is a greater, legal background for considering conspiracy as separate from the substantive offense, than there is if we had the problem of someone who was indicted for violence and for the substantive crime.

Well, I think, the question of power would be answered the same in both.

The -- may I finish the background of the cases in the field of separateness?

From the time this Court decided Pinkerton versus the United States in 1946, which posed a question in terms of cumulative punishment, this Court was able to say it has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it, are separate and distinct offenses.

In Pereira versus the United States, which this Court decided in 1954, this Court was able to say, "It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes."

From all of these, we attribute to Congress a passive purpose in the absence of any direct expression to the contrary that Congress was going to maintain the long established distinctions between offenses that are essentially different.

Justice William J. Brennan: Mr. Gilinsky I don't know that I have understood your answer to Mr. Justice Harlan.

If you were to have the first count for violence and the second for the extortion, do you think that would be different from the situation we do have in the case (Inaudible)

Mr. Theodore George Gilinsky: I think the answer would be the same as far as the Government is concerned.

I think the question --

Justice William J. Brennan: What did you mean by saying, yes, to --

Mr. Theodore George Gilinsky: I meant that there is a different background to the problem of conspiracy.

Justice William J. Brennan: But on the sentencing problem?

Mr. Theodore George Gilinsky: There are none, no difference.

No difference at all.

As a matter of fact, if we -- if we don't just have the statute, just at the statute, there would be no reason at all, to provide a punishment, the all of -- all the punishments in this statute are today, are 20 years.

There would be no reason to apply a 20-year sentence to the crime of violence in connection with this.

That is not separate and distinct from the substantive offense because we have in the statute the substantive or the attempt.

Now certainly or the -- or the conspiracy, certainly because some persons conspires to violate the Act, this should not be construed as giving him immunity from using violence, nor should this be construed as giving him immunity from any punishment for or having completed the -- the extortion.

In other words, there would be no reason to have a separate punishment if you couldn't separately punish the person for it.

There would be no reason to have this in the statute at all, because a crime of violence wouldn't have anything.

You can have an attempt at extortion and the violence can be a part of that.

And if that's all there is, you can sentence the man to 20 -- as a matter of power, you can sentence the man to 20 years for the attempt.

Justice Felix Frankfurter: But isn't quite so, is this because there would be a function for an outlawry of -- of violence -- acts of violence in this field and the spirit has two a -- has two a very different things without as a matter of reason or policy, not concluding that if both are committed, you should give only one punishment.

I don't see why you say that if he under that, all these various offences enumerated by Congress.

Mr. Theodore George Gilinsky: Because violence is a part and parcel.

It isn't true --

Justice Felix Frankfurter: But is it part and parcel to conspiracy.

Mr. Theodore George Gilinsky: No, it isn't.

Justice Felix Frankfurter: A conspiracy maybe concluded but --

Mr. Theodore George Gilinsky: I understand.

Justice Felix Frankfurter: If they've just agreed to come (Inaudible)

Mr. Theodore George Gilinsky: I understand.

None, of the -- in -- in this -- in this sense which you are talking, none of these crimes necessarily overlap at all, because there is no question that people can conspire to violate this Act and never extort anything.

Not even -- and we could not possibly even charge them with an attempt.

At the same time, it's very clear under the Act and there are cases on this that a single person can extort, I don't think there's anything difficult about recognizing that.

A single person can extort under this Act and certainly, you would have no conspiracy under those circumstances.

Justice Felix Frankfurter: Of course that's fine, I don't understand unless I misunderstood your suggestion that unless you allow separate punishments, there'd be no point in outlawing separate offenses.

Mr. Theodore George Gilinsky: No, I -- I understand --

Justice Felix Frankfurter: I think you could have said that.

Mr. Theodore George Gilinsky: I understand this part but, I -- I think there are two approaches to the problem.

My -- my problem -- well, maybe this way and suppose as an advocate, I -- I should bring forth all the possible approaches.

I think there are differences in the approaches.

I understand yours and I have -- what you have said and I think I have said that, but I think there's also this other possibility and I -- I can't just -- there's only one.

Justice Felix Frankfurter: As a (Inaudible) could make all arguments that are convincing.

Mr. Theodore George Gilinsky: Now, there's another type of gloss I think on the statute besides this long decades of history of separateness between conspiracy and the substantive crime.

And that is this one act problem.

There are cases long before 1934, now I'm talking about where within the same path, we have cumulative punishment so that this is not anything new either.

Now, we cite this in our brief also.

This is such things Burton versus the United States and Albrecht which -- which had been before this Court.

In other words, possession and sale of liquor under one of the cases can both be punished separately.

Burton was agreeing to receive a bribe and receiving a bribe.

And that type of case all within an Act in other words, we have this type of gloss.

All of these support cumulative sentences including the Sherman Act interpretation in the American Tobacco case, which I have given.

Now, a word on a problem of merger; in this particular field of conspiracy and substantive offense for the doctrine of merger has never -- has never gained a porthole in the federal courts and in none of the States presently, do you have any such doctrine of merger.

As a matter of fact, in Pinkerton versus the United States, this Court said very clearly that the doctrine of merger does not hold in this country.

Of course, in common law, there was a type of merger but it has nothing to do with the problem that we have.

It had to do with a procedural problem namely, that a common law on the conspiracy was a misdemeanor.

And so, the misdemeanor was held to merge into the felony and this was a procedural problem in order to avoid questions of allowing him to have copies of the indictment, allowing him to have attorneys and so forth.

This type of doctrine, although early applied in some states, had since been change in those states and as far as I know, is held nowhere in the United States.

Justice John M. Harlan: Let me put my question to you again a little more concretely.

Supposing this indictment had charged two substantive offenses and a conspiracy, three counts, and cumulative sentences will impose on all three counts.

Do you think it would be a permissible reading of the Act to say that as far as conspiracy versus substantive counts, yes, Congress must be taken to have intended cumulative punishments, authorized cumulative punishments, but with respect to the two substantive accounts, it cannot be so taken to have intended?

Mr. Theodore George Gilinsky: Well, I can't say that you can't read it that way.

Justice John M. Harlan: I -- I think your view is to whether there's a difference between the approach that the Court should take in a case of this kind, if there is any difference.

Mr. Theodore George Gilinsky: Well, I think the thing that bothers me is that in the context in which these cases arise, the question of power goes to the offense.

It doesn't go to the type of offense unless you have the type of offense where you have a merger problem.

In other words, I don't view conspiracy as anything but a criminal offense and I don't view extortion as anything but a criminal offense and hence, the question of whether there are two or three substantives and one conspiracy, I view all on an equal basis and an unquestionable power to punish.

I would say they all can be punished at the same time.

Now, I can recognize that it is easier to visualize as -- possibly because as lawyers, it is easier to visualize separate substantive offenses as being somewhat different than a conspiracy and a substantive offense.

And I think that is -- that difference I can recognize.

But I don't think it goes to the question of whether or not, it does go to either of these two but it doesn't go to a question whether you can separately punish and it doesn't aid us on the question of whether or not, Congress in this Act intended one way or the other.

I can recognize there is a different view.

But I --

Justice Felix Frankfurter: Mr. Gilinsky as to the question put by Justice Harlan, rationally, as an abstract consideration, there is no difficulty in force of having Congress when it make offenses in relation within a given territory of outlawed conduct that all offenses within that area of criminal or penal decision that it makes -- that it says that all -- all offenses within a particular penal area, shall upon the punishment, upon the guilt of one or all, be subject to a single defined punishment.

There's nothing -- there's nothing in a way of reason or penology that it's now, why they shouldn't do that, but we're dealing with situation where there's -- where there is a purpose in the consideration, ambiguity, the language of allows one construction rather another in the imposition of multiple sentences and I should think that where you -- that abstractly considered where you have -- as Justice Harlan's question indicated I think, conspiracy and a substantive offence as against substantive offenses in the reference to a particular situation, conspiracy and substantive offense present different considerations than fragmentized substantive offenses within the same area.

Because when you deal with conspiracy, you add the very important consideration of -- of danger or menace to the society from combined action, which is a very different thing from the commission of a substantive offense by one or more people because that is the great thing about conspiracy that it's directed against the mischief conceived by penalizing such combination because of combination and not because of the substantive offense.

Mr. Theodore George Gilinsky: Well, I -- I recognize this.

As a matter of fact, I was going to say that the reason for this long recognition is -- is just this purpose that the combination is the thing that -- that we are after here.

For example, in this particular case, the fact that this petitioner has joined with others in order to bring a -- a greater force to bear upon his extortion efforts is the thing that the conspiracy count is after.

Justice Felix Frankfurter: As you indicated earlier, the distinction is, I think illustrated by the difference between the -- that requisite constituents of a prosecution of this combination for a conspiracy in that point attempt.

You can punish at them a combination, a conspiracy although it doesn't reach that stage of seriousness which is required in order to make out a case (Inaudible)

Mr. Theodore George Gilinsky: I agree.

I -- I think there are other considerations for the conspiracy also.

For instance, in this particular context, conspiracy is a very dangerous anti-social act because in -- in the field of racketeering, it presents a focal point for continuing crime, which you don't usually have in other areas.

It also -- a conspiracy has this as a background.

It makes it much more difficult for anyone individual to get out because he has the -- his cohorts of course, on his back.

All of these considerations though have gone into the long history of why conspiracy is separate from the substantive offense.

In this particular Act, we think though that even the legislative history backs us up more than the petitioner's counsel has suggested.

When the bill was first submitted in 1934, it's true the Act did not contain a conspiracy clause.

However, that conspiracy clause was put in as the Act was going through Congress and there's no question where it came from because at that time, the then Attorney General Homer Cummings, wrote a letter in which he submitted a new brand in which he says in no uncertain terms, we have had it, a conspiracy clause.

Now, the Government suggested that this must be read in context.

Now, what do we mean in context here?

At the time the Attorney General suggested this, there was a conspiracy clause, a general conspiracy clause.

So that, you didn't have to have the addition of a conspiracy clause in the Hobbs Act, in order to convict someone of conspiracy because that was already on the books.

But the problem was that in 1934, they were concerned about increasing the punishment.

And in 1934, the conspiracy had -- had a punishment clause of two years.

Now, we suggest that the Attorney General when he said that he's having a conspiracy clause meant not that he was adding something that he couldn't do before, because he could.

He could always indict somebody for conspiracy --

Justice John M. Harlan: But you have indicted him under the general -- general conspiracy statute now?

Mr. Theodore George Gilinsky: I -- I don't think there's much difference between the two, although there is an overt act problem, I think the --

Justice John M. Harlan: There is no over -- overt act required under the --

Mr. Theodore George Gilinsky: Not -- not here.

Although -- although the petitioner makes some mention of this.

I don't think that makes a different support in the question of crime, because I think they're the same crime.

Justice Felix Frankfurter: I don't -- I don't follow.

The federal conspiracy statute, conspiracy to defraud or conspiracy to violate a statute does have to have overt Act.

Mr. Theodore George Gilinsky: That's right.

Justice Felix Frankfurter: And this doesn't.

Mr. Theodore George Gilinsky: That's right.

But I know of no --

Justice Felix Frankfurter: None of that -- but I should think -- I should think if you have a specific conspiracy statute, you said they couldn't duplicate?

Mr. Theodore George Gilinsky: That's right.

Justice Felix Frankfurter: It certainly couldn't duplicate --

Mr. Theodore George Gilinsky: That's right.

Justice Felix Frankfurter: In the way you have a specific conspiracy statute as part of a substantively out -- substantively outlawed conduct.

Would you think that's the clearest indication you can have but that is meant to be the conspiracy for which you can prosecute?

Mr. Theodore George Gilinsky: I -- I would agree.

I --

Justice John M. Harlan: To put your contention in another way, as I get it, you say this situation is exactly the same as if Congress instead of adding a conspiracy section to the Hobbs Act with a 20-year facet of sentence to it --

Mr. Theodore George Gilinsky: Right.

Justice John M. Harlan: -- had amended the general conspiracy statute by saying that penalty was to five years except in the case of Hobbs Act violations.

Is that it?

Mr. Theodore George Gilinsky: Exactly the same result would've -- would've turned out in this case.

Justice John M. Harlan: You don't refuse that?

Mr. Theodore George Gilinsky: And the only difference --

Justice Felix Frankfurter: I beg your pardon.

Mr. Theodore George Gilinsky: And the only difference is that here, we have a -- a number of other violations and the only other difference is overt act problem, which I can take up in a moment, which I don't think this --

Justice Felix Frankfurter: I don't find in your index a reference to Attorney General Cummings' letter or also certainly aren't on this.

I have the recollection that Attorney General Cummings, all the conference of the State Attorney General and also this would obtain, in far to be with this problem, am I right about that?

There was a -- there to put out of the proceedings of that conference.

Mr. Theodore George Gilinsky: There was, but I -- I -- as far as I recall, that doesn't help on this problem.

Justice Felix Frankfurter: No, but I mean even there dealing with the General --

Mr. Theodore George Gilinsky: That's right.

There -- there --

Justice Felix Frankfurter: The General (Inaudible) to tighten the law will increase the outlawed conduct and to stipulate sentence is because of reverence of violence and combination of violence throughout the country is that right?

Mr. Theodore George Gilinsky: That's correct.

It goes a little further than the -- the Copeland Committee of course, held these hearings in New York, Detroit and Chicago in which they found great problems of racketeering.

All of these bills were presented at one time.

All of these bills have the backing of the Department of Justice because they were concerned about all of these problems and they were concerned particularly about increasing the punishment and heaves in every area of crime that they could go after.

Justice Felix Frankfurter: The hearing that I'm referring to is the hearing that was held in the Department of Justice under the sponsorship, under the call of the Attorney General of the United States.

Mr. Theodore George Gilinsky: I may -- I may not have that particular one.

Justice Felix Frankfurter: Now, where is -- where can I find the Attorney General's letter asking for a special conspiracy statute?

Never mind, I'll dig out (Inaudible)

Mr. Theodore George Gilinsky: No.

I -- at that at the bottom of page 21 and at the top of page 22, we just quote just that provision of the letter.

We don't quote the whole letter, but it can be found at that citation.

Justice Charles E. Whittaker: Mr. Gilinsky, I do not understand Mr. Shenker to deny that Congress had it that the conspiracy perhaps in this doctrine, but he -- he says the question still is whether or not, Congress even then intended to increase and make a new -- a new penalty.

How does this aid us very much in determining that question?

Mr. Theodore George Gilinsky: Do you mean, how -- how does the fact that they came in this way as it is?

Justice Charles E. Whittaker: Or does (Inaudible) at all, yes.

Mr. Theodore George Gilinsky: Well, I think it aids us in this sentence.

I think we must recognize, I mean if we're going to be candid about it, that the Attorney General knew at the time he submitted this, that he could indict someone for a conspiracy to violate this Act without adding any provision here.

Justice Charles E. Whittaker: I'm going to do your (Inaudible)

Mr. Theodore George Gilinsky: That's right.

We therefore say that in view of the purpose of increasing the punishments in this statute and there is no question that that's all the way through because they have the Sherman Act and they say, "Well, we only had a misdemeanor.

We want something stronger than that."

As a matter of fact, they started out with 1 to 99 years in it.

So that after an increase in punishment, we say that therefore, it is consistent to say that the Attorney General suggested the conspiracy clause here in order to punish a conspiracy in this statute for 20 years, not two.

That he didn't put it in here in order to decrease the punishment which if -- you see, if all on that -- if he could indict someone under the Act for 20 years for conspiracy and that was the end of it, that would mean that the Attorney General meant that once a man has conspired, he can get 20 years.

It doesn't make any difference what happens after that.

It doesn't make any difference whether violence is used.

It doesn't make any difference whether the extortion actually works because he can't get anymore punishment.

Now we say -- we can't see that the Attorney General would say that.

Chief Justice Earl Warren: But don't you think there's a lot of difference between perhaps just proving the conspiracy that a man intended to do something on the one hand without proving any -- that they actually did anything and on the other hand, proving that they actually did commit extortion and robbery.

Don't you think that that would make a difference in punishment that might lead them to be interested in the substantive offenses as well as the -- the conspiracy?

Mr. Theodore George Gilinsky: Well I think -- I agree.

I think the consideration that he's just talking about --

Chief Justice Earl Warren: Why do you say then -- why do you say then that wouldn't no -- they wouldn't have to go any farther, it wouldn't make any difference whether they -- where they proved anything except there was a conspiracy?

Mr. Theodore George Gilinsky: Well, I -- I think what I'm trying to say is these are two different approaches to two different problems.

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: The problem of which I -- I -- as I understand your first posing is the question of whether there is -- there could be or should be a difference in punishment between somebody who combines and somebody who extorts.

Now I say, yes, there can very naturally be and this is a matter which the trial judge must consider when he decides how much punishment the man should have, but I do not believe that Congress intended and I certainly cannot envision the Attorney General recognizing that once people have conspired and therefore subject to 20 years, that anything they do after that, they can't get anymore punishment for, which if there's only a 20-year punishment here for conspiracy and that's the end of the case, it doesn't make any difference whether a man conspires and has violence attached to it, it doesn't make any difference whether a man extorts.

Now, I don't read the statute that way and I don't think that is a normal way that the Attorney General would read the statute.

Chief Justice Earl Warren: Well put it -- I beg your pardon.

May I just finish this?

The bill started out with a maximum of 99 years.

Do you think that the Attorney General when he wrote this letter, merely saying that I have -- we have added a new provision prohibiting conspiracy as well as a substantive act, do you think that he did that because he -- he thought that 99 years was inadequate and that he have to have additional punishment in -- for these people?

Mr. Theodore George Gilinsky: Well, I think is this -- I think you've known -- I think you've not --

Chief Justice Earl Warren: Submitted, what you've been arguing to us now, (Voice Overlap)

Mr. Theodore George Gilinsky: I think the problem is this.

You see I -- he had to think that he was adding some punishment.

He couldn't think -- let me make it clear, he could not think that all he was doing was creating a crime of conspiracy.

He had to be adding punishment to conspiracy.

The reason I say that is, supposed the bill had been passed without the conspiracy and with the 99 years.

As I gather, even the petitioner would recognize that he could be indicted for conspiracy under the general statute and for the substantive offense under the Hobbs Act and if there was 99 years, there would be 99 years.

But that doesn't mean that the judge wouldn't have the power or that Congress hadn't granted the judge power to add the -- whatever the penalty at this particular time is for general conspiracy clause because that has been on the books all during this period, and as I gather, petitioner doesn't -- doesn't even argue that he couldn't be indicted for both and punished for both.

Chief Justice Earl Warren: But I don't think counsel disagrees with you that counsel -- Congress intended to punish conspiracy as well as the -- the commission of the substantive offense.

But I think where he does disagree with you is that Congress did not intend to pile one on top of the other and he -- he cites the -- all of these colloquies between the -- the proponents and opponents of the -- of the bill to show that they were treating more or less with group action there and that there was -- there was never anything said throughout the entire debate about filing conspiracy upon the substantive offense that -- and they treated it as though it was either-or.

Now, are you going to address yourself to that?

Mr. Theodore George Gilinsky: I -- I don't agree that they said either-or.

That's the only part of that, other than that, I agree with you perfectly.

I don't think you can get any -- I've read this history a number of times.

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: It does not say that you can cumulate punishment.

It does not say you cannot cumulate punishment.

The history -- if this is what we are looking for, then you can look for this in almost all the criminal statutes because this is not a problem which you usually find discussed.

We say --

Chief Justice Earl Warren: Why not?

Why wouldn't this be discussed when they are addressing themselves to the -- to the severity of -- of the offense?

Mr. Theodore George Gilinsky: I think the --

Chief Justice Earl Warren: I think you could -- if -- if you can punish a man not for 20 years but 40 years, why wouldn't it be a normal thing for them to -- to discuss in the Congress?

Mr. Theodore George Gilinsky: I don't think they had to in order to gain their point.

Chief Justice Earl Warren: They didn't have to do anything.

They didn't have to say anything, but the question is, is it then reasonable to think they would've discussed that with the people objecting to the maximum punishment of 20 years if -- if it was stated there that the punishment could be not 20 but 40, do you not think that would have been at least reasonable subject for discussion in that?

Mr. Theodore George Gilinsky: I think it could have been.

And the reason I would suggest it was not, is because they were not concerned in terms of this 20 years.

If you look at -- this is not the 1934 Act.

Now this is -- they've already had this Act for a number of years.

Chief Justice Earl Warren: Is it the 1922 Act.

Mr. Theodore George Gilinsky: These people -- these people are concerned with the militant labor man.

They're concerned with the problem posed by the Local 807 case.

They are concern that the laboring man not be punished and for this, they don't have to go 20 years, 10 years would have been enough to make the argument, they were concerned to point out that there was a difference between a misdemeanor and the Sherman Act and a felony in this Act and for that purpose, they didn't have to say any number of years, because all they have to do was make that distinction and they have made their point.

That was --

Chief Justice Earl Warren: Well, that was the only -- it all wasn't directed to the Sherman Act, this discussion. That was one --

Mr. Theodore George Gilinsky: This discussion was directed solely to the question that the Congress decided they did not like the interpretation this Court had placed on the Act in the Local 807 case.

That was all the Hobbs Act had to do except for one thing and that was, they increased the punishment from the 1934 Act which was 10 years, they increased it to 20 years and that's why they had this argument of 20 years.

But the 10-year statute, now this is the important point that I think is -- that is being missed by looking at this legislative history, the 10-year act, which was on the books in 1934, had exactly the same problem, the same connotation, the same situation that they arrived at when they started this business in 1942.

Now, they didn't talk about it at all in 1934.

That doesn't mean that they didn't reduce it, they did, they reduced it, but they made it 10 years.

Now the problem that they had at this time in the Hobbs Act was that they had increased the punishment from 10 years to 20 years.

It wasn't the question -- it's true they could have said 40, they could have said 60, but they could have said this in 1934, you see.

They could have said 10, 20 or 30.

The difference was not in that relationship.

The difference was between 10 years in the 1934 Act and 20 years in this Act.

And that's why I think they emphasized 20 years.

Now, I agree, you can read this anyway you wish.

I think candidly, we have to admit that no one saw this type of problem insofar as saying so in so many words.

Justice John M. Harlan: To get to that point, what your answer to your adversary's argument that this is a difficult case where the rule -- strict construction and the rule of lenity, sometimes cause you difficulty.

Mr. Theodore George Gilinsky: Let me -- let me make two points on this.

Number one, I don't think we have arrived with the problem of lenity because I don't think, we have an ambiguity.

Because if you --

Justice Felix Frankfurter: If you haven't a what?

Mr. Theodore George Gilinsky: An ambiguity.

Because there's a real gloss on this statute that -- that as lawyers recognized it and as it had been interpreted before and after even the Hobbs Act was passed, in all the cases under the Hobbs Act, there'd been consistently conspiracy and substantive crimes and they've been punished.

But important for Congress, if Congress really intended to do what petitioner is saying, if they had intended that, I think it would have been natural for Congress to have said so explicitly, because then Congress is making a change from the customary pattern and there's a prototype to these two.

Wisconsin has done this and we cite this in our brief.

They have a statute which says that you cannot be punished for both conspiracy and substance.

I think this is -- if they thought of this --

Justice John M. Harlan: Assume -- assume that when everything is said and done, one comes to the conclusion fairly that you can't make head or tail out of what Congress did intend to do, then why do you say, prevents the application in the rule that your adversary is relying on.

Mr. Theodore George Gilinsky: Well, of course you do presuppose that --

Justice John M. Harlan: No, but I was prompted to it by your last colloquy with the Chief Justice.

Mr. Theodore George Gilinsky: Well, I don't --

Justice John M. Harlan: When you said that you couldn't -- frankly, yes, I think you said you couldn't -- the Congress didn't advert to this problem.

Mr. Theodore George Gilinsky: Well I think the fact to have advertent to it, --

Chief Justice Earl Warren: Don't make that in a tale was the -- whether words were used.

Mr. Theodore George Gilinsky: Well, if I did, I want to change this --

Chief Justice Earl Warren: You make every tale out it.

Mr. Theodore George Gilinsky: I think Congress did not advert to it.

That does not mean that I say that Congress intended one way or the other.

I think Congress, if they intended to talk about this problem, would have talked about it in terms that were then natural for lawyers for the circuit -- for the Attorney General and he would have considered them as separate.

I don't think that --

Justice Felix Frankfurter: You could -- you could say that -- you could say safely say I think -- you could safely say that in no discussion of penal legislation where they have an outlaw in both the conspiracy on the substantive offense, that Congress explicitly deal with the problem of a two punishments and for the reason that you have given --

Mr. Theodore George Gilinsky: I know.

Justice Felix Frankfurter: Because they are such separate things that it wasn't appropriately discussed there.

Mr. Theodore George Gilinsky: I know.

Justice Felix Frankfurter: But I think in that connection, I -- I think you've discussed the conspiracy thing if I may say so rather obstructively, they are confusing.

As I understand the situation is this, when the Attorney General Cummings intervened that there was this, from my point of view, outrageous 99 years penalty provisions, but merely for substantive offenses.

And as you say, conspiracy could have been pursued under the old 5440, the general conspiracy statute, which has a sentence of two years.

But barring that, there was nothing to deal with the combination of this racketeering in case some members withdrew from the combination.

They couldn't be even be punished for attempt because very often, an agreement to -- to pull a job somewhere wouldn't go near enough to constitute attempt.

So that there was nothing to deal with people who did go far enough to constitute a conspiracy, but some of them had a change of heart and withdrew.

And therefore, a conspiracy addition took care of the people who had gone far enough to enable the prosecution to establish a -- a conspiracy, but some of whom had withdrawn and therefore, you would deal in the same way with people, where a change of heart and thought better of it and the people who went ahead and executed with violence, that which was so severely condemned by Chief Justice Stone in his dissent in 287 which led the think to the severity.

That's the history of this legislation.

Mr. Theodore George Gilinsky: I -- I won't agree with this problem.

I -- I think the word of --

Justice Hugo L. Black: (Inaudible)

Justice John M. Harlan: But that wasn't the way you presented it.

Mr. Theodore George Gilinsky: No, I recognize that.

Justice Felix Frankfurter: Well, I don't think we're bound by the answers of argument on the part of Congressmen on either side.

Mr. Theodore George Gilinsky: -- may I say a word on the lenity problem before closing.

As I say, we -- we think the problem could have been answered if Congress had intended to do this.

They could have said so and that would have been the natural thing for them to do in -- in view of the long history this, was to say, not -- you cannot punish for both.

We think that would have been the more natural approach.

We do not believe there's a basis for lenity in this case.

The history shows that an increase in severity all the way through, so that those cases which deal with lenity are not applicable.

Such cases that have been cited are the Universal C.I.T., this is one act but even in universal C.I.T., this Court recognized three offenses as separate sections of that Act.

This is not like Bell whether -- which was the (Inaudible) case, because here, there is a controlling gloss on the statute.

This is not like Heflin or Ladner, after all which, we have to remember in both Heflin and Ladner, there were conspiracies that were separate and no one even bothered to raise that problem or urge it when it came to this Court.

This is not a question of what Congress could have done if they had thought about the problem because we feel it's the other way that if they had said, they didn't want this, which would have reversed the entire trend, that's what they should have said.

In other words if Congress was going to say anything, they have to say it the other way rather than say, “We want to have cumulative punishment because all the statutes always have cumulative punishments.”

In other words, we think there's a particular force in this statute that extortion can be committed alone and that's the crime.

That a conspiracy can be committed without the extortion, that there are separate, they have ingredients that are separate and they've always been so considered.

And they've been transposed back and forth, in and out of statutes.

When we revised the code in -- in 1948, they took out conspiracies from a lot of statute, but they didn't feel that there was any change in punishment and they said there wasn't.

So they treat these conspiracy clauses all the same, it doesn't make any difference whether they're in 371 which is the present section or whether they're in some particular -- except for two things punishment or if it's the only crime that's involved.

For these reasons, we feel the judgment below should be affirmed.

Chief Justice Earl Warren: Mr. Glazer.

Argument of Sidney M. Glazer

Mr. Sidney M. Glazer: Mr. Chief Justice and may it please the Court.

Since the main thrust of the Government's argument has been directed at this question that Congress was following a long doctrine in conspiracy substantive offense cases, I think the first thing I should direct my attention to is this long doctrine and it's this.

This long doctrine which Mr. Gilinsky refers to in all of the cases with the possible exception of this court-martial case did the issue of cumulative sentences arise?

All these cases merely held that a conspiracy and a substantive offense are separate and distinct crimes.

In this respect, let me start out with the Pinkerton case and the American Tobacco case, which were decided in June 1946, subsequent to the time the Hobbs Act was passed the House and prior to the final passage in the Senate.

And in this connection, it in both Pinkerton and -- and the American Tobacco Company case, the issue was that this Court had decided, Braverman versus United States, with -- which held the issue in the Braverman case was, suppose you have a conspiracy, one conspiracy to commit various substantive offenses, what sort of punishment maybe imposed?

And the Court in the Braverman case, held that the -- you only could punish the conspiracy and the maximum punishment was the punishment authorized by the conspiracy section -- statute.

Then in both the Pinkerton and the American Tobacco case, they argued the converse.

They said, here, we have a whole group of substantive offenses which were committed pursuant to one conspiracy.

Therefore, they argued, there is a merger and therefore, we should not be punished more than the punishment for the one conspiracy.

And this Court held no, that the -- that there could be punishment for each of the substantive offenses.

Now also, because I think it has some bearing on this, in the Pinkerton case, the Court decided there was a conflict of circuits that a -- a conspirator who did not participate in the substantive offense, might be guilty of the substantive offense.

Prior to that time, some circuits have said yes and some no.

Now, the other cases relative to the separateness of the conspiracy and the substantive offense were in general cases which said that a conspiracy might be subject to a general statute or limitations and the substantive offense to a special statute of limitation that a conspiracy wasn't petty offense, that a -- a conspiracy could be punished more severely than the substantive offense or that punishment that Congress had the power, therefore, there was no double jeopardy to punish separately, conspiracy and the substantive offense.

That the punishment, again, with the punishment for conspiracy would be greater than a substantive offense that a clear -- that liability for conspiracy is not taken away by its excess and a conspiracy may have a different statute of limitation.

And none of these cases except for this Carter case, which was a basically, a double jeopardy case did they state that cumulative punishment might be imposed.

Now, this Carter versus McClaughry was a court-martial case.

There were four charges.

Under two of the charges, there was a -- which arose under one Article of war, the -- they -- this Article of War had been based on a statute which provided a fine and a punishment for conspiring and also for making false claims.

When -- when the Article of War was enacted, the words became fine or punishment and Carter paid the fine and he contended that he was entitled to be released because he had served -- that he had complied with the sentence and he couldn't receive both a fine or a punishment.

The Court first said that when the statute used the word -- oh, when the Article of War used the word “or” it meant and. But then they said, in any event there's no double jeopardy.

Furthermore, as in old court-martial cases, Carter received the gross sentence and there was a -- a charge under -- charge for in this particular case, in which he was sentenced for embezzlement and the entire sentence could have been sustained on the embezzlement charge.

Now, in connection with this problem of merger -- now, we don't say just because a -- there is a conspiracy and a substantive offense, that they automatically merge in sort of put to -- blinders on the Court and say, well the Court can't consider the legislative history.

We say rather that it's necessary for the Court to consider the purpose and intent of the legislation and if the purpose and intent is to punish as a unit, then no cumulative punishment can be imposed.

Now, the real -- I mean, just I go back at second, in connection with this problem of whether that -- of this long standing doctrine that the Government argues, we set forth a Committee Report in 1944, this is on page 25 of our appendix.

This is a Committee Report in which the Congress in 1944 had the problem that in counterfeiting cases, the ring leaders were only being sentenced to two years for the -- for conspiring to violate the counterfeiting laws and the participants were being sentenced for sometimes as much as the maximum which was 15 years, for committing a substantive offense.

So the result, the -- the Congress enacted a law in which they made a conspiracy to violate the counterfeit laws subject to the same penalty, 15 years as the substantive offense.

Nowhere is there an indication that what they were doing was not making a 15-year penalty, but making a 30-year penalty.

And we're just -- we put this in for an illustration to show that this doctrine wasn't -- wasn't well-established like Mr. Gilinsky states it is. Now, when we look to the purpose and intent of this legislation and that's what -- what I think the main problem is in any legislation, when we start out, we see that initially, there was an investigation and -- into racketeering and the -- there were hearings held.

There was testimony given in which an Attorney General and several -- and another professor defined racketeering and they defined that crime, as a crime committed by organized groups. And then eventually, Mr. Rice of the Attorney General's Office, set forth, draft -- and made the first draft of the measure and in the first draft of the measure, there was no conspiracy clause and he specifically stated the reason while that -- while the Act was directed primarily against groups -- group action, that the reason he excluded the combination was to ease the proof.

And then subsequently, when labor objected to the bill, they -- it was, Mr. Cummings, drafted it a second time and in that draft which also had this 99-year penalty, the -- the conspiracy section was added.

But the -- the whole purpose of the -- the legislation, was to -- to hit at these groups and -- and to prevent them from interfering with interstate commerce. And then also when -- when the legislation, the 1946 Act was enacted, its history also was directed at practices against groups.

Local 807 case was a conspiracy case.

The entire discussion of the -- of -- of Congress in the -- in the -- based on the 1946 Act, was directed at this group combined action.

Now, we say that this is the controlling gloss.

The controlling gloss is that Congress wished to cover these groups and to punish the groups and that the only reason for adding this conspiracy section and for adding these various alternative substantive provisions which overlap, was so that everybody who participated in any aspect of the crime would be punished.

In other words, Congress was interested in easing the burning -- burden of proof.

They -- it was not interested in piling punishment upon punishment.

Certainly, we don't -- we do not think that this statute -- we think that the available materials indicate that Congress did not intend cumulative punishment.

We think that if -- if anybody in the 1942 and 1943 debates had thought that Congress intended cumulative punishment, they would have indicated and argued that the bill so provided.

When you consider that factor that Congress' main concern was with combination and wasn't primary combinations that interfered with interstate commerce, when you consider that factor, we think that the legislative history when considering with that purpose, indicates that no consecutive punishment was intended.

In any event, that there's no reason for not -- for treating this separate mistake from any other case where there are two substantive offenses involved, the same policy considerations are involved for applying the rule of -- lenity.

The -- the fact that -- that a combination might be a greater evil, it doesn't have any additional weight in this sentence, in this legislation, because the combination itself was the evil at which the substantive offense was directed and the only reason that combination was not required as an element was to ease the proof and to make all violators in any degree, and all inchoate crimes punishable and for that reason, we think the court below erred in imposing cumulative punishments.

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