Gore v. United States

RESPONDENT:United States
LOCATION:Philadelphia Board of Public Education

DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 357 US 386 (1958)
ARGUED: May 19, 1958
DECIDED: Jun 30, 1958

Facts of the case


Audio Transcription for Oral Argument – May 19, 1958 in Gore v. United States

Earl Warren:

— States of America.

Mr. Rauh.

Joseph L. Rauh, Jr.:

May it please the Court.

The question presented here is whether petitioner was properly sentenced to three consecutive prison terms for a single sale of narcotics simultaneously violating three anti-narcotics statutes.

The court below reluctantly followed this Court’s decision in Blockburger and said that this could be done.

The facts are uncomplicated and I believe undisputed, indictments in six counts.

The first three cover one sale and the second three, cover a sale two days later.

The first three counts are, count one is that he sold without the required written order that violates one statute.

Second count is he sold the same narcotics without a tax stamp that violates a different statute.

The third is he sold it knowing it has been unlawfully imported, a third completely different statute.

The second three counts has four, five and six, are the same statutory violation of the second sale.

The trial was like every other narcotics trial, I take it, like the ones that Massey Alley and Sherman decided this morning.

It was simply the testimony of the narcotics agent who had induced the sale.

We make no claim of entrapment because we were not — we know nothing about the situation but we do know that the entrapment point was raised.

But the testimony was roughly the same.

The agent comes in and testifies.

He went to the man.

He asked if he could buy some narcotics.

The man goes out for an hour.

He comes back, hands him the narcotics, takes the Government agent’s money and that’s all we know about it.

We do know that it was simply this one act all within an hour of going out and getting the narcotics and handing it over that allegedly violates three statutes.

Now, the sentence which Judge Youngdahl gave was this, one to five years on the first count for selling without a written order, one to five years consecutive on the second count of selling without tax stamps and one to five years on the third count of selling knowing of the unlawful importation, a total of 3 to 15 years for the first sale.

For the second sale, he gave him a concurrent sentence, so that what we really — what we have before the Court is the consecutive sentences of one to five, one to five and one to five for the one sale for the three statutes.

In other words, we do not have to concern ourselves with the second sale because that was all concurrent.

What was the maximum sentence it could have imposed — imposed if this was a single and just to be — used it as a single crime?

Joseph L. Rauh, Jr.:

Five years maximum and it was 15.

The minimum in the District of Columbia is one-third of the maximum under the Indeterminate Sentence Act, so it would have been 20 months, would have been most of the minimum could have been and we have 3 to 15 instead of what would have been maximum 20 to 5 — five years.

Now, there was no appeal but the — under 28 U.S.C. 2255, petitioner sought relief from an excessive sentence.

The District Court found he was not entitled to relief.

The Court of Appeals affirmed by Judge Bazelon and Judge Faye both expressed their displeasure or reluctance to follow Blockburger, although they of course did follow it.

Earl Warren:

Mr. Rauh, according to your — your view, could he have been sentenced to one to five to run consecutively on each sale that he made?

Joseph L. Rauh, Jr.:

No, sir, under the Boggs Act.

Yes, sir, under Blockburger.

And top of — and except to the Boggs Act, yes, sir.

This is a completely new question never been decided.

Earl Warren:

No, I mean — I mean you had two separate sales that were no way connected (Voice Overlap) —

Joseph L. Rauh, Jr.:


But if, Your Honor please, the Boggs Act of 1951 makes a first offender a maximum sentence and a second offender, it would be my contention if I were here with that case which I am not but the Boggs Act prevents that because he wasn’t a person who had been previously convicted under the Boggs Act.

However, I don’t believe that is in this case.

Earl Warren:

I see.

Joseph L. Rauh, Jr.:

Now, petitioner’s —

Felix Frankfurter:

Is the Boggs Act at all relevant to our problem?

Joseph L. Rauh, Jr.:


I was going to deal with it under the statutory —

Felix Frankfurter:

All right.

Joseph L. Rauh, Jr.:

— construction but not on the particular point that the Chief Justice asked me about.

Now, petitioner’s argument falls under two heading.

First, we maintain that Congress did not intend to make the simultaneous violation of three anti-narcotics statutes by a single sale of narcotics into three separate sentences for the purpose of conviction and sentencing.

We do say of course that Congress intended to make them separate offenses, that they could be prosecuted under either that the Government doesn’t have to make a selection until sometime but that they cannot have consecutive sentences.

And secondly, we contend that if Congress did so intend its action as applied to this case, violates the Double Jeopardy Clause.

Felix Frankfurter:

Are you going to raise the question or is it relevant to your problem as you conceded to consider the problem that was — that was in part of the decision this morning, namely, accepted not conjoined prosecution or in case of guilt or in case of innocence, finding an acquittal by the jury.Is that relevant to your argument?

Joseph L. Rauh, Jr.:


That part is not, if Your Honor please, but the cases this morning are relevant to another matter and I did want to deal with them under — I do not feel that the majority opinions of any of this morning’s cases in anyway forecloses our case under the Double Jeopardy Clause but I know —

Felix Frankfurter:

I didn’t mean to imply any of them.

My question merely was whether they’re involved in any argument.

Joseph L. Rauh, Jr.:

Not the successive prosecution part, if Your Honor please, but the question of double jeopardy which they raised.

The different evidence test I think is relevant.

But —

Felix Frankfurter:

Don’t — don’t —

Joseph L. Rauh, Jr.:

We are particularly —

Felix Frankfurter:

(Inaudible) in you’re overtime.

Joseph L. Rauh, Jr.:

We are particularly going to urge on this part, not a constitutional decision but one of statutory construction and not solely or even principally because of this Court’s usual rule of avoiding that constitutional issues can — when it can vote for one more significant purpose it seems to me and that is I hope is the one thing I can do having been appointed here is to point out to this Court that it has two absolutely irreconcilable line of cases going down side by side.

And I want to show that in this particular matter here, a proper construction of the intent of Congress cannot only reconcile what I consider these irreconcilable lines of cases, namely between the multiple — the unit of prosecution cases, Bell, Prince and Universal C.I.T where Congress is required to explain and state when it wants a severe result.

And the multiple statutory offense cases where several statutes are involved, where this Court has taken a 180-degree diametrically opposed rule and said there that automatically if there is different evidence or a different element then Congress is presumed to have wanted the more severe result.

And it is my hope to be able to make clear that this is where we feel the reconciliation can come by applying the same rule of demanding of Congress a clear expression of its desire for severe punishment before acting in the two sets of cases.

Felix Frankfurter:

Well, I rightly infer as — I just want a statement and not argument that if Congress had said in term and for each one of these offenses though — though committed by a single transaction, the Court may or indeed it shall be excluded to impose a separate punishment.

We’re not challenging that as to constitutionality —

Joseph L. Rauh, Jr.:

Yes, I do challenge that —

Felix Frankfurter:

You do?

Joseph L. Rauh, Jr.:

— if Your Honor please, but I — I am not — I’m rather suggesting that the — that we can — that the major thing that would reconcile the cases would be in the field of statutory construction.

I do feel, however, that if this Court should feel that it could not so construe the intent of Congress, that there would be a violation of the do — of the Double Jeopardy Clause and I intend to —

Felix Frankfurter:


Joseph L. Rauh, Jr.:

— to present that to — to the Court.

Now, on point one which we do feel is the more likely ground of decision that the intention of Congress, of course, in 284 U.S. in Blockburger, this Court held the other way.

This Court held that a sale of a narcotic without a stamp under one statute and the sale of a narcotic without a written order under another statute that Congress had intended to allow a consecutive — two consecutive sentences in that case.

No argument of legislative history was presented to the Court and the Government suggests that the Court knew all about the legislative history from the Nigro case four years — four years before.

I suggest to the Court that such memory on so complicated a situation would be difficult for anyone.

At any rate for the first time, we believe the full legislative history is presented in our brief.

And here, we presented a little extra and made a mistake which I feel obligated to point out to the Court as I go along.

So three statutes here involved, derived from three earlier statutes.

The one about the sale, knowing of the unlawful importation derives from the Opium Exclusion Act of 1909.

The one about selling without a written order derives from the Harrison Act of 1914.

The one about the sale without the stamp tag derives from the Revenue Act of 1918 enacted in 1919.

And we made the same mistake of assuming this last one was part of the Harrison Act because the Court in Blockburger had actually made the same implication.

Actually, the three statutes do come from different — at the — into the law at different time.

But we suggest to Your Honor that there is — Honors — that there is no question that they were all intended for a single purpose, the suppression of nonmedicinal use of narcotics.

That there was no other conceivable purpose for these three statutes and it is of no significance when they came in since each one of them makes clear that this was their purpose.

And I particularly would like the Court to note on pages 26 and 27 of our brief, probably the best statement of congressional purpose in the entire legislative history, although this is only a very small part of it is the House Report on the 1914 statute which was the basic statute in which the House stated as its purpose, narcotic should be confined to legitimate medic — medical channel and it has been decided by them that only by justice — that only by custom laws and by the exertion of the federal taxing power can be desired and be accomplished.

These are the italicized parts there and this is the thread of the entire legislative history.

It is that all power taxing customs interstate commerce must be used to suppress the nonmedicinal use of narcotic.

Joseph L. Rauh, Jr.:

Now, the Government concedes all these, I believe.

I don’t want to understate this but it is my belief that from the Government’s brief, they concede that all — these statutes were aimed at outlawing sales of narcotics except through recognized medical channel.

On page 14 of the Government’s brief, it states that these statutes were aimed in outlawing sales of narcotics except through recognized channels.

And on page 17 in the title, the Government says the three narcotics provisions have distinct function in the enforcement of the ultimate and of suppressing narcotics.

So it does seem to me that there is no question of the unitary purpose of Congress here.

Now, as far as the opposed — this was the situation when we had Blockburger.

This was not argued to the Court.

The legislative history, the unitary purpose, the suppressed narcotics was not explained to the Court and the decision went the other — went the way opposite of our contention.

And we believe that that would be enough now for reconsideration.

Nevertheless, the post-Blockburger statutes do throw some light on this.

There have been three, the 1937 Act, the 1951 Boggs Act and the 1956 Act which involves — which is post the trial.

Therefore, I thought I would refer solely to the Boggs Act which was the statute in effect at the time of the act, the trial, and the sentencing.

Now the Boggs Act, by providing for uniform sentences for second and third offenders —

William O. Douglas:


Joseph L. Rauh, Jr.:

The — the Boggs Act, if Your Honor please, it’s printed in several places but the — probably the quickest way to give it to you would be on our brief.

It’s in twice.

The first section of the Boggs Act is included as the penalty part on page 3 and the second section of the Boggs Act is the penalty on page 5.

Now, everything in the Boggs Act, it seems to us, points towards a congressional intention against consecutive sentences here.

In the first place, the Boggs Act sought uniformity, stated that’s perfectly clearly an intention.

Well, how can one be uniformed in punishment if the prosecutor can determine how many crimes you’ve committed and can use in one case, one count and in another case two counts and in another case, three counts.

This gives prosecutorial discretion in determining crime and punishment, and judicial discretion rather than the uniformity sought by Congress.

And secondly, there was a — Congress try to have a similarity of treatment for repeaters.

They didn’t care about the — they gave the same sentence both when they were — for what they were — regardless of what the repeater did and regardless of what the repeater had done before.

They treated them — they showed that the whole thing was aimed at the suppression and not the particular method in which the criminal or alleged criminal happened to violate the law.

And thirdly, they provided for differentiation.

They believed in the principle of reform.

And the first sentence, the first offense was not intended to carry as — as severe a sentence as the second or third.

Well, if by multiplying the punishment at the first offense, you can get and we did here, yet, a penalty greater than there was — could have legally been for a second offense under the Boggs Act.

In other words, the maximum of 15 years which was given here is five years longer than the Boggs Act permits for a second offense.

Felix Frankfurter:

Did — did the Congress anticipate the suspension of petition of yours as to what the Boggs Act implies?

Joseph L. Rauh, Jr.:

Congress, I must say never mentioned Blockburger, the point in Blockburger or anything that I have said.

There was therefore no ratification involved in this, nor was there any support for our position.

Felix Frankfurter:

I wasn’t thinking of ratification.

I was wondering if the silence of Congress carries greater weight of — if you lose position in the silence of this Court or arguments before it.

Joseph L. Rauh, Jr.:

Well, I think the silence of Congress here evidences a fact that they — and this was the fourth point under — under Boggs, it seems to be very relevant if, Your Honor please, severity.

Boggs Act is — increased the punishment.

It was very severe on the criminal.

I do not think when they are that severe that you would then assume that Congress’ silence was intended to say, “Oh, we don’t care how much more severe it is.

You can triple it by counting it three sentences —

Felix Frankfurter:

I don’t have to (Inaudible)

Joseph L. Rauh, Jr.:

— for the same (Voice Overlap) —

Felix Frankfurter:

I can assume and probably the fact that they didn’t think about it.

Joseph L. Rauh, Jr.:

I assumed that too, Your Honor.

And — and there — but it does seem to me in this instance not thinking about it would more likely help petitioner’s case in the Government.

And then there is one parenthetical case point about the Boggs Act that I was going to mention at this point but I’d already mentioned it in connection with my answer to the Chief Justice, which is that the Boggs Act may affect the two sale problem but I don’t think it’s involved in this — in this case because the Boggs Act does say that a second offender is one who had previously being convicted.

That would not have been true here.

He could not be treated as a second offender.

In our judgment, if this case does arise at some — in some other connection why the issue will be raised for the Court whether Congress did not intend there to treat even the two sales as limited by the penalty which a man could receive for the first offense.

Earl Warren:

Now, may I ask you this.

If it were not for the Boggs Act, could he have been sentenced for two to five-year terms?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Earl Warren:

Now, this is what’s going through my mind.Suppose — suppose that is true and then Congress comes along and without any thought of pleadings or procedures as I use to make it a more — a much more serious offense to the second term and it — it says for second offense, it shall be 10 years.

Do you think that should wipe out all — all procedures that would permit separate convictions and consecutive sentences in that field?

Joseph L. Rauh, Jr.:

I’m afraid that I don’t fully —

Earl Warren:

Well —

Joseph L. Rauh, Jr.:

— understand it, sir.

Earl Warren:

— here’s — here’s my point.

Now, before the Boggs Act, if they made two sales he could have been convicted of both and he could have been sentenced to consecutive sentences?

Joseph L. Rauh, Jr.:

Yes, sir.

Earl Warren:

Now, Congress decides that the punishment is not severe enough for habitual criminals and it passes an act like the Boggs Act to make a second offense, 10 years instead of five.

Earl Warren:

Do you think if that’s what Congress had in mind, that by passing the — the Boggs Act, it would wipe out the possibility of having two convictions as they have before that and have the sentences run consecutively.

Joseph L. Rauh, Jr.:

I think not, Your Honor.

It seems to me that Congress very clearly intended a second offender to be only one who had been previously convicted.

That is if you made two sales.

Earl Warren:


Joseph L. Rauh, Jr.:

Say a month apart but you weren’t convicted in the interim, it’s perfectly clear that Congress did not treat you as a second offender.

You were only a second offender —

Earl Warren:


Joseph L. Rauh, Jr.:

— if you’ve been convicted in the — in the interim.

Now, Congress tried to treat a second offender as one who hadn’t been convicted in the interim that seems — and wanted to say if a man made two sales, I will be more severe even though he hasn’t been convicted, that raises some questions of fair treatment but I doubt it if it would go to the extent of a due process point.

Earl Warren:

Well — well, then may I — may I ask this — this question.

Do you — do you feel that the Boggs Act has limited the Government in punishing the narcotic peddler to one term of five years no matter how many sales he might have — have made before he was ever convicted?

Joseph L. Rauh, Jr.:

I do, Your Honor —

Earl Warren:

That’s (Voive Overlap)

Joseph L. Rauh, Jr.:

— even though it is not involved here, I do feel strongly that that — that is the way it would work.

Yes, sir.

Felix Frankfurter:

Well then, let’s see if I understand that.

If a fellow is indicted, defendant is indicted under two counts.

The first count for selling unlawful in March 1958.

He is indicted in the second count but didn’t pay tax in April 19 — suppose one of the other brief.

Now, under the Boggs, in the present situation, what punishment do you urge within the part of the District Court to impose?

Joseph L. Rauh, Jr.:

The five years is — 20 months to five years, the first count —

Felix Frankfurter:

Just one sentence as a one — as of one offense.

Joseph L. Rauh, Jr.:

Because of the — one knows it could be two sentences but they couldn’t add up to more than the Boggs Act would permit because there wouldn’t have been a previous conviction.

Felix Frankfurter:

Now in the Blockburger there wouldn’t — he couldn’t come under Boggs and you reject Blockburger —

Joseph L. Rauh, Jr.:

We are urging —

Felix Frankfurter:

So (Voice Overlap) —

Joseph L. Rauh, Jr.:

— the Court to reject Blockburger and I will —

Felix Frankfurter:

— so that it would — there would be just one sentence, although they are a different theory because to say fundamentally all this statute had just one objective.

Joseph L. Rauh, Jr.:

That’s correct.

Joseph L. Rauh, Jr.:

Now, let me — if I may do what this seems to be but the only thing we have uncovered that might be considered new in this field and that is what happened in Blockburger and why we think reconsideration is so essential.

Now, the Court didn’t have the legislative history before it at that time and it may — well if I may say so, a mistake that it sometimes occurs, it applied a test that have been set up as constitutional test as a matter of statutory construction.

May I explain what I mean?

If you will look at Blockburger, you will see that what were cited are the Murray case from Massachusetts and the Gavieres case, both of which dealt with the double jeopardy question and said that the rule for double jeopardy is whether there’s a different element or different evidence.

And then without any discussion, Blockburger applies that rule as though it was related to the intent of Congress.

Well, there is no possible reason for assuming that Congress in deciding severity.

In deciding how much to punish someone should have thought that a good rule would be a rule that have been set up for constitutional purposes and I — it just seems to me as clear as night and day that this just wasn’t — just wasn’t thought of at the time, that double jeopardy had not been raised in Blockburger.

But that the Court really without very much discussion just applies cases that involved the double — the different element or different evidence test that comes from the constitutional discussion in the Massachusetts case and then in this Court’s decision in Gavieres, it pulls that over that constitutional test as though it had something to do with the intent of Congress.

Without ever considering, whether this would have been a logical intent of Congress and without one word in the legislative history ever suggesting that Congress was thinking in the terms of a different evidence or different element test.

And we say that the use of the different element or different evidence test for statutory construction is — is putting one’s hand — hand in the standard.

No — Congress has never suggested that test.

This Court just assumed Congress meant that and we suggest the abandonment of this test.

Now to suggest the abandonment of a test, you have to be prepared to suggest one in twice.

We are so prepared.

Seems to me, this Court has suggested itself in — if unit of prosecution cases which I meant before, Universal C.I.T., Bell and Prince.

All three of these cases reject the different element or different evidence cases because in every one of those three cases, you have a different element.

As far as though — you had to prove there were two ladies in the — in the car or you have to prove that there was a different employee.

This Court has rejected the different element test or different evidence test as a matter of statutory construction when you had one statute, the unit of prosecution cases, you couldn’t possibly continue the different — it seems to me the different evidence, different element test when you’ve got several statutes because it’s a question of congressional intent.

There’s no reason to believe that Congress utilized the different element or different evidence test when it came to the multiple statute case but it wasn’t prepared to utilize that when it came to the unit of prosecution cases.

Instead, this Court set up a rule Congress must tell us when they want the more severe result.

We respectfully submit that this — this is the only thing that can be done here to bring two different lines of cases together and we so urge now —

Felix Frankfurter:

May I put to you — may I put to you my difficulty.

You seem to emphasize and find — derived great strength from the legislative history indicating that all three statutes involved or directed towards the same — against the same evil.

Am I right about that?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Felix Frankfurter:

Well, am I wrong in thinking that when the Narcotics Act — Harrison Act — I haven’t looked at this and you tell me quickly if I’m wrong.

It’s my recollection that that — the constitutionality of that was attacked in part because it was claimed that under the guise of a taxing statute you’re really passing a Police Act.

Am I right about that?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Felix Frankfurter:

Well then it wasn’t some esoteric knowledge that you will properly deny to this Court in knowing that all these — all these enactments were against the narcotics traffic.

Felix Frankfurter:

What is — what is there so emphatic in your mind bearing upon this question?

That namely that all three statutes of a different Board of Congress was attacking it form three different ways then making three different transactions, three distinct offenses —

Joseph L. Rauh, Jr.:

Well, this Court may — this Court said that there was an internal revenue in Blockburger.

This Court talks about the internal revenue aspects of this in an effort to avoid a constitutional question which today would not arise.

The difference in decisions on the Commerce power would make possible this without all the pettifoggery that went into the use of the internal revenue part.

And I’d like to point to Your Honor that the — that the total tax on our client here had he paid it would have been one-seventh of one cent and the total cost of the written order would have been one cent.

Of course, he couldn’t get one because it was illicit activity but it demonstrate —

Felix Frankfurter:

And that argument would be of no avail if you were prosecuted for that.

You wouldn’t be here I take it in urging that this isn’t really a revenue measure because it wasn’t intended to be a revenue measure.

Joseph L. Rauh, Jr.:

Precisely, but this Court had to look a little bit — had to — in order to sustain that, it found some revenue aspects that it wouldn’t have to find today in order to sustain this Act today because the Commerce decision are so totally different today than they were at the time of Blockburger.

And this Court in Blockburger talked about an in — a revenue aspect which today, I do not believe that the same question of constitutional power arise — arose.

This Court would feel called upon to mention.

Felix Frankfurter:

Well, it’s just like the old — a lot of cases, and so you don’t have to go into it.

Joseph L. Rauh, Jr.:

Well, may I say, if Your Honors please, that — that not only with this — what we’re suggesting here is a matter of statutory construction that to use the unit of prosecution cases here.

But then if you don’t, we get into an — into some real difficulty.

In the first place, the court below cited the unit of prosecution cases as though they applied.

Several courts have urged a change in Blockburger but this — but the best case really to illustrate my point is a case that’s come down since we filed our brief and I do want to call it to the Court’s attention.

It’s United States v. Yancy, Y-A-N-C-Y.

It’s in 252 F.2d 554.

This was the epitome of these two lines of cases.

This was in the Sixth Circuit.

A man was indicted for the purchase of some narcotics without a tax stamp and the sale of the same narcotics without a tax stamp.

This made it a unit of prosecution case like Bell and those and not a multiple statutory case like Blockburger.

But as good a Circuit Judge as Potter Stewart treated it because I think it was narcotics as though it fell under Blockburger whereas in fact it was a unit of prosecution case that should have been treated like Bell, Universal C.I.T and Prince.

And I’m just suggesting that — that it reduced this thing of two lines of cases to it — to its logical and to an absurdity because he didn’t know which line to follow.

It was really a unit of prosecution case and therefore one would logically have followed that.

But it also was narcotics and he followed the Blockburger decision —

Felix Frankfurter:

What you call the unit of prosecution cases, they all had an element — you correct me if I’m wrong again.

If I’m wrong, you’ll correct me.

They all had an element of a different — of a — of a continuity of conduct rather than an isolated discreet instance, is that right?

Joseph L. Rauh, Jr.:


Felix Frankfurter:

We emphasized in the Bell case that transportation was the thing, so it doesn’t make any difference whether it’s six women at once or two.

In C.I.T there was also not a question of not — I forgot what was that — entry or not entry invoked one of the other.

Joseph L. Rauh, Jr.:

No, that is the C.I.T is your — waging our case —

Felix Frankfurter:

That was —

Joseph L. Rauh, Jr.:

— different employees.

Felix Frankfurter:

But if —

Joseph L. Rauh, Jr.:

Different employees.

Felix Frankfurter:

— it’s related to the system of keeping books or not keeping books.

Joseph L. Rauh, Jr.:

That was one part of it.

Felix Frankfurter:

I’m suggesting that there’s a difference in the nature of the offense and that all unit of prosecutions can’t be clubbed together.

Joseph L. Rauh, Jr.:

I would suggest to you, Your Honor that the difference is all in our favor.

Now, take the employee situation in Universal C.I.T.

This Court held that if you pay three employees, each of them less than the minimum that was just one offense.

They interpreted Congress that way.

The act of paying three different employees, different paycheck, different pay envelopes, just one offense for paying three different employees this —

Felix Frankfurter:

Because the duty that was cast upon the employer is to keep books.

Joseph L. Rauh, Jr.:


I — I’m sorry.

It seems to me that it was broader than that.

It was the idea and it is — it’s articulated, it’s actually more articulated than Bell that Congress has got to state when it wants a more severe results.

Felix Frankfurter:

I’m not against you —

Joseph L. Rauh, Jr.:

And I’m saying that you can’t say Congress has to state for the more severe results when you’ve got the unit of prosecution cases under one statute then it has to state it wants a more severe result when a single act violates three statutes.

On the contrary, there is much more reason for saying the single act under three statutes should have one offense than there was for saying that several acts under the single statute should have one of them.

Felix Frankfurter:

I’m — I’m questioning you because I’m very sympathetic with your general position as you know from my opinion.

But I should think there’s a difference in putting that burden on the Congress when it passes an act on May 19, 1958.

As again saying that when it passed an act in 1909 to throttle or at least to curve the narcotic statute, that’s the purpose.

Well that didn’t do it until 1914.

They passed another statute to deal with the same evil.

That didn’t do it and in 1919 they passed another statute.

Felix Frankfurter:

And what you’re saying the inference is that these three different statutes directed against the great evil, passed a different time, having different subject matter or content of crime, in each case, the Court — the Congress implied that we absorb what preceded and they did a single offense.

Joseph L. Rauh, Jr.:

Well, there was —

Felix Frankfurter:

That’s your argument, really.

Joseph L. Rauh, Jr.:

Not quite, Your Honor, because there have been codification, the Boggs Act brings all the punishments into one — you — I don’t — the fact that the statutes are at different time, it doesn’t seem to me, (a) would be very determinative a part from it, but (b) if it were, they — the punishments have been brought into one codification without stating the answer to this problem.

And I see no more reason when this was done why this Court should say looking at the — at the statutory situation in one case we want a rule of harshness and we want a rule of lenity.

In fact, the Court has — the Court — the Blockburger rule is so bad because it doesn’t even leave open the question of intent of Congress.

You see, what we’ve gotten in — in the unit of prosecution cases as the rule of lenity, they have to speak frankly and freely and tell us.

We have on the other case, the Blockburger case that — we don’t look at what they say.

We assume a different element test.

We actually don’t have anyone in the middle saying let’s look and find out what the balance of congressional intent is.

We have two rules that seemed to be going in opposite directions.

And it’s for this reason that we — and for the criticism from the court below and the mixing up of these two lines of cases which reach the type of absurdity in the — in the Yancy decision by Judge Stewart when he didn’t know which line to follow so he followed the one that used the word drugs.

And I — I don’t blame him for it but it seems to me that we have to get this thing straightened out and that this was a major proposal that as a counsel we desire to bring to the Court’s attention.

Now if, Your Honor —

Earl Warren:

What was the citation with that Yancy case if you please?

Joseph L. Rauh, Jr.:

It’s 252 F.2d 554.

It was decided on February 28th, at least we were not aware of it at the time we filed our brief.

I do not know whether a petition has been filed in this Court.

It had not the last time we checked.

Now, coming from here — we urge that this rather than the constitutional decision, not only for the basic rule of — that this Court avoids constitutional decisions but that a great deal of clarity on the whole problem could be done on the statutory construction side.

Nevertheless, we do feel to call on to go into the constitutional point very briefly.

Now, there’s a preliminary question which we thought might be argued by the Government, whether multiple punishment at one trial could ever be double jeopardy.

The Government at page 38 of its brief concedes that it can be in Footnote 18 on page 38.

The Government concedes the preliminary question which we briefed but I do not feel to call upon to argue.

It states — the Government states, we do not dispute petitioner’s position, that multiple punishment for the same offense after a single trial would be a violation of double jeopardy.

Now, the question is was this the same offense?

Now, the Constitution provides that no person shall be subject for the same offense, to be twice put in jeopardy of life or limb.

I would respectfully submit that the primary meaning would appear to mean in same offense would be same offense and that it would be same act, or same conduct, or same transaction not possibly too late for such a meaning.

I think when you come, you try to — to this Court, you try to — to absorb as much of — of history as you can and it is probably too late to go back to the primary — what would have seemed to us, the primary meaning.

It is not, however, too late to go — to make same offense, one offending of society, one social evil.But in other words, if the same transaction creates only one social evil, then it would seem to us that there should be a violation — that should be treated as a violation of the double jeopardy provision.

Joseph L. Rauh, Jr.:

Now, there’s nothing in Hoag or Ciucci this morning, which in anyway revalidates the earlier decision or it challenges the point we are now making.

In the first place those were state cases and I take it that the majority view remain, the double jeopardy is not within the Fourteenth Amendment.

In the second place, it’s very likely that even if this Court adopted what we urge, which is that where there is one transaction then it would be a violation of double jeopardy, unless that single transaction created two social evils.

You might still say that the murder of two people was two social evils or the robbery of two people.

In fact, we had foreseen this problem and at page 71 of our brief in a footnote we had rather assumed that these cases would — might go that way and had distinguished the problem in our Footnote 51 at page 71.

Now, the different evidence test, I’ve pointed out as meaningless for purposes of statutory construction.

It doesn’t work as a constitutional test.

It got into the law, I might say by accident.

It was borrowed from Murray against Commonwealth in 1871 in Massachusetts where Mr. Murray was indicted for relations with one Bridget Kennedy and he was indicted for both adultery and lewd cohabitation.

The Massachusetts court put the no double jeopardy on the ground that there was a different element in each case.

I would respectfully suggest that had they put it on the ground that there was a different social evil in each case, namely the one, the protection of the interest of the State in protecting the State as a matrimony, the other in the public morals you would have had a different development of the law of double jeopardy in America.

But this Court borrowed this different element as — just took this different element or different evidence test as a basis of constitutional decision from the Murray case in the Gavieres case without any consideration of the fact that the Murray case itself was explicable on other grounds.

And the point is — and even argued in Blockburger — in Blockburger and many other cases, it is just assumed that the different evidence or different element test works.

Now, the — I can’t see the different element test at all as a constitutional test.

The — the Government’s whole point is that you don’t look at what the facts that the individual did.

You look at whether there are different statutes involved and different evidence under the statutes.

But I respectfully suggest that the Bill of Rights looks at what the individual does.

But the — that the difference between us and the Government is not great, it’s just the fact that we’re on different sides of the room looking at the — at the same point.

We say that under the Bill of Rights, you don’t look at what Congress did to see its three statutes here for constitutional purposes, you look at how they affect the individual and the individual was engaged in only one transaction.

And if he only offended one social purpose or one social interest by that, it does not — not seem to — to us that this would warrant saying, why you can get him as many times as you want as long as he happens to have — by his single act have done — have gone against three different statutes, even though he didn’t do — even though nothing in there was against a different social evil.

That was the one evil here at the suppression of narcotics.

It’s the one sale that’s involved.And it seems to us that a time has come for a reconsideration of the basic constitutional test if this Court reaches it.

We of course presenting with full vigor that this problem should not be reached here because the statutory problem of reconciling the two lines of cases would help us a great deal more.

Felix Frankfurter:

Does one transaction necessarily violate all these statutes?

Joseph L. Rauh, Jr.:

No, but it almost always does, Your Honor.

Felix Frankfurter:

Or that since you answer is no —

Joseph L. Rauh, Jr.:

It was no —

Felix Frankfurter:

— would your argument lead to the conclusion — would that lead in the direction of saying that Congress couldn’t say if all three proscribed acts are committed.

If only one is then the punishment is five years, if all three then the punishment shall be 15.

In other words, this elaborate argument may — all that it may lead to is a different scale of punishments.

Joseph L. Rauh, Jr.:

I don’t — Congress didn’t — I take it would be very severe within the realm of the — within the realm of the Eighth Amendment, it can be quite — quite severe and it is quite severe on narcotics.

You can even be executed today for a particular sale of narcotics, the sale of heroin to juveniles, but I don’t —

Felix Frankfurter:

My question goes to the reach of your — your double jeopardy point.

If Congress can deal with this situation, it will reach exactly the same result by a different scale of punishment, then where are we?

Joseph L. Rauh, Jr.:

I would say that you may get to the Eighth Amendment at a certain stage.

Your Honor yourself went on Bell as you get to the Eighth Amendment.

If you don’t get to the Eighth Amendment then Congress can be as severe as it wants.

But I do not see that that’s ground for limiting the Double Jeopardy Clause as simply that Congress may have a way of making things more severe within the Eighth Amendment.

Felix Frankfurter:

I would like to reach the Eighth Amendment much earlier the most because I’m against heavy sentences, but that’s a different problem.

Joseph L. Rauh, Jr.:

Well, coming back to the constitutional test we proposed, that if the both — the same — if the same transaction on the — and — and the same social evil, this seems to be — there’s more support for this position than appears — than has been generally understood and we have tried to collect it in our brief in the first place the legal periodicals have accepted this.

I think — and Justice Harlan cited this morning in the Hoag case, several of the periodicals, actually the Kirchheim (ph) article in the Yale Law Journal which Justice Harlan cited — cites this morning does make the very argument.

Actually, we have borrowed the argument from — from his article there.

The American Law Institute takes roughly the same position.

Now, I like to point out our footnote on page 66, I don’t think the Government agrees with us and our interpretation of the law institutes the position but I think Justice Harlan has made that clear this morning in the Hoag case.

The Law Institute suggests — well the Law Institute proposes the overruling of Albrecht which is the possession and sale of liquor case.

They will go — they just proposed that to be overruled.

As far as our case is concerned, their proposal is — it doesn’t mention it but it reaches the same result.

They say where there’s one transaction, then there must be one trial.

And where there’s one trial, then the most you should get should be the highest sentence on — that is given out for anyone of the counts.

That’s what we — we have in our footnote and it seems to us that the Law Institute, as well as the legal periodicals, as well as Judge Rutledge’s opinion in the Buckley case when he was on the Court of Appeals here, seem all to support the constitutional argument we are making here.


Joseph L. Rauh, Jr.:

I would say on the statutory construction point, I want — I would —


Joseph L. Rauh, Jr.:

— quite agree but not —

Hugo L. Black:

Constitutional argument.

Joseph L. Rauh, Jr.:

Now, on the constitutional argument it does seem to me that this Court has the obligation.

If Congress has made a — if Congress has — actually Congress hasn’t acted on this, the Government by its triple prosecutions, by its — and Judge Youngdahl, by his action in — in giving the three consecutive sentences who created the — the problem.

I’m not quite sure that I understand the — the idea of Congress implementing the Fifth Amendment to Double Jeopardy Clause, so as to deal with the problem.

I would have thought before, Your Honor spoke that that was likely the concern of this Court.

It was this Court’s obligation if it violated the Due Process Clause.

Joseph L. Rauh, Jr.:

I mean it violated double jeopardy.

It’s the question of whether (Voice Overlap) —

Joseph L. Rauh, Jr.:

Well, it does appear to me that it does.

I would — I’d go farther, if Your Honor please.

I think that when the Constitution says the same offense, it means the same offense and one act means one offense.

But I think it maybe too late to — and I feel somewhat obligated not to propose so radical a shift with the past.

Therefore, we are suggesting a more limited test which is the very test which was suggested by Mr. Kirchheim (ph) in the article cited in your — in your opinion this morning.

Now, in conclusion I would just like to state five reasons why we feel that Blockburger should be reversed on the statutory ground or the constitutional ground, but I think that I’ve made our position clear in favor of the statutory ground.

First, there is no enforcement problem, the Government conceives that there’s no enforcement problem in this — about this.

Their argument is on the contrary there’s not much — it doesn’t do much damage, the judge can always take care of it.

Their argument is this as a minimal problem.

Leave it all alone because it’s worked all right.

But the Government conceived that this will not create an enforcement problem for you.Secondly, it will reconcile the two lines of cases which seems to me the day to be creating the conclusion.

Thirdly, there is a dissatisfaction among the lower court judges.

There are four — there are four Circuit Courts of Appeal which — which have expressed their dissatisfaction of Blockburger, the court below here, the Second Circuit, the Eighth Circuit and the Yancy Sixth Circuit case.

And it seems to me the time — further more and fourthly the — the grave injustice to leave this to prosecutor and judge the danger of disparity, the danger of high sentences more than in one Circuit, one — one District more than another.

And finally, I think it should be said that Congress has sought to develop uniformity.

That’s what I think the meaning of the Boggs Act as one of uniformity and we urge a reversal in the interest both of uniformity (Inaudible).

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

May it please the Court.

Blockburger was decided in 1932 and it was not a unique case.

It’s followed by a number of decisions from this field before and number of decisions after.

And they all seem to me quite consistent in the point of view which I don’t think has been changed by the more recent decisions of this Court.

As the — I don’t think the particular factor that I think is the keystone to all these decisions, doesn’t seem to me to have been affected by it.

And what I think that is, is this, what the Court said in Blockburger what it said in Albrecht, which Blockburger started was that when we’re discussing the intent of Congress in creating offenses, the question is what was the congressional purpose?

What was Congress trying to accomplish when it outlawed certain behavior?

And in judging the congressional intent, we start with the way Congress legislates in general, not for Joe Doe and not for any particular set of facts that might happen to occur.

But what was the particular that Congress prohibited?

And if Congress intended to punish two different things in the Blockburger case, selling without a written order form and in the other offense selling without the stamps right on the narcotics, so you can tell whether they are legitimate or not.

If Congress said doing each one of these things is the fair thing that we think should be punished and if these two things can be different, then as far as Congress is concerned they’re subject to two separate punishments.

Beatrice Rosenberg:

And I think that if you go through all the decisions of the Court, you’ll see that that is the keystone.

It’s true that more recently the intent of Congress has been interpreted perhaps a little more broadly.

But it’s always been what was the act that Congress punished and not what was in the mind of the defendant when he did those things.

If Congress said, you shouldn’t do two things then the punishment placed can be for the two things that Congress meant.

Let me at this moment say that I think we don’t gain much in this case by talking about double jeopardy because it seems to me at least double jeopardy in the context of retrial, because the problems are different as this Court’s opinion in Hoag states although generally, the Court has not bothered to make that distinction.

There is no doubt, it seems to me, there is absolutely no constitutional problem that if Congress had said, you shall not sell unlawfully imported narcotics, if you do so, you’ll be subject to apply the penalty.

If in that sale you also leave out order forms, there shall be five-year additional penalty and if in that sale you don’t put in stamps, there will be an additional five-year penalty.

They had done that at one time in absolutely unmistakable language.

There wouldn’t be any constitutional question whatsoever.

On the other hand, I think if they had done it exactly that way, if a man was either convicted or acquitted of that one sale, there wouldn’t be any doubt that you couldn’t reach wrong and there is because it would be the same offense.

So that I think what the purpose of this case where all we’re dealing with is punishment.

It’s fair to concern ourselves to the question of how do we decide what it is that Congress has made the subject of punishment and our — that the approach — now, what the approach of the Court in Blockburger, in Albrecht, in Burton, later on in Michener was we look at what Congress said you shouldn’t do.

Did Congress have a reason for that?

If it did, then it doesn’t make any difference.

Whether in a particular case, under a particular set of facts that was done by one act or two closely related act, the point is you’ve done two things that Congress said you shouldn’t do and therefore you’re subject to the punishment for not doing those two things.

Now, Blockburger recognize this quite explicitly.

The other decisions I think more implicitly, they don’t say so that the particular facts to the particular case in the close relationship of the offenses to each other.

A large problem for the sentencing judge or some of them sentencing is a matter which is presently under consideration by Congress, leaves the sub-committee of the Senate Judiciary Committee has mentioned as one of the subjects to think worthy of further study of the matter of disparity in sentencing in the federal court and that is possible.

But that is the problem.

It’s a sentencing problem and is not essentially one of the definitions of the offenses or of double jeopardy.

And I think perhaps the most vivid illustration of how the matter of approach are, can in effect in a sense effectively so, is that the — you will compare the opinion of the Eighth Circuit in Michener against the United States.

With the short opinion of this Court, we’ve reasoned it.

In Michener against the United States this Court, the Eighth Circuit said, what we agreed that possessing a counterfeit plate and causing a counterfeit plate to be made can sometimes be two different offenses.

But in this particular case the indictment charge possession at exactly the same time, the same place as the charge of the making and the Government conceded that the making and the possession were coextensive.

So we think in this case you can’t have separate punishment.

This Court reversed in a very short per curiam citing Gavieres, and Albrecht, and Blockburger.

And it seems to me that if you analyze those cases and what they held, Albrecht was the case under prohibition, where there was one sentence for possession and one sentence for sale of liquor.

No question there that what Congress was aiming was the unitary purpose outlawing illicit sale of liquor.

No question there of justifying on any limited theory of federal jurisdiction, the Federal Government head up to the power drawing prohibition.

The point was Justice Brandeis said in his opinion was possession is something Congress want to prohibit, sale is something Congress want to prohibit.

Beatrice Rosenberg:

Possession and sale can in general be different.

The fact that they happen to be together in this case, that doesn’t make the offenses the same.

It’s for the judge to decide whether on a particular fact consecutive sentences are warranted or what — or they were not, and that I take it is what the Court was saying in Blockburger.

And the considerations that led the Court to that opinion are just as valid today as they were then and are just as supported by the legislative history.

Now, Blockburger cites, Nigro and I think it is fair to presume that the Court read its prior decision.

If you’re looking at the decision in Nigro which is quoted extensively on pages 21 to 22 of our brief.

I think you will see that the Court was completely aware of the purpose of the narcotic laws to outlaw illegal sale and that they were well aware of the fact that each was in a sense a step towards outlawing the ultimate evil.

And if you read Blockburger as against the background of Nigro and as against the background of all the other cases that had been decided before that, Burton and Albrecht.

There’s a per curiam called King against the United States decided just before Blockburger which involved one offense as selling one of — morphine and another of shipping the same morphine in interstate commerce.

I don’t think it can be said that Blockburger was written in any unawareness for the purposes of the statute.

And as a matter of fact, when you look at the statute it’s perfectly clear that Congress had very specific things in mind by each of these statutes.

The first was passed in 1909 and it was originally just an import tax are of — a prohibition against importation and against dealing in imported products.

Well, very soon, Congress found that wasn’t sufficient because once the narcotics had come in, it found no way to trace them federally.

If they had come and couldn’t separate the illegal from the legal narcotics and/or control thereafter importation disappeared unless you actually found them the man — the man could show that he knew they had been illegally imported.

And so in 1914, Congress passed the statute requiring the written order form.

Now, this is an extremely important statute in the enforcement of the narcotic laws because that’s the one by which legitimate narcotics or trade from their entry into the country, right down through the wholesaler to the jobber, to the retailer, to the pharmacist.

As a matter of fact anything peculiar about written order forms will immediately start an investigation.

And so, for example if a druggist or a doctor is suddenly showing up with too many order forms, that’s the basis for investigation.

That shows up in the direct sale case of this Court in 319 and was a subject testimony in 1956 by the Commission of Narcotics explaining the importance of the order form in controlling domestic traffic.

But even that didn’t prove sufficient because narcotics are sometimes stolen.

Narcotics are sometimes obtained illegitimately from doctors and so on.

And secondly, of course the illegitimate trade wasn’t paying any taxes.

And so in 1919, Congress held the third provision which asks for a stamp right on the narcotics.

Well, there are two purposes.

In the first place, it identified the narcotics immediately without checking on order forms as legitimate or illegitimate.

And in the second place, it was a way of making clear of getting taxes from the illegitimate business so that to that extent there was a revenue, one indefinite revenue purpose to the measure.

Now, that’s what Blockburger was decided and that’s what was really the decision when the Court said that each of the sections of the Harrison Narcotics Act continue a separate crime.

And as for Congress — the only thing Congress has shown the least interest in changing about Blockburger.

Well, it has not specifically mentioned Blockburger, let me say that.

But the only thing that Congress had been interested in doing with respect to setting thing in narcotic cases is to make certain that the minimum are heavy.

Beatrice Rosenberg:

Now, that — above that the one — the great subject to discussion in the hearings and on the floor of Congress was that the sentences imposed by federal judges were too low.

They had statistics to the effect that the average they intend was 23 months.

This — whether it was the first offender or not and what the real interest in the Boggs Act was doing was to make certain there was a dealer.

But this Court had said in Blockburger if what we have decided is too harsh, it’s for Congress to change it.

There’s absolutely no indication that I can say that Congress was interested in changing this doctrine which wasn’t confined to Blockburger that each of this offenses were separate or that each prohibition by Congress was a subject to a separate punishment.

As a matter of fact, to the extent that there are any indications of congressional control in the event of Congressional intent in the Boggs Act, it seems to me that they are in a direction of reaffirming Blockburger because the Court separately amended the Export-Import Control Act.

The Court separately amended the House in Narcotics Act and whereas the Boggs — the Harrison Act originally had said for any violation of this Act there shall be a punishment.

And there has been an attempt to base an argument for a single punishment on that radiology in Blockburger.

The Boggs Act changed that to read for any offense, the punishment shall be minimum and maximum, I think —

What do you say that Mr. Rauh’s argument that Blockburger is inconsistent with the Bell line of cases?

Beatrice Rosenberg:

Well, as I read the Bell and the C.I.T. cases, Your Honor, they are not inconsistent with the philosophy that you look to what it is that Congress hunched and I think that they do show attends the — to interpret that general intent more broadly.

And so, I say that there’s a different field for example in Bell and C.I.T. than there is in the Mailbag case where the Court said any mailbag — any mailbag means if you cut six (Inaudible) offense, I think the stress in Bell is on cutting or destroying.

But I don’t see that the Bell cases have reached the question of — if Congress had a general object in mind, I don’t read them as adopting for instance anything like a single transaction test.

I don’t read them as saying we decide what Congress meant by trying to figure out or what would Congress have wanted if it had this particular case before it.

For instance, these statutes don’t mean — don’t all relate necessarily to sale as sale.

The one statute involved in this case prohibit the transportation concealment facilitating the transportation and sale of unlawfully imported narcotics.

I don’t quite understand Mr. Rauh’s argument to this degree, is he going to say that, well, it’s one offense, it merges in the sale if — or you approved to sale.

But if we show that he transported it and we think we did in this case, that then becomes one offense or two offenses.

Secondly, the purchase, the stamp requirement prohibits unstamped narcotics purchased or sale.

It isn’t sale, it’s the unstamped part of it that’s just to that effect, and that’s different from the unlawful importation.

And as I mentioned before, the written order form has — well, it relates to sale as such has a purpose, that’s different from the stamp purpose.

This is the — this is the real regulatory purpose.

You need — the Government needs those order forms to keep track of what’s going on.

So that — well, the more recent cases tend that there are more possible within one statute to interpret the general intent more favorably to a defendant than has been done.

I don’t read them as going back from this — well I consider the general approach of all these cases.

That if the general intent of the statute that determines whether it’s an offense separate from the other and that you don’t look at the fact that in this particular case, it happens to be largely a sale.

Although, as I say there is elements of proof —

Assume that one gains the conclusion for statute that the congressional contempt was ambiguous where would you think we ought to go from there?

Beatrice Rosenberg:

Well, Mr. Justice Harlan, my difficulty again is ambiguous in relation to Block —

As to whether they intended to make it one crime or whether they intended to make it several?

Beatrice Rosenberg:

To make one sale, one crime?

Well, as I say the statute doesn’t — Blockburger doesn’t talk necessarily about sale as such, that is all three of them there.

Sale is included in the other two, but sale is not — this just isn’t placed under the other two.

And my difficulty is that where this one start I think.

Just want to start with the fact that in this particular case there is to say, then what happens in the situation for instance where you see somebody who purchased one day and sold four hours later, four days later, transported it from one state to another in between those two.

If we’re going to look — if we’re going to start looking at all the numerous factual variations that can be covered by these statutes, then I have a difficulty in deciding how one can determine congressional intent.

Obviously, Congress in dealing with different requirements can’t think of all the possible factual variations that can occur.

Congress punishes — breach of the — punishment insulting an officer, that was the situation in Gavieres.

Now, of course it can happen as it has happened in Gavieres that those were performed by one act.

It’s not what Congress is thinking about.

Congress is thinking about a general type of evil and therefore I find it difficult to talk about ambiguity without talking about a particular fact — factual setup.

Earl Warren:

Well, Ms. Rosenberg.

Suppose Congress had thought of all of these facets of the narcotic traffic at one time and had determined to put it into one statute and into one paragraph of a statute by saying that anyone who — who sells narcotics without a doctor’s prescription, or without having paid the tax on it, or without having a stamp on the narcotics that are sold shall be guilty of — for all means will be punished by one to five years in — in prison.

Could the Government prosecute for three separate crimes there and punish for all three of them?

Beatrice Rosenberg:

I — If Congress had said who sold only, I think that there we get into the question that we had in cases like Bell.

That is — I don’t think — I take it, it doesn’t necessarily depend on whether it’s in one paragraph or in two.

Earl Warren:

No, but I was just simplifying it.

So —

Beatrice Rosenberg:

Yes, I know.

One thing is that I think that there, under the rule of Bell and C.I.T. and De Novo there might — it might be possible to interpret a statute as saying of one offense.

As I see it here, the trouble is not only the statute came many different times but that it isn’t just sale.

This one happens to be sale.

But there are cases that were mentioned, I think the time of Sherman where somebody said, oh I didn’t sell, I was just buying for a friend of mine.

And the Court just said that isn’t a sale.

But they said, well, but that is transporting narcotics.

You aren’t allowed to transport them either.

And so, the difficulty is that, as I see the statute, they cover sale and it’s perfectly true that at least as to heroine in many cases, anybody who does that will almost automatically rallied all three, but not necessarily and that isn’t really what Congress was thinking about.

Congress was thinking about the fact that it needed all these additional checks on these very small objects, very easily hidden.

If one to keep just a (Inaudible) possible, we have this in all sorts of variations and the problem becomes of course often very difficult solution.

For example, Congress requires everybody to file an income tax return, beyond a certain amount even when the tax isn’t due for a particular year.

Beatrice Rosenberg:

But it’s obviously important for Congress to know that everybody is filing returns, so they can check on them even if they’re not going to collect money in the particular time.

And so, it seems to me that if we keep the Blockburger rule and say, let’s look at what Congress have to say — decided in general and let’s leave it to the sentencing judge to take into consideration the facts to this particular case.

Now, maybe sometimes judges don’t do — don’t look at the facts, they look at the defendant a little bit more.

But by and large of course in most instances, this problem is handled at a sentencing level.

And this case — illustrates again on the problems that come up and how they appear.Now, as I see this case, there is a 10-year sentence on any theory here, unless one is to adopt Mr. Rauh’s noble suggestion that no matter how many different sales and how many — over six months possibly, the Boggs Act prohibit more than five years for any one conviction.

I don’t think that’s true at all.

The Boggs Act in receipt of its statutes in general say, if that you’ve once been convicted, you go out and commit an offense again, we’re going to make you subject to a greater penalty for the second time you commit the mistake.

But there’s absolutely nothing in that legislative history that would suggest that Congress ever dreamed of the fact that by fixing a minimum for a first offense and then making a higher minimum for a second offense, it’s thought that somebody who sold — made 10 different sales of narcotics, shall I say, within the same class with somebody who made only one.

And as a matter of fact as far as the 1956 Act is concerned which came even later, Congress even differentiated between the penalty for some of these offenses.

The stamp tax carries a lesser penalty and the possibility of probation than do the other two.

And as far as the general attitude of Congress is concerned towards multiple offenses in these narcotics field, the 1956 Act has one other possible indication.

It’s in a different section dealing with the unauthorized use of interstate communications.

But Section 1403 of the 1956 Act provides that every separate use of a communication facility shall be a separate offense under that Section.

So, I think that it can — I can find nothing in the later history that shows any intent to overrule Blockburger.

On the other hand, there — it never was explicitly reaffirmed what seems to me is that the whole doctrine of multiple offenses depending on what has been defined by the statute rather than by the particular fact of one sale has been by 1951, so ingrained in federal law and so little question until the later cases that it simply wasn’t discussed.

And of course again the problem was not in a sense, the harsh penalties that came from multiple offenses and this was simply a prosecutive caution to avoid various possible defenses.

Because the difficulty that Congress found with the action of federal judges in this field was that their total sentences, consecutive or otherwise, for what it sought to low and its whole emphasis has been on increasing minimums rather than trying to overcome the harsh effects of Blockburger.

Let me —

Hugo L. Black:

Can I (Inaudible) Ms. —

Beatrice Rosenberg:


Hugo L. Black:

— Rosenberg.

If there would be any greater deviation from the Blockburger rule, the whole or each sale is a unit of prosecution and it was to hold in the Bell’s case and the C.I.T. that the individual — there are separate transactions there which could be proven by different elements — contain different elements where it could be prosecuted under the unit rules?

Beatrice Rosenberg:

Oh, I think so because as I — as I see it, Your Honor, it’s a little — the idea of each sale as the defense in itself involve much more of a particularization to the particular fact of this case and in trying to determine what the offense is.

As I said before, it seems to me that what then do we do with the situation that Mr. Rauh was talking about, where the statute as to stamps covers both purchase and sale.

It’s the absence of stamps that the offense as such under this.

And therefore, if he sells without a written order form but one happens to prove purchase as well, does that suddenly transform it into two offenses or not.

If one starts putting emphasis on sales in this case, in the first place, it seems to me that when — that isn’t the statute because the– it is sale along with transportation and concealment and so on under the Import Act.

But under the Harrison Narcotics Act, the order form, as I’ve said, has a purpose separate from the sale.

I mean, it’s the checking part of the order form and then the stamps are in a sense suggested the offense as to the stamp part because one, there are means of — the revenue in identifying narcotics.

So that I think the question basically comes down to, to what extent are we going to start with a congressional purpose or to what extent are we going to come down to the facts of how the congressional purposes has been violated in this case and when Blockburger left it to the sentencing judge, I think it was because of the difficulties in trying to find a unit, particularly when you have different statutes with — towards different purposes in mind for all the possible variations that can occur and I think the same thing is true — would get out to counterfeiting and prohibition, possession of liquor that was involved in Albrecht.

Beatrice Rosenberg:

If you start saying, well, there were times when possession merges into sale, well then the question is then you have to decide well suppose it possessed it two days before, is that the — does that then merge, is possession something different from sale in that situation or what is it — if it’s two hours before, is that something different.

And it seems on the whole that you come out with a more reasonable and understandable guard for District Court Judge, if he said in determining what the offenses that Congress has created.

We look at what Congress in general was trying to punish on a particular case before it, if a judge can adopt his sentence to his case.

A judge doesn’t have to give convicting sentences when the offense is separate.

And I think it’s been my experience that if one looks at consecutive sentences, even when they don’t absolutely seem to conform to this theory that the judge should look at the relationship with the facts to each other.

The very often in totality they do, when I think in the brief we cite the situation in Bell where the judge gave two and half years and two and a half years for each of the two women, when he could have made a sentence of five years for the transportation.

Now here, as I say there are two sales and I think that unquestionably there were — this defendant is subject to two five-year maximum sentences, and I think they’re supportable even as written.

Now, what the judge did was put the first of the first three counts and all the three of the second three counts together, that’s one sentence and then the second count and the third count of the statute.

Well, playing this game by the rule so to speak if the second sale is the second offense, that rests on anyone who counts two, three and four.

And the first sale rests on count two, so that there’s a 10-year sentence in any event in this case.

And then if one is going to look beyond that then this case presents some other questions which I think can be settled at the District Court level under proper guidance but which are these.

As I have said —

Earl Warren:

Ms. — Ms. Rosenberg, before you get those other ones I — I’d like to ask a question very much on the same line that Justice Black asked you.

You — you said that these three different statutes under which this man was convicted had a number of other elements besides sale.

Suppose it was broken down into as many elements as there were in those statutes, could he — could the judge have sentenced this man to as — as many terms consecutively as there are elements in this — in all those statutes?

Beatrice Rosenberg:

Well, of course it depends on the proof, if one proved only.

All I meant was it punishes more than that.

I suppose if you prove that the man purchased on one guy and transported on —

Earl Warren:

Yes, will you have to transport it if you moved it — moved it across the room to give it to him.

Now, could — could he gotten five years more for that?

Beatrice Rosenberg:

For the — for the transportation?

Earl Warren:

Yes, for — for taking at least an automobile from one place to another.

Could — would it have been possible in this case to charge also —

Beatrice Rosenberg:

No, on —

Earl Warren:

— transportation because it’s one of the elements and could the judge have given him five years more?

Beatrice Rosenberg:

On our interpretation of the statute, no, Your Honor.

Because what we say is that in one, the Export-Import Act, if any dealing in illegally imported narcotics, so that the crucial aspect of the offense is the illegal importation.

And therefore, whether you sell, or whether you transport, or whether you conceal, the illegal importation is fixed at the event as to the stamps, whether you purchase or whether you sell.

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

As to the stamps, the absence of stamps.

Earl Warren:


Beatrice Rosenberg:

If the absence of stamp that fixes the event and therefore —

Earl Warren:

I know.

I know —

Beatrice Rosenberg:

— whether he purchase or sale —

Earl Warren:

I know there was a failure — I know there was a failure to pay the tax.

Beatrice Rosenberg:

No, it’s the absence of stamps.

Earl Warren:

Well —

Beatrice Rosenberg:

Well, sale as —

Earl Warren:

Aren’t they both?

Beatrice Rosenberg:

Purchase or sale without from — not in —

Earl Warren:


Beatrice Rosenberg:

From the original stamped package.

Earl Warren:

Yes, but isn’t it also — isn’t it also an offense to — to sell — sell it if the tax is not been paid?

Beatrice Rosenberg:

Well not — that — that’s for registered dealers.

Now, the — the offense here is purchase or sale not from the original stamped package.

Now, the stamp is the thing that represents the money.

But it’s the absence of the stamp that we consider that this is to the effect and in the third, well, the third is limited to sales to that effect without a written order form.

And so, on our theory there could be no more than three —

Earl Warren:

I see.

Beatrice Rosenberg:

— of this particular case.

Earl Warren:


Beatrice Rosenberg:

Well, that’s basically the problem as we see it.

We think this is basically a problem of sentencing and I suppose as I’ve mentioned before that one must concede that there is disparity in federal sentencing.

I don’t think this particularly is the result of the attitude towards permitting joining of the offenses arising out of one transaction.

But in any case it seems to me that Blockburger put it up to Congress.

It said if you want to change the nature of the offense, that’s for Congress to do, if the result is too harsh in giving this much power to the sentencing judge, to give consecutive or concurrent sentences, that’s for Congress to change.

And we find nothing in the history since Blockburger that indicates that Congress wants to change that particular approach.

As I said, there have been some indications that Congress is giving some thought and eventually possibly, which may eventually be something with explanation as to the general question of sentencing.

But in trying to deform offenses, it seems to me that the basic problem has to be that one must look at the intent of Congress, the way Congress legislates which is sort of generally and that with — it has a particular purpose to accomplish, as it did by these evils.

Beatrice Rosenberg:

And that to the extent that in any one particular case the evils tend to become so close to each other, that one may raise some questions as to separate sentencing that ought to be under the present system for the sentencing judge until Congress decides to make it different.

Is there anything to show that Congress was aware of Blockburger?

Beatrice Rosenberg:

Nothing specific, Your Honor, except these kind of tested or things that come down from the fact that they changed separate statutes and so on.

Now I — neither the 1951 or the 1956th hearings could I see the name of the case.

Hugo L. Black:

Ms. Rosenberg, I didn’t understand — either I misunderstood your answer to the Chief Justice or I have misread respectively.

I understand when I look at it here that a person could be charged of receiving narcotic drugs that’s been used as an imported contrary to law and be charged at the same time with concealing those narcotic drugs, knowing they’ve imported contrary to law, and be charged with buying them, knowing that it’s imported contrary to law, to be charged with selling the same narcotic drug knowing they’ve imported contrary to law, and be charged with transporting, knowing (Inaudible)

Beatrice Rosenberg:

I don’t think so, Your Honor.

I think there, one would run into the Bell philosophy and certainly it hasn’t been done.

I think —

Hugo L. Black:

But you have (Inaudible)

Beatrice Rosenberg:

— it is possible — I think it is possible to take this one statute, the Import-Export Act and say that its gist of the offense there is dealing in unlawfully imported narcotics.

But I think that’s different from the one on page 3 of our brief, where the gist of the offense is the absence —

Hugo L. Black:

Well, what are the three here?

Beatrice Rosenberg:

One is dealing in unlawfully imported narcotics.

Hugo L. Black:


Beatrice Rosenberg:

The other is the absence of the stamp — 4704 on page 3 of our brief.

And this is — in the gist of that offense is the absence of the stamps and whether it’s purchased or sale.

And then the third is 4704, for the sale without a written order form and the gist of that offense is the order form.

And as I tried to point out in the enforcement of the — of the narcotics legislation in general, each of these has a very real purpose.

Now for instance, as to legitimately imported narcotics which are either stolen or which are misused by a druggist or a doctor, the only one that would be violated would be the written order form requirement because they would have stamps and they would be legitimately imported.

Now, there is some fear hasn’t become practical yet, there is some fear that narcotics are soon going to be manufactured synthetically.

In that case, this 2174 wouldn’t apply but the order form and the stamps could.

As a matter of fact in 1953, Congress, in order to be prepared for this had an amendment which changed the definition of narcotics for the purpose of the Internal Revenue code to cover synthetics.

So far, this hasn’t actually been proved feasible but they’re afraid it’s coming.

So that the gist of each of these offenses has a different purpose and it is possible in some — in some instances where some to be violating and not the others.

Now at the present moment, I’m willing to say that in most instances and particularly with relation to heroin, which is outlawed without — it is usual that a person who does an illegal act file appropriate statute.

I think this is not new.

I take it that a counterfeiter, normally, when he makes counterfeit he intends to pass it and normally any person engaged in kind does under standard definitions tend to do two or three things that Congress has said he shouldn’t do.

Now — and that’s what I find very little significance in this so-called unitary purpose of this legislation.

It seems to me that if we try to draw the line too fine, if we don’t recognize that each of these has a different purpose, that in a sense practically every factual situation presents an issue for — between litigation and for differences of opinion.

Beatrice Rosenberg:

It seems to me all that we can do is to say this is what Congress had in mind, this is what Congress said shouldn’t be done.

Once Congress has said it shouldn’t be done, it’s subject to punishment and we’ll leave it to the sentencing judge to say, well in any one particular case or these things so close together that maybe the sentences ought to be concurrent rather than effective.

Earl Warren:

Mr. Rauh.

Joseph L. Rauh, Jr.:

Mr. Chief Justice, the bulk of our rebuttal will be given by Mr. Heller who is — was appointed by the Court as co-counsel.

There are just two factual points I would like to make.

First, I’m afraid — I don’t agree with Ms. Rosenberg’s answer to Justice Black on this question as the Government’s policy.

If she’s correct, then I think Mr. Yancy is entitled to a different decision from the Sixth Circuit because there, in the case I cited to this Court, it was the purchase and the sale of the same heroin on the same day that was made into two offenses.

In other words, this can be proliferated long with — far beyond the three statutes that can be proliferated within the statute.

In fact, it was proliferated within the one statute in the Yancy case and the Sixth Circuit upheld the proliferation.

I think wrong contrary to Bell but it did uphold it and secondly —

But we could decide this case against you without getting another problem, couldn’t we?

Joseph L. Rauh, Jr.:

Yes, you could, Your Honor.

And finally, the question of whether a 10-year sentence is proper.

I’m not saying that possibly Judge Youngdahl might have given a 10-year sentence if you overruled my feeling about Boggs.

The fact is Judge Youngdahl didn’t.

Judge Youngdahl gave a five-year sentence, a fifth — 3 to 15 on the first sale and made it concurrent on the second.

So there’s nothing this Court could do to change that.

If this Court holds that our contention is correct, it would send the fact for remand for some sentencing problem where there is — I don’t — didn’t want it to lie here that a 10-year sentence was proper in any event.

Judge Youngdahl did not give a second sentence for the second sale.

He gave — made that concurrent.

Therefore, there is only a five-year sentence before this Court if we are correct.

James H. Heller:

May it please the Court.

Earl Warren:

Mr. Heller.

James H. Heller:

In addition to the Yancy case which Mr. Rauh has cited to you, in Footnote 28 on page 49 of our brief, you will see a very distinguished opinion by Judge Magruder of the First Circuit.

The Martinez case which is also another case in which one of the various permutations came up of two offenses under the same statute.

This is very old hat I might point out.

Hugo L. Black:

What page is that?

James H. Heller:

This is on page 49 of our brief in Footnote 28.

The — it is true there are cases and more common situation in narcotics offensive cases, the reported ones, but this business of two offenses under the same statute purchasing illegally imported narcotics and then selling them on the same day and obviously in connection with the same transaction if you read the reported facts.

I’m not certain that I recall them completely in the Martinez case but this has happened time and again.

James H. Heller:

There isn’t any question but that the Courts have viewed Blockburger as authorizing that result as well as the one we have.

And I think the — the distinctions here are tweedledee and tweedledum and I would like to spend this rebuttal if I may going through this case because — a little bit on the facts because I think it is a typical case.

I may stray somewhat into the facts which are in the record, which we obliged with the Court but I don’t think there’s any serious dispute about them and I’ll stick mostly to the Government’s version of them.

Now, what happened here is this.

A federal narcotics agent found an informer who was already under indictment by the federal Government and who was as the defense kept putting it was under a proposition, if he helped the Government he might get easier treatment and he also was getting per diem payment.

And this agent knew the defendant Gore and he led him to the defendant in a house which is significantly enough about 10 blocks from here and no more.

And he introduced them.

Now, there is a dispute here and we’ll never know exactly what Dan Coles, the informer, said to the defendant.

But it is true that anyway he introduced the agent as a man who wanted to purchase narcotics.

The agent says he was introduced as a man who wanted to purchase narcotics to sell on his own.

In any event, he said he wanted stuff and I think that it was probably elaborated that he said he wanted heroin or cocaine because that’s what was gotten.

Now, in order to get almost anything except medicinal morphine, you pretty much have to get something that came into this country illegally and therefore has no tax stamps on it.

There was one other alternative from Mr. Gore.

In order to get heroin, he probably would have had to go down and break into a Government laboratory.

They are the only people who have it.

And the other alternative form was to rob a drugstore which I suppose would add to criminality but would obviously be separate.

But however, Mr. Gore went out.

There was another agent watching the house and the agent lost Mr. Gore less than a block from his house and finally he saw him come back later.

Now, Ms. Rosenberg has said that there was some evidence of transporting.

Now, the evidence of transporting, as the Chief Justice noted, could be only this.

He pulled it out of his pocket and he gave it to the federal agent and said here is what you asked me to buy — to get for you.

Now, that’s transporting obviously because anything is transporting.

This is transporting but it obviously was part of the sale.

And I don’t think these questions or verifications of the statutory crimes of bifurcations, dichotomies and bind distinctions.

I don’t think that they stick at anybody’s mind as being the essence of what is charged here.

And in point of fact, the trial judge in this case continually referred as you could see at page 85 and 86 of the transcript, for this is a sale.

Nobody doubted that it was a sale.

Nobody saw Mr. Gore purchase it.

Nobody could have known whether he purchased it in the District of Columbia.

He was gone two hours and you could be well into Maryland in that time.

James H. Heller:

Nobody saw him transport it at any distance except from his pocket to the agent’s hand.

So what we are dealing with here is unitary conduct.

Did the agent give him a written order?

No, because if he’d given him a written order he would have tipped Mr. Gore up and he never made an arrest.

Now, when Ms. Rosenberg and the Government talk about the enforcement functions of these things, of these various statutes, we don’t dispute the validity of the statutes.

We don’t say they shouldn’t be on the books.

We simply say that these functions are peculiarly police functions, that no separate evil is committed.

What Mr. Louise who was the federal agent wanted from Mr. Gore he got.

He got him to make an illegal sale to him.

Nobody claims it was entrapment but in the circumstances it couldn’t have worked any other way.

It is uncommon merely that there are three violations in the case of heroin, cocaine, smoking opium, it’s inevitable.

There always will be these three violations.

Now, the question comes up should the Government be allowed to triple counts.

Is it important to anybody that they be allowed to triple the counts.I cannot see that Ms. Rosenberg has said at any point in her argument nor can I find it in the Government’s brief that one good, single, public interest or purpose is served by this, although, we freely concede that these maybe techniques which vastly help the police and the federal authorities to detect illegal sales.

We cannot see that an ultimate injury has been added by the lack of the stamp or by the lack of the written order.

The agent didn’t intend to give the written order because if he had, he would have lost his criminal right then and there.

And so, if it please the Court, we think that what we come down to here is basically an arbitrary situation in which we can see a prosecutor sitting back in his office and saying, now how about this one, should I make it one, should I make it three, should I make it six.

And we don’t believe that this kind of power should be given to the prosecutor and we don’t believe that it’s any answer to say that the trial judge or the sentencing judge will normally take care of that problem.

And this Court recently had experienced in the Yancy case with the situation where that doesn’t always work out.

And in this particular case, we have that situation before us that the trial judge gave three consecutive sentences or three of the most technical and insubstantial distinctions that could have occurred in the space of five seconds.

And so, if it please the Court, we believe this case should be remanded for sentencing on one count alone with perhaps a concurrent count for the second sale.

Earl Warren:

Mr. — have you — do you have something more to say?

Well Mr. Rauh and Mr. Heller, the Court, I know, would have me express our appreciation to — to you for having accepted the appointment to represent this indigent defendant.

We always feel comforted when lawyers are willing to give their time in the cause of that kind and particularly when it means diligent — diligent (Inaudible) you gentleman have.

So we thank you and we thank you of course, Ms. Rosenberg for representing such diligence in the Government of the United States.

James H. Heller:

Thank you, Your Honor.