Callanan v. United States

PETITIONER:Callanan
RESPONDENT:United States
LOCATION:Circuit Court of Montgomery County

DOCKET NO.: 47
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 364 US 587 (1961)
ARGUED: Nov 15, 1960 / Nov 16, 1960
DECIDED: Jan 09, 1961

Facts of the case

Question

  • Oral Argument – November 15, 1960
  • Audio Transcription for Oral Argument – November 15, 1960 in Callanan v. United States

    Audio Transcription for Oral Argument – November 16, 1960 in Callanan v. United States

    Earl Warren:

    Lawrence Callanan, Petitioner, versus the United States.

    Mr. Shenker, you may continue your argument.

    Morris A. Shenker:

    Mr. Chief Justice, Your Honors.

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

    A few exceptions were made.

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

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

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

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

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

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

    John M. Harlan II:

    Was that quoted in your brief?

    Morris A. Shenker:

    Yes, sir.

    John M. Harlan II:

    What page is it?

    Morris A. Shenker:

    The — that’s at page 41 in the middle of the — bottom of that page.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Morris A. Shenker:

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

    It intends to punish activities which interfere with interstate commerce.

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

    Now, there is — that shows all the thinking.

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

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

    All in the —

    Earl Warren:

    Where are you reading from Mr. —

    Morris A. Shenker:

    Oh, I’m sorry, page 13 of the appendix.

    Earl Warren:

    Your appendix.

    Morris A. Shenker:

    Yes Your Honor, page 13 of the appendix.

    Earl Warren:

    Alright, you may continue.

    Morris A. Shenker:

    And — and then, going on, this question, Mr. Springer was addressed to Congressman Celler on the Committee and continued on the same page.

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

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

    Psychologically, that is a point.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Morris A. Shenker:

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

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

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

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

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

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

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

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

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

    Felix Frankfurter:

    How does that illustrate it?

    Morris A. Shenker:

    I beg your pardon.

    Felix Frankfurter:

    How does, what you just read, illustrate it?

    How does that help you to decide?

    Morris A. Shenker:

    Well, it helps you decide, Your Honor, in the following matter, that during all those discussions into what extensive discussions —

    Felix Frankfurter:

    Was that thing the last thing that you read?

    Morris A. Shenker:

    That —

    Felix Frankfurter:

    What light has that shed on our problem?

    Morris A. Shenker:

    It sheds on the following way, that — that he says that the most that can be imposed is 20 years.

    Felix Frankfurter:

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

    Morris A. Shenker:

    Well if — if —

    Felix Frankfurter:

    One knows how — how casually and unspecifically Congressmen talk when they want to, not only Congressmen, but the rest of us talk.

    And that’s how — introduce the record, the specific problem.

    Morris A. Shenker:

    The only way — the only way that you can — that I can answer that is that if you read the entire — the entire congressional history, it shows that they were talking about the entire bill.

    Felix Frankfurter:

    You — you persist in saying they and I was addressing myself to a specific quotation which you submitted as argumentative consideration.

    Morris A. Shenker:

    Right.

    Felix Frankfurter:

    Now, I find no light in that, whatever, on your problem, on my problem.

    Morris A. Shenker:

    Well, if you read — if you read the remainder —

    Felix Frankfurter:

    Could that (Voice Overlap) to the other things.

    Alright, I understand that.

    Morris A. Shenker:

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

    Felix Frankfurter:

    Is — is there any authorized spokesman, who addressed himself specifically to the question?

    Morris A. Shenker:

    Yes, sir.

    Felix Frankfurter:

    Would you give me one that is all grouped — all the general talk to which I could get practically known.

    Morris A. Shenker:

    I may call on Mr. Hobbs, Congressman Hobbs, who is the one that was the sponsor of the Act and who is referred to as the — and the Act is referred as the Hobbs Act.

    Felix Frankfurter:

    You know one good argument is better than six neutral ones.

    Morris A. Shenker:

    Well, I agree with the — with the Court.

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

    The clerk read — the clerk reads as follows.

    “Amendment offered by Mr. Fish, page — Fish page 3, line 13, after the word, “then,” strikeout 20 and insert, “then.”

    Mr. Fish —

    Felix Frankfurter:

    What — what page — what page is that again?

    Morris A. Shenker:

    That’s at page 18 on — on the top of the page.

    Felix Frankfurter:

    Alright.

    Morris A. Shenker:

    On the appendix.

    And — and Mr. Fish states, “Mr. Chairman, I’ve already required a minute to speak on this amendment.

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

    Twenty years is just about as bad as a life sentence and I want to give the House the opportunity to reduce it by cutting it in half.

    This applies to threat, a man may be sent to jail for 20 years merely for threatening extortion.

    Such of drastic and severe penalty takes you back to the dark ages and it’s not warranted or aligned with the offense.”

    Now, Mr. Hobbs —

    Felix Frankfurter:

    What — what does it exactly mean?

    What was Mr. Fish’s objection?

    Morris A. Shenker:

    Mr. Fish wanted to cut the penalty from 20 years to 10 years.

    Felix Frankfurter:

    Of one particular offense, he didn’t say it all —

    Morris A. Shenker:

    Of the Act, of the Act and here’s what Mr. Hobbs said.

    Felix Frankfurter:

    He didn’t say that.

    He says, “Was threatening extortion.”

    Morris A. Shenker:

    What that’s — that’s what he said.

    Oh, well, very well, he — he said at least, on that point.

    No, he — he wanted that —

    Felix Frankfurter:

    Well, at least he gave a specific — he addressed himself to a punishment, a maximum punishment for one of the designated offenses.

    Morris A. Shenker:

    That’s not.

    The amendment was to the entire Act but they said, at least 10 years for that warrant in his statement, but the amendment was to the entire Act.

    Felix Frankfurter:

    Yes, I know, but what he says, is a man maybe sent to jail for 20 years, merely for threatening extortion —

    Morris A. Shenker:

    That’s right.

    Felix Frankfurter:

    — which was one of the contained offenses under the Act.

    Morris A. Shenker:

    That’s right.

    Felix Frankfurter:

    So that he didn’t say, he could get 20 years for committing — for violating the Act as such, he picked out one specific thing.

    Morris A. Shenker:

    He used that as an illustration, is what he did.

    He used that as an illustration.

    Here’s what Congressman Hobbs said which answers — which answers your question as to someone — one person making the statement, “Mr. Hobbs — Mr. Chairman, arise in our position to the amendment offered by the gentleman from New York.”

    This is also on page 18, “Mr. Chairman, the — the punishment fixed in this bill is a maximum.

    The punishment fixed in this bill is a maximum and any punishments imposed by a judge, of one cent or one hour in jail would be covered by this maximum penalty just the same.”

    Felix Frankfurter:

    And you think that sentence shows that he meant to cover the whole?

    All the violations that are committable under this field are subject only to one punishment.

    Morris A. Shenker:

    Yes, sir.

    Felix Frankfurter:

    That’s what sentence means to you?

    Morris A. Shenker:

    Involve — with certainly, when you take it in line with everything else, there is no other way you can say it.

    He has never, at no time, was there any suggestion by anyone in the discussion that there could be under any conceivable theory, an imposition of — the imposition of a sentence greater than 20 years for any and all violations under that Act.

    Felix Frankfurter:

    Nor was there an opposite statement.

    Morris A. Shenker:

    I beg your pardon.

    Felix Frankfurter:

    Nor was there a specific statement to the contrary.

    Morris A. Shenker:

    Well I — I consider that.

    Felix Frankfurter:

    You may argue that that’s what it means.

    All I’m saying there, is no statement in any of the things that you put before us in which any Congressman said, there can be only one punishment for all the violations that are prescribed in that Act.

    Morris A. Shenker:

    Well is there any — the mere fact that they thought that the most that they can inflict is a 20-year punishment.

    That certainly and clearly — clearly shows that and where — where Mr. Hobbs went on even to say that, “May I point it out to the house.”

    That’s what Congressman Hobbs said, again, that this Bill was copied substantially from the New York statute, which punishes first degree robbery for a minimum punishment of 10 years and a maximum of 30 years.

    We took the average of 20 years as the maximum but no minimum.

    I think the gentleman is amply protected and his desire for the penalty to be reasonable.

    Morris A. Shenker:

    And we’re — doing — and all we are doing is giving the Court that to make this punishment fit the crime and at each time, only talking — only talking about 20 years.

    Felix Frankfurter:

    Have you — have you printed a copy of the New York statute?

    Morris A. Shenker:

    Do — do we have a copy of the New York statute?

    Felix Frankfurter:

    Is it printed in one of these briefs?

    Morris A. Shenker:

    We have not.

    We shall be glad to furnish it to the Court, but how it — and going on again along that discussion, we’re in page 22 of the — in page — in page 22 of the — of the appendix where Mr. Celler says, on top of that page, “Whether you place penalties in these — on these legitimate activities of labor that go up to 20 years in jail and up to $10,000, if you look at the antitrust penalties against employers, you’ll find that there are only $5000 or one year in jail.

    This bill has direct relation to the antitrust laws, the Clayton Act, examine those acts and see what you do to the manufacturers and organizations.”

    And then he goes on, finally, skipping a little, you inflict the penalty of only $5000 but on the laboring men, you inflict the penalty of $10,000 or in the alternative 20 years in jail.

    If — if that is not a portion on justifiable penalty, I would like to know what is.

    Again, only talking about the 20 years and it’s certainly reasonable to assume that if there was any other consideration, here, you have a mandate that would oppose to the bill.

    You have a number of Congressmen that would oppose to the bill.

    And if they could have construed it and even thought that the bill could be construed, that in any matter at all as inflicting a punishment greater than 20 years, they would have said, now, not only can they get 10 — 20 years on long part but if he’s also guilty of conspiracy, he can get 20 years for conspiracy and 20 years for the substantive offense which would have made it 40 years.

    Felix Frankfurter:

    May I ask you a question, Mr. Shenker?

    Morris A. Shenker:

    Yes.

    Felix Frankfurter:

    Is there any case either in this Court or in the lower courts, in which a man joined others in the conspiracy to violate the Sherman Law, but on his own also, entered into a contract which was executed of — a contract for price fixing which held that he couldn’t be punished both for joining in the conspiracy and for a price fixing contract.

    Is there any question — decision?

    Morris A. Shenker:

    I — I am not in a position to answer this.

    I — I cannot answer that question directly, but have —

    Felix Frankfurter:

    But if we have such a case that — that might shed — that would be a good footnote or proof of what Congressman Celler said.

    But until you have such a case, it helps me very little to — to apply his argument that it shouldn’t be severe against labor than it should be against combination of — of industries.

    That’s —

    Morris A. Shenker:

    Well I — I — that — that of course take us over then to another — another facet of the discussion.

    I’m pointing again this ad — idealized that view of here on a limited — for a limited purpose and that is the question whether you can have sentences in excess of 20 years, under this Act.

    And — and it appears — it appears that with all these discussions and there’s — there’s — this is not a discussion that only goes on during one session of Congress.

    It goes on into (Inaudible) from 1933.

    It starts in 1933 and it goes on to 1946.

    Felix Frankfurter:

    And it just tells — just as little in one session as in another so far as I’m concerned.

    No more, no — no less.

    Morris A. Shenker:

    With the exception — with the exception that with all these lawyers that were on the Judiciary Committee, if they could have construed it in any manner that it would be — that would have been farther than his, they would have had ammunition against the proponents of the bill.

    They are proponents that one as — as — that one substantial punishment.

    Morris A. Shenker:

    Now, here, knowing where the lawyers are, they’re looking for manners of attack and if they could have said and come up before the Committee and said, “Look, you’re not only asking for a 20-year punishment, you are asking for a 40-year or a 60 or an 80 years, because that’s what it is.”If you take the four subsections, you could conceivably make it 80 years.

    They would have certainly used that.

    We must assume that those lawyers were looking for ways of attacking that — that legislation because they certainly, that there’s considerable legislative history, but at no time — at no time, did they even mention that —

    Felix Frankfurter:

    But you — you —

    Morris A. Shenker:

    Which would mean that so construed it.

    Felix Frankfurter:

    But you would ask me to consider what Mr. Celler said.

    So I’m considering it and he analogizes this statute to the Sherman Law and I’m putting it to use that under the Sherman Law, there could be probably — at least we — there’s no reason to think otherwise, they could be double punishment, both the conspiracy and the substantive offense.

    Morris A. Shenker:

    Well —

    Felix Frankfurter:

    Though I’m just — I’m just trying to understand the material you put before us.

    Morris A. Shenker:

    His analogy of course to that was for the purpose of showing the distinction between labor and management.

    This contention was that management, if they do the same thing, they — they put — the statute provides for a — for a fine of $5000 — of five — of 10 — up to $5000 and one year and whereas labor, it would be something else.

    That was an analogy.

    Felix Frankfurter:

    Now that’s for him, that point is valid and he’s made it, but that doesn’t leave me to jump over that you can have only one punishment for labor, although you have two punishments and offer for violation of the Sherman Law.

    Morris A. Shenker:

    But what — do you think that I am unreasonable in arguing that with all those lawyers looking for excuses to attack the — the penalty provision of this bill, that at no time, not even one mention that — that could be a possible 40 or 60 or 80 years?

    Felix Frankfurter:

    I think that you’re making the kind of an argument you ought to make.

    Morris A. Shenker:

    I beg your pardon?

    Felix Frankfurter:

    You’re making the kind of an argument that I think you ought to make.

    Morris A. Shenker:

    Thank you very much.

    Felix Frankfurter:

    But I don’t have to accept it.

    Charles E. Whittaker:

    Did you —

    Morris A. Shenker:

    Thank you very much.

    Charles E. Whittaker:

    Did you ask — did you ask Judge Weber to make the second sentence, a concurrent sentence.

    I noticed that he suspended the imposition of service of it.

    What’s the situation about it?

    Morris A. Shenker:

    Let me — I — I — I’m very happy that that you brought it up.

    Judge Weber was not the sentencing judge?

    Charles E. Whittaker:

    Who was it?

    Morris A. Shenker:

    Judge Hulin was the sentencing judge and Judge Hulin died about 2 and a — well, in fact Judge Weber took Judge Hulin’s place.

    Now, Judge Weber, in his decision which — which we are submitting, he — he sort of — was uncertain as to which way he — he really never — never came out clearly inside.

    At no — at no time then he clearly said that — that you can have a consecutive sentence.

    Morris A. Shenker:

    He sort of went off on the sound battle on the theory that perhaps the — the question as to whether the — the consecutive sentence is proper is something to be gotten at later when the first sentence is completed and of course, our first sentence isn’t completed as yet, because the defendant is out on parole which — on parole and he wasn’t on parole at the time he first — the matter came up before Judge Weber.

    And — and Judge Weber sort of left that part still open.

    It — it hold on there both ways.

    Charles E. Whittaker:

    Well, that’s what I was — sort of thought, gathered here.

    If as a matter of fact, sentence has not been imposed, you wouldn’t be hurt, would you on second count?

    Morris A. Shenker:

    Well, of course, the sentence was imposed.

    In other words, when Judge Hulin imposed the sentence, he imposed 12 and — 12 years and 12 years and suspended the second 12-year sentence on — and put the defendant on probation.

    That period of probation to continue after the first sentence has been complied with, which means in this instance, this — the amount of — of time that he served plus the — the period of — of full — that — the defendant is out on parole.

    Charles E. Whittaker:

    Did you actually — one more question about it.

    Morris A. Shenker:

    Certainly.

    Charles E. Whittaker:

    Did you actually move for Judge Weber, to advise this on before this — Judge Weber to revise the sentence?

    Morris A. Shenker:

    We did and we did this before Judge Weber.

    We asked that he revise the first sentence rather the second sentence.

    In other words, are not — although we asked on a — we asked on behalf — specifically, we asked Judge Weber originally in our petition that he reduced the sentence.

    In other words to treat it — to treat as a general sentence if he wanted to and — and make it 20 and to reduce the first sentence by four years.

    That was the original but we also asked — but we also asked him to change the sentence to comply with the — without interpretation of the law.

    And Judge Weber wrote that out of lengthy opinion on it, wherein he finally winds up and says that, “Well, that other question may be premature.”

    On the question of 20 years that — be — maybe premature that for — possibly the time to raise that is after the defendant is put on probation for the others.

    Thank you.

    Earl Warren:

    Mr. Gilinsky.

    Theodore George Gilinsky:

    Mr. Chief Justice and may it please the Court.

    There is a preliminary question which this Court granted certiorari, which I will not discuss unless some Justices have some questions about it.

    It has to do with the choice of the remedy in this particular case and the Government concedes that under Rule 35, if this is an illegal sentence that that is a proper approach to the problem and it can be settled under that rule and he didn’t get in to the other problems of how to go at it.

    Now, their main question and only one to which agree is here, is whether a person who has conspired to violate the Hobbs Anti-Racketeering Act and then also extorts money from the victim which is a violation of the Hobbs Anti-Racketeering Act, can be sentenced for both crimes under this Act.

    Now, the facts, I think, while they’ve been mentioned, might take a little — a minute to clarify.

    There are two counts involved here.

    First count was for was for conspiracy and the second count was a substantive crime of extortion.

    The petitioner and others are — were convicted by a jury.

    The sentence was 12 years on Count I.

    On Count II, the sentence was a consecutive sentence of 12 years which was suspended and then the petitioner was placed on probation for five years.

    Theodore George Gilinsky:

    The five-year probation period begins at the end of the sentence on Count I.

    As a matter of fact now, of course, the petitioner is out on parole even from the first sentence and it is our — and the only reason we mention this is because while the petitioner originally was confined, when he started this proceeding and therefore he asked only for four years off of his first sentence.

    Now that he is no longer confined, we can recognize that he has nothing as great to gain by getting only four years off the sentence. Consequently, both sides have somewhat changed since the beginning.

    So that now, the problem is in total, we see it whether or not, you can have cumulative sentences under this Act, regardless of the length, the particular length that they may happen to have.

    Now, we both use the same material, it’s true.

    We both cite the same cases.

    We both have the same facts.

    Now, we approach the problem from a different view.

    If I may characterize —

    Felix Frankfurter:

    That is — that is you don’t draw different inferences from the same material but you — but you subject them — but you relate them different considerations.

    Theodore George Gilinsky:

    Well, I think both.

    Felix Frankfurter:

    Both, which proves that it’s in another great tribute to the ambiguity of language, doesn’t it?

    Theodore George Gilinsky:

    I suppose.

    The petitioner feels as I — as we see the petitioner’s argument, he feels that if the statute or the Act as a whole, does not say in so many words that cumulative sentences may not be imposed and if the legislative history does not say in so many words that cumulative sentences may not be imposed, that therefore, there’s an ambiguity and therefore, you use a rule of lenity and decide that only 20 years can be imposed.

    Felix Frankfurter:

    It will the more — a more particular — he makes a more ad hoc argument, not that — that generally speaking, nothing is said in the legislative history about cumulative sentences, but if their briefs throughout they talk of Congressmen has suggested that only one sentence should be imposed, you do not have to be specific in saying that.

    There’s still a way around, Mr. Gilinsky.

    Theodore George Gilinsky:

    It says both though.

    I think on that part of the argument, I think all he’s saying is that the people — not — this is not the original Act, the — the quotations that he has given you.

    Quotations from the legislative history that were recited here are from the Hobbs Act.

    We already have the problem in 1934.

    If there is a problem here, it arises long before the Hobbs Bill becomes the law because in 1934, this conspiracy clause is also here.

    Now, this recitation of history to us should be read as merely the same thing that the bill says.

    The bill says that a man should be punished for 20 years. Congressmen were saying exactly the same thing that the bill said.

    We don’t think this settles the problem at all, because just to reiterate what the Bill itself says doesn’t add to the — to our knowledge of what the intent was insofar as cumulative sentences are concerned.

    Now, what do I mean when I say that the Government starts at the opposite end?

    We feel that this great history, judicial history of conspiracy and substantive crimes and there are decades of judicial decisions on this as separate crimes, cannot be divorced from the passage of this Act.

    In other words, would you read the 1934 Act, it wasn’t passed in vacuum.

    It wasn’t passed by itself.

    It had before it a long history of conspiracy crimes and a long history of substantive crimes.

    That with this history and since they have always been treated in the federal courts and in this country as separate crimes, there was no occasion for Congress to say anything about cumulative sentences, if they meant to impose the same type of punishment they always had been imposing.

    Theodore George Gilinsky:

    It —

    Felix Frankfurter:

    Out of what Committee did the Hobbs Bill come?

    Is it the judiciary or commerce?

    Theodore George Gilinsky:

    Yes.

    No, it came out of the judiciary.

    Felix Frankfurter:

    And that’s the Committee out of which penal legislations normally come?

    Theodore George Gilinsky:

    I think — I think you —

    Felix Frankfurter:

    Is that right?

    Theodore George Gilinsky:

    That’s right.

    I think to get to the 1934 Act, I think we have the first clue.

    First of all, the background is that in — from 1879 on, this Court has maintained a consistent pattern of cases involving both the crimes of conspiracy and the crime of a substantive act and in each and every case since 1879, that this Court has had the problem.

    This Court has held that the conspiracy is separate from the substantive crime and that the punishment can be accumulated.

    Now, we have outlined in our brief from that first case, the various facets of the argument.

    In other words, it made no difference how the argument arrived here, whether it arrived because someone claimed double jeopardy, whether it arrived because there was a different statute of limitations to be applied, whether it arrived because the person that was being tried for conspiracy could not be charged with the substantive or whether it arrived because there were different types of punishments for the substantive as compared to the conspiracy.

    No matter how the case arrived here, in other words and I may I had it at this point, even if it’s in the same Act, no matter how the case arrived, this Court always held that the conspiracy was separate from the substantive offense and could be cumulative punishment.

    John M. Harlan II:

    What cases are there that — that —

    Theodore George Gilinsky:

    Well let me — let me get to latter ones because I think they’re the — the closest in time.

    The last two —

    John M. Harlan II:

    I was going to ask you about cases that where that doctrine was applied, where the conspiracies offense was part of the same statute enacted that —

    Theodore George Gilinsky:

    Yes, I can give you two cases of that.

    The first case that we have is a case of Carter versus McClaughry.

    This is a case in which the conspiracy and this — and the substantive offense were both in the same Act.

    They were an Article of War.

    This was a court-martial.

    The case arrived here as a habeas corpus case.

    This Court held that he could be punished for both cumulatively and that Act is exactly the same type of wording and differentiation as the Hobbs Act.

    But going further and getting more to the problem even that this case poses, is when you arrive at such things as the Sherman Act, Section 2 of the Sherman Act contains in its language, the same types of offenses namely, monopoly, attempt to monopolize or conspire.

    That’s all within one section.

    This is somewhat similar to the present wording of this Act.

    Even in this case then we find cumulative punishments and that’s American Tobacco Company cited in our brief, where this Court held in so many words that they could be punished cumulatively, under Section 2 for the conspiracy as well as for the monopoly.

    Theodore George Gilinsky:

    This Court held in that connection that the attempt merged into the monopoly, but they did not hold that the conspiracy merged into it.

    Hugo L. Black:

    And it was the —

    Theodore George Gilinsky:

    That’s American Tobacco, 328 U.S.

    Hugo L. Black:

    Well, was he indicted there for conspiring to conspire?

    Was there to conspire —

    Theodore George Gilinsky:

    American Tobacco had four counts.

    Count I was under Section 1, conspiracy under Section I, Count II was monopoly, a substantive crime of monopoly, Count III was the attempt to monopolize and Count IV was a conspiracy.

    American Tobacco was cumulatively fined.

    Hugo L. Black:

    Conspiracies to violate which Section?

    Theodore George Gilinsky:

    Section 2, all within — leaving aside Section 1, which is conspiracy, there were three counts under Section 2, two which survived for punishment purposes and received cumulative punishments.

    If as my — if as the petitioner feels, this Act came because of the — the problem confronting the antitrust laws or the Sherman Act, then certainly, if this is part of the prototype for this Act, then certainly we should have the same type of interpretation of intent insofar as the Hobbs Act is concerned.

    If you can punish for the substantive crime and the conspiracy in one Act and you say, you take part — at least this is an impetuous to the second Act, then certainly you should be able to do the same under the second Act.

    John M. Harlan II:

    Do you draw a distinction under the Hobbs Act between cumulative punishments where a conspiracy and a substantive offense is alleged in the situation where two substantive offenses under the Hobbs Act are — do you think that line can be drawn or are you arguing that?

    Theodore George Gilinsky:

    I think the line can be drawn.

    I don’t think it — I don’t — we don’t argue it because we think that any — anyone who violates an Act a number of times, can get cumulative punishment.

    I don’t know that that has ever been the type of problem.

    I mean, for instance, even in a — a case which has a merger problem such as Prince or the Bank Robbery Statute, I don’t know of anyone saying that if you rob a bank and then five, six months later, rob another bank, that you can get double sentence because of that.

    John M. Harlan II:

    What I was really to asking you, do you lay special emphasis on your argument on the fact, on this conspiracy doctrine?

    The general conspiracy doctrine or does your argument go to the —

    Theodore George Gilinsky:

    We don’t think there’s any difference between the fact that this is all in one Act and whether it is or it isn’t, we think they have to be treated the same, although, in answer to the problem which is being presented here, we — we find even the cases under one Act, treating them as separate.

    So, we don’t see this difference in the fact that it’s one Act would make any difference and we think, it’s backed up for the legislative history that interpretation we think it’s backed up by the cases or maybe I’m not understanding your question.

    John M. Harlan II:

    What I’m — perhaps I haven’t made myself clear.

    This is a conspiracy against a substantive offense, cumulative sentences in that context.

    What I’m asking is whether you think there is a difference as to the proper interpretation of the Act in that kind of a context and what would be the case if cumulative sentences on two substantive offenses under the statute were involved?

    Theodore George Gilinsky:

    I think those considerations go to punishment.

    In other words, I think those considerations can be taken into account why the trial judge in determining how much punishment under an Act a man should get.

    I do not think they go to the question of what can be given under the act.

    Have I made myself clear on the — in other words, I think there are considerations of punishment such as this case as an example, here, suppose we have in this case, only — only one sentence of 20 years, this petitioner wouldn’t even be out of jail because the Parole Board couldn’t look at the sentence until he served at least a third.

    That isn’t what happened in this case.

    Petitioner received a 12-year sentence so that Parole Board could look at the problem earlier and he did get out too.

    Theodore George Gilinsky:

    In other words, I think on the related circumstances — that was whether he commits number of crimes or whether it is a conspiracy with the objective which is the substantive crime, all of those considerations can go to the question of how much punishment.

    I do not think —

    John M. Harlan II:

    Now we’re talking here about power not —

    Theodore George Gilinsky:

    That’s right.

    John M. Harlan II:

    My question is this.

    You lay great emphasis on the fact that Congress must be taken to have acted with reference to the established doctrine that conspiracies and substantive offenses or different crimes.

    And my question is, do you think that that — that the conspiracy versus substantive offense problem stands on a different footing under this Act than with a case of cumulative punishment involving only substantive offenses under the Act?

    Theodore George Gilinsky:

    I think so.

    John M. Harlan II:

    You do think so?

    Theodore George Gilinsky:

    I think so.

    I think I have to say, yes, because of this.

    I think there is a greater legal history for the separation of conspiracy and the substantive crime of extortion, than there is for example, between two parts of this Act, one of which is violence and the substantive crime.

    In other words, I think there is a greater, legal background for considering conspiracy as separate from the substantive offense, than there is if we had the problem of someone who was indicted for violence and for the substantive crime.

    Well, I think, the question of power would be answered the same in both.

    The — may I finish the background of the cases in the field of separateness?

    From the time this Court decided Pinkerton versus the United States in 1946, which posed a question in terms of cumulative punishment, this Court was able to say it has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it, are separate and distinct offenses.

    In Pereira versus the United States, which this Court decided in 1954, this Court was able to say, “It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes.”

    From all of these, we attribute to Congress a passive purpose in the absence of any direct expression to the contrary that Congress was going to maintain the long established distinctions between offenses that are essentially different.

    William J. Brennan, Jr.:

    Mr. Gilinsky I don’t know that I have understood your answer to Mr. Justice Harlan.

    If you were to have the first count for violence and the second for the extortion, do you think that would be different from the situation we do have in the case (Inaudible)

    Theodore George Gilinsky:

    I think the answer would be the same as far as the Government is concerned.

    I think the question —

    William J. Brennan, Jr.:

    What did you mean by saying, yes, to —

    Theodore George Gilinsky:

    I meant that there is a different background to the problem of conspiracy.

    William J. Brennan, Jr.:

    But on the sentencing problem?

    Theodore George Gilinsky:

    There are none, no difference.

    No difference at all.

    As a matter of fact, if we — if we don’t just have the statute, just at the statute, there would be no reason at all, to provide a punishment, the all of — all the punishments in this statute are today, are 20 years.

    There would be no reason to apply a 20-year sentence to the crime of violence in connection with this.

    That is not separate and distinct from the substantive offense because we have in the statute the substantive or the attempt.

    Theodore George Gilinsky:

    Now certainly or the — or the conspiracy, certainly because some persons conspires to violate the Act, this should not be construed as giving him immunity from using violence, nor should this be construed as giving him immunity from any punishment for or having completed the — the extortion.

    In other words, there would be no reason to have a separate punishment if you couldn’t separately punish the person for it.

    There would be no reason to have this in the statute at all, because a crime of violence wouldn’t have anything.

    You can have an attempt at extortion and the violence can be a part of that.

    And if that’s all there is, you can sentence the man to 20 — as a matter of power, you can sentence the man to 20 years for the attempt.

    Felix Frankfurter:

    But isn’t quite so, is this because there would be a function for an outlawry of — of violence — acts of violence in this field and the spirit has two a — has two a very different things without as a matter of reason or policy, not concluding that if both are committed, you should give only one punishment.

    I don’t see why you say that if he under that, all these various offences enumerated by Congress.

    Theodore George Gilinsky:

    Because violence is a part and parcel.

    It isn’t true —

    Felix Frankfurter:

    But is it part and parcel to conspiracy.

    Theodore George Gilinsky:

    No, it isn’t.

    Felix Frankfurter:

    A conspiracy maybe concluded but —

    Theodore George Gilinsky:

    I understand.

    Felix Frankfurter:

    If they’ve just agreed to come (Inaudible)

    Theodore George Gilinsky:

    I understand.

    None, of the — in — in this — in this sense which you are talking, none of these crimes necessarily overlap at all, because there is no question that people can conspire to violate this Act and never extort anything.

    Not even — and we could not possibly even charge them with an attempt.

    At the same time, it’s very clear under the Act and there are cases on this that a single person can extort, I don’t think there’s anything difficult about recognizing that.

    A single person can extort under this Act and certainly, you would have no conspiracy under those circumstances.

    Felix Frankfurter:

    Of course that’s fine, I don’t understand unless I misunderstood your suggestion that unless you allow separate punishments, there’d be no point in outlawing separate offenses.

    Theodore George Gilinsky:

    No, I — I understand —

    Felix Frankfurter:

    I think you could have said that.

    Theodore George Gilinsky:

    I understand this part but, I — I think there are two approaches to the problem.

    My — my problem — well, maybe this way and suppose as an advocate, I — I should bring forth all the possible approaches.

    I think there are differences in the approaches.

    I understand yours and I have — what you have said and I think I have said that, but I think there’s also this other possibility and I — I can’t just — there’s only one.

    Felix Frankfurter:

    As a (Inaudible) could make all arguments that are convincing.

    Theodore George Gilinsky:

    Now, there’s another type of gloss I think on the statute besides this long decades of history of separateness between conspiracy and the substantive crime.

    And that is this one act problem.

    There are cases long before 1934, now I’m talking about where within the same path, we have cumulative punishment so that this is not anything new either.

    Theodore George Gilinsky:

    Now, we cite this in our brief also.

    This is such things Burton versus the United States and Albrecht which — which had been before this Court.

    In other words, possession and sale of liquor under one of the cases can both be punished separately.

    Burton was agreeing to receive a bribe and receiving a bribe.

    And that type of case all within an Act in other words, we have this type of gloss.

    All of these support cumulative sentences including the Sherman Act interpretation in the American Tobacco case, which I have given.

    Now, a word on a problem of merger; in this particular field of conspiracy and substantive offense for the doctrine of merger has never — has never gained a porthole in the federal courts and in none of the States presently, do you have any such doctrine of merger.

    As a matter of fact, in Pinkerton versus the United States, this Court said very clearly that the doctrine of merger does not hold in this country.

    Of course, in common law, there was a type of merger but it has nothing to do with the problem that we have.

    It had to do with a procedural problem namely, that a common law on the conspiracy was a misdemeanor.

    And so, the misdemeanor was held to merge into the felony and this was a procedural problem in order to avoid questions of allowing him to have copies of the indictment, allowing him to have attorneys and so forth.

    This type of doctrine, although early applied in some states, had since been change in those states and as far as I know, is held nowhere in the United States.

    John M. Harlan II:

    Let me put my question to you again a little more concretely.

    Supposing this indictment had charged two substantive offenses and a conspiracy, three counts, and cumulative sentences will impose on all three counts.

    Do you think it would be a permissible reading of the Act to say that as far as conspiracy versus substantive counts, yes, Congress must be taken to have intended cumulative punishments, authorized cumulative punishments, but with respect to the two substantive accounts, it cannot be so taken to have intended?

    Theodore George Gilinsky:

    Well, I can’t say that you can’t read it that way.

    John M. Harlan II:

    I — I think your view is to whether there’s a difference between the approach that the Court should take in a case of this kind, if there is any difference.

    Theodore George Gilinsky:

    Well, I think the thing that bothers me is that in the context in which these cases arise, the question of power goes to the offense.

    It doesn’t go to the type of offense unless you have the type of offense where you have a merger problem.

    In other words, I don’t view conspiracy as anything but a criminal offense and I don’t view extortion as anything but a criminal offense and hence, the question of whether there are two or three substantives and one conspiracy, I view all on an equal basis and an unquestionable power to punish.

    I would say they all can be punished at the same time.

    Now, I can recognize that it is easier to visualize as — possibly because as lawyers, it is easier to visualize separate substantive offenses as being somewhat different than a conspiracy and a substantive offense.

    And I think that is — that difference I can recognize.

    But I don’t think it goes to the question of whether or not, it does go to either of these two but it doesn’t go to a question whether you can separately punish and it doesn’t aid us on the question of whether or not, Congress in this Act intended one way or the other.

    I can recognize there is a different view.

    But I —

    Felix Frankfurter:

    Mr. Gilinsky as to the question put by Justice Harlan, rationally, as an abstract consideration, there is no difficulty in force of having Congress when it make offenses in relation within a given territory of outlawed conduct that all offenses within that area of criminal or penal decision that it makes — that it says that all — all offenses within a particular penal area, shall upon the punishment, upon the guilt of one or all, be subject to a single defined punishment.

    There’s nothing — there’s nothing in a way of reason or penology that it’s now, why they shouldn’t do that, but we’re dealing with situation where there’s — where there is a purpose in the consideration, ambiguity, the language of allows one construction rather another in the imposition of multiple sentences and I should think that where you — that abstractly considered where you have — as Justice Harlan’s question indicated I think, conspiracy and a substantive offence as against substantive offenses in the reference to a particular situation, conspiracy and substantive offense present different considerations than fragmentized substantive offenses within the same area.

    Because when you deal with conspiracy, you add the very important consideration of — of danger or menace to the society from combined action, which is a very different thing from the commission of a substantive offense by one or more people because that is the great thing about conspiracy that it’s directed against the mischief conceived by penalizing such combination because of combination and not because of the substantive offense.

    Theodore George Gilinsky:

    Well, I — I recognize this.

    Theodore George Gilinsky:

    As a matter of fact, I was going to say that the reason for this long recognition is — is just this purpose that the combination is the thing that — that we are after here.

    For example, in this particular case, the fact that this petitioner has joined with others in order to bring a — a greater force to bear upon his extortion efforts is the thing that the conspiracy count is after.

    Felix Frankfurter:

    As you indicated earlier, the distinction is, I think illustrated by the difference between the — that requisite constituents of a prosecution of this combination for a conspiracy in that point attempt.

    You can punish at them a combination, a conspiracy although it doesn’t reach that stage of seriousness which is required in order to make out a case (Inaudible)

    Theodore George Gilinsky:

    I agree.

    I — I think there are other considerations for the conspiracy also.

    For instance, in this particular context, conspiracy is a very dangerous anti-social act because in — in the field of racketeering, it presents a focal point for continuing crime, which you don’t usually have in other areas.

    It also — a conspiracy has this as a background.

    It makes it much more difficult for anyone individual to get out because he has the — his cohorts of course, on his back.

    All of these considerations though have gone into the long history of why conspiracy is separate from the substantive offense.

    In this particular Act, we think though that even the legislative history backs us up more than the petitioner’s counsel has suggested.

    When the bill was first submitted in 1934, it’s true the Act did not contain a conspiracy clause.

    However, that conspiracy clause was put in as the Act was going through Congress and there’s no question where it came from because at that time, the then Attorney General Homer Cummings, wrote a letter in which he submitted a new brand in which he says in no uncertain terms, we have had it, a conspiracy clause.

    Now, the Government suggested that this must be read in context.

    Now, what do we mean in context here?

    At the time the Attorney General suggested this, there was a conspiracy clause, a general conspiracy clause.

    So that, you didn’t have to have the addition of a conspiracy clause in the Hobbs Act, in order to convict someone of conspiracy because that was already on the books.

    But the problem was that in 1934, they were concerned about increasing the punishment.

    And in 1934, the conspiracy had — had a punishment clause of two years.

    Now, we suggest that the Attorney General when he said that he’s having a conspiracy clause meant not that he was adding something that he couldn’t do before, because he could.

    He could always indict somebody for conspiracy —

    John M. Harlan II:

    But you have indicted him under the general — general conspiracy statute now?

    Theodore George Gilinsky:

    I — I don’t think there’s much difference between the two, although there is an overt act problem, I think the —

    John M. Harlan II:

    There is no over — overt act required under the —

    Theodore George Gilinsky:

    Not — not here.

    Although — although the petitioner makes some mention of this.

    I don’t think that makes a different support in the question of crime, because I think they’re the same crime.

    Felix Frankfurter:

    I don’t — I don’t follow.

    The federal conspiracy statute, conspiracy to defraud or conspiracy to violate a statute does have to have overt Act.

    Theodore George Gilinsky:

    That’s right.

    Felix Frankfurter:

    And this doesn’t.

    Theodore George Gilinsky:

    That’s right.

    But I know of no —

    Felix Frankfurter:

    None of that — but I should think — I should think if you have a specific conspiracy statute, you said they couldn’t duplicate?

    Theodore George Gilinsky:

    That’s right.

    Felix Frankfurter:

    It certainly couldn’t duplicate —

    Theodore George Gilinsky:

    That’s right.

    Felix Frankfurter:

    In the way you have a specific conspiracy statute as part of a substantively out — substantively outlawed conduct.

    Would you think that’s the clearest indication you can have but that is meant to be the conspiracy for which you can prosecute?

    Theodore George Gilinsky:

    I — I would agree.

    I —

    John M. Harlan II:

    To put your contention in another way, as I get it, you say this situation is exactly the same as if Congress instead of adding a conspiracy section to the Hobbs Act with a 20-year facet of sentence to it —

    Theodore George Gilinsky:

    Right.

    John M. Harlan II:

    — had amended the general conspiracy statute by saying that penalty was to five years except in the case of Hobbs Act violations.

    Is that it?

    Theodore George Gilinsky:

    Exactly the same result would’ve — would’ve turned out in this case.

    Felix Frankfurter:

    You don’t refuse that?

    Theodore George Gilinsky:

    And the only difference —

    Felix Frankfurter:

    I beg your pardon.

    Theodore George Gilinsky:

    And the only difference is that here, we have a — a number of other violations and the only other difference is overt act problem, which I can take up in a moment, which I don’t think this —

    Felix Frankfurter:

    I don’t find in your index a reference to Attorney General Cummings’ letter or also certainly aren’t on this.

    I have the recollection that Attorney General Cummings, all the conference of the State Attorney General and also this would obtain, in far to be with this problem, am I right about that?

    There was a — there to put out of the proceedings of that conference.

    Theodore George Gilinsky:

    There was, but I — I — as far as I recall, that doesn’t help on this problem.

    Felix Frankfurter:

    No, but I mean even there dealing with the General —

    Theodore George Gilinsky:

    That’s right.

    There — there —

    Felix Frankfurter:

    The General (Inaudible) to tighten the law will increase the outlawed conduct and to stipulate sentence is because of reverence of violence and combination of violence throughout the country is that right?

    Theodore George Gilinsky:

    That’s correct.

    It goes a little further than the — the Copeland Committee of course, held these hearings in New York, Detroit and Chicago in which they found great problems of racketeering.

    Theodore George Gilinsky:

    All of these bills were presented at one time.

    All of these bills have the backing of the Department of Justice because they were concerned about all of these problems and they were concerned particularly about increasing the punishment and heaves in every area of crime that they could go after.

    Felix Frankfurter:

    The hearing that I’m referring to is the hearing that was held in the Department of Justice under the sponsorship, under the call of the Attorney General of the United States.

    Theodore George Gilinsky:

    I may — I may not have that particular one.

    Felix Frankfurter:

    Now, where is — where can I find the Attorney General’s letter asking for a special conspiracy statute?

    Never mind, I’ll dig out (Inaudible)

    Theodore George Gilinsky:

    No.

    I — at that at the bottom of page 21 and at the top of page 22, we just quote just that provision of the letter.

    We don’t quote the whole letter, but it can be found at that citation.

    Charles E. Whittaker:

    Mr. Gilinsky, I do not understand Mr. Shenker to deny that Congress had it that the conspiracy perhaps in this doctrine, but he — he says the question still is whether or not, Congress even then intended to increase and make a new — a new penalty.

    How does this aid us very much in determining that question?

    Theodore George Gilinsky:

    Do you mean, how — how does the fact that they came in this way as it is?

    Charles E. Whittaker:

    Or does (Inaudible) at all, yes.

    Theodore George Gilinsky:

    Well, I think it aids us in this sentence.

    I think we must recognize, I mean if we’re going to be candid about it, that the Attorney General knew at the time he submitted this, that he could indict someone for a conspiracy to violate this Act without adding any provision here.

    Charles E. Whittaker:

    I’m going to do your (Inaudible)

    Theodore George Gilinsky:

    That’s right.

    We therefore say that in view of the purpose of increasing the punishments in this statute and there is no question that that’s all the way through because they have the Sherman Act and they say, “Well, we only had a misdemeanor.

    We want something stronger than that.”

    As a matter of fact, they started out with 1 to 99 years in it.

    So that after an increase in punishment, we say that therefore, it is consistent to say that the Attorney General suggested the conspiracy clause here in order to punish a conspiracy in this statute for 20 years, not two.

    That he didn’t put it in here in order to decrease the punishment which if — you see, if all on that — if he could indict someone under the Act for 20 years for conspiracy and that was the end of it, that would mean that the Attorney General meant that once a man has conspired, he can get 20 years.

    It doesn’t make any difference what happens after that.

    It doesn’t make any difference whether violence is used.

    It doesn’t make any difference whether the extortion actually works because he can’t get anymore punishment.

    Now we say — we can’t see that the Attorney General would say that.

    Earl Warren:

    But don’t you think there’s a lot of difference between perhaps just proving the conspiracy that a man intended to do something on the one hand without proving any — that they actually did anything and on the other hand, proving that they actually did commit extortion and robbery.

    Don’t you think that that would make a difference in punishment that might lead them to be interested in the substantive offenses as well as the — the conspiracy?

    Theodore George Gilinsky:

    Well I think — I agree.

    I think the consideration that he’s just talking about —

    Earl Warren:

    Why do you say then — why do you say then that wouldn’t no — they wouldn’t have to go any farther, it wouldn’t make any difference whether they — where they proved anything except there was a conspiracy?

    Theodore George Gilinsky:

    Well, I — I think what I’m trying to say is these are two different approaches to two different problems.

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    The problem of which I — I — as I understand your first posing is the question of whether there is — there could be or should be a difference in punishment between somebody who combines and somebody who extorts.

    Now I say, yes, there can very naturally be and this is a matter which the trial judge must consider when he decides how much punishment the man should have, but I do not believe that Congress intended and I certainly cannot envision the Attorney General recognizing that once people have conspired and therefore subject to 20 years, that anything they do after that, they can’t get anymore punishment for, which if there’s only a 20-year punishment here for conspiracy and that’s the end of the case, it doesn’t make any difference whether a man conspires and has violence attached to it, it doesn’t make any difference whether a man extorts.

    Now, I don’t read the statute that way and I don’t think that is a normal way that the Attorney General would read the statute.

    Earl Warren:

    Well put it — I beg your pardon.

    May I just finish this?

    The bill started out with a maximum of 99 years.

    Do you think that the Attorney General when he wrote this letter, merely saying that I have — we have added a new provision prohibiting conspiracy as well as a substantive act, do you think that he did that because he — he thought that 99 years was inadequate and that he have to have additional punishment in — for these people?

    Theodore George Gilinsky:

    Well, I think is this — I think you’ve known — I think you’ve not —

    Earl Warren:

    Submitted, what you’ve been arguing to us now, (Voice Overlap)

    Theodore George Gilinsky:

    I think the problem is this.

    You see I — he had to think that he was adding some punishment.

    He couldn’t think — let me make it clear, he could not think that all he was doing was creating a crime of conspiracy.

    He had to be adding punishment to conspiracy.

    The reason I say that is, supposed the bill had been passed without the conspiracy and with the 99 years.

    As I gather, even the petitioner would recognize that he could be indicted for conspiracy under the general statute and for the substantive offense under the Hobbs Act and if there was 99 years, there would be 99 years.

    But that doesn’t mean that the judge wouldn’t have the power or that Congress hadn’t granted the judge power to add the — whatever the penalty at this particular time is for general conspiracy clause because that has been on the books all during this period, and as I gather, petitioner doesn’t — doesn’t even argue that he couldn’t be indicted for both and punished for both.

    Earl Warren:

    But I don’t think counsel disagrees with you that counsel — Congress intended to punish conspiracy as well as the — the commission of the substantive offense.

    But I think where he does disagree with you is that Congress did not intend to pile one on top of the other and he — he cites the — all of these colloquies between the — the proponents and opponents of the — of the bill to show that they were treating more or less with group action there and that there was — there was never anything said throughout the entire debate about filing conspiracy upon the substantive offense that — and they treated it as though it was either-or.

    Now, are you going to address yourself to that?

    Theodore George Gilinsky:

    I — I don’t agree that they said either-or.

    That’s the only part of that, other than that, I agree with you perfectly.

    I don’t think you can get any — I’ve read this history a number of times.

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    It does not say that you can cumulate punishment.

    It does not say you cannot cumulate punishment.

    The history — if this is what we are looking for, then you can look for this in almost all the criminal statutes because this is not a problem which you usually find discussed.

    We say —

    Earl Warren:

    Why not?

    Why wouldn’t this be discussed when they are addressing themselves to the — to the severity of — of the offense?

    Theodore George Gilinsky:

    I think the —

    Earl Warren:

    I think you could — if — if you can punish a man not for 20 years but 40 years, why wouldn’t it be a normal thing for them to — to discuss in the Congress?

    Theodore George Gilinsky:

    I don’t think they had to in order to gain their point.

    Earl Warren:

    They didn’t have to do anything.

    They didn’t have to say anything, but the question is, is it then reasonable to think they would’ve discussed that with the people objecting to the maximum punishment of 20 years if — if it was stated there that the punishment could be not 20 but 40, do you not think that would have been at least reasonable subject for discussion in that?

    Theodore George Gilinsky:

    I think it could have been.

    And the reason I would suggest it was not, is because they were not concerned in terms of this 20 years.

    If you look at — this is not the 1934 Act.

    Now this is — they’ve already had this Act for a number of years.

    Earl Warren:

    Is it the 1922 Act.

    Theodore George Gilinsky:

    These people — these people are concerned with the militant labor man.

    They’re concerned with the problem posed by the Local 807 case.

    They are concern that the laboring man not be punished and for this, they don’t have to go 20 years, 10 years would have been enough to make the argument, they were concerned to point out that there was a difference between a misdemeanor and the Sherman Act and a felony in this Act and for that purpose, they didn’t have to say any number of years, because all they have to do was make that distinction and they have made their point.

    That was —

    Earl Warren:

    Well, that was the only — it all wasn’t directed to the Sherman Act, this discussion. That was one —

    Theodore George Gilinsky:

    This discussion was directed solely to the question that the Congress decided they did not like the interpretation this Court had placed on the Act in the Local 807 case.

    That was all the Hobbs Act had to do except for one thing and that was, they increased the punishment from the 1934 Act which was 10 years, they increased it to 20 years and that’s why they had this argument of 20 years.

    But the 10-year statute, now this is the important point that I think is — that is being missed by looking at this legislative history, the 10-year act, which was on the books in 1934, had exactly the same problem, the same connotation, the same situation that they arrived at when they started this business in 1942.

    Now, they didn’t talk about it at all in 1934.

    That doesn’t mean that they didn’t reduce it, they did, they reduced it, but they made it 10 years.

    Now the problem that they had at this time in the Hobbs Act was that they had increased the punishment from 10 years to 20 years.

    It wasn’t the question — it’s true they could have said 40, they could have said 60, but they could have said this in 1934, you see.

    They could have said 10, 20 or 30.

    The difference was not in that relationship.

    The difference was between 10 years in the 1934 Act and 20 years in this Act.

    And that’s why I think they emphasized 20 years.

    Now, I agree, you can read this anyway you wish.

    I think candidly, we have to admit that no one saw this type of problem insofar as saying so in so many words.

    John M. Harlan II:

    To get to that point, what your answer to your adversary’s argument that this is a difficult case where the rule — strict construction and the rule of lenity, sometimes cause you difficulty.

    Theodore George Gilinsky:

    Let me — let me make two points on this.

    Number one, I don’t think we have arrived with the problem of lenity because I don’t think, we have an ambiguity.

    Because if you —

    Felix Frankfurter:

    If you haven’t a what?

    Theodore George Gilinsky:

    An ambiguity.

    Because there’s a real gloss on this statute that — that as lawyers recognized it and as it had been interpreted before and after even the Hobbs Act was passed, in all the cases under the Hobbs Act, there’d been consistently conspiracy and substantive crimes and they’ve been punished.

    But important for Congress, if Congress really intended to do what petitioner is saying, if they had intended that, I think it would have been natural for Congress to have said so explicitly, because then Congress is making a change from the customary pattern and there’s a prototype to these two.

    Wisconsin has done this and we cite this in our brief.

    They have a statute which says that you cannot be punished for both conspiracy and substance.

    I think this is — if they thought of this —

    John M. Harlan II:

    Assume — assume that when everything is said and done, one comes to the conclusion fairly that you can’t make head or tail out of what Congress did intend to do, then why do you say, prevents the application in the rule that your adversary is relying on.

    Theodore George Gilinsky:

    Well, of course you do presuppose that —

    John M. Harlan II:

    No, but I was prompted to it by your last colloquy with the Chief Justice.

    Theodore George Gilinsky:

    Well, I don’t —

    John M. Harlan II:

    When you said that you couldn’t — frankly, yes, I think you said you couldn’t — the Congress didn’t advert to this problem.

    Theodore George Gilinsky:

    Well I think the fact to have advertent to it, —

    Earl Warren:

    Don’t make that in a tale was the — whether words were used.

    Theodore George Gilinsky:

    Well, if I did, I want to change this —

    Earl Warren:

    You make every tale out it.

    Theodore George Gilinsky:

    I think Congress did not advert to it.

    That does not mean that I say that Congress intended one way or the other.

    I think Congress, if they intended to talk about this problem, would have talked about it in terms that were then natural for lawyers for the circuit — for the Attorney General and he would have considered them as separate.

    I don’t think that —

    Felix Frankfurter:

    You could — you could say that — you could say safely say I think — you could safely say that in no discussion of penal legislation where they have an outlaw in both the conspiracy on the substantive offense, that Congress explicitly deal with the problem of a two punishments and for the reason that you have given —

    Theodore George Gilinsky:

    I know.

    Felix Frankfurter:

    Because they are such separate things that it wasn’t appropriately discussed there.

    Theodore George Gilinsky:

    I know.

    Felix Frankfurter:

    But I think in that connection, I — I think you’ve discussed the conspiracy thing if I may say so rather obstructively, they are confusing.

    As I understand the situation is this, when the Attorney General Cummings intervened that there was this, from my point of view, outrageous 99 years penalty provisions, but merely for substantive offenses.

    Felix Frankfurter:

    And as you say, conspiracy could have been pursued under the old 5440, the general conspiracy statute, which has a sentence of two years.

    But barring that, there was nothing to deal with the combination of this racketeering in case some members withdrew from the combination.

    They couldn’t be even be punished for attempt because very often, an agreement to — to pull a job somewhere wouldn’t go near enough to constitute attempt.

    So that there was nothing to deal with people who did go far enough to constitute a conspiracy, but some of them had a change of heart and withdrew.

    And therefore, a conspiracy addition took care of the people who had gone far enough to enable the prosecution to establish a — a conspiracy, but some of whom had withdrawn and therefore, you would deal in the same way with people, where a change of heart and thought better of it and the people who went ahead and executed with violence, that which was so severely condemned by Chief Justice Stone in his dissent in 287 which led the think to the severity.

    That’s the history of this legislation.

    Theodore George Gilinsky:

    I — I won’t agree with this problem.

    I — I think the word of —

    Earl Warren:

    (Inaudible)

    But that wasn’t the way you presented it.

    Theodore George Gilinsky:

    No, I recognize that.

    Felix Frankfurter:

    Well, I don’t think we’re bound by the answers of argument on the part of Congressmen on either side.

    Theodore George Gilinsky:

    — may I say a word on the lenity problem before closing.

    As I say, we — we think the problem could have been answered if Congress had intended to do this.

    They could have said so and that would have been the natural thing for them to do in — in view of the long history this, was to say, not — you cannot punish for both.

    We think that would have been the more natural approach.

    We do not believe there’s a basis for lenity in this case.

    The history shows that an increase in severity all the way through, so that those cases which deal with lenity are not applicable.

    Such cases that have been cited are the Universal C.I.T., this is one act but even in universal C.I.T., this Court recognized three offenses as separate sections of that Act.

    This is not like Bell whether — which was the (Inaudible) case, because here, there is a controlling gloss on the statute.

    This is not like Heflin or Ladner, after all which, we have to remember in both Heflin and Ladner, there were conspiracies that were separate and no one even bothered to raise that problem or urge it when it came to this Court.

    This is not a question of what Congress could have done if they had thought about the problem because we feel it’s the other way that if they had said, they didn’t want this, which would have reversed the entire trend, that’s what they should have said.

    In other words if Congress was going to say anything, they have to say it the other way rather than say, “We want to have cumulative punishment because all the statutes always have cumulative punishments.”

    In other words, we think there’s a particular force in this statute that extortion can be committed alone and that’s the crime.

    That a conspiracy can be committed without the extortion, that there are separate, they have ingredients that are separate and they’ve always been so considered.

    And they’ve been transposed back and forth, in and out of statutes.

    When we revised the code in — in 1948, they took out conspiracies from a lot of statute, but they didn’t feel that there was any change in punishment and they said there wasn’t.

    So they treat these conspiracy clauses all the same, it doesn’t make any difference whether they’re in 371 which is the present section or whether they’re in some particular — except for two things punishment or if it’s the only crime that’s involved.

    For these reasons, we feel the judgment below should be affirmed.

    Earl Warren:

    Mr. Glazer.

    Sidney M. Glazer:

    Mr. Chief Justice and may it please the Court.

    Since the main thrust of the Government’s argument has been directed at this question that Congress was following a long doctrine in conspiracy substantive offense cases, I think the first thing I should direct my attention to is this long doctrine and it’s this.

    This long doctrine which Mr. Gilinsky refers to in all of the cases with the possible exception of this court-martial case did the issue of cumulative sentences arise?

    All these cases merely held that a conspiracy and a substantive offense are separate and distinct crimes.

    In this respect, let me start out with the Pinkerton case and the American Tobacco case, which were decided in June 1946, subsequent to the time the Hobbs Act was passed the House and prior to the final passage in the Senate.

    And in this connection, it in both Pinkerton and — and the American Tobacco Company case, the issue was that this Court had decided, Braverman versus United States, with — which held the issue in the Braverman case was, suppose you have a conspiracy, one conspiracy to commit various substantive offenses, what sort of punishment maybe imposed?

    And the Court in the Braverman case, held that the — you only could punish the conspiracy and the maximum punishment was the punishment authorized by the conspiracy section — statute.

    Then in both the Pinkerton and the American Tobacco case, they argued the converse.

    They said, here, we have a whole group of substantive offenses which were committed pursuant to one conspiracy.

    Therefore, they argued, there is a merger and therefore, we should not be punished more than the punishment for the one conspiracy.

    And this Court held no, that the — that there could be punishment for each of the substantive offenses.

    Now also, because I think it has some bearing on this, in the Pinkerton case, the Court decided there was a conflict of circuits that a — a conspirator who did not participate in the substantive offense, might be guilty of the substantive offense.

    Prior to that time, some circuits have said yes and some no.

    Now, the other cases relative to the separateness of the conspiracy and the substantive offense were in general cases which said that a conspiracy might be subject to a general statute or limitations and the substantive offense to a special statute of limitation that a conspiracy wasn’t petty offense, that a — a conspiracy could be punished more severely than the substantive offense or that punishment that Congress had the power, therefore, there was no double jeopardy to punish separately, conspiracy and the substantive offense.

    That the punishment, again, with the punishment for conspiracy would be greater than a substantive offense that a clear — that liability for conspiracy is not taken away by its excess and a conspiracy may have a different statute of limitation.

    And none of these cases except for this Carter case, which was a basically, a double jeopardy case did they state that cumulative punishment might be imposed.

    Now, this Carter versus McClaughry was a court-martial case.

    There were four charges.

    Under two of the charges, there was a — which arose under one Article of war, the — they — this Article of War had been based on a statute which provided a fine and a punishment for conspiring and also for making false claims.

    When — when the Article of War was enacted, the words became fine or punishment and Carter paid the fine and he contended that he was entitled to be released because he had served — that he had complied with the sentence and he couldn’t receive both a fine or a punishment.

    The Court first said that when the statute used the word — oh, when the Article of War used the word “or” it meant and. But then they said, in any event there’s no double jeopardy.

    Furthermore, as in old court-martial cases, Carter received the gross sentence and there was a — a charge under — charge for in this particular case, in which he was sentenced for embezzlement and the entire sentence could have been sustained on the embezzlement charge.

    Now, in connection with this problem of merger — now, we don’t say just because a — there is a conspiracy and a substantive offense, that they automatically merge in sort of put to — blinders on the Court and say, well the Court can’t consider the legislative history.

    We say rather that it’s necessary for the Court to consider the purpose and intent of the legislation and if the purpose and intent is to punish as a unit, then no cumulative punishment can be imposed.

    Now, the real — I mean, just I go back at second, in connection with this problem of whether that — of this long standing doctrine that the Government argues, we set forth a Committee Report in 1944, this is on page 25 of our appendix.

    This is a Committee Report in which the Congress in 1944 had the problem that in counterfeiting cases, the ring leaders were only being sentenced to two years for the — for conspiring to violate the counterfeiting laws and the participants were being sentenced for sometimes as much as the maximum which was 15 years, for committing a substantive offense.

    So the result, the — the Congress enacted a law in which they made a conspiracy to violate the counterfeit laws subject to the same penalty, 15 years as the substantive offense.

    Nowhere is there an indication that what they were doing was not making a 15-year penalty, but making a 30-year penalty.

    And we’re just — we put this in for an illustration to show that this doctrine wasn’t — wasn’t well-established like Mr. Gilinsky states it is. Now, when we look to the purpose and intent of this legislation and that’s what — what I think the main problem is in any legislation, when we start out, we see that initially, there was an investigation and — into racketeering and the — there were hearings held.

    There was testimony given in which an Attorney General and several — and another professor defined racketeering and they defined that crime, as a crime committed by organized groups. And then eventually, Mr. Rice of the Attorney General’s Office, set forth, draft — and made the first draft of the measure and in the first draft of the measure, there was no conspiracy clause and he specifically stated the reason while that — while the Act was directed primarily against groups — group action, that the reason he excluded the combination was to ease the proof.

    Sidney M. Glazer:

    And then subsequently, when labor objected to the bill, they — it was, Mr. Cummings, drafted it a second time and in that draft which also had this 99-year penalty, the — the conspiracy section was added.

    But the — the whole purpose of the — the legislation, was to — to hit at these groups and — and to prevent them from interfering with interstate commerce. And then also when — when the legislation, the 1946 Act was enacted, its history also was directed at practices against groups.

    Local 807 case was a conspiracy case.

    The entire discussion of the — of — of Congress in the — in the — based on the 1946 Act, was directed at this group combined action.

    Now, we say that this is the controlling gloss.

    The controlling gloss is that Congress wished to cover these groups and to punish the groups and that the only reason for adding this conspiracy section and for adding these various alternative substantive provisions which overlap, was so that everybody who participated in any aspect of the crime would be punished.

    In other words, Congress was interested in easing the burning — burden of proof.

    They — it was not interested in piling punishment upon punishment.

    Certainly, we don’t — we do not think that this statute — we think that the available materials indicate that Congress did not intend cumulative punishment.

    We think that if — if anybody in the 1942 and 1943 debates had thought that Congress intended cumulative punishment, they would have indicated and argued that the bill so provided.

    When you consider that factor that Congress’ main concern was with combination and wasn’t primary combinations that interfered with interstate commerce, when you consider that factor, we think that the legislative history when considering with that purpose, indicates that no consecutive punishment was intended.

    In any event, that there’s no reason for not — for treating this separate mistake from any other case where there are two substantive offenses involved, the same policy considerations are involved for applying the rule of — lenity.

    The — the fact that — that a combination might be a greater evil, it doesn’t have any additional weight in this sentence, in this legislation, because the combination itself was the evil at which the substantive offense was directed and the only reason that combination was not required as an element was to ease the proof and to make all violators in any degree, and all inchoate crimes punishable and for that reason, we think the court below erred in imposing cumulative punishments.