Andrews v. United States

PETITIONER:Andrews
RESPONDENT:United States
LOCATION:Circuit Court of Anne Arundel County

DOCKET NO.: 491
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 373 US 334 (1963)
ARGUED: Mar 25, 1963 / Mar 26, 1963
DECIDED: May 20, 1963

Facts of the case

Question

  • Oral Argument – March 26, 1963
  • Audio Transcription for Oral Argument – March 26, 1963 in Andrews v. United States

    Audio Transcription for Oral Argument – March 25, 1963 in Andrews v. United States

    Earl Warren:

    Number 491, Albert Andrews versus United States and Number 494, Robert L. Donovan versus United States.

    Mr. Prettyman.

    E. Barrett Prettyman, Jr.:

    Mr. Chief Justice, may it please the Court.

    This case, and I will treat it as a single case for most purposes, raises the question whether the Government, prior to the resentencing of two defendants in a criminal case, may appeal the orders directing that the resentencing take place.

    This case originated in 1954 when three men were arrested in connection with an attempted mail robbery.

    These men were Albert Andrews, Robert Donovan, and Hyman Cohen.

    Mr. Cohen is no long in — no longer involved in this proceeding.

    They were convicted on all three counts in a trial before Judge Lawrence Walsh in the Southern District of New York.

    They were convicted, that is, of assaulting a post office employee with an attempt to rob with putting the life of the same post office employee in jeopardy by the use of a dangerous weapon and of conspiracy.

    Now immediately upon conviction and apparently without any presentence required of law and without asking the defendants whether they had anything to say either in mitigation of sentence or on their own behalf, Judge Walsh sentenced all three of them.

    Counts 1 and 2 merged so there was no sentence on those — on the first count.

    On the second count, he gave them the mandatory 25 years, and on the third count, he gave them five years to run concurrently with the 25-year sentence.

    What year was this, Mr. Prettyman?

    E. Barrett Prettyman, Jr.:

    This was 1954, Your Honor.

    I don’t know why it should take this long?

    E. Barrett Prettyman, Jr.:

    Well, the appeal on the case was not heard until 1957.

    The record doesn’t show why there was that delay.

    I have inquired of both Mr. Healey and Mr. Friedman to determine and their answer is that due to some difficulties about payments in the in forma pauperis petitions and various other things, it simply drifted on that long.

    Now, the Second Circuit affirmed the convictions, but remanded for resentencing because Judge Walsh had erroneously thought that he could not grant probation on the mandatory count.

    Now notice that the remand for resentencing was specifically for the purpose of determining whether probation could be granted.

    It was in the light of his right to grant probation that that remand took place.

    The resentencing was first scheduled for May 15, 1957, deferred for five days so that one of the counsels could prepare legal memo.

    On May 28th, it was called for resentencing.

    Now note that this was almost two and a half years after the original sentence.

    Judge Walsh again presided.

    The defendants were not present, neither was Mr. Frank Healey, an attorney representing Mr. Donovan.

    The proceedings nevertheless commenced.

    Mr. Friedman made an argument.

    Now Mr. Friedman’s representation in this case is not entirely clear.

    He told the — he told Judge Walsh that at this particular point because Mr. Healey was not present that he represented all three defendants.

    E. Barrett Prettyman, Jr.:

    The docket entries show and the judgment show that he represented only Mr. Andrews and Mr. Cohen, and that Mr. Healey who was now absent represented Mr. Donovan.

    In any event, he told Judge Walsh that he had not been able to prepare the memo which he had hoped he would and he then argued two points, remember now this is in the absence of the defendants.

    He argued first a legal point.

    That is that the first and second counts didn’t merge and therefore the Court could grant some sort of sentence on Count 1.

    Secondly, he argued a non-legal point.

    He made a plea for clemency.

    Now Mr. Mathews, the Assistant United States Attorney then presented an argument that the first and second counts did merge and Judge Walsh at that point called a recess.

    After the recess, the defendants and Mr. Healey were present for the first time during this resentencing procedure.

    Judge Walsh asked, “Is there anything you want to say?”

    And this question was answered not by the defendant, not by Mr. Friedman, not by Mr. Healey, but by the Assistant United States Attorney, Mr. Mathews who then proceeded to give his version of the crime.

    He said the Government did not have much background on these men but he noted that the Court at this point had a presentence report, apparently, the first one in the case.

    When Mr. Mathews concluded, Mr. Friedman, without being asked then spoke up, saying that he was going to speak with respect to Andrews and Cohen and that Mr. Healey would speak with respect to Donovan.

    Mr. Friedman made a plea for clemency for Andrews and Cohen, and Mr. Healey also without being asked by the Court spoke up and made a plea for Mr. Donovan.

    When they were through, despite the fact that the whole purpose of the resentencing was to consider probation, that was the point of the remand, the Court did not ask any defendant whether he had anything to say either in litigation sentence or on his own behalf.

    He simply proceeded to resentencing.

    He suspended Mr. Cohen’s sentence and put him on probation.

    He ordered the prior 25-year sentences of Andrews and Donovan to remain in effect.

    On April 17, 1961, Donovan filed a motion in the District Court.

    He claimed that his right of allocution under Rule 32 (a) had been denied him and he prayed, “that the sentence aforesaid be vacated and he be resentenced.”

    In three supporting papers, he specifically requested that this motion of his be treated as a Rule 35 motion.

    This is seven years after.

    E. Barrett Prettyman, Jr.:

    Yes, sir.

    Fantastic to me.

    How does that happen?

    E. Barrett Prettyman, Jr.:

    Well, of course part of his delay was his fault in the sense that there was a delay between the resentencing and his filing of this motion.

    I’d like to point out however, that I think that is accounted for by the fact that the Green case had not been decided at that time.

    The Green case was decided four or five months before he filed his petition.

    And I think frankly, this was the first time he knew he had any such right, and that’s when he filed his — his petition because up until this time, neither at the original sentencing nor at the resentencing did anybody ask him whether he had anything to say.

    Now Rule 35, of course, reads in part, the Court may correct an illegal sentence at anytime.

    The docket entry shows that Donovan’s motion was entered as a Rule 35 motion.

    E. Barrett Prettyman, Jr.:

    The Court — the Government stated twice in pleadings — in pleading that it was a Rule 35 motion.

    And Judge Murphy granted the motion as made ordering that Donovan “be returned to this District for resentencing”.

    Now Andrews apparently heard of this because he wrote the Court a letter under date of January 25th, 1961, asking for what he understood to be the same treatment that had been accorded Donovan.

    Judge Murphy treated this letter as a motion.

    He granted it and he ordered that Andrews be resentenced.

    Now, note that neither Andrews nor Judge Murphy, nor the docket clerk, made any mention of 28 U.S.C. Section 2255 in relation to this letter.

    Potter Stewart:

    All this was — all of this was going on before this Court’s decision in Hill against United States.

    E. Barrett Prettyman, Jr.:

    Correct.

    That’s right.

    Green had been decided, Hill had not.

    Potter Stewart:

    Had Van Hook been decided at per curiam, is it?

    E. Barrett Prettyman, Jr.:

    Van Hook, Your Honor came down —

    Potter Stewart:

    As on direct appeal.

    E. Barrett Prettyman, Jr.:

    After — after — you see, that was on direct appeal.

    Potter Stewart:

    Yes, I understand that.

    E. Barrett Prettyman, Jr.:

    It came down at a time when Donovan then proceeded to file a motion and saying — said in effect, “I want to add Van Hook as another reason for —

    Potter Stewart:

    So it — it came down during the pendency of this (Voice Overlap) —

    E. Barrett Prettyman, Jr.:

    Yes, that’s right.

    That’s correct.

    Yes, sir.

    Potter Stewart:

    This was in 1951 in this record.

    E. Barrett Prettyman, Jr.:

    That’s right, right.

    If Your Honor will turn to page 39 of the record, you will see that Van Hook at this point came down and he has — bringing this to the Court’s attention.

    This is all on his own now without benefit of counsel.

    Potter Stewart:

    That was the following — it was the following January or February that Hill was mentioned, brought —

    E. Barrett Prettyman, Jr.:

    Hill was not decided until January 22nd of 1962 which was after the case had reached the Court of Appeals.

    Potter Stewart:

    Yes.

    E. Barrett Prettyman, Jr.:

    Now both Donovan’s and Andrews’ motions were filed in the original criminal case with the original criminal docket number.

    The first mention of 2255 that got into this case at all was in a government affidavit filed one day after Andrews’ motion had been granted and yet in that same affidavit, the Government conceded that the factual and legal posture of Andrews’ motion was exactly the same as Donovan’s motion.

    Note too that when Andrews found out that the Government was treating his motion as a 2255 motion, he specifically protested in a pleading and claimed that his motion was also a Rule 35 motion.

    E. Barrett Prettyman, Jr.:

    The Government appealed from both of Judge Murphy’s orders and obtained the stay pending appeal.

    All of the Government’s papers, all of the Government’s papers as every other scrap of paper in this case that was filed in the District Court bore the original criminal docket numbers.

    Andrews and Donovan were not allowed bail pending appeal.

    They were not transferred to New York, to help prepare for their appeal, no counsel was appointed for them, they wrote their own briefs, there was no argument in the Court of Appeals, this case was submitted on papers, and the case was then decided.

    The Court of Appeals held that it had jurisdiction because Judge Murphy could not grant any relief under Rule 35, that these were independent motions under 2255, and that the Government can appeal from adverse decisions under 2255.

    On the merits, it held that Hill versus United States and Machibroda versus United States, both of which had now come down in the meantime required reversal.

    Unfortunately, the Court of Appeals was under a misapprehension as to the facts involved.

    Now I have three arguments.

    I want to stress to you that each is independent of the other.

    If the Court agrees with me on anyone of these, the Court of Appeals must be reversed.

    First, whether petitioner’s motions were civil or criminal, whether they were Rule 35 or 2255, whether Judge — what Judge Murphy did was in the criminal case or in a separate proceeding, these were entirely interlocutory and non-final orders.

    They were interlocutory in nature, in cause and effect, in form, in result, in any realistic sense, these were interlocutory orders. Now remember these orders were —

    Was there any — was a sentence ever imposed?

    E. Barrett Prettyman, Jr.:

    No, sir.

    Never reimposed.

    E. Barrett Prettyman, Jr.:

    No, sir.

    The Government appealed quickly you see, before these men can be brought back for resentencing.

    They obtained a stay and immediately appealed.

    The order —

    That the sen — the old sentence have been vacated.

    E. Barrett Prettyman, Jr.:

    That’s right, that’s right.

    These men stood at this point —

    Well, these men are standing at the Bar now unsentenced.

    E. Barrett Prettyman, Jr.:

    Right, but convicted.

    But convicted.

    E. Barrett Prettyman, Jr.:

    But convicted.

    Now these orders were in two parts.

    They vacated the prior sentences and they ordered resentencing.

    William J. Brennan, Jr.:

    Well, let’s see Mr. Prettyman, you said there was a stay, a stay of what?

    E. Barrett Prettyman, Jr.:

    A stay of both of Judge Murphy’s orders as entered.

    E. Barrett Prettyman, Jr.:

    That is the prior convictions are —

    William J. Brennan, Jr.:

    Well, technically, there was —

    E. Barrett Prettyman, Jr.:

    Well, technically as of this moment, I suppose you could say that since those orders were stayed that they stand convicted and sentenced as originally.

    Byron R. White:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    That’s right.

    Byron R. White:

    They may not act [Inaudible]

    E. Barrett Prettyman, Jr.:

    That’s correct, but as of the moment, he ruled in between then and the time that they obtained to stay, of course, they stood convicted but non — not sentenced and the stay was based solely upon the right of the United States to appeal which is the very issue in question here.

    Byron R. White:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Yes, sir.

    Now resentencing, as I said, has not taken place.

    The criminal case is open and I again, with the exception of the fact that the stay was entered.

    I think we can ignore that fact for the purposes of this situation because if the appeal will not lie, he had no right of course to grant a stay.

    As of that time, a resentencing had not taken place.

    The criminal case was open as the Government concedes.

    The Government concedes that.

    Arthur J. Goldberg:

    Mr. Prettyman, am I right that the two orders [Inaudible] with the two cases starting at page 40 was a memorandum by Judge Murphy, it was [Inaudible]?

    E. Barrett Prettyman, Jr.:

    Yes, the first one, Your Honor is on page 40, that’s correct.

    No settlement is —

    Arthur J. Goldberg:

    And the other one is on page 50, is that the [Inaudible]?

    E. Barrett Prettyman, Jr.:

    And — and the other one is just two lines on page 50.

    That’s correct.

    Arthur J. Goldberg:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    That’s right.

    Arthur J. Goldberg:

    Those were the two orders —

    E. Barrett Prettyman, Jr.:

    That’s it.

    Arthur J. Goldberg:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Exactly.

    Arthur J. Goldberg:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    That’s correct.

    Arthur J. Goldberg:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Completely.

    Arthur J. Goldberg:

    [Inaudible] a motion to vacate the [Inaudible] the sentence?

    E. Barrett Prettyman, Jr.:

    That’s right.

    These were self executing orders.

    This Court on numerous occasions has made clear that final judgment in a criminal case means sentence.

    There can be no question about that.

    Now, I need not even pause over these situation if the orders were correctly Rule 35 orders, because the Government clearly cannot appeal even from final orders in a criminal case unless authorized by 18 U.S.C. Section 3731.

    The Government doesn’t even claim that right in this case, but the Government said, “What Judge Murphy did was to grant independent petitions under 2255.”

    Now even if these were true, it doesn’t follow that the Government could appeal as the Court of Appeals seems to have assumed.

    2255 by its own terms, allows that appeal as from a final judgment on application for writ of habeas corpus and 2253 allows an appeal in habeas corpus only from final orders.

    The Government doesn’t claim that Judge Murphy’s orders were — had the effect of finality.

    It concedes that the criminal case is now open but for the stay.

    Potter Stewart:

    Open or over?

    E. Barrett Prettyman, Jr.:

    Open.

    Potter Stewart:

    Open.

    E. Barrett Prettyman, Jr.:

    Open.

    That is that it’s incomplete, that orders still have to be entered.

    What the Government says in effect that —

    Potter Stewart:

    But the function of 2255 as the function of habeas corpus is to secure the release from confinement of people and this — that part of it has been done.

    They’ve been released to — ordered to be released from confinement to come back to the sentencing court to be resentenced.

    E. Barrett Prettyman, Jr.:

    The 2255, Your Honor, gives — in the first place, 2255 applies to a prisoner claiming to be — claiming the right to be released.

    Potter Stewart:

    Right.

    E. Barrett Prettyman, Jr.:

    Now these — these —

    Potter Stewart:

    And that’s the function of habeas corpus also.

    E. Barrett Prettyman, Jr.:

    Yes, that’s right.

    Now these men are not claiming the right to be released.

    These men have been — claimed the right to be resentenced.

    Potter Stewart:

    Well, but one has to precede the other.

    They have to be released from their present sentence and brought back to the sentencing court and resentenced.

    E. Barrett Prettyman, Jr.:

    Well, in that sense released, but they’re not released from custody.

    E. Barrett Prettyman, Jr.:

    I take this language to mean release from custody.

    They’re talking about getting out from under the cause of the Government and these men are not released from custody when they’re simply transferred from Alcatraz and Louisburg under guard to the Court to be resentenced.

    But further, note that the — that 2255 allows the Court to vacate and set aside the judgment — the judgment and it can discharge or it can resentence or it can grant a new trial or it can correct the sentence.

    Arthur J. Goldberg:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Exactly, and that’s what is tradition.

    Arthur J. Goldberg:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Right.

    It’s traditionally been used for that.

    Now, as I say, what the Government says in effect here, I think, is this.

    Technically, since Judge Murphy properly could only vacate the sentence and since the resentencing will be in the criminal case, this is the last order that will be entered in the 2255 proceeding.

    That’s the way I interpret their brief as trying to call for some element of finality here.

    Well, now first, let’s assume that this is Rule 35 proceeding.

    Rule 35 doesn’t say the Court may vacate an illegal sentence.

    It says the Court may correct an illegal sentence, and unless the correction is a reduction within 60 days, the defendants have to be present.

    So that it reads as if it’s to say — as if it says, the Court may set aside and order resentencing.

    Now under 2255, if that’s what this is, the Court as I just pointed out specifically given the power both to correct and to resentence.

    So I think there can be no question but that Judge Murphy had the power to vacate and to order resentencing in this case.

    Now secondly, I don’t concede that other things couldn’t happen in this 2255 proceeding, assuming that that’s what it was.

    If his order for example were not followed — were not followed up there could be new motions in the 2255 proceeding and thirdly, even if the 2255 proceeding, if that’s what it is, were now over.

    That is not what this Court has said the finality means.

    In Collins versus Miller, final orders were entered in the sense asked for by the Government here.

    But this Court held that they were not final, a further extradition hearing had to be held.

    The whole subject matter, that was the — that was the phrase used by the Court; the whole subject matter had not been disposed off.

    Now, similar holdings had been made in cases citing on — cited on pages 20 to 23 of my brief.

    And so here, Judge Murphy’s orders will not be final until what he ordered to be done is done.

    Byron R. White:

    You don’t think [Inaudible]?

    E. Barrett Prettyman, Jr.:

    Well —

    Byron R. White:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Well, first of course Your Honor, I don’t think this is 2255.

    You understand that —

    Byron R. White:

    As to either one —

    E. Barrett Prettyman, Jr.:

    Yes.

    Byron R. White:

    If either rule are entitled [Inaudible]

    E. Barrett Prettyman, Jr.:

    Right.

    Now assuming that is Rule — that it’s 2255, I don’t concede that it is over necessarily.

    Byron R. White:

    Well, was the resentencing a part of the [Inaudible]?

    E. Barrett Prettyman, Jr.:

    Well, he ordered it right in the same — right in the same order.

    He didn’t just vacate the prior sentence.

    He ordered that they’d be resentenced.

    Now until that is done, I can easily visualize motions being filed, for example, if they — if they refused to do it or if there was an undue delay, or other things.

    It was the order entered in 2255 if that’s what it was, it must still be carried out.

    But finally, even —

    Byron R. White:

    But if the – the act doesn’t say resentencing [Inaudible]?

    E. Barrett Prettyman, Jr.:

    That would be my contention that they were.

    That isn’t the contention that the Government made.

    The Government defeated bail on the ground that this was 2255.

    Now even assuming however, Your Honor, that technically speaking, this was 2255 and 2255 is over in the sense that there’s nothing more to be done in 2255, I certainly don’t think that that is conclusive in any way because in Collins versus Miller, the Court refused to look at this type of situation in any technical legalistic sense of what is over and something else is opened up.

    The whole subject matter here is the question of resentencing.

    This is one ball of wax until the resentencing takes place necessarily the subject matter is still open.

    Byron R. White:

    Well, wouldn’t the — I suppose [Inaudible]

    E. Barrett Prettyman, Jr.:

    Well, I wasn’t going to get to it, but I will.

    I don’t know that the Government could.

    I have not taken a position on that because I would like to be in a position assuming that they tried to appeal following resentencing to say that they couldn’t.

    I would note that the Government obtained an appeal in Williamson, but I would say this.

    When the resentencing takes place, it’s clearly going to take place in the criminal case and it would be my view that the Government could not under 3731 appeal that, but Your Honor, let’s assume that the Government totally loses the right to appeal now if it’s not allowed to appeal.

    That hasn’t influenced this Court in cases like Carroll or DiBella that same argument, exactly the same argument is made by the Government there.

    If we’re not allowed to appeal these motions to suppress, now at this point, we will lose forever the right to appeal.

    And the Court said in effect that’s too bad.

    That’s just —

    Byron R. White:

    What the — I suppose you would have the same argument if you take — right after you had that motion granted [Inaudible].

    E. Barrett Prettyman, Jr.:

    And then the Government tried to appeal from the resentencing.

    Byron R. White:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    You mean from —

    Byron R. White:

    But that part [Inaudible] the Government appeals the first sentence, is it over?

    E. Barrett Prettyman, Jr.:

    Well, I don’t think it could do that, Your Honor.

    The order was that the — that the prior sentence was vacated and that these men are now resentenced to 25 years.

    In the first place, that would be illegal because it was done out of their presence.

    But —

    Byron R. White:

    Assume — assume they were there.

    E. Barrett Prettyman, Jr.:

    Assume they were there.

    Then Your Honor, I would say that they are not allowed to appeal because the re — that part of it which resentenced was necessarily part of the criminal case.

    You see, at that point, just in the flash of a moment before he resentenced, they’re in the same position as if they have been convicted by the jury —

    Byron R. White:

    What would you think [Inaudible]?

    E. Barrett Prettyman, Jr.:

    Well, that’s this case up until the next day, that’s this case.

    Byron R. White:

    Well, I know because the Government doesn’t stay.

    E. Barrett Prettyman, Jr.:

    Because the Government doesn’t stay?

    Byron R. White:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    Well, I practically don’t think that the stay is determinative myself, Your Honor.

    I mean I don’t see that you — that you convert this into a legal appeal because they walk in and get a stay of an order from which they cannot appeal.

    Now, I’d like the Court to look at what the Government is really asking it to do here.

    Let’s suppose that the petitioners after they had been convicted by the jury, but before they had been sentenced, had rushed in with a habeas corpus petition attacking their conviction.

    Now, is there any question but that an appellate court assuming that that was denied, let’s assume it was denied so they try to take an appeal, they say it’s the final order, is there any question but that an appellate court would dismiss the appeal on the ground that this was a non-final proceeding, that this was non-final in every way.

    If that, I — I think that is precisely what the Government is asking you to rule here in effect.

    The Government says that even though had they — have yet to be resentenced, it can rush in an appeal because an order has been entered in the 2255 proceeding.

    If it can, if the Government can appeal here, I can assure you that there’s going to be a great revision in collateral attack procedures, not only by the Government, but by petitioners, but by defendants.

    The whole purpose — the whole purpose and thrust of Carroll and DiBella is going to be diluted completely.

    If the Government can appeal, the whole purpose of the finality rule to prevent piecemeal, truncated appeals, to prevent and let them put injustice will be frustrated.

    Now remember Judge Murphy’s orders were — were entered in June and July of 1961.

    Over a year and a half ago —

    William J. Brennan, Jr.:

    [Inaudible] — your thought is that that is — if the Government made an appeal [Inaudible], prisoners granted under the 2255 [Inaudible] of habeas corpus?

    E. Barrett Prettyman, Jr.:

    Well, they can’t bring habeas corpus because they haven’t been sentenced yet.

    But let’s — let’s assume they can bring — they can’t bring 2255 because they haven’t been sentenced but they can bring — let’s assume, they rushed in with habeas corpus.

    In other words, they’ve been convicted, they haven’t been sentenced.

    They come in and file habeas corpus attacking their conviction.

    Byron R. White:

    That’s 2255 [Inaudible]

    E. Barrett Prettyman, Jr.:

    Well, 2255 would be ineffective in that situation because it wouldn’t lie.

    Byron R. White:

    [Inaudible]

    E. Barrett Prettyman, Jr.:

    That’s right.

    So let’s say they come in under habeas corpus and attack their conviction and say this was — conviction was illegal for any number of reasons, denied, they haven’t been sentenced yet.

    Then they appeal.

    Then they say that was a final order because it was a final order in habeas corpus and that’s all there is to be done in habeas corpus.

    William J. Brennan, Jr.:

    The prisoners could?

    E. Barrett Prettyman, Jr.:

    The prisoner would.

    I think there’s no question but that an appellate court would say, “You are trying to appeal — we will dismiss this appeal, this is non-final because you have not been sentenced.

    You cannot —

    Byron R. White:

    Well, if they’re out of bail [Inaudible]?

    E. Barrett Prettyman, Jr.:

    Well, some are and some aren’t, Your Honor.

    Byron R. White:

    But normally — actually [Inaudible].

    E. Barrett Prettyman, Jr.:

    Well, this Court is held Your Honor that as I understand it, that bail is a sufficient custody of the prisoner to allow and to file habeas corpus, tell that in a state case.

    William J. Brennan, Jr.:

    And you — what you’re arguing here is that if that was the rule which requires a prisoner [Inaudible] appealing that habeas corpus, [Inaudible] reply to the Government, this is not [Inaudible].

    E. Barrett Prettyman, Jr.:

    Much more so to the Government.

    This Court has held obviously that this is a much more stringent rule applied to the Government in criminal cases than in the alike.

    Now, as I pointed out, Judge Murphy’s orders directing that these men be resentenced who were entered a year and a half ago.

    Now, surely this is laden footed justice.

    It’s a denial, I think of the very right which Judge Murphy ordered that these men receive, the right to be legally resentenced.

    Now, there is a second independent ground why the Court of Appeals should be reversed.

    Totally, aside from any question of finality now, these were orders, I think, in the criminal case.

    And Section 3731 does not allow the Government appeal to appeal from such orders.

    The Government doesn’t claim the right to appeal here if these were Rule 35 orders.

    Now, clearly, the orders were treated as Rule 35 orders.

    E. Barrett Prettyman, Jr.:

    I can — I think there can be no question about that.

    They were treated by the parties and by the Court and by the docket clerk as Rule 35 orders, but the Government says the District Court had no jurisdiction to enter a Rule 35 order.

    Now it’s quite true that the concluding paragraph in Your Honors opinion in Hill versus United States intimates that Rule 35 is not the proper remedy even where they’re aggravating circumstances to accompany the denial of the right of allocution, but even Hill doesn’t suggest that Judge Murphy’s orders were void.

    Moreover with great respect, I think the Court should reconsider the question in Hill as to whether this should not be a Rule 35 order, a Rule 35 motion, whether Rule 35 doesn’t properly lie here as a remedy.

    Potter Stewart:

    Your case doesn’t depend on that though, does it? It doesn’t —

    E. Barrett Prettyman, Jr.:

    No.

    Potter Stewart:

    — depend at all in our (Voice Overlap) —

    E. Barrett Prettyman, Jr.:

    No, it’s an alternative ground completely.

    Potter Stewart:

    Yes.

    E. Barrett Prettyman, Jr.:

    The position I take is that clearly, if it’s a Rule 35 motion, they cannot appeal, they’re going to complain that.

    Potter Stewart:

    As the Government concedes.

    E. Barrett Prettyman, Jr.:

    That’s right.

    Potter Stewart:

    The Government concedes that.

    E. Barrett Prettyman, Jr.:

    No doubt.

    And all I’m saying is that this — this was treated —

    Potter Stewart:

    In this case either.

    E. Barrett Prettyman, Jr.:

    — as a Rule 35 motion, that he had jurisdiction under a Rule 35 motion.

    He may have been mistaken but that’s what he did.

    He had jurisdiction to do it and that being the case, the Government can appeal from it.

    Potter Stewart:

    But the — but our case is made it clear, don’t they, Heflin and Hill itself that the labels don’t count but the —

    E. Barrett Prettyman, Jr.:

    Labels don’t count.

    The label in this case is being used to the — in effect to defeat the right of resentencing.

    A Rule 35 motion has been converted into a 2255 proceeding in order to try to make it civil so that they can appeal from what — otherwise they would (Inaudible).

    Potter Stewart:

    Would be on that appeal?

    E. Barrett Prettyman, Jr.:

    That’s right.

    Now, I point out on pages 33 to 34 of my brief and pages 8 to 9 of my reply brief, some of the consequences of such a ruling that Rule 35 is not available here including the fact that in some instances, it’s got to be Rule 35 or nothing.

    And I will not repeat those arguments here.

    I want to add only this.

    The majority in Hill seems to have assumed that Rule 35 traditionally has been used to attack only sentences void on their face whereas 2255 is traditionally been used in situations more akin to this one.

    But Rule — but 2255 as I’ve said by its own terms, doesn’t apply to this situation because these men are not seeking to be released from custody.

    E. Barrett Prettyman, Jr.:

    Moreover, it’s traditionally been used to attack the judgment of conviction which is not being attacked here.

    There’s no attack on the judgment.

    There is no request for a new trial in this case.

    Moreover, the Government itself does not dispute some cases where the absence of the defendant was a ground for Rule 35 relief, on page 14 of its brief.

    It seems to me that the real rule in relation to Rule 35 is that strongly intimated in Heflin and that is that Rule 35 maybe used to attack the legality of any sentence unless, unless that the effect does not appear from the face of the record.

    In other words, unless a hearing must be held to determine the true facts and no hearing was necessary here and none withheld.

    If the Court finds it necessary to reach this question, as I hope it will not, I hope that it will reconsider its concluding paragraph in Hill at least where aggravating circumstances are present.

    Rule 35, I contend was quite as appropriate a method as 2255 to do what was done here and as a matter of fact was so far neater and more expeditious method of doing it.

    Now, there’s a third independent ground for reversal here.

    If the Court should find that Judge Murphy’s orders were interlocutory, if it should find further that the orders were not entered in the criminal case, then and only then, we reach the question of whether his orders were correct.

    Now, first, let me say that they were clearly correct at the time that they were entered because at that time, Green had been decided and eight members of this Court clearly thought that Rule 35 was the appropriate remedy because that was a Rule 35 case.

    Now Hill had not been decided and even under Hill, which was later decided, Judge Murphy, I think was right in his result because this case contains a number of the so-called aggravating circumstances of a fundamental nature and Hill recognizes that some — such circumstances came relay the sentence open to collateral attack.

    With great respect, I suggest that the Court of Appeals did not suggest — did not state actively what actually occurred here.

    The Court of Appeals seems to have assumed that the question of, “Do you have something to say” was asked of a defense attorney which would bring the case more in line with Green.

    Actually, the question was asked to the Assistant United States Attorney and no question was ever asked of the defendants or their attorneys at all, although they spoke.

    Either of the lawyers get up to say, they made —

    E. Barrett Prettyman, Jr.:

    They did.

    — make speech.

    E. Barrett Prettyman, Jr.:

    They did.

    The Assistant United States Attorney spoke and then Mr. Friedman spoke without being asked and then Mr. Healey spoke again without being asked.

    I think the importance of the point is that I think in Green, the Court assumed that if the question had been directed to the defendants, even though it’s been answered by his attorney, he at least knew that he had a right to speak and could presumably have spoken up.

    In this case, where the only question asked is asked by the Assistant United States Attorney and then the two attorneys have to get up on their own to interject what they had to say.

    Clearly, there’s no way for the defendants to know that they have a right to speak.

    Potter Stewart:

    Is this am I right Mr. Prettyman in understanding that under Count 2 of these indictments that the Court’s only choice is to impose a mandatory 25-year sentence?

    E. Barrett Prettyman, Jr.:

    For probations.

    Potter Stewart:

    Or to impose a mandatory 25-year sentence and then put the man on probation through that period.

    E. Barrett Prettyman, Jr.:

    Correct.

    That’s correct.

    Potter Stewart:

    Or —

    E. Barrett Prettyman, Jr.:

    That’s correct, which is exactly what he did to Mr. Cohen.

    Potter Stewart:

    Yes.

    That’s exactly what he did to Mr. Cohen.

    In the first — and the first reversal was on the basis that Judge Walsh didn’t think he had any —

    E. Barrett Prettyman, Jr.:

    Right.

    Potter Stewart:

    — discretion to allow probation.

    E. Barrett Prettyman, Jr.:

    That’s correct.

    Potter Stewart:

    But there’s no wrong for anything else except that 25 years or 25 years in probation.

    E. Barrett Prettyman, Jr.:

    The defendants —

    Potter Stewart:

    Is that it?

    E. Barrett Prettyman, Jr.:

    — made a motion on resentencing if we ever reach resentencing in Your Honor that in fact they could be a sentenced to something else on a legal ground on the — on the basis that would charge the jury perhaps on the basis of the merger of the first two counts (Voice Overlap) —

    Potter Stewart:

    I thought that had been decided in the merger.

    E. Barrett Prettyman, Jr.:

    Well, it has.

    I’m — there’s some question whether the whole thing wouldn’t be opened up on resentencing and they might be able to plead that, but I think for our present purposes we can assume —

    Potter Stewart:

    That’s what’s been decided so far in this —

    E. Barrett Prettyman, Jr.:

    That’s right.

    Potter Stewart:

    — subject to your — right of course, making arguments with your clients.

    E. Barrett Prettyman, Jr.:

    That is correct.

    Potter Stewart:

    They won’t — they want to.

    E. Barrett Prettyman, Jr.:

    That’s right.

    Arthur J. Goldberg:

    Mr. Prettyman, how do you conclude that the mark of the court that the [Inaudible] that the United States Attorney, that was on page 25 of the record, it has been decided [Inaudible].

    E. Barrett Prettyman, Jr.:

    That’s right.

    Arthur J. Goldberg:

    And then the Court says — then the Court says that therefore [Inaudible].

    Then the Court says, “Is there anything you want to say into that?” [Inaudible]

    E. Barrett Prettyman, Jr.:

    It certainly is.

    Your Honor, in Green, I think that the Court with great respect, I think it was sort of shall we say assuming quite a bit in terms of the question that was asked and who it was asked off.

    But in Green at least the Court said, when you ask — when you ask a question and it’s answered by the defense attorney, it’s easy to see how that attorn — that question could be answered by defendants and then the attorneys in effect are saying, “We’ll speak for them.”

    But it seems to me it’s inconceivable to assume that a question could be asked of the defendants, “Do you have anything to say” And the man who answers the question and who speaks up in effect on their behalf is the Assistant United States Attorney.

    So that’s what I base it on.

    Now, I’ve covered in my brief and my reply brief and I will not reargue here such matters as Mr. Healey’s absence during part of the resentencing procedure.

    I’m now talking about aggravating circumstances.

    E. Barrett Prettyman, Jr.:

    Judge Walsh’s mistake of fact as to Andrews’ part in the crime, Mr. Donovan’s record, the failure to grant the right of allocution at the first sentencing, and things of this sort.

    I want to add here only a few remarks about the absence of the defendants during this resentencing procedure.

    It seems to me that Rules 43 and 32 are not separate rules, but complementary.

    Rule 43 provides that the defendant must be present at every stage of the trial and at the imposition of sentence.

    Rule 32 guarantees him the right to speak in mitigation of sentence and in his own behalf.

    Now I think that these rules recognize that there’s no point in the defendant being present if he can’t speak, and that his right to speak is meaningless if he wasn’t present at every stage of what went before.

    These petitioners were denied both rights.

    They missed a legal argument.

    They missed a plea for clemency.

    They had never spoken at their original sentencing.

    They have not spoken to this day more than eight years after they originally sentenced them.

    Surely, I think that they’re entitled to what Judge Murphy has ordered that they’d be given.

    Now in conclusion, Your Honor, I just have one comment.

    I pointed out on page 15 on my reply brief that according to the administrative office of the United States courts, of the almost 600 motions to set aside are correct sentences filed during fiscal 1962 under both 2255 and Rule 35, only 18 resulted in the granting of some form of relief.

    Now subsequent to my reply brief, I have the administrative office check to determine how many Government appeals were taken or attempted in any of these actions and I might say that I have informed Mr. Barnett the results of that request.

    There were 169 appeals taken during fiscal 1962.

    Not a single one of them was taken or attempted by the Government.

    Maybe —

    E. Barrett Prettyman, Jr.:

    I think —

    — because they weren’t represented by Mr. Barnett.

    E. Barrett Prettyman, Jr.:

    It might be.

    It might well be.

    Earl Warren:

    We’ll recess now.