Bradley v. United States

PETITIONER: Bradley
RESPONDENT: United States
LOCATION: Allegheny County District Court

DOCKET NO.: 71-1304
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 410 US 605 (1973)
ARGUED: Jan 08, 1973
DECIDED: Mar 05, 1973

ADVOCATES:
Lacovara -
William P. Homans, Jr. - for petitioners

Facts of the case

Question

Media for Bradley v. United States

Audio Transcription for Oral Argument - January 08, 1973 in Bradley v. United States

Warren E. Burger:

-- this morning in number 71-1304, Bradley against the United States.

Mr. Homans you may proceed whenever you’re ready.

William P. Homans, Jr.:

Mr. Chief Justice and may it please the Court.

This is a petition for writ of certiorari to a final order of the Court of Appeals for the First Circuit which order appears on page 20 of the record appendix herein in response to a motion for an order vacating sentences and for remand and for motion for state of mandate which appear respectively on pages 16, 17, and 18 of the record appendix.

The motions filed by the petitioners in this case filed an order by the Court of Appeals affirming a judgment -- or judgment of conviction against the four petitioners on the merits following a prosecution for violation of 26 U.S. Code Section 4705 (a) now repealed, and 26 U.S. Code 7237 (b).

Warren E. Burger:

Mr. Homans, I think you can help a little bit.

Is there anything in this record that affirmatively indicates that the District Judge did not consider probation?

Can you help me on that?

William P. Homans, Jr.:

Yes, Your Honor.

The only thing that would appear in this record may it please the Court, is in the petition for certiorari.

I believe it appears on page -- in any event as I come to it, Your Honor.[Voice Overlap]

Warren E. Burger:

Well, there’s nothing at Judge Rozanski’s order that would indicate the judgment and commitment doesn’t indicate --

William P. Homans, Jr.:

No, Your Honor, not one way or the other.

Warren E. Burger:

And ordinarily, a District Judge would not give any indication one way or the other, would he?

William P. Homans, Jr.:

Even though, Your Honor, in the form of judgment in which is prescribed.

There’s no indication one way or another and off the record, Your Honor and I can’t go off the record.

We did file motions after the affirmance on the merits is distinguished from the so-called appendage to the appeal which is an issue here.

We did found motions in the District Court upon which the District Court took no action and I believe reference to those appears in the docket on page 2, February 8, motion for order vacating sentences and for remand of appellant filed motions for mandate filed in Court of Appeals.

That is the only indication, may it please the Court, that such a motion was filed in the District Court prior to what being filed in the Court of Appeals.

In any event, Mr. Chief Justice and members of the Court, this was a prosecution under the prior drug law which was repealed by Public Law in 91-513 effective May 1, 1971.

The indictment, which appears on pages 2 through 5 inclusive of the appendix, charged a conspiracy in several of the counts between four -- between March 4, 1971 and March 12, 1971 as well as charging under 4705 of former Title 26, several -- all of the defendants the substantive offense of giving away selling or the distribution of cocaine.

The indictment may it please the Court, also charge in counts, which are not material here, three of the four petitioners was carrying a firearm during the commission of felony.

The important aspect to this case so far as the indictment is concern is that the indictment alleged that the offense took place between March 4 and March 10, 1971, which was before May 1, 1971 the effective date of repeal as a result of 91-513 Public Law.

91-513 of the prior drug law, which contain among other statutes 26 U.S. Code Section 7237 (d), which appears again on pages three of the petitioner’s brief and provides as Your Honors are aware that upon conviction of offenses the penalty and I emphasize penalty for which is provided in sub-section (b) of this Section that the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, Section 4202 of Title 18.

The statutes otherwise providing for parole shall not apply.

I would emphasize in connection of later portions of the argument the language in (d) of 7237, which says, upon conviction of any offense, the penalty for which is provided in sub-section (b) referring that in sub-section (b) of 7237, that provides, whoever conspires to commit an offense described in 4705 (a) shall be imprisoned not less than five or more than 20 years.

And in addition, may be fined not more than $20,000.

Thus, may it please the Court, in accordance at least for the language of 7237 (d), the penalty appears in Section (b).

Again and I'm hesitant to read statutes except that the wording of the very statutes involved in it here is important to the decision in this case.

There were two saving statutes involved, may it please the Court in this case.