Carbo v. United States

PETITIONER:Carbo
RESPONDENT:United States
LOCATION:Trailways Bus Terminal

DOCKET NO.: 72
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 364 US 611 (1961)
ARGUED: Nov 16, 1960
DECIDED: Jan 09, 1961

Facts of the case

Question

  • Oral Argument – November 16, 1960 (Part 1)
  • Audio Transcription for Oral Argument – November 16, 1960 (Part 1) in Carbo v. United States

    Audio Transcription for Oral Argument – November 16, 1960 (Part 2) in Carbo v. United States

    A. L. Wirin:

    May it please the Court.

    I was beginning to explore for and with the Court the meaning of the phrase “within their respective jurisdictions” which is in the present habeas corpus statute as it was codified in 1948.

    And I’m about to make the argument that the debates in Congress though I realize how — how cut race inferences from these debates may often be do seem to us at least to indicate that the phrase within their respective jurisdictions means within territorial jurisdictions.

    The phrase, which appears in the 1948 revision, first appeared on the statutes — in the statutes of the United States in 1867 and that appears on the second side, second sheet and first column again, actually our printer wasn’t too active.

    This first column continued there, but be that as it may, Your Honors will note as the second item there on the second ply sheet 14 statute 385, 1867 and the phrase that appears has an amendment to the habeas corpus statute which originally was adopted in 1789 which we have referred to in the bottom of that column, it appears in the 1867 statute; now a word as to our understanding of what happened in 1867.

    Congress was considering an amendment to the habeas corpus statue of 1789 to add a provision that courts may inquire into detention and to determine whether or not the detention violated the Constitution or the laws of United States, a provision which is in Subsection 3 of the present codification that came into the statue, into the law, into the habeas corpus statute in 1867, but that’s not the point of my argument.

    While Congress was considering making some amendment to the habeas corpus statute, as we set forth in our — the same reply brief on page 11, Senator Johnson of Maryland, page 11 at the bottom page in the footnote and then page 12 also.

    Senator Johnson, one of the senators, objected to the bill as then drafted on the ground that it would commit a judge of a District Court to have ordered brought before him a person from anywhere in the United States or substantially to that effect.

    A judge of the United States Court in one part of the union would be authorized to issue a writ of habeas corpus to bring before him a person confined in another and remote part of the union.

    And Senator Trumbull, who was in-charge of the bill, then proposed an amendment to the bill as then drafted, the amendment consisting of the phrase “within their respective jurisdictions” and asked the objecting senator whether or not that amendment or that provision wouldn’t satisfy the objecting senator, because said Senator Trumbull, it was never intended by the amendment or the statute as then drafted to as we view it, and I’m just paraphrasing, to enlarge the territorial jurisdiction of the District Court.

    And if there was any doubt about it, if there was any question about it, the phrase “within their respective jurisdictions” would settle that doubt, because it would be clear that there was no intent on the part of the Congress in 1867 to extend or enlarge or amend a jurisdiction which had been narrowly confined territorially up to that time.

    And so that phrase, which was adopted in 1867, have found its — found itself repeated when the revised statues where adopted in 1875, found itself repeated when the habeas corpus statute was again recodified in the 1940 edition and finds itself repeated in the present codification.

    And as a matter of fact, Your Honors, the petitioner’s position is strengthened considerably in this claim, because as to the inferences or the statements which I have made as to the intent of Congress at that time, there is no dispute between the Government and the petitioner.

    The Government concedes that the phrase “within their respective jurisdiction” means within their respective territorial jurisdiction and so the question is, where is the difference in the ultimate position between the petitioner and the Government?

    The Government says that the phrase “within their respective jurisdictions” conceded by the Government to mean within their respective territorial jurisdiction applies only and narrows or limits the authority of the Court “territorially” only with respect to what the Government calls and what was known as common law as the petition for writ ad subjiciendum.

    And says the Government, the territorial limitation concededly applicable to that writ, does not apply to what the Government says are auxiliary writs which are available to the courts in order to carry out jurisdiction which they have and says the Government the writ ad prosequendum and the writ to testify known in common law is ad testificandum, these are auxiliary writs and hence the limitation admitted as to subjiciendum doesn’t apply to auxiliary writs.

    Now we find it difficult.

    We do not accept that – that distinction.

    Potter Stewart:

    When did — when did the latter two kinds of writs come into the statute, are you going to tell us?

    A. L. Wirin:

    Yes, we’ll head there.

    The writ by which a court ordered a person to be brought to that court to testify stems from the first Judiciary Act in 1789.

    Now this will make a second.

    Now if Your Honors will look at our — our characterization of the — of the habeas corpus statue of 1789, which is at the — at the bottom of the second sheet, first column, Your Honors will note that that Act which purported to confer jurisdiction upon judges and the courts, then went on to contain a proviso and the proviso was in two parts, the second of which says or are necessary to be brought into Court to testify.

    Now this is 1789 language and it means writ ad testificandum if the — if anyone wants to use the — the common law nomenclature.

    Now then we say, I think that’s what we’re on to Justice Stewart’s question that when Congress made it as we believe reasonably clear or I say, crystal clear but there’s no point of overstating or anything made it reasonably clear when it used the phrase “within their respective jurisdictions” and was talking about territorial jurisdiction, at that time, the authority to issue writs ad testificandum was in the statute as of 1789.

    And we find — we find nothing in the legislative history of the habeas corpus statue from 1789 to 1948, let alone in the legislative history in 1867 when this phrase was expressly inserted into the statue that anyone in Congress intended let alone Senator Trumbull who was in-charge of the amendment intended that the phrase “within their respective jurisdictions” should not apply to the authority to bring a witness into court to testify, but should apply only to the Great Writ, the writ whereby a court inquired as to the authority to obtain a person.

    Moreover we think Your Honors that to read the statute as if not to look at the statute as it now reads and that’s in the top of our page and to see the various sections and subsections and to see their interrelationship and to note that Section A is the Section which confers authority, but which limits authority territorially within their respective jurisdictions.

    Then look at B which is not important, because that simply provides that a justice of the Supreme Court or judge of the Circuit Court may transfer a case to a District Court.

    Then if you look at C, it seems to us you can’t read C in terms of English construction, in terms of fairness or in terms of common sense except to read it as a clause which is a proviso clause, and that’s what — that’s what it was called as a matter of fact in 1789 and that all of the subsections in C of which the authority to bring a person for trial is — is the last of subsection 5, all of the subsections qualify or modify or is it were to limit the authority originally conferred in subsection A.

    And the distinction between subjiciendum and — and auxiliary writ, we think must fall because if Your Honors will look at the subsections in C, all of the subsections except 5 deal with subjiciendum, deal with the authority of a court to inquire as to the nature of the detention.

    A. L. Wirin:

    So we think that the reading which the Government gives to the statute as currently read emasculates the statute and would give to some divisions by one meaning extraterritorial conceding as I think the Government has and will that every other portion of the statute including the various subdivisions one to four are limited territorially so far as the District Court is concerned.

    Potter Stewart:

    Mr. Wirin —

    A. L. Wirin:

    Yes indeed.

    Felix Frankfurter:

    Now go on.

    Potter Stewart:

    Just to be sure that I understand what you’re saying —

    A. L. Wirin:

    Yes.

    Potter Stewart:

    — so far as the history goes.

    In the 1789 statue, there was provided a writ of habeas corpus ad testificandum —

    A. L. Wirin:

    That’s true.

    Potter Stewart:

    But none ad prosequendum or whatever —

    A. L. Wirin:

    That is right.

    Potter Stewart:

    So that one was in the statute for so eighty years until 1867, but then there was added this language about their respective jurisdiction.

    A. L. Wirin:

    That’s correct.

    Potter Stewart:

    Now did the 1867 statute, what kinds of writs of habeas corpus did (Inaudible)

    A. L. Wirin:

    It — it — the writ — the writ in first place, if Your Honor is thinking of or considering the problem of prosequendum for trial, I’ll leave it — deal with an hour or deal with it a moment later, but in any event to answer Your Honor’s question and state Your Honor that it just — it happens and we don’t know the answer, government’s brief doesn’t afford the answer that the phrase for trial appears in the habeas corpus statute for the first time in the revision in 1948, and why nothing — nothing beat until then so far that a statute is concerned and so far as the habeas corpus statute is concerned.

    And of course our argument is — I’m going to make it a little bit later this would make it right now that there can be no distinction between ad testificandum and ad prosequendum at least insofar as the Government’s claim is concerned about auxiliary writs.

    They both are auxiliary writs to afford the Court which has general jurisdiction of the subject matter authority to bring a person to the Court.

    Ad testificandum is to testify, ad prosequendum to be tried.

    Potter Stewart:

    Now the writs to bring him to the Court to testify came in in 1789 and hasn’t been a part of the law, the statutory law —

    A. L. Wirin:

    And continuously ever since —

    Felix Frankfurter:

    In a separate section.

    A. L. Wirin:

    Well —

    Felix Frankfurter:

    Started out together but it became a separate section.

    A. L. Wirin:

    Well —

    Felix Frankfurter:

    Isn’t that true?

    A. L. Wirin:

    It’s true only in this sense, Your Honor.

    It standout — the writs started out in one section in 1789.

    In 1867, there was an amendment and then when the revised statutes were adapted, various provisions were put in different sections but they all report in one chapter of the title habeas corpus.

    Felix Frankfurter:

    That’s what I’m saying.

    That’s a different section.

    A. L. Wirin:

    That true.

    And also, Your Honor, when the law — when the habeas corpus statute appeared in the United States Code of 1940, there are also different sections.

    But now in the 1948 what was the old law has become the — the present law and matters which were segregated in different sections in the revised statutes.

    And in the Judicial Code in the habeas corpus statute of 1940, now find themselves all in one section namely, Section 224-1.

    So what Congress originally adapted in one place and what Congress then scrambled into numerous places have been rescrambled in this one consolidated form which we think is an integrated statute, one clause necessarily to be interpreted in relationship to the meaning of the other clauses.

    Felix Frankfurter:

    You answered Justice Stewart that the limitation within their respective jurisdiction didn’t come into the legislation until 67.

    It is fair to add that from the very beginning, there was an implication that District Courts act territorially.

    A. L. Wirin:

    Well, I will say Your Honor that I will go —

    Felix Frankfurter:

    Just adding that —

    A. L. Wirin:

    –I will go further.

    Felix Frankfurter:

    — to say the interest that to give — to give District Court power to execute — give District Court jurisdiction through the narrow, technical sentence empowered through action, the legal power to action was accepted in very, very few instances in 1789 restricted to the geography within which the case arose.

    A. L. Wirin:

    That is correct.

    Let me if I may —

    Felix Frankfurter:

    So 67 nearly spoke out what was inherent.

    A. L. Wirin:

    But with — I think precise definitiveness because the matter was raised.

    Felix Frankfurter:

    And (Inaudible)

    A. L. Wirin:

    Well Your Honor Let me just (Inaudible)

    Felix Frankfurter:

    Go on.

    A. L. Wirin:

    I’m just going to say that this Court on a number of occasions in Aaron versus Clark and in Georgia said that absent the conferring of special authority upon a District Court, its authority was limited to its territory.

    Felix Frankfurter:

    It’s decided, that’s another case –

    A. L. Wirin:

    I’m sure.

    I don’t think so.

    Felix Frankfurter:

    In the Labor Board case.

    A. L. Wirin:

    Yes and I didn’t know that.

    Felix Frankfurter:

    But going on your live suggestion that when ought not to overstate the argument, I suggested when you suggested that despite of giving a different meaning and that as applies to one, two, three, four, the statute would be emasculated, you needless, you are using a needless exception of phrase?

    A. L. Wirin:

    Well I might think that so.

    Felix Frankfurter:

    And for this reason —

    A. L. Wirin:

    Yes.

    Felix Frankfurter:

    That one, two, three, four, that functionally one, two, three, four are different from what 5 is functionally.

    They are all make inquiries into restrain and therefore you’re almost in the nature of reason that the inquiry must be made by the judge within the territory where the fellow is incarcerated.

    Felix Frankfurter:

    Five is a totally different thing.

    I’m not saying the result is different.

    I’m saying the function of the first four and it’s a common function and five is not that function but a different function.

    That while it would be almost senseless or — or have all sorts of inherent objections to say that the judge in California shall find out why a man is detained in New York while a judge in Massachusetts inquire of allegedly unlawful detention in Georgia, it doesn’t make such none sense to say that were a trial is being held — the territory within which a trial is held shall have power to get people of that court, somebody who is testified and still more somebody who is the defendant in the case.

    So for a judge it would be no emasculation to make differentiation illegal results from a differentiation and function.

    A. L. Wirin:

    Now Your Honor, may I say these things?

    First, I’m sure that the word emasculate was — was too strong and I shall never say that again.

    But secondly —

    Felix Frankfurter:

    I was simply delighted by attitude of restrain, that’s all.

    A. L. Wirin:

    Well I — I’m improving, a kind of (Inaudible) Your Honor.

    Now, may I go on and I would suddenly agree that there is that functional distinction and that if Congress wants to recognize that functional distinction or — you do recognize or not recognize as a matter for Congress.

    And if Congress wants to say that with respect to writs which perform the function which are subdivisions one to four mainly to determine the validity and the legality of detention that shall be confined territorially but as to these other writs, the writs which are set forth in five, they are so different from the first kind of writ we’re talking about that there should be extraterritorial jurisdiction.

    I think Congress can’t say it.

    Felix Frankfurter:

    Well of course we address to that.

    I merely suggest in view of the arguments which you listed this morning that this Court sometimes can fail to draw sunshine out of congressional cloud.

    A. L. Wirin:

    Yes.

    But I think Your Honor, if I may say so, that with respect to the congressional clouds in 1867, there is a silver lining and it’s reasonably clear because the Congress —

    Felix Frankfurter:

    But this problem wasn’t before it in 67.

    A. L. Wirin:

    This may I — may I suggest —

    Felix Frankfurter:

    For me, there are no clouds in 67 because in 67, the habeas corpus provision dealt entirely with inquiry into unlawfully intention and naturally you want a local man to inquire into it.

    A. L. Wirin:

    With Your Honor, excuse me, if I’d say to Your Honor that the statute in 1800 — in 1789 did more than authorize the course to inquire the legality of detention.

    It authorized the issuance of the writ ad testificandum.

    Felix Frankfurter:

    But it didn’t have the 1948 edition, namely, for trial.

    A. L. Wirin:

    That’s right.

    Now, what our argument then is this in short.

    Our argument is that when Congress adapted the phrase “within their respective jurisdictions” in 1867, it intended that no court shall issue a writ ad testificandum beyond its territorial jurisdiction.

    Felix Frankfurter:

    Beside, we never — that question was never passed on certainly by this Court whether the ad testificandum was also restricted locally.

    Have we passed down that?

    A. L. Wirin:

    Oh, no.

    Felix Frankfurter:

    All right.

    Felix Frankfurter:

    So you’re just arguing from the statutory legislation.

    A. L. Wirin:

    Yes.

    And I’m making this further argument for what it is worth though perhaps it isn’t the strongest argument and that is that when you look at the statute as it is presently codified in 2241, and you look at A and C and you look at the various subdivisions in C, and note we think it is arguable that Congress intended by drafting or redrafting, the section as it did with the various subdivisions placing five as a subdivision to C on a par with, on a parity with the various other subdivisions and leaving the phrase “within their respective jurisdictions” in the first section which confers jurisdiction, we think it is arguable that Congress at least didn’t intend to change their position which we think it took with reasonable clarity in 1867 and that is that habeas corpus, no matter the variant of the writ whether it’s subjiciendum or testificandum are all to be issued by courts within — within their territory and the territorial limit.

    Felix Frankfurter:

    I mean is just as – is just as easily arguable there if a phrase has — if the use to which a writ is to be put as different function, the same phrase maybe distributively used to fit the difference in function.

    A. L. Wirin:

    I would concede it and move on —

    Felix Frankfurter:

    I’m not saying that that happens — that’s my conclusion but I’m putting you to difficulties of —

    A. L. Wirin:

    Certainly —

    Felix Frankfurter:

    — spelling out where we have no weighting, indeed no so far as I know no legislative materials in the incision of the addition of court trial in 1948 and the revised notes are as often the revised notes are blind.

    A. L. Wirin:

    I — I appreciate the problems that are troublesome and for — for this Court and I — I leave — I leave that problem with this Court and move on to another phase of my argument and then I want to leave time for reply argument to my colleague.

    The Government raises another question that I think I should advert to though I hope to do so quiet greatly — and that is that the petitioner has no standing to challenge the order made because the Government after all, it is none of his business or his concern of what sovereign shall try.

    In any event says the Government, the petitioner is in no position to carve for himself immunity from a federal prosecution merely because he is serving a sentence in the state court.

    Now with respect to the matter of standing our position quickly is this.

    If we are right in our central contention and that is if the District Court had no jurisdiction and it was complete excess of jurisdiction to issue a — this kind of a process beyond the territorial limits of the Court and indeed in — in Aaron versus Clark where there was a problem somewhat comparable to this in which the Government for that case that it was willing — willing to concede or to wave the point of jurisdiction this Court felt it couldn’t accept — accept the waiver.

    If we are right in our jurisdictional argument in pendence then while the petitioner doesn’t have standing in the conventional sense, nonetheless we think he is in a position at least to be able to suggest to the Court and to state to the Court that a District Court had exceeded its jurisdiction and this Court in its broad supervisory authority over the administration of criminal justice in the Federal District Courts, we think it would be appropriate for this Court on a matter which needs adjudication because both the Government and the — and defendants, I think, need to know whether this writ is or is not available extraterritorially.

    We think it would be appropriate, though I know this is quite entirely a matter for Your Honors to decide, for Your Honors to adjudicate that issue in this case.

    Felix Frankfurter:

    But Mr. Wirin, if I was still a professor interested in the correct administration of federal jurisdiction could I make a representation to this Court that the Ninth Circuit should be overruled?

    A. L. Wirin:

    I think not because you would be kind of — as a professor complete outsider but I mean in — in that — in that context but here is —

    Felix Frankfurter:

    He had no standing that he is an outsider.

    A. L. Wirin:

    Yes.

    All I’m saying is the petitioner is sufficiently affected, sufficiently affected by the result though he really can’t complain of it, so as to call to the attention of the District Court and Circuit Court in this Court the lack of jurisdiction of the District Court.

    Now moreover there is this further to be said.

    The matter of the standing of the petitioner to object to the writ was not raised by the Government in the trial court at all.

    It was raised in the Circuit Court on the motion to dismiss the appeal and then the Government stipulated that the Circuit Court might decide the matter on the merits which that Court did.

    And we argue that it may very well be that the Government waived the point by stipulating that the matter be decided on the merits.

    In any event it is our position that since the matter of standing was not determined by the Court of Appeals nor by the District Court, if Your Honors reject our position that you made that the matter is jurisdictional and that we have, I don’t want to use the word standing because it does suggest direct — a position to object, but if Your Honors content to accept our view, at least the petitioner is in a position to call the manner to the attention of the Court, since this matter was not passed upon either by the District Court or the Circuit Court, we would respectfully suggest in that event, if Your Honors feel is not a jurisdictional matter, that the case be remanded to the District Court or — or the Circuit Court with such judgment or wisdom that they made bring it upon this question.

    Felix Frankfurter:

    Should we add that it’s too difficult for us to decide it?

    A. L. Wirin:

    No but I’ve always thought that Your Honors —

    Felix Frankfurter:

    Well now this part of whether we (Inaudible)

    A. L. Wirin:

    Oh I’m sure it’s not difficult — too difficult to decide to this Court.

    Charles E. Whittaker:

    (Inaudible)

    A. L. Wirin:

    Well I — I could say further I say that if what that — one who is affected by an order of the Court is in a position to assert that the Court has made an order which is beyond its jurisdiction.

    Hugo L. Black:

    Is there anybody more affected by it than he is?

    A. L. Wirin:

    No one.

    In other words, this matter could never be raised if one who is ordered brought by a process which he claims exceeds the authority of the Court cannot question it.

    Why doesn’t he (Inaudible)

    A. L. Wirin:

    Well, I was trying to read what Mr. Justice Frankfurter and his views on — on standing.

    Felix Frankfurter:

    (Inaudible)

    Hugo L. Black:

    Well are you not going to argue on the merits that this man has the most interested man that he can be in it and that he has a right to raise some question as to what they do with him.

    Suppose they deport him without a hearing, and the person want — the custodial want to deport him, could they do that?

    Would he have any standing then to objective to it?

    A. L. Wirin:

    I’m sure he would have standing in such a circumstance.

    Hugo L. Black:

    So why — why do you shy away from arguing this on the merits, I don’t know?

    A. L. Wirin:

    In a matter of standing?

    Hugo L. Black:

    Yes.

    The man is heard by that he’s the man that’s the most affected by.

    A. L. Wirin:

    Well I plead guilty to understatement having made an overstatement at the beginning of my argument.[Laughter]

    Earl Warren:

    Mr. Wirin —

    A. L. Wirin:

    Yes Your Honor.

    Earl Warren:

    You touched very likely on the all writs section, but — but you didn’t apply it to defense of this case.

    Would you — would you mind just taking a moment to that?

    A. L. Wirin:

    Now the Government’s position as we understand it is posited both upon the habeas corpus statute which I have discussed and then the argument goes further that even if there isn’t any authority extraterritorially in the habeas corpus statute, there is in the all writs statute of 1651 and incidentally, we call the Court’s attention that the all writs statute is also a nation statute.

    Indeed it was adopted in 1789 and it’s part of the Judiciary Act which had the original habeas corpus statute, but let’s — let me move on.

    That statute, the all writs statute and we’ve given Your Honors the legislative history of that in the first – in the first flyleaf and I won’t take the time to talk about the legislative history, in any event, that statute does authorize the issuance of all writs which are necessary or appropriate — or appropriate in aid of the respective jurisdictions of the various courts.

    Now we say that statute means what it says and not more.

    We say that where there is no writ otherwise available to a — a court in juris — in a jurisdiction, the all writs statute maybe looked to, but in any event, the all writs statute merely admits or allows courts to issue writs in aid of their jurisdiction and not to augment or enlarge their jurisdiction, and where Congress has made it clear as we think it has in the habeas corpus statute that the jurisdiction of a District Court is territorial and limited to the territory we say that the all writs statute was not intended to and cannot be used for the purpose of conferring a new and different and larger jurisdiction, in this case an extraterritorial jurisdiction, which said jurisdiction Congress definitively negated in — in 1867.

    Earl Warren:

    Well could it — could it be said that the District Court had already acquired jurisdiction over this man?

    A. L. Wirin:

    Well, you want to ask, could it be said?

    It is said by the Government and our — and our position is this that there are two kinds of jurisdictions and Congress knows about two kinds of jurisdictions.

    One is the kind of general jurisdiction conferred upon a court in a — in a case as for instance defining a certain offense and conferring jurisdiction upon a District Court to try persons charged with that offense.

    Then there is another kind of jurisdiction which is territorial jurisdiction and while we concede, of course, that the District Court had general jurisdiction in the sense of jurisdiction to try the case, jurisdiction to try this defendant if he will within the territorial jurisdiction.

    William J. Brennan, Jr.:

    (Inaudible)

    A. L. Wirin:

    Yes.

    He was —

    William J. Brennan, Jr.:

    (Inaudible)

    A. L. Wirin:

    He was actually — he actually appeared under a writ of habeas corpus ad prosequendum issued against him when he was without counsel and he pleaded to — to the cause and then he was permitted to and he did — he didn’t leave the jurisdiction.

    William J. Brennan, Jr.:

    But there was a promise in there.

    A. L. Wirin:

    I don’t — I don’t recall that it was a promise to return.

    I think he asked to get — for the right to get counsel in the Court let him leave in order to get counsel in order to continue with his service.

    Now it is our position that if the Court lacked jurisdiction beyond its territory to issue this writ it lacked it in this case.

    It —

    William J. Brennan, Jr.:

    Even though it’s no voluntary submission.

    A. L. Wirin:

    Well I would certainly say it was no voluntary submission.

    He had not had view — to be able the help of counsel, the advice of counsel.

    He did not appear by counsel.

    He had been brought under orders of the District Court and he appeared there and then was allowed to leave and then when he did secure counsel, they looked into this matter and decided they felt the court had no extraterritorial jurisdiction.

    Potter Stewart:

    Mr. Warren before you sit down let me tell you something to something which is on my mind that you and your colleagues can possibly answer about this.

    This — this case happens to involve a criminal trial.

    We also have on the statute books Title 28 of the Code Section 2255.

    This title is Federal Convict to make a collateral attack on this sentence deserving.

    That Section also provides for a hearing.

    This Court has said many times that if certain allegations were made, a hearing was required.

    Now, that hearing often involves by the very nature of this kind of a proceeding bringing people to the court where the man was sentenced, bringing people from penitentiaries all over the country against confederates, accomplices and the alleged eye witnesses, alleged people who have heard this and that other thing in jail and so on.

    And I think I’m right in saying that the District Courts have not felt any embarrassment in issuing writs or habeas corpus ad testificandum to Atlanta or Elevenworth or Alcatraz or Louisburg, or so on to bring witnesses for this kind of a 2255 —

    A. L. Wirin:

    But to act in the like of the hearing.

    Potter Stewart:

    And as I think I’m right — I think I’m right in saying that there’s nothing in Section 2255 which specifically gives the Court this kind of power at all.

    Perhaps implicitly it does give the power to bring — to bring the defendant himself, the petitioner himself, but I’m not talking about the witnesses necessary to have the kind of a hearing that this Court requires under that Section.

    A. L. Wirin:

    Well, let me say a word about that even though my colleague was going to deal with it and it’s this.

    This Court considered Section 2255 in a — in a more or less recent decision in Hayman against United States.

    We read Section 2255 and Hayman versus United States which did recognize extraterritorial jurisdiction or authority of the Court to order the production of a prisoner wherever he maybe under 2255.

    We read that but we look at that situation as follows.

    A. L. Wirin:

    We think in the first place that Section 2255 was a special statute intended by Congress either to confer or at least to recognize the jurisdiction of a District Court to bring a person before it no matter where he was for two reasons.

    In the first place, that statute was adopted as a result of recommendations by the judicial counsel itself.

    The judicial counsel, in its recommendations, stated that the — that the statute contemplated that, first, no rights which a petitioner had theretofore or filing a petition and being brought to Court were to be diminish in anyway, and secondly and more importantly that the prisoner could be brought to the Court where he was sentenced and this would be a greater convenience than requiring witnesses and others to be brought to the place where the prisoner was detained.

    Then Congress itself though and perhaps language not — not as clearer as all of us would like Congress to speak all of the time because none of us speak — no lawyers of this might speak clearly all the time, be that as it may, Congress itself acknowledged the authority of a District Court half holding a hearing under Section 2255 of ordering the prisoner to be brought before it no matter where he was.

    Felix Frankfurter:

    But not in — not in the formulated expression which he gave — it gave to its policy, but not and what it admitted as legislation.

    A. L. Wirin:

    The — the legislation is —

    Felix Frankfurter:

    Is that true?

    A. L. Wirin:

    I think —

    Felix Frankfurter:

    You are asserting that.

    A. L. Wirin:

    I think that’s reasonably true.

    Felix Frankfurter:

    All right.

    A. L. Wirin:

    But it — but we do say that as to that Section or to that Act, there was a special act of Congress in which the authority of the District Courts to act extra judicially was at least acknowledged by Congress and with respect to the habeas corpus statute, we say the legislative history is precisely and distinctly to the contrary and that the phrase “within their respective jurisdictions” has within territorial effect only and Congress has never changed that phrase or indicated any desire or intention of the — get backing away from that phrase.

    Potter Stewart:

    So the point is this.

    Now for the prisoner himself, for the petitioner in the 2255 proceeding there’s probably no problem because he’s asking to be brought and he’s not going to resist any — any writ.

    In the Hayman case, I suppose there’s a clear holding that the court has required to bring in and therefore the District Court has power to bring him.

    I’m talking though about habeas corpus ad testificandum for the purpose of bringing third party witnesses — other witnesses necessary to this hearing.

    And you have to sometimes bring them from all over the country.

    The District Court of Ohio has to send to California and to Georgia and to Kansas, and Pennsylvania and elsewhere sometimes, in order to bring in the witnesses necessary for a meaningful hearing under 2255 and that’s utilization of this very habeas corpus statute.

    A. L. Wirin:

    Well, I’ll see — I’ll see Your Honors’ question before.

    First place fortunately or otherwise, Your Honors needn’t decide that particular question in this case, but that hardly answers Your Honor’s question.

    Felix Frankfurter:

    We have to decide it.

    A. L. Wirin:

    Secondly, if — if the proceeding is deemed to a criminal proceeding, let’s just suppose for a moment, there’s no question that process may issue anywhere in the United States under — there by statutes of 1893 which I call to Your Honor’s attention and if it’s deemed to be a civil proceeding there maybe some problems as to the scope of the — of the subpoena power.

    Felix Frankfurter:

    Mr. Wirin, well I — I put this to you.

    A. L. Wirin:

    Yes Your Honor.

    Felix Frankfurter:

    Your answer to Justice Stewart’s question where to offer — was to offer considerations of policy in the effectuation of 2255 fundamentally, that was your answer, wasn’t it?

    A. L. Wirin:

    Yes.

    Felix Frankfurter:

    That in order to effectuate that, you had to have these implied powers not only as to bring the defendant, an incarcerated person to district — distant place but also witnesses.

    What I’m suggesting to you and that I have suggested to you is that the addition of four trials we know nothing about it.

    As far as I know nobody said a word about it.

    Have you found anything in the legislative, so-called legislative history of the revises to come, did you find anything?

    A. L. Wirin:

    None.

    Felix Frankfurter:

    None.

    So that when we find this new addition of power, now look at the policy behind that.

    In a country like ours which is interplay between States and federal — criminal prosecutions that it certainly reasonably arguable that they didn’t mean this to be operative only within the confines of a single state as to the Ponzi case, that the kind of state federal criminal prosecutions relationship is arguably in order to effectuate to get a fellow before a trial from a distant place, the distant place doesn’t have to be confined within the same state.

    A. L. Wirin:

    And I say this to Your Honors.

    I may have misspoken myself if I left an impression that the policy on this matter should be determined by this Court.

    My real position is that the matters which Your Honor — to which Your Honor had just addressed yourself and the fact that we are now a small nation rather than a large one geographically in the sense of transportation.

    That the rules of 1789 should not apply now or the statute should not apply.

    These are considerations we think for the Congress to determine.

    And with respect to the example posed by Justice Stewart, if there are some problems or difficulties in connection with that, the Congress can attend to it or this Court may do so in its rule making power.

    But we say that until Congress enlarges territorial jurisdiction, this Court shouldn’t do it and then we say further Your Honor that when Congress put the phrase for trial in a statute which since 1867 had within it the qualifying limiting clause within their respective jurisdictions which meant within their respective territorial jurisdiction.

    The only inference is from my point — our point of view that Congress intended that the phrase “for trial” is subject to the same territorial limitation which the other provisions of that same section and subsection were subject to.

    Felix Frankfurter:

    I’m the last person in the world who wants to take over the Congress’ charge, but when Congress gives me a phrase about which it says nothing and the effectuation of which inquired a consideration of the context in which it finds itself then I have — then I have an ambiguous statute and I don’t have to exercise lenity.

    I think we have to exercise rationality.

    A. L. Wirin:

    But I would just say this Your Honor.

    I think it — I would not agree that Congress has said nothing because I would say that Congress has spoken upon the scope of habeas corpus to 1789 and it kept changing or —

    Felix Frankfurter:

    I’m saying that this is very unlikely — habeas corpus is a very deceptive phrase with reference to this exercise of judicial authority.

    I understand what habeas corpus normally when we say habeas corpus we mean, let’s find out why a fellow is in jail, not to get into one place to another nor to stand trial.

    A. L. Wirin:

    I still think Your Honor this is a problem which Your Honors could let the Congress decide and did as a legislative problem rather than a judicial problem.

    Earl Warren:

    Mrs. Rosenberg.

    Beatrice Rosenberg:

    I think that neither one of these situations with the same history gives rise to different implications and so before I get into the main part of my argument, let me see if I can see what we think the history of the habeas corpus statute is with this discussion which frankly I do not think it turns completely on the history of the statute but let’s see if we can clear it up.

    Originally, in the Judiciary Act there was the all writs statute and it specifically said that the Courts would have jurisdiction to issue all writs including with the habeas corpus.

    And then went on to say except that the writ of habeas corpus shall not issue to the prisoner in jail unless he is committed under the authority of the United States or trial by the United States or if it is necessary for him to testify.

    So to that extent way back in 1789, it recognized the writ ad testificandum with no particular limitations.

    Now right after that, and possibly by implications before but certainly by 1793, Congress specifically provided as an amendment to that first Judiciary Act that in criminal cases subpoenas which run throughout the United States.

    And so it seems to me that question got that all for writ ad testificandum way back in 1793 because a writ ad testificandum is practically and legally in aid of subpoena power, that is — it is the means by which you get a jailor to whom the writ ad testificandum is addressed to enforce the subpoena power, the subpoena in a sense same directed to the individual whom you want to testify.

    And so, the rest of the history of the habeas corpus statute, including the 1867 statute really has no meaning to this problem because there were successive grants of powers to federal courts to issue writs of habeas corpus ad subjiciendum.

    First because of the First Act in 1933 for federal officials acting under color of federal law then because an incident involving representative of British power in order a writ to get out of state custody people who acted under the authority of the Federal Government and finally in 1867 the great extension of power which this Court spelled in Aaron against Clark, the one that gave the federal court power to inquire into the reasons why at state is holding a man in detention even under a state conviction?

    Felix Frankfurter:

    May I — did I understand you to say that these interim ad hoc statutes allowed the writ to run outside the territory of the District Judge?

    Beatrice Rosenberg:

    No.

    Felix Frankfurter:

    Now, they are all restricted.

    Beatrice Rosenberg:

    I said they were restricted but they — I said they dealt with the writ ad subjiciendum.

    Felix Frankfurter:

    Yes alright.

    Beatrice Rosenberg:

    And their function and they didn’t, in a sense, reached this question at all but in my view the question of the writ ad testificandum had been settled back in the 79th writ.

    And there was no mention that the writ ad prosequendum specifically referred to in Blackstone mentioned in Ex parte Bollman, but there’s really no discussion of it.

    I think this is my guess as to war.

    Until Ponzi against Fessenden which was decided in 1922, I think the assumption of the earlier cases is that if a man was in prison under one sovereignty, the other sovereign couldn’t try.

    It was so held specifically that in relation to where they just started issue or writ ad subjiciendum to a state prisoner and that Door case as we have, but it’s — one goes through the cases on bail, for instance, there’s a case of Taylor against (Inaudible) it’s cited in our brief in another connection of this, it seems to me an assumption of those cases and truly it seems to have been the practice that when a man was held in jail by the State, the Federal Government didn’t try him and vice versa and the fact is that there were findings of that the power to do this in 1922 when this Court decided in Ponzi against Fessenden.

    Now Ponzi against Fessenden was not a case involving territorial consideration.

    It so happened that the federal prisoner from the State of Massachusetts (Inaudible) was in jail in Massachusetts, but in that case Massachusetts’ issued a writ ad prosequendum to the Federal Government.

    The Federal Government was willing to turn him over and he complained.

    He said, “I don’t want to be moved until I finished here my federal offense” and this Court held that that was not his concern that even though he was going to be moved out of the state jail and into the federal jail for trial that that wasn’t a matter of his concern, that was the matter of comity between the two sovereigns about which he had no jurisdiction to complain.

    And the fact this was a subject to that came up to this Court indicates to me that it certainly was not a general practice before 1922 became more general thereafter.

    And I assumed this is wrong when the revises were going over the Court in 1948.

    When they came to codifying the various section one of which include the provision that it should not issue to a prisoner in jail unless it was necessary for him to be brought up to testify, this — they’ve decided well we use it also to bring him up for trial so they put it in there.

    Now as I say there’s no history on this, but this is what seems to me to account for that at the time of revision by 1948 the practice of exchanging prisoners back and forth for the — for trial was much more common since it had been recognized in Ponzi against Fessenden.

    There was going to be more emphasis on the necessity of speedy trial and therefore at that point it was codified into practice.

    Now let me point out that when this did get into the revision in 1948 the Federal Rules of Criminal Procedure had already come into existence in 1946 and the Federal Rules of Criminal Procedure made it clear that a warrant from a District Court could be served anywhere in the United States so that by 1946, it seems to me, it was already recognized both as to the subpoenas and as to warrants that in criminal cases for purposes of process, the jurisdiction of the Court in criminal cases was nationwide and therefore when the codifiers in 1948 put into provision that the writs were not issued to a prisoner in jail unless necessary to bring him up to testify or for trial it seem to me it put the writs ad prosequendum in a place that I think the writ ad testificandum went from 1943 that it was in aid of federal criminal process and by 1948 federal criminal process ran throughout the United States.

    Now it points out one other thing that was in existence by that time.

    In page 1920 — I think it is of our briefs, we’ve listed the first two of what are number of cases involving corporate summons.

    Before the rules of federal procedure made any provision for service of the summons on the corporation, the lower court had held, one, that you could get a corporation into Court for a summon by means of a summon although the summon as such was not specifically provided for, and secondly, that that summon could be served on a corporation even though it wasn’t doing business in the territorial district of the District Court and they found their authorities from aside that it was perfectly evident from some of the statutes like the Sherman Act and the ICC Act and so forth that Congress intended corporations to be tried.

    And they — therefore it was necessary for corporations to be tried to how to get them before the Court in the normal way of getting them before the Court was by a summon.

    Now that question never came before this Court.

    This Court referred to those cases in passing.

    In the (Inaudible) case, as if it was definite and it’s true the (Inaudible) case as petitioner argues didn’t involve the question of jurisdiction — of territorial jurisdiction, but the vast is that the authority to summon a corporation and to summon a corporation even though it was not within the territorial district of the District Court was simply accepted.

    And those trends of another point by this Court in the (Inaudible) case, it was never questioned at the time the rules went into effect in 1946.

    And so again this is just one other illustration of the fact defined in 1948, I think it could be taken as established or at least certainly recognized in many different situations subpoenas, warrants, corporate summons that jurisdiction of criminal court for the purposes of process and was not territorially confined.

    Hugo L. Black:

    What process?

    Beatrice Rosenberg:

    Subpoena, warrants of arrest, and the corporate summons case.

    Hugo L. Black:

    You mean to the — the District Court in Delaware could summon a witness from California?

    Beatrice Rosenberg:

    Yes Your Honor the 1793.

    Hugo L. Black:

    In the criminal cases.

    Beatrice Rosenberg:

    Since 1793 that had always been the position now embodied in Rule 17.

    In criminal case —

    Hugo L. Black:

    You’re limiting it to criminal cases.

    Beatrice Rosenberg:

    Limited to criminal case.

    Yes, a 100 mile outside the district in civil cases except where — except then where there are certain special provisions such as the Sherman Act, but since — explicit since 1793 in criminal cases.

    Felix Frankfurter:

    For completeness sake, perhaps this word is a little something to add but as to — out of — out of — as to out of State accused anybody who was indicted in the state and in outside of the State of his indictment he can be brought to the indicting state by virtue of the state revision.

    The fellow was free I mean.

    The man is indicted in California, if this man had been free walking the streets of New York, California could have got him back by State (Inaudible)

    Beatrice Rosenberg:

    California could have got him back by state extradition.

    If in the federal court that brings me to what I would come into in this case, in a federal court, when he is arrested initially under rule — under a warrant out of Court of California he does have a right to what is a brief called the removal hearing under Rule 40 at which point, if it’s on a complaint that may show probable cause but it’s an indictment.

    It’s necessary for the Government to show that merely to produce the indictment and he can then contest identity.

    The Court issues a removal order, but allowed him normally to post bail.

    Now that’s what was done here.

    It so happened when this defendant was arrested he was not in jail.

    He was found in Baltimore.

    Felix Frankfurter:

    Find where?

    Beatrice Rosenberg:

    In Baltimore, Maryland and he was accorded a Rule 4 the hearing.

    Now most of the time people don’t ask for hearing.

    William J. Brennan, Jr.:

    This is — this was when he was arrested on the California indictment?

    Beatrice Rosenberg:

    On the federal — on the California federal indictment.

    He was arrested in —

    William J. Brennan, Jr.:

    — on a warrant which issued out of the California court?

    Beatrice Rosenberg:

    The District Court of California.

    So, this was a situation where the warrant issued after indictment.

    It wasn’t a complaint.

    The indictment was returned the warrant to arrest issued.

    He was picked up under that and he was given a hearing under Rule 40.

    I think he waived hearing eventually but he was entitled to a hearing and at that point bail was fixed.

    Beatrice Rosenberg:

    As a matter of fact bail was fixed in for very substantial amount of $100,000.

    William J. Brennan, Jr.:

    Where was that (Inaudible)

    Beatrice Rosenberg:

    That is in Baltimore.

    That’s — that’s really the main purpose of the removal hearing in present proceedings when the man is arrested outside the District.

    The rules provide that if a man arrested in the District or within 100 miles from the District, he’s to be brought before a committing magistrate in the District Court.

    And there he’s informed of his right to cancel and his right to post bail and bail is fixed.

    But when he’s arrested after the District had tried, the rule is quite fearing to (Inaudible) for a hearing much closer to home because in the normal case even when he was arrested after the indictment it takes a while.

    William J. Brennan, Jr.:

    But the only issue on the hearing is his identity.

    Beatrice Rosenberg:

    The only issue is identity.

    Now the order of removal is issued by a judge and I presume whenever a judge acts he acts judicially.

    The only issue presented that has opened his identity but I suppose — and there have been cases where it’s done with a very special circumstance, this opposes the claim in (Inaudible) in this case.

    I post — if somebody came and said he was awfully ill and couldn’t do that a Court could — if he couldn’t post bail and say, “Well I will withhold my order for a week”, I suppose we have to agree to the Court that act judicially to that degree.

    But in any case that issue isn’t here because this man did have a Rule 40 hearing and he posted a $100,000 as bail.

    Now, in the normal course of the events he was under a duty to come to the Court of California without any further process of any kind out of the Southern District of California.

    And if he didn’t show up, he would have forfeited a $100,000 bail he would have been subject to be rearrested and if he kept on long enough, he would even be subject to criminal —

    William J. Brennan, Jr.:

    Now has he ever appeared under the district (Inaudible)?

    Beatrice Rosenberg:

    Yes.

    Now then when it came to this to appear the usual way of doing this in this situation would be when the case is ready they think it’s about to be reached, they — about three weeks before in some jurisdictions sometimes before that.

    In this case it was December.

    They brought him back to plead to the indictment.

    William J. Brennan, Jr.:

    Brought him back from where?

    Beatrice Rosenberg:

    Well, let me take that then.

    In the normal case he would be notified to plead to the indictment.

    When it came time for this man to be arraigned he was in jail in New York and so what they did at this point was issue a writ habeas corpus ad prosequendum to the Taylor in New York which New York honored and which the petitioner did not then contended.

    He came out to California under this writ and pleaded not guilty and at this point he asked that he be allowed to go back to New York, bail in New York until the time of trial because he wanted to arrange to get a lawyer in New York.

    And this was done with the understanding, the trail date was fixed with due March 30 and then on March 16 this man — they’ve made provision for the writ to get in there so that he would have some time to confer with counsel before trial.

    That’s normal.

    William J. Brennan, Jr.:

    I just wanted to – did the second writ issued?

    Beatrice Rosenberg:

    Yes second writ issued.

    William J. Brennan, Jr.:

    Well — why was that the second writ issues Ms Rosenberg?

    Beatrice Rosenberg:

    We could — the state of New York wasn’t just going to let him loose.

    Felix Frankfurter:

    When he left California appearing and pleading and then he was allowed on bail, that must have been some piece which must –

    Beatrice Rosenberg:

    No, no.

    Felix Frankfurter:

    I thought —

    Beatrice Rosenberg:

    He was arrested in Baltimore and he was then allowed out on bail.

    Felix Frankfurter:

    Yes.

    Beatrice Rosenberg:

    While he was out — at that point under this Rule 40 hearing you don’t plead to the indictment.

    Felix Frankfurter:

    I understand that but he did get to — what I want to know is he got to California at sometime to plea, didn’t he?

    Beatrice Rosenberg:

    Yes, under a writ ad prosequendum.

    Felix Frankfurter:

    But physically he was present in California.

    Beatrice Rosenberg:

    Yes.

    Felix Frankfurter:

    What I want to know is what was the legal document by which he was allowed to leave California.

    Beatrice Rosenberg:

    The Court discharged a writ ad prosequendum at this point.

    Felix Frankfurter:

    Well they just allowed him to go free.

    Beatrice Rosenberg:

    No the State of New York.

    He was allowed to go back to jail in New York.

    What happen is when he was — when he was —

    Felix Frankfurter:

    Well I know California today is a very hospitable place but they didn’t say that, “It’s all right you’re now goodbye you can go to ahead and do what you please,” what happened?

    Beatrice Rosenberg:

    When he was — he came to California under a writ ad prosequendum.

    William J. Brennan, Jr.:

    In the custody of New York officers?

    Beatrice Rosenberg:

    In the custody of federal marshalls.

    William J. Brennan, Jr.:

    And then who turned him back to the New York campus?

    Beatrice Rosenberg:

    The Federal Marshall.

    William J. Brennan, Jr.:

    In California or in New York?

    Beatrice Rosenberg:

    Now I think — I think I’m not positive to this but I think he was transported back by a Federal Marshall.

    Felix Frankfurter:

    But he couldn’t — the marshal wouldn’t do that on his own, he had to have some judicial autho — authorization for it.

    Beatrice Rosenberg:

    Yes the Court permitted it.

    I don’t know whether it’s an identified formal order or not Your Honor.

    It just said the Court granted his request.

    I don’t know — I don’t whether they formally — I think —

    William O. Douglas:

    It’s on page 11 of the record I think.

    Beatrice Rosenberg:

    Pardon.

    William O. Douglas:

    On page 11 of the record.

    Beatrice Rosenberg:

    That’s right.

    The defendant was not guilty.

    William O. Douglas:

    Bottom of the page.

    Beatrice Rosenberg:

    He returned to New York.

    That’s right.

    I’m sorry.

    Felix Frankfurter:

    What was — the purpose of my inquiry is to see if you haven’t still got hold of him as it were in California and merely allowed him to grass out of New York in the mean time.

    Beatrice Rosenberg:

    I think no.

    I think that normally —

    William J. Brennan, Jr.:

    The order is rather — the order is rather direct, isn’t it Ms Rosenberg and directs the defendant Carbo who returned to New York for the purpose of obtaining counsel and that they return here inside of the trial.

    Felix Frankfurter:

    Yes.

    William O. Douglas:

    The writ is like a leash.

    Felix Frankfurter:

    That’s the point.

    Beatrice Rosenberg:

    Well I must admit I hadn’t thought of this.

    The Court didn’t think so either apparently because it did issue a new writ ad prosequendum and it does beg a question I take it a federal state committee to that degree that obviously New York would have to consent to this.

    Now the Court apparently didn’t think though, because it did issue a new writ ad prosequendum at that point —

    William J. Brennan, Jr.:

    Was this an ordinary course or did the Court in California know that he was not going to come back except when such a writ issued.

    Beatrice Rosenberg:

    I don’t know.

    I think this is an ordinary course, the date of trail was fixed.

    William J. Brennan, Jr.:

    He was in jail in New York and the District Judge or the District Attorney out there, I suppose, have left him a writ to get him back here.

    Beatrice Rosenberg:

    That’s right.

    The District Attorney applied for the writ, that’s in the record.

    The District Attorney applied for the writ ad prosequendum and then —

    Tom C. Clark:

    (Inaudible) decided he wouldn’t do that.

    Beatrice Rosenberg:

    And then — pardon.

    Tom C. Clark:

    When did (Inaudible)

    Beatrice Rosenberg:

    Well then his attorneys moved to quash the writ on the grant of lack of jurisdiction.

    Beatrice Rosenberg:

    At that point at the time the second writ was issued.

    Felix Frankfurter:

    How long was he at large in New York in search of – it’s awfully difficult thing in New York to find a lawyer, how long did it take him before he got into the courts of the state law?

    Beatrice Rosenberg:

    Your Honor, he was not at large in New York.

    He was brought under a writ ad prosequendum in December.

    Felix Frankfurter:

    I thought he was allowed to go to New York in order to get a New York lawyer.

    Beatrice Rosenberg:

    He was allowed to go back to New York but to the custody of the New York he went back to prison in New York.

    Felix Frankfurter:

    The jail — the jail sentence preceded this federal activity, is that it?

    Beatrice Rosenberg:

    No.

    His jail sentence came in between.

    His jail sentence in New York came while he was out on bail.

    William J. Brennan, Jr.:

    On the bail which was allowed in Baltimore.

    Beatrice Rosenberg:

    That’s right.

    It was for a crime which occurred before the federal crime.

    Felix Frankfurter:

    Well then but you give me the relation between getting into New York jail and going out to California in physical person to plea and then being allowed at large in California by this gentleman the way that they have out there.

    Well I thought they allowed him to go from even — he was in California in the presence of the Court, wasn’t he?

    Beatrice Rosenberg:

    Yes.

    Felix Frankfurter:

    And he was allowed to go back to New York.

    Beatrice Rosenberg:

    Yes.

    William J. Brennan, Jr.:

    He wasn’t allowed.

    He was taken by an officer.

    Beatrice Rosenberg:

    He was taken.

    Felix Frankfurter:

    Well, very well he was taken.

    What I am saying – what I have in my head is if the California, if the U.S. attorney the U.S. authorities in California had wanted to do and the judge had agreed to it, he would have been kept in California and go into trial there, isn’t that right?

    Beatrice Rosenberg:

    That’s right.

    Felix Frankfurter:

    All right.

    Beatrice Rosenberg:

    Normally he was kept —

    Felix Frankfurter:

    So that he was allowed in that sense by the federal authorities to go back to New York.

    Beatrice Rosenberg:

    That’s right.

    Felix Frankfurter:

    To serve out a sentence for which he’d been previously tried in New York —

    Beatrice Rosenberg:

    To serve out a sentence to which he was plead guilty, yes.

    Felix Frankfurter:

    So the New York is been his almost hospitable as New Yorkers, he was — plead guilty, he was charged of the crime in New York, he plead guilty, he was out on bail, and he was allowed to go to California to plead there.

    Beatrice Rosenberg:

    No Your Honor.

    Felix Frankfurter:

    No.

    Beatrice Rosenberg:

    He was indicted, let me try it again.

    But he was —

    Felix Frankfurter:

    He could have been in — he could have been in jail when he went out to California to plea, could he?

    William J. Brennan, Jr.:

    He was –

    Beatrice Rosenberg:

    Yes he was.

    He was brought to California under a writ.

    Felix Frankfurter:

    But when he was in California he could have been at the same time in jail in New York.

    Beatrice Rosenberg:

    No he was in the custody.

    Felix Frankfurter:

    And what I’m pointing is that he appeared before the federal authorities in California, he was allowed at large physically speaking although they could have retained him.

    He was allowed —

    Beatrice Rosenberg:

    He was not allowed at large.

    Felix Frankfurter:

    Well I don’t think that’s large.

    He was allowed so far as California was concerned to leave that State, wasn’t it?

    Beatrice Rosenberg:

    He’s allowed to leave the Federal District Court.

    Yes.

    Felix Frankfurter:

    Very well.

    But he was allowed as my brother Douglas indicates at the exhibit 3, he was on leash when he left California, wasn’t he?

    Beatrice Rosenberg:

    Yes.

    Felix Frankfurter:

    And then when he got back to New York which I understood was to get a good New York lawyer or a bad New York lawyer I don’t know which, he was then put in jail again by the New York authority, is that right?

    Beatrice Rosenberg:

    Well, yes.

    Actually except that — as I understand what New York court they were doing is New York thought it had a leash on him overtime too.

    He said —

    William J. Brennan, Jr.:

    (Inaudible) when he first went out to California on the original writ —

    Beatrice Rosenberg:

    Yes.

    William J. Brennan, Jr.:

    — wasn’t that was some kind of understanding whether in the record or not with the New York authorities that he go out there and plead that he’d be brought back by the federal authorities and delivered back to the New York jail, wasn’t it?

    Beatrice Rosenberg:

    Well normally Your Honor —

    William J. Brennan, Jr.:

    No what was up here?

    Beatrice Rosenberg:

    One thing is I don’t know exactly what relationship with New York is, normally, when you arrange with the state authority to let him out to plea, they usually do it with such timing that a man plead to the indictment and stay in the custody of the Federal Marshall during the period ready for trial because normally that’s the normal way and that’s theory to the defendant because he has normally has local counsel and it gives him an opportunity to consult with local counsel.

    Now when I know in the district here for instance it’s three weeks usually, normally the time between arraignment and trial is three weeks and they try to get the man arraigned and then keep in hand those three weeks so he can have plenty of time to prepare his defense.

    And then after his trial the standing is in the Court that held that it must be unless the date contends otherwise that once the trial is finished you send him back to New York.

    William J. Brennan, Jr.:

    Well you mean in this case then the New York may have been surprised to have them back with them.

    Beatrice Rosenberg:

    Well I suppose so except that I think probably this was arranged.

    I’m sorry, I think — I think it wouldn’t be that much of an issue because the Court itself apparently, as I say, did issue with new writ and therefore assumed that he had gone back completely to the custody of New York.

    Now, the only point that I was making of all this was that if petitioner had not been in jail there is no question that he would have been under illegal and a moral legal duty, a contractual duty under a bond to show up for trial.

    And therefore, in both practical and legal effect this is not a substitute for process, and that brings me to the standing argument in this case.

    What is another substitute of the process?

    Beatrice Rosenberg:

    The writ is not a substitute for process to the defendant.

    The defendant was an obligation – was under an obligation to show up in California under his bond, under his duty to plea in a criminal case because if he were not in jail, there would normally be no further process of any kind to give this defendant.

    He had already been arrested.

    He had already been given bonds.

    And —

    Charles E. Whittaker:

    Then is it your view that we have not the question whether a federal district court in California may extend its writ of habeas corpus to New York.

    We have not that question?

    Beatrice Rosenberg:

    Well, I — I think you do — I think you have that question in a very limited situation.

    I think you have that — well let me say I think you don’t have it in this case because I don’t think the Constitution had been ready and I was just having standpoint and the basis for saying that the question is not here and that in this case, petitioner has no standing is the point that I was making that in this case under the facts here, petitioner was under a duty, under his bond to show up in California both for arraignment and for trial.

    And he would have to do that without many process of any kind at the risk of having a bond forfeited, the risk of being subject to a new process of arrest.

    And therefore, it seems to me that in this situation that we have here the writ of habeas corpus ad prosequendum is what is in fact, what it is illegal from the object a writ directed to the jailer because it is a writ asking the jailer to permit petitioner to do what he is under illegal obligation to do and that is show up for trial.

    Charles E. Whittaker:

    Are the terms of that bond, if I may ask, in this record?

    Beatrice Rosenberg:

    No, I think they are not.

    Charles E. Whittaker:

    Can you tell us what its condition was?

    Did he obligate himself to appear when demanded?

    Beatrice Rosenberg:

    Yes.

    That’s the normal bail bond obligated to appear when demanded in the — at district of trial.

    That’s right.

    It’s the bond specified for in Rule 40 which is in our brief admitted to bail for appearance in the district in which prosecution is pending.

    Charles E. Whittaker:

    Well it’s your argument that this writ present to here was not necessarily for his — to command him to come but to command his custodian to release until he could comply with his bond.

    Beatrice Rosenberg:

    To request, I think it’s probably more accurate term in the state situation, that’s right.

    Beatrice Rosenberg:

    And it seems to me the alternative as I see it is this.

    The alternative is that if a defendant in this situation where he’s given a bond does not appear because he is in state jail, a District Court would be obliged to declare a forfeiture of breach of the bond.

    Now, there’s a lot of technical law on when and when that forfeiture would stick in the sense of collecting $100,000.00.

    Now I don’t think it’s important here.

    The fact is that if he failed to show up whether it was a conceivable forfeiture or not would be agree to this bond, the District Court of California would then have authority on questionable to issue a warrant of arrest on people in appearance which was one throughout the United States as soon as the State of New York chose to allow the Federal Government to serve that one it could be done.

    Well, there is no advantage and it seems to me as long as that is possible and it clearly is, then the writ of habeas corpus on the narrowest concept to jurisdiction is in aid of the jurisdiction to get the defendant under his bond in the sense to make it unnecessary to do that.

    Felix Frankfurter:

    The problem isn’t what it’s for but whether the Court has power to issue it and why don’t you direct us to page 15 which is the writ that was issued in this case which we have to sustain if we are going to sustain it.

    And as you answered Justice Whittaker a little while ago, the writ makes the answer to his question wherefore your petition raise for an order directing the issue in some writ of habeas corpus directed to said warden, sheriff or jailer.

    The object of the writ is not this person who was complaining about it but the jailer and you still have to consider, you still have to deal with the question whether the Southern District or California Central Division has power to issue a writ to anybody outside of the Southern District of California.

    Beatrice Rosenberg:

    Well Your Honor, I —

    Charles E. Whittaker:

    If he has standing to raise it –-

    Felix Frankfurter:

    If he has standing to raise it, but the writ was issued not to Carbo but to whoever the gentleman was or the jailer in New York and therefore the question is, may that Court issue this writ directed to the jailer?

    Beatrice Rosenberg:

    Your Honor, it seems to me that —

    Felix Frankfurter:

    And not to the prisoner, the habeas corpus provision 2241 talks about the writ habeas corpus shall not extend to a prisoner.

    Now this isn’t extended to a prisoner, it was extended to the jailer and he is swept in under the power if there’d be power and there certainly is power within the jurisdiction within the territory of jurisdiction to direct a writ to a jailer to produce somebody who is incarcerated and has no choice in the matter whether he will come or not unless — unless he has some standing to object to what the jailer has been ordered to do.

    Beatrice Rosenberg:

    Well I understand that the question of jurisdiction Your Honor depends in part on assumption that if there is jurisdiction in relations of function.

    The writ ad subjiciendum is also a direction to the jailer.

    The question is —

    Felix Frankfurter:

    Well not also, is there any writ with which we are concern and the validity of which is challenged that was addressed to Paul John Carbo.

    Beatrice Rosenberg:

    No there isn’t.

    Felix Frankfurter:

    All right.

    Beatrice Rosenberg:

    But the question of whether the Court has authority to issue the writ to the jailer must in Court intended it seems to me on what is the authority of the Court in relation to the prisoner than the jailer had.

    Felix Frankfurter:

    What I’m saying is that this writ address to the jailer is not in terms on the — is not in terms of 28-2241 (b) or (c) because it does not extend to a prisoner.

    It is under 28 U.S.C. 2241 (5) — (1) and (5) and it isn’t extended to a prisoner.

    Congress has put together in this Section four situations for issuing the conventional writ of habeas corpus to inquire into a restraint of living.

    And it has thrown into that same section quite illogically and quite unintelligently, I think, Sections 5 which has a — it has a filthy different purpose addressed to a different officials.

    Beatrice Rosenberg:

    That I point to Your Honor and I think considering the purpose for which this particular writ was issued in this case, I say that not only in full but in actuality petitioner has no standing and that it does not run because this is a writ to the jailer to enable to — petitioner to do that which we should — he was under a legal and contractual obligation to do if he were not in jail.

    And in a sense all it amounts to is getting the permission of the State of New York to allow petitioner to do that which he should’ve done.

    And for that reason, we say that in this situation, petitioner — one, not only does the Court have power to issue the writ but two, petitioner has no standing to challenge it because his obligation to appeal exists by virtue of the indictment, by virtue of his bonds and by virtue of the jurisdiction of the Court in that criminal case.

    And the only function of the writ here is what it — is directed to the jailer and it happens to be called the writ of habeas corpus ad prosequendum, but it was called a letter, if it was called an order, anything of that sort, it is merely a means of allowing the State of New York, of getting the permission of the State of New York to allow petitioner to do that which he was obliged to do.

    Beatrice Rosenberg:

    And so in this situation as I say, both — it seems to me, both that the Court had authority to issue the writ and the petitioner has no standing to challenge it.

    And let me just say that in our view, this whole question was settled by the Court in the Hayman case because in the Hayman case, the Ninth District Court of Appeals has held that the added remedy under 2255 was inadequate, as a substitute for habeas corpus because it said, “There are situations in which there has to be a hearing in the District Court.”

    And usually, prisoners are also or often prisoners aren’t confined in the district in which they were convicted and therefore, there won’t be any authority in the sentencing court to get the prisoner before them for a hearing.

    This Court said no.

    The Court is not impotent to accomplish that purpose.

    Congress made it clear that it intended a hearing to occur and by virtue of that fact, the Court has power to do that which is necessary to get a hearing.

    And it appears from the quotation on page 25 of our brief, the Court pointed out that an order for the prisoner to appear in such situation is not the same as the initiation of an original writ of habeas corpus, in other words, standard habeas corpus ad subjiciendum proceeding, and said, and this is a quotation on page 25, “The very purpose of Section 2255 is to hold or require hearing in the sentencing court because of the inconvenience of transporting court officials and so on.”

    The District Court is not impotent to accomplish this purpose, at least so long as it may invoke the statutory authority of federal courts to issue “all writs” necessary or appropriate in aid of their respective jurisdictions.

    I think the Hayman situation applied equally here.

    The jurisdiction of the district courts of the Southern District of California stem from an indictment returned by grand jury then you — and this jurisdiction is fixed by the Constitution.

    Now there’s another thing that the Constitution commands, and that is that the prisoner be given speedy trial as possible.

    Under those circumstances, since the Court has jurisdiction of the courts of action, since it has a duty to try the man as feasibly as possible, it has, we think necessary, that necessary to that jurisdiction is the authority to request the State of New York to allow petitioner to be tried and that’s all the writ is here.

    It’s a request to the State of New York to allow petitioner to be tried as he would’ve had to sue if he were not in jail.

    William O. Douglas:

    I just —

    Beatrice Rosenberg:

    He would’ve had to be tried if he were not in jail.

    William O. Douglas:

    I was just reading the very brief legislative history as revealed in Congressional Glow debate in 1867 where Senator Johnson of Maryland thinks that the federal judges, under the — bill is introduced by Senator Trumbull and I don’t have the power to issue process throughout the United States.

    And Trumbull agrees to an amendment and this is what he said, “It would hardly be tolerated that the District Judge of California should issue a writ of habeas corpus to bring before him some person from Maryland.

    The question was —

    Beatrice Rosenberg:

    That was being mentioned to the writ of habeas corpus to inquire into the Court’s —

    William O. Douglas:

    He doesn’t say that.

    Beatrice Rosenberg:

    Oh but that was here.

    William O. Douglas:

    — he’s talking about the general — the — the general statue.

    Beatrice Rosenberg:

    That was in relation to that here.

    William O. Douglas:

    He wasn’t probably thinking of this case but then–

    Beatrice Rosenberg:

    No he went in this case.

    I don’t think they were thinking of this problem because it was certainly true in 1867, that subpoena could issue throughout the United States — state — States where witnesses (Inaudible) to where, because it was a subpoena for the Government witness, a subpoena for the defense witness and I do point an 1867 case where a writ of habeas corpus ad testificandum issued from New York to Philadelphia, wasn’t discussed the question of power.

    But at least as early as 1867, they were issuing with that — testificandum had gotten (Inaudible), I think clearly, in aid of the subpoena power which the Court had and certainly, in 18 – 1867 comment couldn’t have been at this case either because under the revised statute 1014, there was a provision for removal from one federal district to another.

    And therefore, it certainly was not unknown in 1867 that I — somebody could be tried in Florida for a — I mean someone who has committed an offense in Florida could be tried if he was found in Massachusetts.

    The provision for removal was in — I think that the First Judiciary Act certainly, from much before 1867.

    So that I don’t think that the discussion and this of course was in Your Honors’ opinion (Inaudible) court.

    Beatrice Rosenberg:

    I don’t think that discussion about what a writ should do.

    In that situation of course, here where the writ says they’re completely different function.

    I think maybe it want to drop the nomenclature and looked to what the writ does.

    It’s — it’s not a writ that starts to pose the being — it’s not a writ that even brings the defendant into Court in this case.

    It — it’s simply a letter.

    A letter would have the same effect except that the writ is used because it’s historically known, it’s an old writ.

    Secondly, in a sense it gives state officials the showing because it had this historical gloss.

    It means that you’re taking him only for the purposes of trial.

    When you’re through with them at the trial, you’d bring it back.

    It’s a shorthand way of saying all those things but it could have easily be said in a letter and it seems to me inconceivable that a court which has jurisdiction to try a defendant, a court which has jurisdiction to arrest him any place in the United States, a court which has jurisdiction to subpoena should be kept from do — and which has the duty to try and assumed possible that you — or one can say that a court in that situation doesn’t have authority to issue a request.

    And that’s all there is to the State of New York to allow the defendant to do that which he would not have had to do if he were not in jail.

    Felix Frankfurter:

    The letter that you envision would be a letter say from the United States Attorney, the Attorney General of New York or to the keeper of urban jail or fixing saying you got a fellow in there named Carbo and his trial is set two weeks from now, would you, under appropriate charge and amount, he is going to trial and say that’s pertinent — Carbo couldn’t bring a habeas corpus in the Southern District of New York against removal from Singsing to California?

    That’s your – is that what you are saying?

    Beatrice Rosenberg:

    Yes.

    Felix Frankfurter:

    Have you thought about it?

    If to you —

    Beatrice Rosenberg:

    I have to (Inaudible).

    What I thought, I have no doubt about the fact that the authority to this — I have some doubts in the situations.

    I have to talk on — if you’re talking about Carbo situation I have said.

    Felix Frankfurter:

    I’m talking about the situation.

    Beatrice Rosenberg:

    If we are talking about the situation where it is the first process.

    Felix Frankfurter:

    Pardon me.

    Beatrice Rosenberg:

    If we are talking about the situation where it is the first.

    Felix Frankfurter:

    No, I’m talking about, instead of doing what was done here.

    A trial is set for Carbo two weeks after and the United States attorney says Carbo isn’t here and is — is not in jail.

    If you do nothing about it, he will remain (Inaudible)

    Beatrice Rosenberg:

    No.

    Felix Frankfurter:

    So he writes to the Attorney General in Washington and states the situation and the Attorney General of Washington writes to the Attorney General of New York and those two respective authorities for their respective governments come to an agreement with the Attorney General or whoever has authority over the jailer in Singsing direct takes measures to take him under appropriate guard to California.

    If you were — I’m asking you, could Carbo then sue out a writ of habeas corpus against being removed from Singsing with the authority of — the state authority for California?

    Beatrice Rosenberg:

    That is in — in of course, the decision in Ponzi against Fessenden.

    Beatrice Rosenberg:

    Ponzi against Fessenden said that a — Ponzi against Fessenden said that the relationship between the federal government and the state as to giving up custody, one or the other prisoner, is not a matter about which the prisoner can complain.

    Felix Frankfurter:

    With the ideas —

    Beatrice Rosenberg:

    My hesitation Your Honor is simply on the question of whether it would have to be some kind of an equivalent of a Rule 40 hearing.

    Felix Frankfurter:

    Let’s forget in — I forget in Ponzi, was that all of the arrangement between the officials, between the federal officials and the Massachusetts state officials?

    Beatrice Rosenberg:

    No, state Court of Massachusetts issued a writ of habeas corpus ad — ad prosequendum.

    Felix Frankfurter:

    So that —

    Beatrice Rosenberg:

    And the prisoner happened to be confined in Massachusetts at that time but I think the — the discussion indicates — there’s something in the opinion to the effect that if it were in federal jail.

    Felix Frankfurter:

    Was the dissenting, the other way around could happen.

    Beatrice Rosenberg:

    It — it was a writ a habeas corpus ad prosequendum —

    Felix Frankfurter:

    So the —

    Beatrice Rosenberg:

    — but that — the courts have not treated this binding on the state.

    It was the state when it fined them instead of the government.

    Felix Frankfurter:

    I’ve looked at the Government’s brief in Ponzi that you referred to the — that you said certain assumptions, prevailed after that time.

    The Government filed a short brief as amicus in which it said, “It’s none of Ponzi’s business, it’s our business to object to this thing and Ponzi has got no say.”

    Beatrice Rosenberg:

    Yes.

    Felix Frankfurter:

    And took it as a matter of lying entirely within the control of state federal officials —

    Beatrice Rosenberg:

    The reason of it, the holding the Court — no, I assumed that it was not normally done because —

    Felix Frankfurter:

    Well I —

    Beatrice Rosenberg:

    — I also looked at the brief in Ponzi and in the argument — the argument of the petitioner and the argument — and the Court lists only few cases, largely, state cases and not federal and it lists in which there was a question even of the right to punish somebody when he committed an offense in jail.

    And so that — the fact that at the — well, the fact didn’t came up to this Court.

    The decision is rendered in 1922 and that at that point, there was comparatively little law and no federal law on the subject.

    Secondly, the other thing that gave me an indication to this effect —

    Felix Frankfurter:

    Well, I —

    Beatrice Rosenberg:

    — is the statement in the case of Taylor against Taintor, dealing with bail, which seem to have assumed while it’s true between two states and therefore not the same with federal states but some of the bail cases that I’ve read and generally, seem to me to indicate that it was certainly much less (Inaudible)

    Felix Frankfurter:

    Well, I don’t mean to cut into your argument by that — that version.

    The question I raised is whether this — whether what the — sought to be done here could be worked out through official channels and if so, this case assumes a relatively minor importance so far as I’m concerned.

    Of course, I — I lay —

    Beatrice Rosenberg:

    Well, that’s in our position.

    Felix Frankfurter:

    Pardon me.

    Beatrice Rosenberg:

    That’s in our position.

    Felix Frankfurter:

    Of course, I may find it as difficult to decide the question where they could be worked as between official is to decide this case.

    But I wouldn’t have to go through the maze of legislation.

    Beatrice Rosenberg:

    Your Honor, I don’t (Inaudible) meet the legislation anyway because I think that all that the present legislation said was —

    Felix Frankfurter:

    Well, I do have to go through it because the power is asserted on the legislation.

    This was a court order issued under Section 22 — what is it, 41.

    And therefore, since that is the claim, if that is the exertion of judicial power, it would seem almost clear that one has to consider whether that is a valid dictation of judicial power unless one says it doesn’t make any difference, he has no standing.

    Beatrice Rosenberg:

    Well, I think one, he has no standing, but two, also as far as the legislation is concerned that one must remember that the – (Inaudible) authorization where a writ ad prosequendum, admittedly didn’t come in until 1948.

    Felix Frankfurter:

    I know but —

    Beatrice Rosenberg:

    And at that point —

    Felix Frankfurter:

    But the statute says (Inaudible) at this as you know.

    Beatrice Rosenberg:

    And at that point, under rules of criminal procedure, not only the subpoenas but what had clearly been made run through the — at the United States, a Court with summon cases.

    Felix Frankfurter:

    But that isn’t this case.

    This is not a warrant, this is not a subpoena, this is not a corporation.

    This is an exertion of power under 2241 3 (5) — (c) (5)

    Beatrice Rosenberg:

    Well, in our view, Your Honor, this is in exercise, not only for the basic jurisdiction but that the writ in this case, when one look at its function that its function is as much in aid of the warrant process as I think of writ ad testificandum, is in aid of subpoena process.

    And that’s why in my view, under the very narrow concept of jurisdiction, it went as the petitioner concedes as he must that there is admitted jurisdiction in criminal cases.

    One, to issue a subpoena through at the United States, and two, to issue warrant throughout the United States.

    Then the power, then this writ which is as Your Honor has pointed addressed to the jailer.

    It — in legal and in practical effect if you look at its function in aid of those powers which deal in relation to the prisoner, that is the writ ad testificandum is the one which makes it possible for a prisoner to obey a federal subpoena and the writ ad prosequendum is the writ that makes it possible for the prisoner to obey the original warrant under which he had posted bail —

    William J. Brennan, Jr.:

    Well, Ms. Rosenberg —

    Beatrice Rosenberg:

    — where —

    William J. Brennan, Jr.:

    — you suggested earlier that — that this had been a writ first issued while he was in a New York jail.

    You might have some concern whether a Rule 40 hearing is required.

    What’s the basis of that, constitutional or —

    Beatrice Rosenberg:

    No.

    It’s — it’s exactly this point.

    The point is that I consider the writ here, to the jailer, the means the writ to the jailer, the means of executing the warrant power.

    William J. Brennan, Jr.:

    Well, I understand but I thought you expressed concern earlier about —

    Beatrice Rosenberg:

    Well, if it was the first.

    Now, if initially, when you serve a warrant, it means —

    William J. Brennan, Jr.:

    Well, let’s assume Carbo has been in prison when the warrant —

    Beatrice Rosenberg:

    That’s right initially if he’s not in prison, let’s start back there.

    William J. Brennan, Jr.:

    He’s been in —

    Beatrice Rosenberg:

    If he’s not in prison when you serve a warrant on him in New York, he’s entitled to Rule 40 hearing.

    Now, it’s true, it doesn’t make much sense to get him a Rule 40 hearing if he’s in jail because the main purpose of a Rule 40 hearing is to fix bail.

    But technically, if he was arrested under a warrant, he’d be entitled to a Rule 40 hearing.

    Now, therefore, if he thought he think this writ is, this is a means of allowing you to carry out the warrant, clearly he would be entitled to a Rule 40 hearing even though it does not make any sense because he even going to get to that.

    It’s a —

    John M. Harlan II:

    Well, if he weren’t in jail and he didn’t show up his bond is forfeited and a bench warrant issued, will he be entitled to any hearing?

    Beatrice Rosenberg:

    As we covered it in our brief Your Honor, I don’t know.

    The cases don’t — the cases go both ways.

    It’s never been settled.

    I thought that more common practice is to give a warrant as far as I have discovered because he thought there is none since Rule 40 and there’s not much authority both ways and it’s just not settled.

    But it’s our view that doesn’t apply here anyway because this is a means — if this goes — this is in aid of the original warrant because this is in the way to keep him from defaulting and I point out that this is — this involves something —

    John M. Harlan II:

    Could I ask — could I ask you a practical question?

    How frequent an occurrence is this and your problem of the issuance of these writs?

    Beatrice Rosenberg:

    I can’t tell that Your Honor either.

    I tried.

    The office — the administrative office of the United States Court has attempted to keep record, but they’re not and also when they’re complete, and they haven’t separated them.

    They have a list of 30 for last year but they will not vouch for their completeness and I frankly claim that that they are complete because it’s the local place like the district I think that — I mean, that seems to me just too low because the district — the Court of Appeals of the District of Columbia has held that the United States does not carry out its constitutional — its duty under the constitution to give people a speedy trial, unless it makes an effort, every effort it can to get them while they’re in jail.

    Now that specific and as a result of course they make every effort to get the States to release the person so the trial could be possible.

    So that the figure seems to be very low but that’s the only one I could throw now.

    The Department of District simply doesn’t reveal it and I can only assume that with the increasing emphasis on speedy trial which has come into here the increasing emphasis on this — on the right of the defendant to have a speedy trial.

    I know that during there’s many more issue that of the district now since the Taylor case in 238 than there were before.

    There was a tendency I think among the prosecutors (Inaudible) well let’s wait till we get it.

    And with — particularly in the district but I think it’s reflected over in other court and the Court’s own power instruction to United States attorneys are not to adopt that attitude.

    Under these circumstances, I would doubt that there is an adequate figure and the administrative office said they had no way of checking it for ability.

    Potter Stewart:

    Is it possible Mrs. Rosenberg that this is accomplished by some less formal method or by some different method that —

    Beatrice Rosenberg:

    Oh I think except the theory.

    Potter Stewart:

    So that the records wouldn’t show that —

    Beatrice Rosenberg:

    Well that’s right.

    And secondly, of course, let me also say that I think it’s anything you would be not very conclusive anyway, because if a man knows he’s about to go to trial, there is much more have to be a proceeding under Rule 20 where a plea in the district of incarceration.

    So that I think don’t seem to figures are going to be adequate or — I just can’t answer.

    Earl Warren:

    Mr. Beirne.

    William B. Beirne:

    May it please the Court, Mr. Chief Justice.

    The solicitude of the Government for the welfare of the defendant and for his financial status with regard to forfeiture of bail, I don’t think is of any assistance here.

    The question is whether or not the Court had authority to issue the writ of habeas corpus ad prosequendum.

    In response to question from Mr. Justice Whittaker, the Government said that the question was not — whether or not there was a — was not whether or not a District Court had the power to issue a writ of habeas corpus ad testificandum makes territorially.

    I read from page 6 of the summary of the argument of the — of the Government’s brief, he said, “The sole question in this case is the jurisdiction of the District Court to issue a writ of habeas corpus ad prosequendum addressed to prison officials of a state outside the territorial limits of the federal judicial district of issuance directing them to deliver for trial in prison held by them.

    That’s the Government.

    Now, with respect to the first writ of habeas corpus ad prosequendum which was issued and which Mr. Justice Brennan inquired about with Mr. Justice Stewart, that writ commanded the jailer to produce the body of the defendant in Los Angeles and upon completion of his work there, whatever was to be done, he was to be returned to the state of New York.

    William J. Brennan, Jr.:

    What happened to the bail (Inaudible) you just said —

    William B. Beirne:

    The bail?

    William J. Brennan, Jr.:

    Yes.

    It says that —

    William B. Beirne:

    The bail is still —

    William J. Brennan, Jr.:

    Directed.

    William B. Beirne:

    The bail is still —

    William J. Brennan, Jr.:

    Did it continue to be $ 100,000?

    William B. Beirne:

    Yes.

    It was about so —

    Potter Stewart:

    So the original hundred thousand dollar figure was set by the District Court in Baltimore, Maryland.

    William B. Beirne:

    In Baltimore, Maryland.

    Potter Stewart:

    Under — in the removal procedure.

    William B. Beirne:

    Under removal procedure.

    Potter Stewart:

    — of the Court.

    William B. Beirne:

    Right.

    Potter Stewart:

    And that was a — an appearance bond so to speak —

    William B. Beirne:

    An appearance bond.

    Potter Stewart:

    And he did appear.

    William B. Beirne:

    He did appear —

    Potter Stewart:

    — in Los Angeles — Los Angeles District Court.

    William B. Beirne:

    Yes.

    Potter Stewart:

    Didn’t that fulfill a condition of bond?

    William B. Beirne:

    Well he appeared at the time of his appearance and the time of the writ of — issuance of the writ of habeas corpus ad prosequendum, he was in custody of the state officials.

    So California issues the writ of habeas corpus ad prosequendum directed to the jailer in New York.

    He was in (Inaudible) by the way at that time for him to come to Los Angeles.

    They brought him to Los Angeles, the Marshall brought them to Los Angeles.

    When that was completed, he asked the permission to return to New York to get counsel.

    He was ill.

    He was permitted to go and he was tuned over to the Marshall who returned him back to the custody of the state officials.

    In other words, that writ of habeas corpus ad prosequendum became functus officio so that when they warn the —

    Potter Stewart:

    At the bail bond?

    William B. Beirne:

    At the bail bond, no.

    So that when they wanted him out again, they issued another writ.

    Potter Stewart:

    Directed to the jailer of New York.

    William B. Beirne:

    Directed to the jailer of New York.

    Potter Stewart:

    Saying —

    William B. Beirne:

    Now Mr. Justice —

    Potter Stewart:

    Unlock — unlock the door of the jail so the man can obey a lawful order.

    William B. Beirne:

    Yes.

    Now, Mr. Justice Frankfurter commented upon the person to whom that writ was directed but that is as to the jailer and now the prisoners.

    However, of all writs, as I understand it, the writ of habeas corpus ad subjiciendum must be directed to the person who has custody or holding him in restraint so I don’t think that that’s indicative of anything.

    Charles E. Whittaker:

    What would have happened in the — for any — not was given the bonds in Baltimore if he didn’t meet the domicile request in the Los Angeles.

    William B. Beirne:

    The bail would be forfeited.

    Except —

    Charles E. Whittaker:

    The trial for — so many has found superior.

    William B. Beirne:

    I beg your pardon.

    Charles E. Whittaker:

    He was found under the conditions of the bond superior in Los Angeles.

    William B. Beirne:

    Yes.

    Charles E. Whittaker:

    Before forfeiture.

    William B. Beirne:

    Before forfeiture.

    But before I go, let me qualify that.

    If he had gone back there with the consent of the Court and the Court knew that he was under that sentence and was in custody of the state court, there would be no fault (Inaudible).

    In case of Taylor — versus Taintor which Mrs. Rosenberg refers to was a case in which there was no consent given and the bail was forfeited but in his case, we have a particular situation where the court knew that he was in the hospital, in the jail hospital in New York and he was under confinement under this sentence in New York and he permitted him to return so the Court knew what the situation was so as a matter of fact there would be no default as far as bail is concerned.

    Felix Frankfurter:

    Mr. Beirne I want to be sure a writ is addressed to the fellow who is a man in custody that the ordinary writ of habeas corpus held him to produce the man because he’s unlawfully in custody and it doesn’t end up when the — at determination of the proceeding to return into the custody, it makes all the difference in the world what the terms of the writ are.

    William B. Beirne:

    That’s right.

    That writ of habeas corpus ad prosequendum says that — it says here in 19 of the transcript that said defendant in the above Taylor Case may then there be tried to serve time and place and also with such other time as maybe ordered by the said court and have you then and the other’s writ.

    The delivery of the body of Paul, John Carbo in the courtroom as the court said and a return by you of said defendant to your custody shall be deemed sufficient compliance with the writ.

    Felix Frankfurter:

    But the ordinary habeas corpus doesn’t have any such provision.

    The ordinary habeas corpus says, “You produce a fellow who claims that he’s unlawfully jailed and he wants to get out then stay out,” not you who are the custodian of the prisoner under the New York law will you produce him because the Southern State of California wants to deal with him and when it is through, he will return to New York.

    William B. Beirne:

    Exactly, return us to New York for his confinement.

    Felix Frankfurter:

    What I’m saying is that the whole function and terms of the writ, everything about it is different from the first four categories of 2241.

    William B. Beirne:

    There’s no question —

    Felix Frankfurter:

    That doesn’t — that doesn’t answer the jurisdiction —

    William B. Beirne:

    It does not as for the jurisdictional question at all at Your Honor.

    Felix Frankfurter:

    No.

    It doesn’t answer it but — but it’s given us a different basis for considering what the answer is.

    William B. Beirne:

    Now Your Honor I mentioned in 1940 — about the trial in 1948 with that being put in there in 1948 and that there being nothing in the congressional debates about that.

    That’s true.

    Felix Frankfurter:

    Or the revises.

    William B. Beirne:

    Or the revises.

    However, we take it that between 1789 and 1867, if there were writs of habeas corpus ad prosequendum issued, they probably be issued under 1651, but that would not determine the extraterritorial power.

    Felix Frankfurter:

    Well I don’t —

    William B. Beirne:

    It’s arguable that — that it could be done.

    Felix Frankfurter:

    Well I’m saying that’s why the case is here and that’s why you’ve argued on both sides a difficult problem.

    The question is whether a phrase of general applicability in a specific statute which relating to two totally resides the different situation must necessarily be given the same limitation.

    That’s the problem, right?

    William B. Beirne:

    That’s the problem Your Honor.

    Yes.

    Earl Warren:

    Mr. Beirne you may take into adjournment time now by the argument if you sum to your argument if you wish?

    William B. Beirne:

    Mrs. Rosenberg mentioned the subpoenas, corporate summons removal and matters of that kind and suggested because of that by analogy that the Court would have the power to issue these writs of habeas corpus ad prosequendum.

    Of course, I think that that fortifies our position because in every instance, Congress took the pains to pass specific legislation for the purpose of doing these particular things indicating that when Congress found it necessary to do it, it did it just as it did with the three to four sections of C5 of — C 2241 when it added notes and found it necessary because in Ex parte Bollman, the Court held in that case that insofar as the writ of habeas corpus was concerned you could look to the common law for its meaning, but insofar as the power to issue the writ was concerned, you had to look to what Congress did.

    Felix Frankfurter:

    Let me — may I put to you the problem I put to Mrs. Rosenberg.

    Cut out by the intervention of the Court, but if in this situation, the Attorney General or the United States Attorney in Los Angeles had written to his Chief in Washington, the Attorney General and told them the situation and asked for his good offices to seek through the Attorney General or through the Governor of New York the guarded release of — what’s his name — Carbo to be sent out to Los Angeles.

    Do you think the habeas corpus by Carbo not to be taken by the jailer to Los Angeles?

    William B. Beirne:

    I think the habeas corpus would lie.

    It wouldn’t like —

    Felix Frankfurter:

    And why, and why?

    Why couldn’t the governor of New York having in the prison system of New York a detainee or prisoner accommodate himself to the — what he regards as the desirable purpose of the Federal Government, the prosecutor then pursues it for no other reason and that the charge can be made that he was denied on — he was denied of the constitutional protection of a prompt trial.

    What is that? What provision of the Constitution if you are seeking this habeas corpus would you invoke?

    William B. Beirne:

    I’d be seeking it because there’d be no jurisdiction in the California Court to have that in there.

    Felix Frankfurter:

    I’m not saying the California court.

    I’m not — court is out of it.

    I’m just operating between two officials, the Attorney General of the United States, and the Attorney General or the governor of New York.

    William B. Beirne:

    Well I’d say that the Attorney General will have no power to —

    Felix Frankfurter:

    Write a letter to the governor of New York?

    William B. Beirne:

    — write a letter yes, but it wouldn’t confer any jurisdiction upon the Attorney General.

    Felix Frankfurter:

    But has the governor of New York — what limitation says the Federal Constitution to bar the governor of New York to say, “We think it’s highly desirable to have this federal prosecution and therefore since we have — since this man has no liberty, he must been in Singsing, we’ll take him out of Singsing under the appropriate guard” and let the Federal Government try and when he’s through then he’ll be returned to it.

    What constitutional provision bars that?

    William B. Beirne:

    I don’t —

    Earl Warren:

    If they let him out of jail in New York —

    William B. Beirne:

    Yes.

    Earl Warren:

    — that he’s entitled to be enlarged on his hundred thousand dollars bail.

    William B. Beirne:

    Exactly.

    Earl Warren:

    And if anybody restrains him, I guess, he’d be entitled to get this release.

    William B. Beirne:

    He wouldn’t be.

    Felix Frankfurter:

    But he isn’t enlarged, he is kept in the New York custody.

    Earl Warren:

    But the Court — the Court said that he’s entitled to bail and if he isn’t in the New York jail and they turn him over to somebody else from, would he be lawfully detained?

    William B. Beirne:

    I think that’s the answer Mr. Justice Frankfurter.

    Tom C. Clark:

    I wonder if that’s just wrong.

    I don’t (Inaudible) period of arraignment $300,000 bonds in Baltimore?

    William B. Beirne:

    I haven’t seen the bond Mr. Justice Clark.

    Tom C. Clark:

    I thought you said that —

    William B. Beirne:

    I beg your pardon.

    Tom C. Clark:

    After the plea, I thought a new bond would be set.

    William B. Beirne:

    No I think they continue the old bond.

    William J. Brennan, Jr.:

    Mr. Beirne does that appear — all that appears what I can’t find in the record is on page 10 and that’s merely is under the — admitted a recital that he represented of the (Inaudible)?

    William B. Beirne:

    You’re speaking of the transcript?

    William J. Brennan, Jr.:

    Yes, page 10.

    The defendant states, he has posted $100,000 bond.

    William B. Beirne:

    Yes.

    William J. Brennan, Jr.:

    Now this I gather was on the occasion that when he appeared with the arraignment and plea.

    William B. Beirne:

    Yes.

    Now, the bond is in and I’ve seen the records and — I haven’t seen the bond but I have seen the letter of transmission in the files in Los Angeles.

    William J. Brennan, Jr.:

    Well I’m — I’m (Inaudible) point really is whether that as Justice Stewart suggested earlier it becomes function if he appears for arraignment free —

    William B. Beirne:

    That I don’t know one.

    Maybe that’s ordinary — I’m sorry.

    Tom C. Clark:

    (Inaudible)

    William B. Beirne:

    Yes.

    They continued the bond in effect.

    I’m not familiar with that the phase of the case because I was not in the case at that time.

    Charles E. Whittaker:

    Mr. Beirne.

    William B. Beirne:

    Yes Your Honor.

    Charles E. Whittaker:

    May I ask you a question?

    Assume for the sake of argument that he has standing to maintain the act of (Inaudible), could the writ be issued in the light of this bond?

    Could he win —

    William B. Beirne:

    I’m sorry.

    I didn’t get your last.

    Charles E. Whittaker:

    Even assuming that he has standing to maintain the action, could he win, could the writ issue?

    Charles E. Whittaker:

    Could he win the (Inaudible) in the light of his bond which — on which he agreed to post (Inaudible)

    William B. Beirne:

    Now that brings up what Mrs. Rosenberg was talking about.

    She was talking about the Government assisting the defendant in performing his contractual obligation.

    His contractual obligation if we assume it’d be so is to appear in Court at the time of trial.

    Now prior to that time, I don’t think the Government has any right to assist him financially or otherwise, to bring him back from — from New York to California.

    If he doesn’t come — if he do not come during — at that time, then an action could be brought upon a bond and a bench could issue a warrant.

    But here the Government in advance of knowing whether or not he is going to be in default, whether or not he’s going to show up, they want to bring him here.

    And they want to bring him here as we say by a writ which is — they don’t have authority to issue.

    Thank you very much.