Bartkus v. Illinois – Oral Reargument – October 21, 1958

Media for Bartkus v. Illinois

Audio Transcription for Oral Reargument – October 22, 1958 in Bartkus v. Illinois

Audio Transcription for Oral Reargument – October 21, 1958 in Bartkus v. Illinois

Earl Warren:

Number 1, Alfonse Bartkus, Petitioner, versus People of the State of Illinois.

Mr. Fisher.

Walter T. Fisher:

Mr. Chief Justice, may it please the Court.

This is the reargument of a criminal case that was argued here last November.

It involves issues of double jeopardy and federal state relations.

I represent the petitioner.

He’s a prisoner in the Illinois penitentiary where he’s now served four years of a life sentence for bank robbery.

This Court granted his petition for certiorari from the Illinois Supreme Court’s affirmance of his conviction and appointed counsel for him.

Our principal contention is that the State of Illinois has not accorded petitioner due process of law under the Fourteenth Amendment.

Due process was disregarded, we submit, in more than one way, in several quite different ways, each one of which justifies reversal.

The procedural facts surrounding this trial are not creditable to American justice.

The two most critical issues are, first, that Illinois tried him over again after he’d been acquitted by a federal court.

And second, which is entirely separate and independent ground is that Illinois convicted him on the basis of the unconstitutional activities of federal officers.

Here are the facts, and they are not disputed.

In 1953, a savings and loan association of Cook County was robbed by two armed men.

They took about $4000 and escaped in a car.

The driver was waiting in the car.

Petitioner was then 26 years old, heard that he was wanted.

And he went to the United States Marshals Office.

And there, he was arrested and charged for being the driver of the car.

And his defense was they have the wrong man.

At the trial, the identity of the driver of the car was the only issue.

Petitioner took the stand, and he and other witnesses testified he was far away from the place at the time the robbery occurred.

And the testimony against him was by alleged accomplices.

This trial was in the United States District Court for the Northern District of Illinois and for violation of the federal bank robbery statute.

And the basis of federal jurisdiction was, of course, that the institution which had been robbed was insured for the Federal Savings and Loan Insurance Corporation.

As a matter of fact, 94% of all savings and loan institutions in this country are federally insured.

And the existence of this insurance was stipulated.

Petitioner was found not guilty by the federal jury and was acquitted as a final end of that case.

Now, we come to the activities of the federal officers.

Walter T. Fisher:

In spite of petitioner’s acquittal by the federal court, the Federal Government kept on working for his conviction.

(Inaudible) convicted in the federal court?

Walter T. Fisher:

His alleged accomplices pleaded guilty and later on were sentenced.

Felix Frankfurter:

Have we the charge?

Walter T. Fisher:

(Inaudible) trivial sentences.

Felix Frankfurter:

Have we the charge of the Federal District Judge in the record?

Walter T. Fisher:

I don’t know whether that’s in the full transcript, Your Honor.

But this —

Felix Frankfurter:

Is the transcript of this —

Walter T. Fisher:

These aren’t the State — the opinion of the State of Illinois, the opinion of the Supreme Court of Illinois summarizes the facts.

Felix Frankfurter:

I mean is the record of the federal trial in the clerk’s office?

Walter T. Fisher:


The — the record of the federal trial was never introduced into evidence.

But there was no dispute about it at all.

It was the — the facts were all set out in the opinion of the Supreme Court of Illinois.

It was assumed what transpired at the federal trial, the same evidence roughly was — was presented and it was the same thing over again.

Now, the State’s Attorney of Cook County said on the record that the federal authorities came to him after petitioner’s federal acquittal.

Petitioner was then turned over immediately to state custody and he was indicted the second time for this same robbery.

Now, the FBI agents in this regard, as we contend, of the double-jeopardy provision of the Fifth Amendment, interviewed one of petitioner’s alibi witnesses and turned over the information to the state authorities.

They kept on working up the case.

A special agent and the United States Attorney also interviewed an entirely new witness, a man who had not testified in the previous case.

And they were the ones that asked this new witness to come into the state court and testify.

And the federal agent did the interviewing.

So after the — after the federal acquittal, final federal acquittal, the Illinois prosecutor didn’t talk with this new witness until the day he examined him at the state trial.

As I said, this activity is an independent ground of reversal separate from the former acquittal point.

William J. Brennan, Jr.:

You make no point in this argument, Mr. Fisher, of the statements of the trial judge in the federal court following the acquittal?

Walter T. Fisher:

The statements, yes.

In the record — the record as submitted to this Court is transmitted from the Supreme Court of Illinois does not contain the statements of — of the trial judge — the federal trial judge in — in making statements that encouraged this prosecution.

We — we added to our brief newspaper clippings and a clipping from the federal reporter.

In another case, entirely different case, and this was discussed in the federal reporter in order to justify this Court taking judicial notice of — of the wide notoriety that the federal judge’s action had here.

Walter T. Fisher:

The wide notoriety was given this action in encouraging the second trial.

This is additional.

We think that the facts in the record that I’ve already given fully support our contention about the activities of the federal officers.

This interviewing of the witnesses are all in the record.

But this part about what the federal Judge did is not in the record but it’s described and I say the way that we — it was and we submit that if this Court cares to take judicial notice of it as additional explanation of how this man happened to be gone after in this way.

Now, our point is, of course, that the federal officers utilized the state court as their instrument in doing what the Federal Government has forbidden to do by the double-jeopardy provision of the Fifth Amendment.

And that, we submit, is not due process of law under the Fourteenth Amendment.

And we’re not arguing that the Fifth Amendment is taking over in toto by the Fourteenth at all.

Now, the issue in this second state trial was the same as that in the first trial.

And that issue was the identity of the person driving the car used in the escape.

And petitioner was found guilty in the second case, as the one in the Illinois State Court.

Now, the reason why he got life imprisonment for this was because it was automatically mandatory under the Illinois second offender statute which was then enforced in Illinois.

And that statute provided, as the statutes do in a number of States, Your Honors no doubt know, that a prior conviction in a different case be mentioned in the indictment and brought to attention of the jury.

If you want to use — if you want to use the second offender statute, you’ve got to put it in the — in the indictment and put it to the jury.

Now, that feature of the statute has, I am very glad to say, been repealed since my client’s conviction and Illinois is no longer in the position where juries have got to be told about previous offenses.

But the repeal is not retroactive.

And in our brief, we raised that an independent ground of reversal what we regard as an extremely unfair application of that statute to this case and I won’t argue it orally but it is.

The petitioner wasn’t even allowed to introduce evidence of his own acquittal in rebuttal.

I want to argue today will only be the time, three grounds of reversal.

The first, the petitioner was tried over again after being acquitted, and second, the unconstitutional participation of the federal officers, and third, encroachment by the State of Illinois on the judicial power of the United States in holding at naught an — an acquittal by a federal court.

Now, our first point, it’s undisputed that the only difference between the second trial and the first trial was the jurisdictional difference.

By which I mean the first trial was in a federal court, the second trial in a state court.

Now, this difference in sovereignties has sometimes been thought to permit double prosecutions.

But that is, as I proposed to show, an open question for this Court.

We contend that from the standpoint of due process that that difference in sovereignties is not of a nature to justify a second trial for what was in fact the same offense.

In short, the due process is a matter of substance.

Now, our whole case is based in this angle of this point on the premise that under the Fourteenth Amendment, the State of Illinois may not by itself keep on prosecuting a man after he’s been acquitted.

I mean over and over again under the same statute.

Now, of course, it’s well established, the Federal Government cannot do that.

It can’t do it by itself.

Walter T. Fisher:

You can’t have successive federal prosecutions.

But the Fifth Amendment provisions are, of course, binding only on the Federal Government, except, except that they may be so essential to ordered liberty as to be part of due process.

We contend that the inviability of a former acquittal is so fundamental as to be part of due process of law.

You see, our position in this case is based on the defense of former acquittal, goes way back to the beginning of the common law and not on the concept of double-jeopardy as a whole which includes a good many other things that are not binding on the States and have been so held not to be binding by this Court.

There’s an analogy of this that Justice Cardozo made in Palko case in the field of self-incrimination.

The privilege against self-incrimination is not binding on the States under the Fourteenth Amendment, not all of it, not the whole privilege.

Yet, self-incrimination by forced confession is a violation of due process.

That’s just an analogy.

Now, in Hoag — in Hoag against New Jersey, which was decided last May, this Court indicated that there are situations, not that case, there are situations of fundamental unfairness where consecutive trials by a State would be a denial of due process under the Fourteenth Amendment.

Now, it is hard to imagine a situation of greater unfairness than where a man is tried over again after a judicial proceeding has finally terminated and a jury verdict then with a final judgment for the Court that he was innocent.

It’s hard to imagine anything more destructive of ordered liberty.

It would be destructive of judicial order.

In our brief, we give material to show how deeply the sanctity of former acquittal is embedded in the history of Anglo-American law as it is in the law of all of that systems in — around the world.

Becket’s controversy with Henry II established that the man acquitted by the ecclesiastical jurisdiction could not be tried over again.

A convicted man could be given additional punishment by the civil authorities, a convicted man.

But the defense of former acquittal, a man who had been adjudicated innocent, could not be.

And I am sure that Illinois will not contend that when a man has been acquitted in — in Illinois, it can try him over again for identically the same offense.

And today, I’m going to assume we’re going to that quite fully in our brief.

But today, I’ll assume that that is clear beyond doubt.

That’s our premise.

And that leaves only the question of federal state relationship, namely, this is the question, if State and Nation are each forbidden to have two trials of the man, can they nevertheless do it in combination?

Those are divisions of sovereignties.

And of course, it’s really a division of one national sovereignty between our — our state and our federal sovereignty.

William J. Brennan, Jr.:

Well, Mr. Fisher, this argument assumes that these are the same offense?

Walter T. Fisher:

Yes, in substance, these are the same.

William J. Brennan, Jr.:

Well, in substance, that’s to suggest there is however a difference.

Walter T. Fisher:

Well, there’s a verbal differences in the statutes.

We’ve explained in our brief.

There are verbal differences in the statutes and in the federal case, they had to prove that the building — that the Savings and Loan Association had been insured by the Federal Savings and Loan Association — Federal Savings and Loan Corporation, Insurance Corporation and I have stipulated that was so and a separate fact that had to be proved.

It’s very —

William J. Brennan, Jr.:

But otherwise the proof in each instance upon the sovereignty was the same?

Walter T. Fisher:

I don’t know if I understand your question, Mr. Justice Brennan.

William J. Brennan, Jr.:

Otherwise the proof required whether by (Voice Overlap) —

Walter T. Fisher:

Yes, otherwise the proof —

William J. Brennan, Jr.:

(Voice Overlap) by the federal government —

Walter T. Fisher:

— otherwise the proof required was the same.

It’s a separate fact which — but the same fact would exist, take this example, it’s a separate offense under the federal bank robbery statute to rob a member of the Federal Reserve System, the separate offense from robbing a member of the Federal Deposit Insurance Corporation.

Well, that’s the kind of difference this is.

Can you try a man twice for the same thing once because that offense includes the separate fact you have to prove he — that the robbed the institution was a member of the Federal Deposit Insurance Corporation and the next time, the entirely separate fact that it was a member of the Federal Deposit Insurance Corporation.

Charles E. Whittaker:

Do I remember correctly, Mr. Fisher?

It was stipulated here, was it not, that this bank is federally insured?

Walter T. Fisher:

Yes, that’s stipulated.

It’s only a question of definition of the offense.

And that — there are expressions of this Court, Mr. Justice Whittaker, that — that indicate and they have to do with other circumstances.

But there are general statements to say that if the fact, that the separate fact required for the approval of the statute, that makes it a separate offense.

And I am just trying to say that that certainly shouldn’t be taken to be so in all cases because I’m quite certain that this Court would never spend for a man being tried twice for the same offense, once because for the same affair, the same robbery, once because it was — the — the institution insures a member of the Federal Reserve System, once because he is a member of the Federal Deposit Insurance Corporation.

Charles E. Whittaker:

(Inaudible) do you say that one who might be convicted under one system might be tried again in the other, but if he were acquitted that could not — he could not be tried again.

Did I misunderstand you?

Walter T. Fisher:

I’ll explain myself, Mr. Justice.

I think that he shouldn’t be tried over again if he’d been convicted anymore than if he’d been acquitted.

But nevertheless, there is a — a definite difference and the Court may feel differently about this because there are authorities which we showed in our — our argument, that we show in our brief, we showed there is a decided difference between acquittal and conviction.

I don’t think the man ought to be tried over again in either case.

Now, there are many other things that double-jeopardy demands.

For you to consider double-jeopardy arises as soon as the jury has been sworn, that kind of thing, and that does not prevent a man from being tried over again.

Whether he should be tried over again after he’s been convicted is a separate question from our case.

It’s not our case.

And I think I expressed my opinion on that.

Felix Frankfurter:

Mr. — Mr. Fisher, if a State’s fiscal institution just take money then this is also federally insured, has the Government of the United States an interest in the protection of the values, money and safety of that institution that is different from and in addition to the interest for the State?

Walter T. Fisher:

Well, I don’t know whether it’s a — it’s a different interest or not but if the Federal Government has —

Felix Frankfurter:

I’m not — not talking about this meeting —

Walter T. Fisher:

Yes, I understand.

If the Federal Government has an interest sufficient to allow it to regulate — regulate banking, then the state institution is sufficiently related to banking to enable the regulation to be sustained.

Felix Frankfurter:

Can the Federal Government regulate?

Walter T. Fisher:


Felix Frankfurter:

You mean — but it makes us — it — it matters to the United States as a governmental system that banks which the deposit of which it insures within a certain sovereignty, is that right or — or that is —

Walter T. Fisher:

That I —

Felix Frankfurter:

— resources being not depleted, is that right?

Walter T. Fisher:

To that I suppose is the purpose of the — of the constitutional power of the Federal Government over banking.

Felix Frankfurter:

Well, now, but that is —

Walter T. Fisher:

But that is not the specific purpose of the statute.

Felix Frankfurter:

I’m not talking about this case, but that’s a — that’s an interest that pertains to the Government of the United States wholly unrelated to the relation of that institution to the State’s affairs.

Walter T. Fisher:

Yes, that is correct.

Felix Frankfurter:

Am I right about that?

Walter T. Fisher:

That’s correct.

Felix Frankfurter:

So that each of the two governments has governmental interest different from and apart — apart from that which pertains one to the other.

Walter T. Fisher:

Mr. Justice, you’re asking question very close to the heart of this case.

Felix Frankfurter:

Well, that doesn’t make the question less pertinent.

Walter T. Fisher:

All have thought alike and — and actually, I expect to — we’ll do it and will — and will deal it once with it —

Felix Frankfurter:

All right.

Walter T. Fisher:

— with it right now.

The — that must always, I assume, Mr. Justice, the — a separate federal purpose of a statute or else there could not be a constitutional law passed under it.

But that doesn’t mean that the purpose of the statute, this is the — I’m — I said the purpose of the constitutional grant of jurisdiction.

But once you have the grant of jurisdiction as over interstate commerce, as we can see somewhat by referring to this previous case, once you got that grant, then the Court never looks in to the question of whether that particular statute has that purpose or whether it’s related to the other purpose.

I’ll give a very good example is –in — field of interstate commerce is the Mann Act.

The Mann Act was supported because of interstate commerce and makes it a crime to transport a woman for the purposes of prostitution across state line of course.

Now, the State of — of Illinois and the State of New York also have statutes prohibiting the importation of women across state lines for purposes of — of prostitution.

Now, that doesn’t mean that the purposes of those statutes are different.

The purposes of those statutes are just the same.

The purposes are to prevent prostitution.

Felix Frankfurter:

But each has a separate share in —

Walter T. Fisher:

Each has a separate share.

Felix Frankfurter:

— what maybe a common — a common social purpose.

Walter T. Fisher:


Felix Frankfurter:

And that where the question arises whether each may not take measures to protect that individualized social purpose.

Walter T. Fisher:

Each certainly can.

The — the question here is whether each certainly can in all areas of concurrent jurisdiction.

That’s all we’re talking about in this case because that’s all that you can get for double trial.

Felix Frankfurter:

Now, we haven’t got preemption there.

We have — we have a case where the Federal Government having — being insurer is therefore the whole show, the whole governmental show.

Walter T. Fisher:

The Federal Government preempts the federal field.

That of course that ends the possibility —

Felix Frankfurter:

Well, that’s no problem.

Walter T. Fisher:

— of duplicate, that ends the possibility of duplicate —

Felix Frankfurter:

And we have no problem.

Walter T. Fisher:

— cases.

And that is one of the — that is one of the reasons why against this asserted practice of duplicate prosecution, this it tends to cause this Court to lean a little tort preemption but otherwise wouldn’t because it thereby prevents this injustice that thereby prevent this injustice of successive prosecutions.

Felix Frankfurter:

But you’re not suggesting here that because — you’re not suggesting that federally insured state banking institution preempt the authority of the State to deal with invasions of the interest of a State (Voice Overlap) —

Walter T. Fisher:

Oh, absolutely not.

We would insist that there’s been no preemption.

It would be preposterous to say there’d been preemption of the field of — of federal bank robbery.

Federal bank robbery could be taken over by the federal — by Congress.

But it hasn’t done so and it’s highly unlikely that it would do so and we certainly don’t contend that here at all.

William J. Brennan, Jr.:

Mr. Fisher, may I come back a moment —

Walter T. Fisher:

Yes, sir.

William J. Brennan, Jr.:

— to the question of same offense apart from the subject matter that you and Mr. Justice Frankfurter were just discussing.

Now, in Hoag, the only difference between Hoag’s first and second trials in matter of proof was that at the second trial, the proof was that it was John Smith, in the first trial, it was John Jones robbed by the same act committed by Hoag.

Now, how does that differ from this situation?

Walter T. Fisher:

Well, the main — one of the — one of the immediate differences between the Hoag case and this case is that in the Hoag case, there were two victims.

The man was tried the first time for robbing one man or — or two — two men or three men, and the last time for robbing somebody different.

Here —

William J. Brennan, Jr.:

But all at the — at the same time —

Walter T. Fisher:

At the same time.

William J. Brennan, Jr.:

— one act.

Walter T. Fisher:

Yes, but that has been thought to make a difference in allowing other cases besides the Hoag case.

There — there are authorities that indicate that makes a difference.

But our man, my client is accused of only one undifferentiated robbery of the same people.

This is unfragmented, undifferentiated.

The — the whole case also is the question of collateral estoppel was what it really seemed to rest on and — and that is the — the case is — is much less strong than in this case for those reasons.

William J. Brennan, Jr.:

Well, that — that is the identity here is more obvious.

Walter T. Fisher:


William J. Brennan, Jr.:

Than it was in Hoag.

Walter T. Fisher:

It’s the same person, the same man.

Felix Frankfurter:

But the identity — but the whole question, and I hope you return before you take your sit, Mr. Fisher, there is not an identity of the invasion of the interest.

Walter T. Fisher:

Well, I’m going to talk a lot about that.

Felix Frankfurter:

All right.

Nobody will listen to you more than that.

Walter T. Fisher:

Of course, if — even if the State and Nation doing it together would be a terrible violation of ancient principle and a violation of due process and of everything else, still — still is such a gap in the regular constitutional protection is really necessary to the practical operation of our American system we must, of course, endure it however greater violation of constitutional principle it may be.

That — that argument has been made for a number of very serious and important things.

For example, the power of this Court to declare acts of Congress and statutes unconstitutional which isn’t in the Constitution.

But any — any such exception to basic principle should be reserved for absolutely essential things.

And it is — it is for this Court to determine whether it is necessary to the practical operation of American federalism to allow this thing where, by hypothesis, both the State and the Nation of acting alone are forbidden to try the man over again.

The man’s — the — the defense of former acquittal is for the protection of the accused protection from the intolerable abuse, the intolerable abuse, double prosecution.

There is need of the protection is identically the same whether the successive prosecutions or by the same or by different sovereignties.

From this standpoint, the two situations are of the same nature.

One is as bad as the other and the injustice is the same.

And the only possible argument you can urge for is that it’s necessary to our whole federalism and that we propose to show isn’t so at all but nothing remotely approaching such a necessity exists in this case and in fact, it balances the other way.

A lot of materials in our brief would indicate that federal state relationship and cooperation would be improved by — by eliminating any chance of successive prosecutions.

Now, our case here, although it involves the most important constitutional question, has is — is a case where the issue was a narrow one, narrower than you might at first realize.

We’re only talking about a situation where the successive trials by State and Nation around the statute so alike that there is no significant difference between them.

And our case is where the difference in jurisdiction is the only thing that is alleged to make it two offenses of getting around to the question of — again that Mr. Justice Frankfurter asked.

Walter T. Fisher:

The double-jeopardy problem that we have in our case is not reached in those numerous cases where the gist of a federal statute is different from the gist of the state statute.

See, I’m talking about cases in contrast with the Mann Act example I gave.

I’m talking about cases where the statutes have different purposes and protect different interests.

Now, that is the issue in the Abbate case, Number 7, which is going to be argued tomorrow.

There, the Solicitor General says in his brief that the federal and the state statutes protect different interests, and I’m talking about protecting really — really different interests, sir, and not — and not the general purpose of Congress being given the jurisdictional power by the Constitution that Mr. Justice Frankfurter was talking about.

Potter Stewart:

Well, isn’t it true, Mr. Fisher, perhaps technically on the end, perhaps unrealistically but isn’t it true that the — first of all, the state statute covers any kind of armed robbery at a bank or a grocery store anybody else?

Walter T. Fisher:

Oh, yes, surely.

Potter Stewart:

And isn’t it then true at least technically, that the defense against the State is an offense against the peace and dignity of the State of Illinois and the safety of its citizens whereas the offense against the Federal Government is — is invades the protection of federal funds?

Isn’t that right?

Walter T. Fisher:

Well, the purpose of this statute was not to protect federal funds at all.

The legislative history of this statute is set forth fully in our brief and it shows that the gravamen of the two statutes is exactly the same.

It shows that the federal bank robbery statute was concerned exclusively with enforcement with using the federal jurisdictional basis to provide federal enforcement facilities, the FBI for example.

The House Report said that the Federal Government “will intervene only to — will intervene only to cooperate with local forces when it is evident the latter cannot cope with the criminals”.

The purpose of this was not to protect federal funds and maybe that was part of the purpose of Congress having the power over banking.

But — but the procedure and method of this Court has never been to test this purpose of each — of each statute by that means.

Felix Frankfurter:

But Congress couldn’t back a statute to say, “We’ll have the FBI help every time a State is not competent itself to deal with local robberies (Inaudible)

Walter T. Fisher:

No, of course, not.

They used the jurisdictional basis to put the protection there.

Felix Frankfurter:

When you say jurisdictional basis, it means that you deliver it to constitutional federal power.

Walter T. Fisher:


Certainly, certainly, I agree.

But in our case, whatever the basis or purpose of federal jurisdiction over banking institutions may be, the federal bank robbery statute proceeds by way of protecting the bank.

Its purpose is to protect the bank just like the state statute.

My purpose is that when — that you — my point is that you — that there are two kinds of statutes.

There’s one kind where they protect different — different interests.

That’s like the situation of selling liquor to a minor on Sunday where successive prosecutions are warranted.

And here’s an example in the — in our field.

A state prosecution for assault or murder, a state prosecution for assault or murder would not bar subsequent federal prosecution for violation of the civil right to vote because the federal policy is different from a state policy.

But even if there’s this — even if there’s this — this difference in all of the purpose of the jurisdiction, Mr. Justice Stewart, where they’re so close together that the statute does not proceed by having any other purpose than the immediate purpose of stopping prostitution in the — in the Mann Act case in the case of, take, transporting women across state lines.

We contend that in those cases, this Court must find that there is no constitutional substance in that difference for purposes of permitting successive prosecutions.

Walter T. Fisher:

The — the former acquittal plea is a violation — is a — is it must be asserted to protect due process, must be supported to protect due process under those circumstances.

Otherwise, you make a mockery of this — of the whole situation.

Now, take a case — I’ll tell you a good case.

Last — last session of this Court was a case that upheld the Assimilative Crimes Act which automatically brought into — under a federal jurisdiction of state — of state crimes.

Now, suppose you have a — an enclave, an Indian reservation say which is the one in that early Oregon that — that’s mentioned in some of our briefs where there is concurrent jurisdiction.

Now, there, a state crime automatically becomes a federal crime.

Now, I submit that it would be shocking to permit successive prosecutions permit the Federal Government and the State Government to carrying off and have successive prosecutions on the theory that one offense was against the peace and dignity of the United States and the other was an entirely separate offense against the peace and dignity of the State.

That’s reducing due process to empty conceptualism, to verbalism, to formalism.

And if duplicate prosecution were attempted under a pair of statutes like that, this Court would be faced, but this isn’t our case for determining the constitutional substance of the matter.

Whether the difference between the two statutes has constitutional significance so as to permit successive trials or whether they ought to come under the regular constitutional protection which goes back to the — to the origins of our law.

Another — another example, I’ll mention.

In the early — in the earlier years of the Republic, the — the Federal Government relied on the state courts to — to enforce federal law, to enforce federal rights by passing state statutes.

And there’s a statute still on the books.

The federal statute that allows the postal laws to this — be enforced by the States.

Now, suppose that — now, suppose that Illinois passes a statute making it a crime to forge postage stamps.

Now, I submit it would be shocking to say that a man could thereby for the same act for forging a postage stamp be subjected to successive prosecutions on the two sovereignties theory.

That one was against the piece of dignity of United States and the other was an entirely separate offense against the peace and dignity of Illinois.

What — if there’s a difference in the gist or gravamen of the statute, then — then it’s all right to have — have duplicate prosecutions.

That the statute — and the example that I — that I — I’ll give you an example there.

The — that’s the Gauthier case in this Court.

The Gauthier case was a case where the statues had different — had different purposes for the same act.

Gauthier case is well known for the justice.

Now, another case where the — where the cases are not in point are the punishment cases.

And this was really a — a digression to point out the two — that the decision of two offenses of the same offense for purposes of preventing successive trials is an entirely different question whereby the same offense for purposes of double and multiple punishment by the same jurisdiction.

There isn’t any such thing as tempting, if there were, but there isn’t any such thing as a unit of the offense or unit of prosecution for all purposes.

Now, this is brought out very well in the Gore case which this Court decided on June 30 of last where a single sale of narcotics was held to be the following three offenses for purposes of cumulating punishment, upheld the punishment, first, making the sale not in pursuance of a written order, two, not in the original stamp package, and three, facilitating the concealment and sale of narcotics.

Now, we don’t quarrel such multiple punishment.

But suppose the defendant in Gore had been tried and acquitted of one of those offenses, could the others be used as the basis of trying and over again for the same sale?

It’ll be monstrous.

Your position on — you’re — you’re suggesting now that the legislative history of this federal bank statute, federal bank robbery statute had been that it was specifically to — specifically had been specifically articulated to — to protect federal funds.

Would you then say that there could have been stay —

Walter T. Fisher:

Well —

— in the federal prosecution (Voice Overlap) —

Walter T. Fisher:

Well, of course it’d pretty hard to say that it — it — in the first, this is introduction, it’d be pretty hard to say that because the insurance is all collected from these — from these banks and the banks are — are banks, as I understand it, goes into bankruptcy first and the insurance is used to pay off the depositors computed by the other banks.

So it’s pretty — it’s pretty far distant to say it’s protecting federal funds.

It’s related to the banking.

That’s the — that’s what said all through the cases in — that’s defending the Mann Act.

They didn’t say the purpose was to encourage interstate commerce but I suppose the railroad would be held by — by the fares paid by the women going across by the — by the — such cited goods that pay freights to go across.

They don’t — they never go into that.

This Court does not go into that.

They say it is related to bank.

Now, if the — if Congress, to come back with your question, Mr. Justice Harlan, if Congress had said in — in so many words, the purpose of this Act was to do that by — this Court would still have the question to my mind determining whether that was really true or not, whether — because a formula — a formula doesn’t get around constitutional questions.

But when — when Congress didn’t intend that certainly this Court ought not — ought not to imply lightly a conclusion that the gravamen and the gist of these statutes is the same or it will produce double-jeopardy.

Felix Frankfurter:

I don’t understand why you can’t attribute to Congress what — that it intended to do something which is the only constitutional basis on which you had right to act.

Walter T. Fisher:

My contention is that the method — that the method by which the statute proceeds is fully as important as the purpose.

The method by which the statute proceeded was to protect the banks and that is the — that is clearly brought out by the record just the same as the method in the — in the federal enclave question of a sex crime being duplicated just to prevent sex crimes in that jurisdiction.

Felix Frankfurter:

To — to protect the banks which are not national banks because if you had — if this were a national bank and then you have a whole different problem of the State of — the State of Illinois or probably the others.

Walter T. Fisher:


Felix Frankfurter:

Therefore the relation of the Government of the United States to this statute institution is very different from the relation of the United States to national bank.

Walter T. Fisher:

Of course, it is that Federal Government can preempt the field here.

And my argument is that if the Federal Government wants to assert its supremacy and it is desirable to have its supremacy asserted, it should assert it by providing the man must be tried the first time in a federal court and not by proceeding by way of violating ancient principle in allowing the State and the Federal Government to do this thing together between thems.

Felix Frankfurter:

And our problem is because the Congress of the United States had not chosen to do that and our question is whether that interrelation violate what you the ancient principle.

I’m surprised that I — I’m must — I’m surprised that you — that you laid so much waste and spent so much and you tend to seem to depend so much on the fact what was said as to why they ask an act which can have only one constitutional basis, namely, that the Government had some fiscal relation to state institutions, the — the department of which it ensures.

Walter T. Fisher:

Well, it seems to me very obvious that this — that this Court would not allow people to be tried twice in federal enclaves where the jurisdiction is concurrent.

Felix Frankfurter:

But it seem to me obviously that’s lightened.

It merely the hard expression of a general principle that this Government needs to (Inaudible) and do any — everything that he doesn’t like.

I just like (Inaudible) of the Union.

That is not yet proven (Voice Overlap)

Walter T. Fisher:

This — this thing is prohibited by the Fifth Amendment and by the Fourteenth.

Felix Frankfurter:

You argued here (Voice Overlap) —

Walter T. Fisher:

It is alleged —

Felix Frankfurter:

— that proposition.

Walter T. Fisher:

It is alleged there is a gap.

And my premise is that we shouldn’t allow gap in basic principle, unless it is really necessary to this division of sovereignty between the State and the Federal Government and where the gravamen of the gist of the statute and the way it proceeds that the two statutes are the same I then — in — in that case, there is no reason for this gap —

Felix Frankfurter:

Let me ask —

Walter T. Fisher:

— and the Court ought to uphold the principle.

Felix Frankfurter:

Let me ask you, Mr. Fisher.

As I gather from your argument, you do not follow that the early decisions more than 100 years old, at least more than 100 years old that if a man passing the counterfeit $5 bills, Uncle Sam can get him for passing the counterfeit bills and the State can get him for destroying the fellow to whom — on whom he passed.

Walter T. Fisher:


Felix Frankfurter:

You don’t follow that, do you?

Walter T. Fisher:

No, I don’t, it’s a fault.

Felix Frankfurter:

(Voice Overlap) that’s just of much shopping — (Voice Overlap)

Walter T. Fisher:


But I — my example was the case of counterfeiting.

Suppose they passed a law to protect the United States as in my postage stamp example, nobody gets cheated but the Federal Government in my postage example, in the same way with counterfeiting.

Suppose that — that the State passes a law prohibiting having counterfeit tools for counterfeiting United States bills now, can you try a man over again for that on the ground the two separate interests are protected?

I say no.

But even though —

Felix Frankfurter:

(Voice Overlap) he passes the counterfeit $5 bill, he commits a federal offense and he did commit the state offense.

Walter T. Fisher:

Of course, he does.

Felix Frankfurter:

And this Court has sat to 100 years ago.

Walter T. Fisher:

Of course, he does but they’d never upheld — they’d never — this Court has never upheld crime and twice for it though.

Felix Frankfurter:

You mean to say if he’s — he is acquitted in the federal court for passing a counterfeit $5 bill, he can’t be tried for fraud under state law (Voice Overlap) —

Walter T. Fisher:

Well, I don’t know all the State cases.

There’s a great, enormous number of cases on double-jeopardy.

But this Court had never held except in the one case of lands under the Eighteenth Amendment of which the circumstances are very special and the cases and the amendment has been repealed.

But a man after having been tried over again having been tried once by one jurisdiction can be tried over again by the — up.

That has never been held.

Felix Frankfurter:

I didn’t understand your proposition.

I fully understand the (Inaudible) that due process — that you’re — it’s on the things (Inaudible) to be profoundly — so profoundly disturbed by having a man acquitted in the federal court for something that the federal offense that under the same state of evidence he —

Walter T. Fisher:


Felix Frankfurter:

— can be tried in state court.

Walter T. Fisher:

Correct, yes.

Felix Frankfurter:

That’s your proposition.

Walter T. Fisher:

That’s my proposition.

Felix Frankfurter:

I — I understand that.

I don’t understand your proposition that you go to find out why the Government of United States made it an offense to the rob money, committed robbery in a federally insured state institution.

That hasn’t happened.

Walter T. Fisher:

In order to show that the case is different from the case where the interests are obviously different as in the case of a man being tried for assault or murder in — in a State and then being tried — being acquitted, let us say, then being tried over again in the Federal Government for violation of his civil right to vote.

Those — those things are different and therefore, I’d say that due process does not arise.

Felix Frankfurter:

Passing a counterfeit $5 bill is a manifestation of cheating but you can prosecute him both under the federal law and under the state law because the Federal Government’s interest is not have counterfeit bills and the state interest did not have people to fraud them and yet they all arise down of a single state of facts out of a single state of evidence.

Walter T. Fisher:

I say that it’s if — you can try people over again on — out of a single state of facts if the gist and gravamen of the offenses are different.

The burden here is the same, I beg this Court to find it is a violation of due process.

And the reason I’ve mentioned the others is to show that this case.

The reason I mentioned the legislative history is simply to show that this case, this case is not a case where they are different.

This is a case where the Court should look through this thing just as in the — as in the federal enclave or in the postage stamp case.

And take the postage stamp case.

Suppose he’s counterfeiting postage stamps.

It doesn’t cheat any individual.

It’s — it protects the United States.

Felix Frankfurter:

But if you sell me those counterfeit postage stamps (Inaudible) the Federal Government can get you.

Walter T. Fisher:


So what was the — what would be the purpose of the statute?

Felix Frankfurter:

Not to have people cheated.

Walter T. Fisher:

Now, as I mentioned a minute ago, that it’s the principal argument made against us.

The heart of the argument made against us is that unless the State is allowed to relitigate federal criminal judgments, the Federal Government would equally be prevented from relitigating state judgments.

And that would be a limitation on the federal judicial power and on federal supremacy.

And I agree that the rule out will work both ways.

The States — whatever the States can — can or cannot do over again, the Federal Government are equally not to be able to do over again.

Now, let’s suppose that state prosecutions have shown themselves to be ineffective in some area.

Walter T. Fisher:

Suppose they all too often result in acquittals.

There’s no need to try the acquitted man over again to preserve federal supremacy.

The regular normal constitutional method has been alluded to by Mr. Justice Frankfurter and that is that Congress can preempt the field of postal crime in the case of the post office.

Congress, all Congress has to do is to take from the State the power to act in that particular situation.

Now, in the field of bank robbery where cooperation between federal and state authorities is notoriously gross, it’s almost inconceivable that preemption would ever become necessary but the (Inaudible) of certain views where Congress might sometime find it necessary to preempt in order to protect the federal supremacy from the effect of a prior state acquittal.

The Congress need not take over an entire field.

It could make a partial preemption of course.

It’s been so held — held to this Court.

For example, this is as if a protection — it’s a possibility.

Congress might provide that a State could not begin a trial in a certain field until, say, 30 days after notifying the United States Attorney.

So that the United States Attorney would have the opportunity to proceed first.

But that’s only how you would do it with the help of the Congress.

But the resources of federal preemption are ample and manifold.

And preemption is the decent, effective and regular constitutional method of protecting federal jurisdiction and making sure if you don’t raise to the courts, because this only occurs in a — in an area of concurrent jurisdiction where — where Congress can — can preempt.

You can’t have double prosecutions unless — unless there was concurrent jurisdiction.

And federal supremacy does not require trying if — an acquitted man over again.

Now, I said this case is an open question for the Court.

And the case that is cited against us is this prohibition case of United States against Lanza.

And that held that in that field, federal supremacy did require the right of the Federal Government to try a man over again.

So retried and convicted bootlegger from escaping with a small fine.

Charles E. Whittaker:

He actually pleaded guilty in Lanza.

Walter T. Fisher:

He was found guilty.

Yes, Mr. Justice.

Charles E. Whittaker:

That was his own freedom, wasn’t it?

Walter T. Fisher:

Well, I don’t — I don’t think so in the Lanza case.

He was convicted — he was convicted out in Seattle and given a short sentence and the federals did not think it was long enough so they —

Charles E. Whittaker:

(Voice Overlap) —

Walter T. Fisher:

— prosecute him again.

Now, the reason why a result — this trying — retrial could be defended and while Lanza could be defended in that particular case was that under the Eighteenth Amendment, preemption was not available as it is in all the other fields of concurrent jurisdiction.

Congress could not take over the field of liquor regulation because the Court held in the Lanza case, the Congress could not protect federal supremacy by taking over the field.

Walter T. Fisher:

And I quote from the Lanza opinion, “The — the Eighteenth Amendment “put an end to restrictions upon the State’s power arising out of the Federal Constitution.”

Special language of the Eighteenth Amendment which is the only time the word “concurrent” was ever used in the Constitution.

They found that for their federal preemption in the field of liquor regulation in whole or in part.

So however unfair double prosecutions may have been, a State’s immunity from preemption in the liquor field supported the Court in that case in finding that they really were necessary.

But the power of the Federal Government under the Eighteenth Amendment would have been sterilized because of that amendment by — by state action.

They held in that case in Chief Justice Taft’s opinion, that the field could not be preempted and the Court really found in effect that its result in Lanza was required by the Eighteenth Amendment and the Eighteenth Amendment has been repealed.

The alleged authority of Lanza simply does not exist and this Court is free to act and this Court has never violated the sanctity of a former acquittal.

All the other cases referred to, the dicta and their dicta for us which we cite in our brief fully equalling the dicta against us.

They’re all cases where a man was being tried for the first time.

And he said, “Oh, you can’t try me because the federals can try me over again.”

There was no double-jeopardy there at all.

And the courts had all known separate jurisdiction.

And those expressions were taken to mean — were taken to mean what they — what Lanza prevented — Lanza permitted successive prosecutions.

This Court has never decided that.

In Lanza, the early authorities were never discussed.

In 1678, that was settled in the leading case of Rex against Hutchinson referred to on our brief on page 40.

That a man acquitted in Portugal couldn’t be tried again in England.

That was the standard of fairness and due process which the founding fathers were accustomed to.

Now, our brief cite other common law materials and American colonial materials, the same effect from the legislative history of the Fifth Amendment, and the strong inference to be drawn from the Seventh Amendment that the Fifth Amendment prevents retrial after state acquittal but my time is quick nearly gone.

Earl Warren:

Mr. Fisher, before you finish, are you going to get to the point that this second trial is initiated by, and — and urged by and guided by federal authorities?

You stated that was the fact.

Are you going to argue that?

Walter T. Fisher:

Yes, I would like very much to say a few —

Earl Warren:

— consequences of it.

Walter T. Fisher:

I’d like to say a few words on that very much.

Earl Warren:

I wish you would.

Walter T. Fisher:

That’s our second major point which is an entirely independent ground of reversal.

Now, the law — the law is, of course, thoroughly settled that the Federal Government cannot try a man over again who has been adjudged innocent in a federal court, Federal Government.

And here, the federal officers acting for the United States kept on trying to convict him.

The Fifth Amendment would’ve prevented them from constitutionally doing it in a federal court.

Walter T. Fisher:

And we submit that for them to do it indirectly though the state court is equally unconstitutional.

Our point is that it is a denial of due process for a State to convict a man on the basis of such assistance and testimony of federal officers.

If the double-jeopardy provision of a Fifth Amendment means anything, it must mean that a man who’s once been acquitted finally by a federal court ends the matter and the Federal Government and all its officers must stop trying to prove him guilty.

And here, they didn’t consider the federal — petitioner’s acquittal by United States court is the definite cut-off point.

As I stated the facts, they kept on making — building up the case and working for it.

It seems to me our case is like the case of forced confession or obtaining evidence by stomach pumping which this Court has held, cannot be done under either the Fifth, Fourth or Fourteenth Amendments.

And neither federal nor state officers should be permitted to evade these violations of due process by working through the other jurisdiction.

And that is the implication of what the Court said last June 30th in Knapp against Schweitzer.

The Court found there was no evidence in that case that the State was used as an instrument of federal prosecution.

But the Court said, “If a federal officer should be a party for the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play.”

Now, Knapp against Schweitzer was a state case.

So the way it would come into play would be as a violation of due process under the Fourteenth Amendment.

Felix Frankfurter:

Mr. Fisher, where in the record is the weightiest or the most — the fullest proof of — of the facts with the — the inference of which you now speak, namely, if the federal authorities having the same, through their endeavor, to land this man to jail with a federal prosecution went across the street or wherever they went to get the state people to do —

Walter T. Fisher:

Yes, sir.

Felix Frankfurter:

— what they failed in doing?

Would you mind referring to that?

Walter T. Fisher:

Yes, I can refer you that very, very readily.

The — the State’s Attorney of Cook County said on the record at page 26 that the federal authorities came to him and the interviewing of the alibi witnesses is in the unprinted transcript which we printed.

We didn’t — this — this being a case of Government is printing at government expense, we didn’t print much of an abstract.

But if we — we printed it at page 96 of our brief, in — in appendix there.

That’s — those — those — that testimony is all there.

The State’s Attorney said on the record that the federal authorities gave him the testimony of what those officers did is right there.

It’s perfectly plain, and I’m sure that — that the opposing counsel will —

Felix Frankfurter:

The minutes are here, aren’t they?

Walter T. Fisher:

— opposing counsel will agree that there’s no question of what the federal officers did exactly as I state in the facts here.

There’s been a question about that, I’m sure that it can’t be disputed.

Your point, I take it, is not merely that the testimony of the federal officers should be excluded in the state prosecution but the whole prosecution should be scratched.

Walter T. Fisher:

Well, I suppose if they —

Even though —

Walter T. Fisher:

— they could’ve been, I suppose that they could’ve been caught, they could’ve — could’ve been enjoined under the — under principles of this Court is (Voice Overlap) —

Supposing the State had enough evidence, they didn’t need it, they didn’t need the federal officers’ testimony, could — could the state —

Walter T. Fisher:

Well, the state officers —

— prosecution still be stopped?

Walter T. Fisher:

Well, of course, I’m not speaking of where the State — where the federal officers simply responded to subpoena and testified.

They prepared this case, they didn’t stop, they prepared this case and that’s the fact, and I’m sure that you can be satisfied of that and I’m sure that the State of Illinois will not dispute it.

Felix Frankfurter:

What you’re saying is that these federal prosecutors, using your prosecutors, I mean not only the lawyers but all the other — the federal agents or prosecution in that in your indictment, got a trial which resulted in an acquittal.

Walter T. Fisher:


Felix Frankfurter:

They could not start all over again in the federal court.

And what you are saying is the double-jeopardy provision prevents them from utilizing the state court through that (Voice Overlap) —

Walter T. Fisher:

I’m saying it’s — yes, yes.

Felix Frankfurter:

— which state, that’s your position?

Walter T. Fisher:

That is my position.

It’s a violation of due process.

It’s a violation of due process for that to be allowed to be done against the man.

Otherwise — otherwise, all the liberties that this Court has protected so much will be — will be frittered away because wrong things will be done in one jurisdiction with a tremendous and very praise-worthy cooperation that is going on between the different officers, the federal and state officers.

They — while the — these improper things will then be done over again on the other jurisdiction.

Felix Frankfurter:

But you — but you insist on claiming due process.

So why don’t you — wouldn’t you say that just as in the — you referred to statutes, early statutes and some (Inaudible) by which the Congress utilized the state courts to enforce federal law although there are state courts that are enforcing federal law.

So the prohibition against double-jeopardy prevails in a prosecution in the federal court and isn’t a — too much of a stretch considering we’re dealing with a constitutional amendment that a conviction secured by the federal authorities which cannot secure through a federal court, cannot utilize to subvert or evade the provision against double-jeopardy by utilizing the state court.

Walter T. Fisher:

I suppose that so.

But I assume it must be by way of due process which is the only way you’re — you’re finding all mistakes.

I suppose that’s the only way of finding all mistakes.

Earl Warren:

Mr. Wines.

Felix Frankfurter:

Mr. Wines, would I bother if you start it, we haven’t officially left off, to the thing I put to Mr. Fisher last, namely, that through instrumentality of state prosecution in the state court, federal officials can defeat the prohibition against double-jeopardy in the what Amendment — Fifth Amendment.

William C. Wines:

I should say, Your Honor, it will not bother me to start where Mr. Fisher left off.

And I should say that the question presented in this case is primarily that of the right of the State to prosecute.

And if, as I shall argue in due course, the State has the right to prosecute notwithstanding, the fact of an acquittal in a federal court as that right, if otherwise existing, is not frustrated by reason of the fact that federal officers assist state officers that they subdue, I submit, not only as federal officers but as private citizens having knowledge that a crime had not been committed.

Felix Frankfurter:

Not merely committed, would you include not merely affected?

That — that carries with it many — it has long range of meaning but stimulate, instigate and as the Chief Justice said, practically guide the state prosecution.

William C. Wines:

I would —

Felix Frankfurter:

(Voice Overlap) that makes no difference?

William C. Wines:

Well, I say that makes no difference.

Felix Frankfurter:

All right.

William C. Wines:

I say that if Illinois can prosecute at all in this case as I shall in due course say that she can.

William J. Brennan, Jr.:

Well, Mr. Wines, may we then assume that the appraisal to be given the portions of the record to which Mr. Fisher referred us justify the inference that the federal officers did instigate and guide this state prosecution?

William C. Wines:

We don’t — we don’t again say that.

William J. Brennan, Jr.:

All right.

William O. Douglas:

What was your answer?

William C. Wines:

I said you may assume that.

We do not again say that the federal officers went to the state officers and that they gained the fullest assistance and you can say, if you like, instigated it.

William J. Brennan, Jr.:

And guided the prosecution.

William C. Wines:


Charles E. Whittaker:

You’ll go as far as Mr. Fisher who said the truth is, the federal officers actually prepared this case?

William C. Wines:

Well, of course, I don’t know just exactly what the complete partition of labor is — was concerned with.

But so far as I know, the statement would be correct.

So far as I know, the federal officers — I don’t want to mislead the Court to the detriment of the prisoners, so far as I know, the federal officers went to the States Attorney’s Office and said, “Here is the case against a man who has been acquitted in the federal court.”

That it doesn’t appear in those words in the record but I think that’s a fair inference and I don’t think I ought to try to disassemble it.

Now, I should like —

Charles E. Whittaker:

May I ask one more question —

William C. Wines:

Certainly, Your Honor.

Charles E. Whittaker:

— or in that connection, Mr. Wines, please?

You say that you maintain that Illinois couldn’t try him again.

William C. Wines:


Charles E. Whittaker:

But you admit the Federal Government couldn’t.

William C. Wines:

The Federal Government could not, no.

Charles E. Whittaker:

Do you?

William C. Wines:


Charles E. Whittaker:

So if the Federal Government actually prepared this case that was tried in the state court as presented by Mr. Fisher and in which you do not take violent disagreement, isn’t this in effect for the Federal Government to be trying him again but in the state court?

William C. Wines:

No, Your Honor.

No, Your Honor, we say that — we say that that is not the Federal Government trying him again in the state court.

Charles E. Whittaker:

Using it really?

William C. Wines:

I — I beg Your Honor’s pardon?

Charles E. Whittaker:

Not — not the Federal Government actually using the state court as a vehicle to accomplish the — another trial?

William C. Wines:

We say that that is not the case, Your Honor.

I should like to say this.

We begin — I have in mind the — and I’m not through with the discussion of the right of federal prosecuting officials to testify against and assist the State in the prosecution of this case.

But I shall return to it after I have laid what I conceive to be the constitutional ground work for our position on the second question.

We say in the first place such utterances as this Court has about to say upon the proposition, all of them vindicate the right of a State to prosecute for the same state of facts that the Federal Government may prosecute for and permit the Federal Government to prosecute upon the same state of facts that the State can prosecute for.

There is no case exactly like this one and that is no United States Supreme Court case.

But I would like to begin by knowing that this Court held before I get to the dual sovereignty case, this Court held in Palko against Connecticut that the Fourteenth Amendment to the Constitution of the United States does not inexorably prevent retrial even by the same sovereign.

In the Palko case, Palko was acquitted in a state court.

That State, unlike most States, permitted the State to have an appeal and to obtain a new trial.

The State did appeal and Connecticut’s higher courts ordered a new trial for Palko.

On that second trial, he was convicted and sentenced to death.

And this Court held that so long as there was not a mere prosecution, repeated trials as long as there was some reason for retrial, retrial did not deny due process of law under the Fourteenth Amendment even though a similar retrial would have constituted double-jeopardy under the Fifth Amendment if the retrial had occurred in a federal court.

So we cannot begin our consideration of this case with any assumption that double-jeopardy per se denies due process and then simply argue about what constitutes double-jeopardy.

The initial premise that double-jeopardy per se denies due process is not sound unless Palko against Connecticut is to be overruled.

Now, in over 100 years ago, in the Fox case, this Court declared that both the State and the Federal Government may prosecute the utterance of false coins, the passing of counterfeit moneys.

And it used language, I don’t wish to read at length from the brief.

But I should like to say that in the later case, still over 100 years old of Moore against Illinois where the — this Court upheld dual prosecution of the interference of the relation between a master and a slave.

This Court then said, if I may, Mr. Chief Justice, to quote just a few words that I think are pertinent, “Every citizen of the United States is also a citizen of a State or territory.

He may be said to all legions to two sovereigns and may be liable to punishment for an infraction of the laws of either.

The same act maybe an offense or transgression of the laws of both, thus, an assault upon the Marshall of the United States and hindering him in the execution of legal process is a high offense against the United States for which the perpetrator is liable of punishment.

And the same act may be also a gross breach of the peace of the State, a riot, assault or a murder and subject the same person to punishment under the state laws for misdemeanor or felony.”

Now, in the Lanza case, the defendant had been convicted in a state court in violation of the State’s liquor laws, the State’s prohibition laws.

He was subsequently tried and convicted in a federal court of the same sale of intoxicating liquor.

And this Court sustained both convictions declaring that one who violates the laws of both a state and the federal sovereign is amenable to the prosecution of both.

It’s true as Mr. Fisher’s pointed out that that was a case that dealt with double conviction.

And it’s also true as Mr. Fisher pointed that the Eighteenth Amendment specifically said that both the State and the Federal Government shall have concurrent powers to enforce this amendment.

Nevertheless, the case did not turn upon nor it was rationale to confine to or by those considerations of former conviction and the explicit language of the Eighteenth Amendment.

William C. Wines:

The Court declared and measured an unmistakable terms that one who violates the laws of both sovereigns is amenable to prosecution by both sovereigns.

Now, it has been the — I should like to deal with Mr. Fisher’s argument that the policies of the two statutes, the federal and the state statute, are the same or to put in more accurately that their purposes are the same because both interdict the armed robbery of financial institutions.

As Mr. Justice Frankfurter’s question suggested, I don’t mean that Mr. Justice Frankfurter intimated decision on the point.

The federal interest protected by the federal statute is that — of the United States Government’s fiscal interest in federally insured banks or in this case, a savings and loan association.

Whereas the purpose is observed by a state statute is that of protecting its citizens against marauders, armed depredations and the loss of the property without regard to any federal or other insurance interest in the institution that is the subject matter or whose employees are the victims of a robbery.

But even if the purposes could be said to be identical as where a state and federal criminal safety may — statute, if there were no preemption of the field, might be said to be identical in both for preserving — intend to preserve human life.

We say that although there are different interests protected, there needn’t be, that it’s inherit and implicit in the concept of dual sovereignty that’s generated by the United States Constitution.

That both sovereigns have the right to prosecute each independently of the other and that — that one of the prices paid for dual sovereignty is dual powers.

With — as in this case the possibility that an acquittal by one sovereign may be followed by a conviction in the forum of another sovereign.

That is the general understanding of the cases.

Repeated trials for the same offense don’t necessarily deny due process, don’t always constitute double-jeopardy.

I might call attention to the fact that Mr. Justice Holmes speaking for — I believe the unanimous court held in the Flemister case that where a Filipino shot two officers in a rapidly successive shots, double-jeopardy wasn’t offended by two prosecutions.

So it’s not true, as Mr. Fisher’s argument would suggest, that every time a man is tried twice as a result of the same acts, due process is denied.

It’s well to note too that generally, throughout the United States, even the same sovereign can prosecute twice for closely related offenses.

Since this case was argued last, Your Honors have held in the Ciucci case that where — by a majority of the Court, that where a man by a single burning and rapidly successive shots, murdered the wife and three children each of the deaths was a separately punishable crime.

And Your Honors have held in the Hoag case that successive robberies in a same transaction give rise to conviction on the second charge even though there was an acquittal on a former charge.

It’s — it’s the hour for adjournment, is it not, Mr. Chief Justice?

Earl Warren:

I beg your pardon?

William C. Wines:

I said it’s the hour for adjournment, is it not?

Earl Warren:

Oh, the — the red light would come off Mr. —

William C. Wines:

All right.

We urge that this is part of the price that is paid for dual sovereignty.

Now, we come to the question of the extent to which assuming you can have successive prosecutions at all, state officials may be aided by or even instigated by federal officials.

Earl Warren:

We’ll recess now, Mr. —