Greene v. United States

PETITIONER:Greene
RESPONDENT:United States
LOCATION:Charleston, South Carolina

DOCKET NO.: 134
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 358 US 326 (1959)
ARGUED: Jan 13, 1959
DECIDED: Jan 26, 1959

Facts of the case

Question

  • Oral Argument – January 13, 1959 (Part 1)
  • Audio Transcription for Oral Argument – January 13, 1959 (Part 1) in Greene v. United States

    Audio Transcription for Oral Argument – January 13, 1959 (Part 2) in Greene v. United States

    James H. Heller:

    — giving the example of a supposed instance where Congress had got — gone at bank robbery, robbery of national banks as indirectly as it went at narcotics in this case and I think I have previously said that it went at narcotics indirectly because of — perhaps to a degree, an attempt to make it easy to indentify the narcotics, but most particularly because it had some doubts, doubts which the Government in its own brief in the Blockburger case which was quite late in this part of the history of the narcotics laws conceded were substantial, some doubts whether it could simply say narcotics sales within this country are illegal.

    I don’t know whether those doubts are still valid or not, I think there are later cases which indicate that they would not be any obstacle right now to a direct passage of a law saying you can’t sell the following narcotics, unless you were a doctor or one of an accepted group.

    The bank robbery case, I — I suppose was one in which they carefully left out however the offence of robbing the bank just as Congress carefully avoided saying anything about simply selling narcotic A, B and C.

    The closest it came to that it was in the Import Act.

    I think there is a case that something like this, it’s a case which I didn’t cite in this brief, but it was cited in the Gore briefs and I relied on them heavily because of the massive legislative history that’s contained in both briefs.

    Ex Parte Neilsen at 131 United Sates reports, was not two different statutes but it was two different sections of a law which Congress had passed for the territory of Utah.

    And one of them was a law involving bigamy, and one of them was a law involving adultery, and it’s very, very significant or at least it’s a good coincidence in a sense that this is very close to the case of Morey versus Commonwealth in 108 Massachusetts reports from which Blockburger draws its quoted strength at least.

    That is — that’s the original statement of the different evidence rule, the Blockburger rule in this country.

    But in Ex Parte Neilsen, this Court declined to allow double punishment under those circumstances.

    So I don’t think, I am not arguing about whether the theories of these cases proceed directly in the manner that we suggested in Gore and that we suggest here, but I don’t think that there is any obstacle to this Court simply because Congress without an intent or concern to correlate laws as the Gore opinion suggested they might be in a single provision of law with provisos, I don’t think the fact that Congress neglected to do that, having — being concerned with the narcotics matter in this country for something now 50 years, is conclusive upon this Court’s power or its — its right in its own discretion to say that as a rule of prosecution leading to punishment, you may not treble these counts.

    If they are closely related as these are, if the statutes aim at the same offense, but simply impose different requirements as the history indicates to ensure detection and to ensure that there is no kind of person engaging in this activity who can go scot free because of the loophole in the law.

    And that I think is the substance of the narcotics laws history.

    I — I intend not to — to stay on that question.

    There are other — other reasons and they were largely summarized I think in the Chief Justice’s dissent in the Gore case.

    There is the later history of the law, the severity of the punishment, the attempt to achieve uniform punishment, the fact that under this pattern of prosecution, the first offender can get much more than the second or third offender was intended to get under any of those laws.

    And second and third offenders are to a degree treated as — as people who are consolidated offenders under these laws it seems.

    I don’t mean to say that their punishment is consolidated but the laws then refer to each other as — as — regards previous offences.

    Those points have all been made before and — and surely this is in a way a debate and surely as we argue, I think it is a matter of choices for the Court, choices in — in what I think is a decent criminal jurisprudence and a choice which is open to it in its supervision of the federal courts.

    But the second question is the question of, if Blockburger applies or the different evidence rule as it’s being called, how does it work and was it violated in this case?

    Now, this — this branch of the case was — was pretty clearly indicated in Justice Brennan’s dissent in the Gore case and it also is to be argued I think almost exclusively in the Harris case that follows and I won’t dwell on it very long.

    But to go back to the evidence in this case, the evidence against the petitioner was in two basic parts, I won’t say it’s merely two facts but it’s two factual aggregates.

    First, the narcotics agents never saw him with the narcotics on him, nor did they see him with the marked money which they used to purchase it.

    They did see Barbara Floyd with both of these on her.

    They arrested him rather shortly after the last sale, it was about ten days, but they’ve searched his house and him and they found none of the money.

    The indication seems to be that he was simply taking the money from Barbara Floyd and going out to somebody else and getting the narcotics and passing them back to her.

    But of course that activity, Barbara Floyd testified to directly and it was corroborated heavily by the federal agents and there can’t be any doubt that he was aiding and abetting her, and that is the first basic fact.

    Secondly, Barbara Floyd herself testified that of course, he had the narcotics in his possession when he either got the money from her after he had gotten the money he’d gone out and come back and gave her the narcotics.

    And possession is a rather important element in this case.

    I have assumed that the Court knew the laws that were involved in this case because they were all there in Gore, but I think it’s important now to read them in connection with the way the — this question of how Blockburger is applied here.

    In the Narcotics Drug Import and Export Act, the statutes are printed at pages 2 to 4 of my brief, reads in pertinent part, “Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction contrary to law, or receives, conceals, sells, or any in manner facilitates the transportation, concealment or sale of any such narcotic commits — is — is subject to punishment and imprisonment — fine and imprisonment.”

    James H. Heller:

    Now, the keywords in this indictment are concealment and sell under — and sale.

    Under count 6 and 12, petitioner was accused of facilitating the concealment and sale of unlawfully imported narcotics.

    The second statute is the Stamp Tax Act.

    “It shall be unlawful for any person to purchase, sell, dispense or distribute narcotic drugs except in the original stamped package or from the original stamped package.”

    And that was the statute which formed the basis of counts 5 and 11.

    And finally the last one, the so-called written order statute dating from the 1914 Harrison Act, says, “It shall be unlawful for any person to sell, barter, exchange or give away narcotics drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchange or given on a prescribed form.

    Two other features of these statutes —

    Potter Stewart:

    The written was the basis for which counts?

    James H. Heller:

    Oh, I’m sorry.

    That was the basis for counts 4 and 10.It’s hardly — the statutes numerically are inverse to the order in which they appear in these companion counts.

    That is, the last statute was the first count in each of these transactions 4 and 10.

    The second one is the second count 5 and 11 and the first one is the third count, 6 and 12.

    Now, two of these statutes have presumptions and of course Justice Brennan set them forth in his dissent.

    They are not quite the same presumptions, the import export law says, “Whenever on trial for a violation of this subdivision, the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”

    That’s mere possession of a narcotic drug.

    The Stamp Tax section says, “However, the absence of appropriate tax paid stamps from narcotic drug shall be prima facie evidence of a violation of this section by a person in whose possession the same maybe found.”

    Now, that makes it a possession of unstamped narcotic, but as Justice Brennan pointed out, and this seemed perfectly clear, a possession of an unstamped narcotic drug will prove both of these instances, just as I suppose a murder would also prove manslaughter.

    It’s not that these are includable offences necessarily, but that the same evidence which will convict under the Stamp Tax Act at least will convict under the Import Export Act.

    Now, of course these presumptions have been passed upon by this Court in certain context and I don’t intend to go into their intrinsic reasonableness, although I think that might be the subject matter of another appeal in certain cases.

    But the truth of the matter is that the same fact was shown, Barbara Floyd testified that he had these in his possession and there is the second factual aggregate or the second fact from which his guilt could be shown.

    Now, recurring to the Blockburger test, the crucial portion of it is whether each statute requires proof of an additional fact which the other does not.

    And we think it’s very clear that they don’t require different proof here.

    Whether one combines these statutes with the aiding and abetting act which is 18 U.S.C Section 2, and is printed in our brief, or whether one relies on the presumption arising from possession in the case of the two statutes which, which bear those presumptions.

    The same evidence was used here and the statutes required nothing more.

    The Government counters that argument by saying that the statutes require what they say they require.

    That is the full statutory offense as it is spelled out.

    They require that you show that a man has — has facilitated the concealment of sale of narcotics which he knew to be unlawfully imported and which were in fact unlawfully imported.

    Well, they don’t require that proof, that proof is almost never been given in any case, I think it’s — it’s pretty clear that that would impose an insuperable burden on the Government in most cases to prove that a man knew that the narcotics were unlawfully imported.

    Courts have speculated, this Court did in — in the Yee Ham case that because the narcotics are unlawful, you might say that they were absolutely prima facie or at least they could presume that they were unlawfully imported.

    But then in Jin Fuey Moy, they said the (Inaudible).

    James H. Heller:

    So, however the thing is read and I think Blockburger requires careful reading because it’s a rule of evidence, it requires proof of an additional fact under one provision which the other does not and that wasn’t met here.

    Now, the Government’s version of the statute, it seems to me comes down to saying whether east — each statute does not require proof of the same fact as the other.

    That is they would put the burden on the petitioner and you show that in every instance you have to prove the same facts here.

    We don’t think that is the burden, we think the burden of Blockburger is that it’s a rule of evidence which the Government must satisfy before the case is submitted to the jury.

    And I might point out that the way the case was submitted to the jury here, the jury was invited to rely on these presumptions, the charge is quoted at pages 12 and 15 of our brief and the Court emphasized them in these two cases.

    So as to aiding and abetting, the same evidence was shown.

    It might be inferred that because he aided and abetted Barbara Floyd, he — and he knew that she was dealing with a third person, he knew that she would sell the narcotics absents tax stamps, absence the receipt of a written order, absent lawfully importation of them.

    But if that inference is to be used, well, it’s not a statutory inference, it seems to me it’s a unitary inference.

    And while it may be a valid theory of criminal responsibility, and certainty is under the Aider and Abettor Act, it doesn’t provide different evidence for each crime.

    There isn’t any evidence that petitioner actually knew because he was there that Barbara Floyd was doing these things.

    And I think what Justice — what Judge Learned Hand said in the Peoni case, the basic case before this court decided Nye & Nissen about aiding and abetting is very important.

    It — it does seem to be supposed in many cases particularly by the Government that once you show that a man has aided and abetted some part of a criminal transaction, he is held accountable for everything that follows after that.

    But if he maybe held accountable for probable things which he could have reasonably foreseen, contemplated, shared and — and wanting to happen, it doesn’t follow that he was responsible for three different specific things so that they have been separately proven on the basis of the fact that he merely aided and abetted.

    Now, that substance is the first part of this case.

    And the second part of this case is the part of the case which was injected by the Court of Appeals.

    In the Court of Appeals, petitioner argued to the Court a number of points which aren’t before this Court now.

    He attacked virtually every count in this indictment, he attacked the charge, he attacked the evidence, he attached the indictment and he attacked the judgment as summing up these other areas.

    But he didn’t contend himself with that, recognizing what the class and rule was, as it’s been called in our brief and in the Government’s brief, recognizing that the class and rule might intervene in this case.

    He also asked the Court specifically, “If you are going to find less than enough error here to warrant a new trial or an outright reversal, please rule on these counts so I can go back and secure resentencing, if only I can do it a discretionarily under rule 35 if you don’t choose to remand it for resentencing.”

    But the Court of Appeals did precisely the thing he asked it not to.

    The Court of Appeals said, “The records support some five concurrent sentence counts, we needn’t decide whether it supports the consecutive sentences themselves and it cited the Hirabayashi case which stems from the case of United States versus — Clawson versus United States.

    The rule in Clawson versus United States, it’s a rule which is set forth on a — in our brief on page — pages 37 and 38.

    It’s a rule which evidently stems as far as I can gather from some dicta of Lord Mansfield in three cases in the King’s Bench Court in the late 18th Century.

    It may also stem from certain other criminal cases in that court, but if so, the House of Lords when it first came to consider the rule didn’t believe that they were binding precedents in the respect.

    The Clawson rule sets that if any one of the counts is good in a multiple count judgment and once the judgment, the presumption of law is that the court awarded sentence on the good count only and it may need not consider the other counts.

    Now, the Court of Appeals did that here.

    They said some five concurrent sentence counts are good.

    In other words, they were willing to indulge the assumption that the three counts which Judge Holtzoff had selected for consecutive sentences were no good at all.

    And then they said, we are firm on that basis.

    Now, previously I said we have tentatively agreed that perhaps the majority, not by any stipulation but simply by — by common reasoning, that the majority, and the Court of Appeals very likely was willing to concede at least for the purposes of decision hypothetically, Judge Bazelon’s dissent.

    James H. Heller:

    The respects in which he showed nine counts to be bad.

    But I don’t think it can be assumed at this point that those are the specific counts which the Court of — Court of Appeals majority found good, the remaining six.

    There isn’t anyway as a matter of fact in which petitioner can know really what did happen.

    But the presumption of the Clawson case is that the trial court awarded sentence on the good count only.

    And if the trial court did anything here, it avoided that, it awarded sentence on counts 2, 4 and 7.

    And counts 4 and 7 are particularly glaring case because they were two deliveries indicted under the same statute arising out of the same sale and the Blockburger single impulse test pretty clearly did say that they were to be treated as one crime only.

    So counts 2, 4 and 7 being the specific ones on which the judge awarded the effective sentence, the consecutive sentence are the ones which the Clawson rule would have this Court and the Court of Appeals presume he did not do because some of them are invalid.

    I (Inaudible) was exactly to know how to attack this — this rule in Clawson.

    The Government says that its persistence in the federal courts can’t be attributed merely to sheer accident.

    I think probably some pragmatic explanations of its persistence could be given.

    One of them might be that normally, people don’t plead as petitioner did in the court below for a partial reversal and a remand for resentencing because I suppose most lawyers with a criminal appeal have a certain go-for-broke mentality.

    They — they don’t like to demean or seem to detract from their arguments that the case should be reversed outright and a new trial granted or the indictment quashed or somehow mitigated or shared, it was cast on them at least by saying in the next breath but anyway at least send it back for resentencing.

    So I suppose that to some extent that minimizes the number of times in which this rule has ever come up in a square presentation to Court of Appeals.

    It recently did come up in the Second Circuit in the case of Haynes versus United States which is cited in our brief, that’s at 250 F.2d.

    But by and large, it has been a remarkably persistent rule but by no means a consistent rule.

    The Court has — has applied it somewhat discretionarily.

    Certainly, it didn’t apply it in the Yates contempt case and there isn’t — there isn’t to my mind any basic —

    Felix Frankfurter:

    May I suggest — may I suggest the difference in contempt cases, where the Court has control over sentences as against — I’m not — I’m not — that doesn’t answer your argument against the rule.

    I merely say that —

    James H. Heller:

    I think that difference might exist, Your Honor.

    The fact that it doesn’t control the sentences would seem to me to reinforce the rule that I’m contending for, namely that the trial judge should be given another look at this record, correct it and relieve to theirs.

    It seems to me inescapable that if he is not given that, the Court of Appeals is exercising in non-contempt cases a power which it clearly doesn’t have, namely resentencing.

    If the majority is assumed to agree, that as many as ten of these counts were invalid because they only said five of them were good, then they are saying that on five counts we would give the same sentence, or we’re sure the trial judge would give the same sentence as he gave on 15 counts.

    Felix Frankfurter:

    Am I right in — or have I overlooked, Judge Bazelon doesn’t so much as refer to the passing case here.

    James H. Heller:

    He doesn’t refer to the —

    Felix Frankfurter:

    And he just — doesn’t exist for him.

    James H. Heller:

    He refers, Your Honor, to a case called Fulton versus United States which doesn’t by any means either discuss Clawson.

    He — that’s on page 139 of the record and he does refer to the Clawson rule and the case is cited in footnote 8 on page 138.

    Felix Frankfurter:

    Well, that footnote relates to some other matter.

    James H. Heller:

    Well, he — he says — he refers — no, I don’t think so, Your Honor.

    James H. Heller:

    I think Hirabayashi is simply what —

    Felix Frankfurter:

    Well, I — (Inaudible) I mean I don’t know what — (Inaudible) lawyers and judges whenever we want to throw in something, we say (Inaudible)

    James H. Heller:

    I — I never know exactly what it means either, Your Honor.

    But I am certain of this that the cases cited in that footnote are cases applying the Clawson rule.

    Hirabayashi is one those cases, the case where there were two counts against the Japanese, one of which was that he had violated a curfew law during the relocation in the marshal law days and the Court never even really considered the first count because after a lengthy decision by Justice Stone, Chief Justice Stone had found the second count was good and it applied the Clawson rule and it didn’t cite Clawson either.

    Felix Frankfurter:

    We had a — we had a later days where Clawson was the plaintiff.

    James H. Heller:

    Yes, the Government has cited some cases that come right up to this term, Your Honor.

    Felix Frankfurter:

    I — I think there is a Pinkerton case which I dissented on (Voice Overlap) —

    James H. Heller:

    Yes.

    Pinkerton applied Clawson too and that’s the case in which it said it is settled law and to which I can only reply that as Lord Denman said in the O’Connell case, it’s more or less law taken for granted I’m afraid, because it doesn’t seem to me to be very —

    Felix Frankfurter:

    Don’t press too heavily on Lord Denman.

    James H. Heller:

    I wouldn’t press too heavily on this —

    Felix Frankfurter:

    Because they’re all — the big lawyers of the day were all against him, as you well know.

    James H. Heller:

    Well, I would [Laughs] — no I would — I didn’t know that, Your Honor, but —

    Felix Frankfurter:

    Well, but they were called in and asked to give their opinion, the judges of the court.

    James H. Heller:

    Well, yes.

    That’s true.

    There were two judges on his side, but there were three lawyers —

    Felix Frankfurter:

    An estimable man but not one the greatest of English lawyers.

    James H. Heller:

    Well —

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    Does the Clawson rule stand in the way of — I — I don’t know that I understand, Your Honor.

    I don’t see how we can go back to District Court for resentencing in this stage.

    I think Judge Holtzoff would consider the petitioner mad if he came in there and all he had to say was that the Court of Appeals said there were at least five good counts.

    Charles E. Whittaker:

    Well, as I understand (Inaudible)

    James H. Heller:

    Well, that’s right.

    They specific —

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    That’s right, Your Honor.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    That’s right, Your Honor.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    That, I’m — I’m not sure, Your Honor.

    It’s almost — it’s almost more than I can do to decipher this.

    It’s very clear what Judge Holtzoff said was the aggregate consecutive sentence at the outset.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    I don’t know what that concurrence with each other mean.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    I think he was aggregating what he had previously announced.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    Yes, sir.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    That’s what I would think, Your Honor, but then they run concurrently with three separate counts which are consecutive, that’s what — what bothers me most.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    I think there’s —

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    I think that would be true, Your Honor.

    Charles E. Whittaker:

    (Inaudible) both counts 2 and 4 (Inaudible)

    James H. Heller:

    I think — I think that very likely is so, Your Honor.

    Charles E. Whittaker:

    All right, (Inaudible)

    James H. Heller:

    Well, I would — I would certainly argue so, Your Honor.

    In the brief, we have almost contended ourselves with saying that if they’re — if they’re not good, at least if the trial judge should have the chance to reconsider this sentence, I think it’s a somewhat ambiguous sentence, although I think Your Honor has directly deciphered its legal operation.

    I’m very confused by making accounts run concurrently with each other and then with three consecutives ones.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    Well, it may be my own experience in the criminal law field, Your Honor.

    This — this is not a field in which I am used to it, but — but if they run concurrently with each other, they seem to collapse into one count.

    But supposing — supposing if — if you’re right, supposing two counts are knocked out, so they replace one or both of those two that are knocked out.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    I — I don’t know, Your Honor.

    I — but — but I’d like to think you’re right, I’d like to think that if these counts are bad, then the case has to be sent back if I understood.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    It’s a matter — it’s a matter which puzzles me too when I first looked at the trial court records, Your Honor, but I — I can compute it as a $1500 fine because that’s what Judge Holtzoff said.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    I — I don’t know what a concurrent fine is either, Your Honor, but he says there was a concurrent fine and he says — in other words, at page R126, the aggregate fine is $1500, that is $500 on each consecutive sentence count and then the rest of it is all $500, but nobody can see.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    That’s right.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    Yes.

    Charles E. Whittaker:

    Now, then —

    James H. Heller:

    That’s right.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    Yes.

    Charles E. Whittaker:

    (Inaudible)

    James H. Heller:

    Yes, it would [Laughs].

    I — I — well, I think it’s a very ambiguous sentence and I — I agree with that but what I’m really — what really bothers me is that it could be the clearest sentence in the world and the Clawson rule in my mind deprives a man of a very substantial right, his right to return with an informative opinion by the Court of Appeals saying this is the function of the Court of Appeals, it seems to me saying.

    This count is good, this count is bad, either you can go back in discussion under Rule 35 or we will remand if we have that feeling about it.

    That’s where I think the Government’s view point about what the Court of Appeals estimate of the probabilities may become relevant, but we at least give you an informed opportunity to go back and say, “Please resentence me, this was not nearly so bad as you think.”

    I — that’s pretty well covered in our brief I think and I — I would prefer to suspend now and save the rest on my time.

    If we accepted your point of view on that, would the consequence be to send the case back to the District Court or to send it back to the Court of Appeals to have them say which counts are good?

    James H. Heller:

    I would think that — that depends in part, Your Honor.

    I would think it ought to go back to the Court of Appeals in the first instance unless — unless you’re on the points which have not really been briefed here, but which I did preserve, but the petitioner also points in which you accept Judge Bazelon’s view.

    If that’s true, I would think It could be remanded in the Court of Appeal for remand directly to the District Court.

    After they decided which counts were good.

    James H. Heller:

    But if — if their hypothetical opinion remains on the nine counts which aren’t directly involved in the first question in this case, then I think it has to go back to them.

    Earl Warren:

    Mr. Murphy.

    John L. Murphy:

    Mr. Chief Justice, Associate Justices.

    The Government will start out this argument today by addressing itself to the question raised by Mr. Justice Whittaker.

    Needless to say, we have had some difficulty with clarifying the sentence imposed upon the petitioner in this case ourselves.

    As this has been indicated, the sentence was imposed upon three counts to run consecutively.

    And upon the 12 remaining counts, the sentence was imposed to run concurrently and concurrently with the sentences imposed upon — the sentence under counts 2, 4 and 7, the consecutive counts.

    John L. Murphy:

    Now, the difficulty I think arises because there is a conflict between what the judge said at the time that he imposed sentence orally and with what is contained in the formal judgment and commitment that he signed.

    We set — the formal judgment and commitment is set forth at page 124 of the record.

    And it indicates that the judge imposed consecutive times of five years insofar as we are concerned with them, the maximum on counts 2, 4 and 7 and upon counts — well, the remaining counts five year terms to run concurrently and he said by the counts, top of page 125, and to run concurrently with the sentences imposed on counts 2, 4 and 7.

    Now, coming down to the bottom of page 125, we have the judge’s oral sentence and he says, “William Greene, it is the judgment of this court that on counts 2, 4, 7, you’d be imprisoned in an institution to be designated by the Attorney General for a term of not less than 20 months and not more than five years, and that you’d be fined $500, the sentences to run consecutively.

    That on each of the other counts in the indictment, you’d be imprisoned for a term of 20 months to five years and to be fined $500, the sentences on the other counts to run concurrently with the sentences on counts 2, 4 and 7.”

    But he didn’t stop there, he went on and he said, “In other words, the aggregate sentence is not less than five years and not more than 15 years.”

    We believe that that evinces a clear intent of the sentencingjudge to impose an aggregate, a gross or general sentence of 15 years upon the concurrent counts.

    And if there is a discrepancy between what he said at the time he actually imposed sentence and what was said in the judgment and commitment that was signed, we think it must be resolved in favor of what he said orally because that would seem to express his true intention.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    That is correct, Your Honor.

    Unless this Court can agree that the sentences imposed on the 12 counts to run concurrently with the consecutive counts, is a gross sentence.

    We feel that the sentence will have to go — the case will have to go back at least to the Court of Appeals for that court to consider the validity of counts 2, 4 and 7 which it did not do when the — when the case first came to it.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    Well, of course his language in other words, the aggregate sentence is not less than 5, no more than 15 years is significant —

    Charles E. Whittaker:

    (Inaudible) cover the counts where I have imposed sentences on particular counts (Inaudible)

    John L. Murphy:

    Well, of course, the — the sentence was actually construed by the Court of Appeals at least implicitly when it applied the Clawson rule to support the sentence.

    Charles E. Whittaker:

    Well, I — do you — as I understand the Clawson rule, that only applied provided, the — there was sentence that cover the whole term.

    John L. Murphy:

    I don’t think —

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    I don’t think so, Your Honor.

    I think —

    Charles E. Whittaker:

    That is the situation in the Clawson case.

    John L. Murphy:

    That is correct, Your Honor.

    But in other cases since Clawson, there have been instances where particular counts were picked out of the sentence and made to run concurrently with other particular counts.

    As recently as the Lawn case cited in our brief, that was done.

    I think the opinions by yourself Mr. Justice is —

    Felix Frankfurter:

    As I — as I understand the Clawson rule, it is that if the Appellate Court find that the total, the aggregate of the sentence can be attributed to valid counts and valid proof under those counts no matter what other counts maybe invalid, the sentence will not be questioned.

    John L. Murphy:

    We believe that to be —

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    That is not precisely what the —

    Felix Frankfurter:

    That is what —

    John L. Murphy:

    — Clawson case holds but we think that that —

    Felix Frankfurter:

    So that it is not restricted to one count, it is not restricted — those often applied to an indictment which — which puts the single transaction in different forms in different counts.

    It also applies to multiplicity of charges for all of which does the sentence, but the Appellate Court may find some of the counts invalid as a matter of pleading or as a matter of proof.

    But if the aggregate sentence can be attributed validly, it counts for the valid and validly sustains and it will not touch the sentence.

    That’s the Clawson rule, is it not?

    John L. Murphy:

    We think that is the correct interpretation of the Clawson rule.

    The Clawson case did not quite go that far.

    Felix Frankfurter:

    I had not — don’t mean that.

    But before since — any number of instances, it’s been applied to multiple to distributive counts of an indictment, part of which is challenged.

    John L. Murphy:

    That is correct.

    William J. Brennan, Jr.:

    Mr. Murphy, may I ask getting back to the commitment and what Judge Holtzoff said at the time of sentencing.

    Is my impression is correct that the authorities who have to execute the commitment are required to execute the commitment as it is framed in the judgment of the commitment and may not resort to something the judge may have said in determining what they are required to do under the judgment and commitment?

    John L. Murphy:

    Mr. Justice Brennan, I frankly am not sufficient with it — familiar with what the custody authorities are required to do.

    I would think (Voice Overlap) —

    William J. Brennan, Jr.:

    Well, isn’t that — isn’t that the official authority upon which I would indeed not only defines but delimits their responsibilities, the judgment and commitment itself?

    John L. Murphy:

    I would think so.

    Yes, Your Honor.

    William J. Brennan, Jr.:

    Well, then — then how — how can —

    John L. Murphy:

    There —

    William J. Brennan, Jr.:

    How anyone go into what Judge Holtzoff said if what he said is in anywise inconsistent, frankly for me to be.

    John L. Murphy:

    Well, we think that — we think that the formal judgment and commitment can be corrected to conform with the sentence actually imposed and indeed that has been done in several cases.

    William J. Brennan, Jr.:

    By Appellate Courts?

    John L. Murphy:

    Yes, Your Honor.

    Felix Frankfurter:

    Mr. Murphy, isn’t there a great difference between getting enlightenment for what the judge says which coexist — which — which if it takes an obscurity in the formal judgment and as to a judgment as de novo to what Justice Brennan said, and an inconsistency between what he said and what the formal mandate is.

    You can if the formal mandate is clear, one word.

    Can it be modified by something that he said if there’s an inconsistency — there’s an inconsistency remain?

    John L. Murphy:

    If there is an ambiguity in the judgment, I think it can be clarified by resort to the — to the oral sentence or to the record.

    Felix Frankfurter:

    I think so too but this isn’t a question of ambiguity, this is a question of — if there is inconsistency, that’s a different thing.

    I should think in, I don’t know, like you I don’t know but I should think does to the judgment of this Court can be examined in the light of its opinion in order to find out what the judgment means.

    Felix Frankfurter:

    But you can’t find a contradiction between the two, and therefore, it’s one thing to say that there is an ambiguity which Judge Holtzoff orally clarified and another thing to say that all he needs is one thing and the mandate wrote another thing.

    John L. Murphy:

    Well, I would say that the Court of Appeals certainly construed this sentence as a gross sentence.

    Otherwise we don’t think that it could have applied the Clawson rule and thus, avoided the case on its merits really.

    Felix Frankfurter:

    Yes, but the question is whether — whether they were right in doing so.

    Whether —

    John L. Murphy:

    (Voice Overlap) —

    Felix Frankfurter:

    I don’t mean — if the Clawson rule is right, but whether they — but they didn’t take too much liberty with the record in so construing the judgment, a formal judgment.

    John L. Murphy:

    Well, Mr. Justice Frankfurter, we — we have difficulty with this sentence, there is no question about it.

    Felix Frankfurter:

    I think — I think if I may say so, there’s a very great difference between an appellate court undoing a sentence that is clear to which there are valid counts and an appellate court being confronted with dubiety, with doubt and confusion and ambiguity in the sentence that follows into, to see that that ambiguity doesn’t result to the prejudice of the — of the accused.

    It’s a very different thing from taking liberty with a valid sentence.

    John L. Murphy:

    Now, upon the —

    Felix Frankfurter:

    Why does the Government, why — if you have — that this is not a proper question and appropriate question.

    But if the Government itself has doubts as if what was your placement —

    John L. Murphy:

    Difficulty, Your Honor, not doubt.

    Felix Frankfurter:

    Difficulty.

    If the Government has — were [Laughter] I like your distinction.

    If the Government has difficulty in knowing what really that sentence, what the command of that sentence is, why isn’t the natural thing to have it clarified —

    John L. Murphy:

    Well, we were able to resolve our own difficulties in the light of the judge’s oral —

    Felix Frankfurter:

    You might — you might —

    John L. Murphy:

    — statement that the aggregate sentence is 15 years and also in deference to the construction of the sentence as placed upon it by the Court of Appeals.

    And I might say at this that this sentence was imposed under a District of Columbia statute, and the Court of Appeals of course is the highest court in the district and its — its construction of the statute is entitled I think to a considerable weight.

    Felix Frankfurter:

    I don’t know whether my brother know but I certainly don’t know your reference to this sentence as imposed under a District of Columbia statute.

    John L. Murphy:

    But this is — this sentence was imposed upon — under the District of Columbia Indeterminate Sentence Law.

    There — there wouldn’t have been any minimums and maximums imposed in any other district.

    Felix Frankfurter:

    But the source of the sentence is the federal —

    John L. Murphy:

    Is the violation of the federal law.

    Felix Frankfurter:

    But if you — if the Government has difficulty with — knowing what it meant so its — or having a difficulty, a problem, in solving a problem but you might be wrong, might you not, and you might be wrong adversely to the petitioner, is that true?

    John L. Murphy:

    Well, we have — questions arise in many cases which come up to the Appellate Courts and the Appellate Court’s opinions in those cases we think are entitled to be considered and they are authoritative.

    Felix Frankfurter:

    Is the — but — but the Court of Appeals I think I have to say or is it a fact that they dealt with this problem on the implicit and explicit.

    John L. Murphy:

    By application of the Clawson rule, yes, Your Honor.

    Felix Frankfurter:

    So there’s —

    John L. Murphy:

    But even if —

    Felix Frankfurter:

    It didn’t face you — your difficulties, if I may say so, might have.

    John L. Murphy:

    Well, it was apparent on the face of the record.

    Even the dissenting judge, Judge Bazelon seem to agree that this was a general sentence and his only difficulty with the case was on the merits of the Gore principle.

    Now, assuming that the Court can accept the proposition that the Clawson rule was properly applied here, that will raise the question of whether a court can sentence for a single narcotics transaction a defendant to multiple punishment.

    Felix Frankfurter:

    May I — may I go back a minute.

    I think Judge Bazelon is more — is more ground for your position than the Court of — than the Court because he doesn’t merely hypothetically, explicitly quite I agree — why did I agree with my brethren that the record supports more than enough convictions, sustain the total sentence imposed.

    He evidently brings that —

    John L. Murphy:

    Yes he did.

    Felix Frankfurter:

    — conclusion on the merits.

    John L. Murphy:

    Therefore, on the basis that the Clawson rule was properly applied here and by a process of mathematical elimination of the counts which the dissenting judge regarded as invalid and of course we don’t concede that they were invalid but for the purposes of this argument, we can assume that even the dissenting judge was correct in his assumption.

    We can say that the sentence can be supported.

    And of course this squarely raises the question of whether Gore was correctly decided.

    The Gore question comes into this case because of the fact that for a single sale, namely on January 21, 1955, the defendant was charged in counts 4, 5, and 6 with violations of three separate statutes.

    And three punishments were in fact imposed upon those three counts.

    Now, again, count 4 out of that group was the only one upon which consecutive terms were imposed.

    But going over to the Clawson situation, we would have to pick out five counts or at least three to support a 15 years — a sentence of 15 years from the group to groups 4, 5 and 6 and 10, 11 and 12.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    Well, Mr. Justice Whittaker, that was done as I say in the formal commitment and there is obviously some discrepancy between what was said in the formal of commitment and what was said in the oral sentence.

    And when he sentenced the defendant orally, he did not say that the sentences on the concurrent counts would — counts which will run concurrently with each other.

    He said only concurrently with 2, 4 and 7.

    Now, I take it that his intention at that time was to permit anyone or all of the counts on the 12 — the any one of the sentences imposed on any one of the 12 concurrent counts to run concurrently with anyone or all of the consecutive targets.

    Charles E. Whittaker:

    (Inaudible) and assume that they are to run concurrently with each other and that they are (Inaudible)

    The Court then having made them to run concurrently with each other, how much of the sentence after?

    John L. Murphy:

    Five years.

    Charles E. Whittaker:

    Five years, that’s right.

    John L. Murphy:

    Yes.

    That’s all.

    Charles E. Whittaker:

    Now —

    John L. Murphy:

    If that is the construction of the sentence, then certainly, this case will have to go back to Court of Appeals.

    Charles E. Whittaker:

    And here, the Court of Appeals does not have the question as that it now has on counts 2, 4 and 7.

    John L. Murphy:

    That is correct.

    Charles E. Whittaker:

    (Inaudible) that Judge Holtzoff made in that (Inaudible)

    John L. Murphy:

    That is correct.

    Charles E. Whittaker:

    Now, the other offenses, it’s much to be argued, run concurrently with each other and the counts to the sentence is on count 2, 4 and 7.

    That’s what the business of 1, 6 and 7.

    John L. Murphy:

    Yes, Your Honor.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    From the oral sentence.

    Charles E. Whittaker:

    Yes.

    John L. Murphy:

    I — I get it from the oral sentence because of what —

    Charles E. Whittaker:

    You don’t find anything wrong?

    John L. Murphy:

    When he sentenced orally, he did not say that the counts were to run concurrently with each other.

    Charles E. Whittaker:

    But he did say they run concurrently.

    John L. Murphy:

    With two, four and seven.

    Charles E. Whittaker:

    Yes.

    John L. Murphy:

    Well if —

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    — some of the counts are to run concurrently with 2, 4 and 7, it would seem that you could select any three good counts and make them run concurrently with 2, 4 and 7 respectively.

    Felix Frankfurter:

    But 2, 4 and 7 are out, aren’t they?

    John L. Murphy:

    Well, they weren’t considered, they’re good counts, Your Honor.

    Charles E. Whittaker:

    For our purposes thereof —

    Felix Frankfurter:

    (Inaudible) in other words, 2, 4 and 7 are the page on which Judge HOltzoff (Inaudible) something.

    But the path is gone and we don’t know what he hung up on.

    John L. Murphy:

    We set this explanation now to footnote 8 of — of page 21 of our brief.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    We did.

    Felix Frankfurter:

    What page, Mr. Murphy?

    John L. Murphy:

    Page 21, footnote 8.

    John L. Murphy:

    We say if the sentence could not be considered as a gross sentence, at least as to the 12 counts which were to be concurrent with 2, 4 and 7, we believe that the case would have to be remanded to the Court of Appeals to pass on the validity of counts 2, 4 and 7.

    If it found any one of them invalid, that Court would then have to remand to the District Court for resentencing, since assuming that the other counts cannot be considered in gross, in other words as a general sentence, it is not clear which of them, taken individually, what to be concurrent with two, which with four and which with seven.

    To be perfectly candid with the Court —

    Hugo L. Black:

    If the Clawson rule is right, what would be the advantage of that level with the Court or as the dissenters.

    Assuming that you can unless you’re going to say here that all these counts, if some of them were bad (Inaudible) the Court might give the smallest (Inaudible)

    What advantage would be derived from that.

    And what — if you reach that conclusion, would not — would that not be an abandonment of the Clawson rule or would it?

    John L. Murphy:

    I don’t think it would be an abandonment of the Clawson rule because the concurrent terms are to run concurrently with the consecutive terms.

    If any of the consecutive terms are bad, I think the concurrent terms would have to step up in line.

    In other words if we —

    Hugo L. Black:

    Step that up (Voice Overlap) —

    John L. Murphy:

    — found count 7 in the — if the Court of Appeals found count 7 invalid upon a remand.

    And personally, I have difficulty with that count.

    If the Court of Appeals did find that count 7 was invalid, then I think we would have left only a ten year sentence because you would have to say that the concurrent counts can only concurrently with valid counts.

    Hugo L. Black:

    (Inaudible) assuming we were going to send it back on the basis of the ambiguity and that they’d be gone, whatever it is.What is the reason for that unless it be that the — go on the assumption, that the Court could give a small assumption.

    I’m talking about frankly speaking, would give a small assumption, a reason for that and there was conviction on fewer good counts.

    That if that is the reasoning, why does that not challenge that fact in the Clawson rule?

    John L. Murphy:

    Not sure I understand your question, Mr. Justice Black, but the — the —

    Hugo L. Black:

    I understand (Voice Overlap) but — but you understand the Clawson rule as to be into this.

    The three good counts can be found out at 15 clear assumptions, no ambiguities.

    The three good counts in this Court in 15 years, and under the Clawson rule, the case is not reversed, should not be reversed.

    John L. Murphy:

    That is correct.

    Hugo L. Black:

    All right.

    And the basis of the challenge to the Clawson rule as I understand it basically is that maybe the judge wouldn’t give so much, if there were fewer counts of (Inaudible) conviction.

    Why would not that same reasoning apply demanding it on the basis of the ambiguity in those three?

    If there were three good counts.

    John L. Murphy:

    Well, on the assumption that the Clawson rule should be disregarded in this case and that the case should be remanded if it is determined that there are a substantial number of bad counts supporting sentence, even though there are sufficiently large number of counts to support the aggregate sentence, then I would say yes, the purpose in remanding to the District Judge would be to permit him to reconsider his sentence.

    But our purpose in suggesting that this Court might wish to remand to the Court of Appeals if it were unable to conclude from the manner in which the judge sentenced the defendant that he intended a gross sentence on the 12 concurrent counts is to permit the Court of Appeals to consider the validity of the consecutive counts which it must do and it hasn’t done if you are unable to find three other good counts which constitute a gross sentence of 15 years.

    Hugo L. Black:

    Suppose they went back and they found these three — these three counts bad and they found three other good, should that —

    John L. Murphy:

    Well —

    Hugo L. Black:

    — go back to the District Court in your judgment?

    John L. Murphy:

    It would depend on which three they found bad.

    If they found the three —

    Hugo L. Black:

    That’s four and seven — two, four and seven.

    John L. Murphy:

    If they found them bad?

    Hugo L. Black:

    Yes.

    John L. Murphy:

    And everything else good?

    Hugo L. Black:

    Everything else good.

    John L. Murphy:

    Well then, on the assumption that this Court construed the concurrent counts as adding up to a total of only five years as does Mr. Justice Whittaker, it would have to go back — well, it need not go back.

    In that situation, the Court of Appeals could reduce the sentence to five years I presume or it could remand to the sentencing judge to enter a judgment in conformity with that opinion which — under which he would be entitled to impose only a five-year sentence.

    Felix Frankfurter:

    If the concurrence — let me put it arithmetically.

    If concurrent counts attacked on to three preceding, consecutive sentences, and they add up to nine years and the judge says — even though he finds them guilty, the judge says, “I sentence you on these other counts, 15 years which is the sentence that I’ll give you on the concurrent — on the consecutive count to run concurrently,” that would suggest a bad mistake of arithmetic, wouldn’t it, because now it doesn’t equal to 15.

    John L. Murphy:

    Yes.

    Felix Frankfurter:

    Now, if counts which are — to which you’re attacked on concurrent counts are knocked out as illegal, then you don’t modify in the interest of mercy, but you modify because you haven’t got anything on which the current counts compete.

    John L. Murphy:

    That is correct, Your Honor.

    Mr. Murphy, are — are your difficulties as expressed in this footnote 8, such as to cause you to suggest this kind of the disposition of this cas?

    Not at all, Mr. Chief Justice.

    We defer to the Court of Appeals’ construction of this sentence as imposing a general sentence of 15 years upon the 12 concurrent counts.

    And if that’s true then the Court of Appeals’ approach to this problem was correct.

    And of course, this raises then the question of whether the defendant was properly sentenced to consecutive terms — I’m sorry, to multiple punishment on several counts involving violations of several different statutes penalizing and prohibiting traffic in narcotics.

    Now, the — to get back to the facts, the — there was a sale of narcotics made by the petitioner’s accomplice on January 21.

    Counts 4, 5 and 6 were charged for that violation.

    They involved violations of Section 174, of Title 21, the Export Import Drug Act, Section 4704, of Title 26, the Internal Revenue Code which is the stamp provision, person cannot deal in narcotic drugs expect in or from the stamped package.

    And the count — the third count of that group charge the violation of the order from the provision of Section 4705.

    Now, petitioner contends that Gore, though it decided this identical question, should be reconsidered.

    And as I understand the basis for his contention, it is that multiple punishment, cannot be imposed upon violations of three different statutes where the violation arose out of a single transaction, or stated another way that the rule upon which we distinguish between different crimes is one which has to do with whether the evidence is the same to support each of the charges.

    We contend that the rule is not as petitioner would have it.

    In fact, if it were, it would seem to lead to rather incongruous results.

    The rule as I think it is — as it exists and as it should be correctly stated is that two offenses are different.

    If the statutes against which they offend contain different elements, one statute defines a crime different from another if it has within its definition a legal element different from the elements contained in the other statute.

    John L. Murphy:

    In other words, if statute A says in order to have a conviction under this statute, you must prove A and B and the other statute says you must prove A, B and C.

    We say that those are different statutes, they are different offenses.

    And whether you proceed on the basis of statutory construction or upon the constitutional question which petitioner admits that he does not press in this case, we think that the rule should be the same.

    Hugo L. Black:

    You mean if the evidence, if — if they’d gone, both is identical?

    Would be enough to support you.

    And that it can filed in two separate cases?

    John L. Murphy:

    If the statutes against which the same evidence — offense contain different elements, as they do in this case.

    Hugo L. Black:

    Even though if the statute is written anyway, that’s precisely the same proof of conviction of both.

    John L. Murphy:

    Well, in this case, that is not so, Mr. Justice Black.

    Hugo L. Black:

    Well, I — I didn’t mean on this case.

    I — I was trying to — sought that as what you said to your argument.

    John L. Murphy:

    Well, in a —

    Hugo L. Black:

    Maybe it’s right.

    John L. Murphy:

    In a particular case, the — the same evidence to a certain degree will be used to support the different charges.

    Let me explain.

    Hugo L. Black:

    But what I meant was, suppose you take one set of facts, just put them down, you find if there are no facts at all except those facts, you can convict to two — for two separate crimes.

    Is that your argument?

    John L. Murphy:

    In this particular setting —

    Hugo L. Black:

    And that would be (Voice Overlap) — I’m not talking about this particular case.

    Is it your argument that is the stamp that determines whether or not there are two separate crimes?

    John L. Murphy:

    Yes that is our position.

    That is the definitions of the crimes —

    Hugo L. Black:

    Even though the evidence —

    John L. Murphy:

    Even though the evidence may be —

    Hugo L. Black:

    (Inaudible)

    John L. Murphy:

    — identical.

    Charles E. Whittaker:

    Well —

    John L. Murphy:

    We don’t reach that in this case, I don’t believe because under the provisions of the various narcotics statutes, different evidence is in fact required even though we may rely upon the presumptions.

    This question as Mr. Heller indicated is — is more explicitly presented in the case to follow.

    But in view of the fact that petitioner has raised it here, we should touch upon it.

    John L. Murphy:

    Under Section 174, petitioner maybe convicted solely upon proof that he possessed a narcotic drug if he does not explain his possession.

    Under Section 4704 of the Internal Revenue Code, he may be convicted if he is found in possession of a drug and the Government proves that in addition to possession that there were no tax stamps on that drug.

    So there, we have two different facts to support two different crimes.

    Of course, the third statute is entirely distinct, no presumption can be relied upon there, actual proof of the sale and the absence of the order form must be proved.

    If the rule were as petitioner contends that offenses are identical, if the same evidence could be used to support each of them, I think that the rule would lead to incongruous results as is demonstrated by petitioner’s rather startling contention with respect to the aider and abettor rule here.

    He contends that since the petitioner did not himself sell the drug, but used an accomplice since he did not on some occasions, transport the drug, but used an accomplice since he didn’t do any of those things, but merely in some way as deny in the instant case, says, associated himself with her activities and demonstrated his wish to see them succeed, this constitutes a single piece of evidence and he couldn’t be convicted of more than one offense.

    He doesn’t indicate which offense he would be guilty of, but he could not be convicted of more than one offense even though she could be convicted of several.

    Of course, this is a rather startling observation, however, it is not unusual among the people in the narcotics trade who more and more these days put as we said in the vernacular of the trade or in the record in this case, put other people out front so that they cannot be detected.

    They cannot be shown to had had possession.

    They feel secure in the fact that they are not handling the drugs themselves.

    They are aware of these presumptions stemming from possession.

    So they tried to put other people out front to do the actual transactions.

    Now, this same issue of whether a single fact could support multiple charges was raised in the Gore case, and all the arguments that were raised there was set at rest seemingly and this Curt went back to Blockburger in which the identical question was raised, back in 1932 I believe it was.

    And Blockburger has decided that these offenses were distinct even though the transaction which was involved in the offense consisted of a single one, and we see no occasion for this Court to reconsider the merits of the question involved in the Gore decision.

    Indeed, petitioner here, since the acts of his accomplice were his acts, did in fact commit many different acts and we did not.

    The Government did not rely in any manner or means upon the presumption arising out of possession of the drug.

    The Government proved that he committed acts by associating himself with an accomplice who did the acts, so that her acts were his.

    Now, some question has been raised with regard to the Bell, Prince, (Inaudible) cases, we feel that those cases are distinguishable from the present one, the legislative histories in those cases, in this — the legislative histories of the statutes in those cases as well as the statutes themselves were held to clearly evince an attitude upon the part of Congress to impose only a single punishment or if there was ambiguity in the language of the statute or in the — in the legislative history, then the rule of lenity would be applied to impose the less severe punishment.

    That is the statutory rule, Government does not disagree with it, we say however that it cannot be applied in this case in view of the clear indication on the part of Congress down through the years to impose more and more severe sentences upon narcotics violators.

    Mr. Justice Frankfurter adverted to a recent statute enacted by Congress which was specifically accepted from application in narcotics crimes.

    That statute I believe, permits the judge in sentencing a violator for a single crime to divide the sentence up into partly imprisonment and partly probation.

    And unless Congress — Congress left the — the approach might be made that this statute would apply to permit probation for a narcotics violator who had violated one of the statutes which today precludes probation or even parole, Congress was alert to the possibility that that might be done.

    Very explicitly said that this statute shall not apply to any narcotics violator under a statute which precludes probation.

    Hugo L. Black:

    May I ask you — I — I don’t understand this argument you’re marking ever since to the Blockburger case.

    Do you think it was right?

    John L. Murphy:

    Yes, Your Honor, I do.

    William J. Brennan, Jr.:

    Well, are you sure?

    John L. Murphy:

    Counts three and five of — of the Blockburger case involved a single sale of narcotics.

    Hugo L. Black:

    But the Court, you said at the end applying the test, we must conclude that here on the — both sections were violated by one sale, two offences were committed because there were some elements in one that were not in the other, required proof of some elements that were not required in the other, is that right?

    Or —

    John L. Murphy:

    Well that is — that is correct.

    That the charges in the Blockburger case were under 4704 which has a presumptive provision in it and 4705, each of Title 26 which does not have a presumptive provision in it.

    Hugo L. Black:

    In the presumption, you get into the tight field, do you not?

    Whether you can have a —

    John L. Murphy:

    Well —

    Hugo L. Black:

    And thus to prove beyond reasonable doubt by legislative, the prescribed presumption.

    John L. Murphy:

    Well, in the Tort case, it was merely decided that the presumption arising from the fact proved was not logically related to the fact presumed.

    Now, that contention has been set at rest in the narcotics statutes time and time again in Yee Ham and Casey, Doremus, many times that question has been raised and that this Court has decided that the presumptions here, the fact proved this —

    Hugo L. Black:

    You construe Blockburger there and the meaning it set as fact, test here whether its provision files the proof of effect but the other does not.

    And although there are identical facts, can be set out into your presumption.

    John L. Murphy:

    The presumption —

    Hugo L. Black:

    But Blockburger is limited to that extent.

    John L. Murphy:

    Well, the presumption can take the place of proof of one of the elements.

    Hugo L. Black:

    Well, that’s murder and assault and battery but you convicted both (Inaudible)

    John L. Murphy:

    Well, there we get into the problem, Mr. Justice Black, unless there are included offenses I think —

    Hugo L. Black:

    Well, I know but —

    John L. Murphy:

    — which — which under which Congress can — can proscribe a particular activity and it can penalize any of the subordinate actions necessary to commit that activity.

    Hugo L. Black:

    And analyze both the assault and battery maybe it can.

    John L. Murphy:

    I think it can and — and in fact, the Albrecht —

    Hugo L. Black:

    (Voice Overlap)

    convict a man for assault and battery and then you would use the same proof except that he died, convict him of murder.

    John L. Murphy:

    Yes, I — I believe that could constitutional be done.

    Hugo L. Black:

    Well, that’s (Voice Overlap).

    That might be because they have introduced an additional element, the person died.

    John L. Murphy:

    But in — in the Albrecht case which is reported at 273 U.S. page 1, the question was whether a man could be convicted for selling liquor and possessing the same liquor.

    And this court said that it could be done and it — it allowed —

    Hugo L. Black:

    From that, you mean he sold it?

    John L. Murphy:

    Well, it was proved that he sold it.

    But if —

    Hugo L. Black:

    And it proved therefore — they proved that he sold them, proved that he has them.

    John L. Murphy:

    Well, that was the reasoning applied by the Court, but of course, the same question is involved here where you have possession of heroin.

    Heroin can’t be stamped.

    And if you posses it, you possess a narcotic drug and you also posses a drug that which doesn’t have stamps on it.

    We say that that is different fact.

    Hugo L. Black:

    Well, I’m not —

    John L. Murphy:

    But —

    Hugo L. Black:

    — I think again defense for the Blockburger case because — but I thought that since his — our position has been overruled on that, that it at least meant that there had to be a — they had to meet it pretty squarely and that there must be different elements proven.

    John L. Murphy:

    Well, the only question that arise is how can you prove the elements of the offense.

    And Congress had said that you can —

    Hugo L. Black:

    Beyond the reasonable doubt.

    John L. Murphy:

    Congress had said that you can prove the elements of the offense in these cases by proof of possession.

    And the presumption takes over and supplies the missing proof.

    Felix Frankfurter:

    But you can’t generalize — you can’t generalize — this Court had a doctor, an innocent doctor, I think he was in jail, although he didn’t know what he was doing or didn’t — no consciousness at all that it was narcotics that he was involved in because of the — of the great — though in this Court we have a great danger, the generality of his — if you open the door to prove that a fellow didn’t know, you — almost everybody at least didn’t know.

    John L. Murphy:

    Yes it would be an insurmountable burden.

    Felix Frankfurter:

    I’m not — I’m not suggesting you can’t generalize the narcotics cases of presumptions as though appeal the presumptions.

    John L. Murphy:

    Well, I think the same rules apply in — in the narcotics field to those involved even in non-statutory presumptions.

    Proceeding then to the question of whether the Clawson rule should be reconsidered on its merits.

    We feel that the Clawson rule serves a very salutary purpose.

    It conserves the energies of the Appellate Courts, it — it prevents a — an appellant from raising issues which cannot afford him any relief or at least it — it enables the Appellate Courts to decide cases in such a way that they can affirm a sentence imposed upon a defendant without taking the time and effort to review the evidence to support counts which might be bad but which might not be, but which in any event could not afford the petitioner any relief on the assumption that the sentencing judge would not impose a different sentence if they were sufficient, a sufficient number of counts to support the sentence he had already imposed.

    Hugo L. Black:

    Do you think that’s a valid assumption?

    John L. Murphy:

    It is rather artificial, Mr. Justice Black, but it is a rule that has been consistently applied both in this Court and the lower courts.

    It’s, as we indicate our brief, necessitated by a rule of judicial parsimony.

    And on that basis, I think it — it serves a salutary purpose.

    Earl Warren:

    Isn’t there something involved —

    John L. Murphy:

    We — I’m sorry.

    Earl Warren:

    Isn’t there something in the record to indicate that the trial judge thought one of the reasons this man was guilty of a very serious offense was because there were 15 counts against him?

    John L. Murphy:

    Not that there were 15 counts against him, Mr. Chief Justice but the quantities of narcotics in which he dealt were substantial.

    And there were —

    Earl Warren:

    (Voice Overlap)

    I thought the judge also mentioned 15 counts in the indictment some place, maybe I am wrong, you go right ahead.

    Isn’t it at page 125?

    John L. Murphy:

    I believe it’s —

    You say there —

    John L. Murphy:

    This is a narcotics offense of an exceedingly aggravated character because apparently, this defendant has been dealing in narcotics in large quantities for a considerable period of time.

    Some of the counts involve quantities as large as 40 capsules.

    Read the next sentence.

    Tom C. Clark:

    There are 15 in —

    John L. Murphy:

    There are 15 counts in this indictment.

    Earl Warren:

    Well, that’s what I was referring to.

    John L. Murphy:

    Well, there again, it’s not —

    Earl Warren:

    That — wouldn’t that indicate that — wouldn’t that indicate that he gave some consideration to the number of counts as well as the amounts that were involved?

    John L. Murphy:

    I would have to conceive that.

    Yes, sir.

    Earl Warren:

    As well — well then the man —

    John L. Murphy:

    But even more did he consider the character of the man I think, what he was engaged in over a long period of time, how he used this innocent girl.

    Incidentally, she was a —

    Earl Warren:

    Well, that — that is true but if — if it affects him substantially at all that a number of counts were charged against him that that could not properly be charged against him.

    You think that’s fair to the defendant?

    John L. Murphy:

    Well, when a judge sentences the defendant I would assume that he doesn’t do so solely upon the legality of the several counts, he considers the — the defendant’s whole character.

    He considers how he got into the business, and all of these different elements.

    In — in other words, as we say, he considers the offense but even more the offender.

    And I can’t say that a judge in any particular case would give very great weight to the number of counts in the indictment because he is aware that the United States attorney can charge a defendant in one case in a number of counts for the same offense which he charges another defendant with only a few.

    So that, the number of counts in an indictment in my opinion is not really significant.

    I do take notice of the fact as Your Honor has pointed out that — that the judge in this case did make special mention that there were 15 counts, but I think he was talking about that in reference to the duration of the crime as possibly evidencing the fact that this was a crime committed over a period of time and that there were numerous transactions involved, which concededly there were.

    So that, even if the — the counts — the counts laid on the single transaction of the multiple counts, if we only — if we assume that there were — that he should have been sentenced to only under one statute for each transaction, he still engaged in six transactions plus a conspiracy.

    I think that the sentencing — sentencing judge had that in mind as well as the number of counts in this indictment.

    Hugo L. Black:

    Of course is no way I guess in the world that you prove one way on that and the other side to prove the other.

    The rule as you said has been established and it depend on so many different things might at some point depend on the particular judge who is doing the sentencing.

    John L. Murphy:

    In any event, the rule is not in (Inaudible), it can be disregarded by an appellate court if it feels in a particular case, that the case —

    William J. Brennan, Jr.:

    (Voice Overlap) discretionary.

    John L. Murphy:

    — is discretionary.

    William J. Brennan, Jr.:

    Is that the Government’s position, I rather gather that from your brief.

    You feel then that in any one of these cases that —

    John L. Murphy:

    An appellate court —

    William J. Brennan, Jr.:

    — an appellate court might appropriately exercise discretion to say, “Well, we think the trial court might want to take another look at —

    John L. Murphy:

    Look at the sentence.

    William J. Brennan, Jr.:

    — which is much what we did do in Yates, isn’t it?

    John L. Murphy:

    Well, there was a special circumstance.

    William J. Brennan, Jr.:

    (Inaudible)

    John L. Murphy:

    It’s an analogous situation.

    Yes, sir.

    Charles E. Whittaker:

    (Inaudible) again to get clear in my mind your position on this sentence.

    You have stated that under your understanding of the Clawson rule, that if there were enough individual counts upon which findings of guilty had been made and sentences imposed to support the aggregate, then under Clawson rule, it’s — it’s good.

    But do you say that if the trial court made those counts to run concurrently not consecutively.

    Repeating my position more briefly, it is this.

    Does an appellate court have the right to make consecutive that which the District Court in the imposition of sentence made concurrent?

    John L. Murphy:

    Well, your question, Mr. Justice Whittaker, assumes that the 12 concurrent counts were actually made to run concurrently with each other.

    Charles E. Whittaker:

    Yes, that’s right.

    Let’s assume that they were.

    John L. Murphy:

    If that — if that assumption is correct, then I can get no more than five years out of those concurrent counts and the consecutive counts would have to be valid to support a 15-year sentence, all of them.

    Charles E. Whittaker:

    And — and they haven’t been so determined.

    John L. Murphy:

    They haven’t.

    Charles E. Whittaker:

    So then in that view, we’d have to send the case back to the Court of Appeals to determine the validity of counts 2, 4 and 7.

    John L. Murphy:

    That is our position.

    Charles E. Whittaker:

    And if they held those all good, then they defer them on the Clawson rule.

    If they held anyone of them bad, they’d have to send it back to the District Court for resentencing.

    John L. Murphy:

    Well, let me say they wouldn’t even have to consider the Clawson rule if they found all of the consecutive counts good.

    Charles E. Whittaker:

    And all I say — but if it found one of them bad.

    John L. Murphy:

    Well, if they found one of them bad, then they would have to send it back to the sentencing judge —

    Charles E. Whittaker:

    Yes.

    John L. Murphy:

    — for clarification —

    Charles E. Whittaker:

    Yes.

    John L. Murphy:

    — if you will —

    Charles E. Whittaker:

    Yes.

    John L. Murphy:

    — as to which of the concurrent counts he wished to run concurrently with which of the consecutive counts.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    I believe that’s correct.

    Hugo L. Black:

    Well now, let me ask you this question.

    Were there serious questions involved in trying to decide whether those counts are good or bad and they raised them for this —

    John L. Murphy:

    Yes, Your Honor, there are.

    Hugo L. Black:

    Well, there may have been an ambiguity of the (Inaudible) there wasn’t much thing to do and just read the sentence back to the (Inaudible) without having to go through all this.

    John L. Murphy:

    On the assumption that there is a sufficient ambiguity, I — I would say that that would be the correct determination to make.

    Hugo L. Black:

    And you were talking about parsimony of the Court’s time.

    I assume you mean to say this Court’s time, not deciding cases it didn’t have to.

    That might be if it is ambiguous, that might be the best thing to do, was it not?

    On the assumption that the judge would take a new look, like they revised it or maybe revised it one way or the other.

    John L. Murphy:

    Well, I think it should go back to the Court of Appeals first to determine.

    (Inaudible)

    John L. Murphy:

    Well —

    The District Courts would have —

    John L. Murphy:

    They have — they have impliedly said that counts 4, 5 and 6 and 10, 11, 12 are good.

    (Inaudible)

    John L. Murphy:

    There is no question about that.

    But — but —

    (Inaudible)

    John L. Murphy:

    Five other than the consecutive counts.

    But you see —

    Hugo L. Black:

    Is that enough for good to justify him as for to the same sentence if he wants to.

    John L. Murphy:

    That’s — yes.

    There are at least five.

    John L. Murphy:

    Actually —

    Hugo L. Black:

    (Inaudible)

    John L. Murphy:

    Actually, the — the dissenting judge impliedly conceded that there were six good counts, 4, 5 and 6, 10, 11 and 12, but the way the — the majority expressed it was that they said in order to apply the Clawson rule, that there are at least five other counts in addition or exclusive of the consecutive counts.

    And there was — those — at least five of them are good and they will support at least a 15-year sentence, so that there is no necessity to consider the validity of the consecutive counts themselves.

    I think that sufficiently —

    Earl Warren:

    Very well.

    John L. Murphy:

    — demonstrates the Government’s pleas.

    Charles E. Whittaker:

    May I ask you first.

    (Inaudible)

    John L. Murphy:

    You see, they didn’t use the language of the formal judgment and commitment there.

    They went back to the oral sentence as the proper sentence to be construed in this case.

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    I think that’s the only way that you can arrive at the five counts, you see the — it’s — it’s rather an involved —

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    I’m — I’m sorry, I didn’t —

    Charles E. Whittaker:

    (Inaudible)

    John L. Murphy:

    That is correct.

    Charles E. Whittaker:

    Then how could they be (Inaudible)

    John L. Murphy:

    Well, the five are — 5 and 6, and 10, 11 and 12.

    None of which are among the consecutive counts.

    Charles E. Whittaker:

    (Inaudible)

    Earl Warren:

    Mr. Heller.

    Mr. Heller, would you mind addressing yourself to the — for a moment to his footnote 8 on page 21 of the Government’s brief and if you have an observation that may concern in that suggestion.

    James H. Heller:

    Well, Your Honor, I — I believe that — that this exposes the very problem that I — I saw generally with the rule.

    Now, I take it this Court has moved to a more specific question that there may, as a matter of fact, be an actually illegal sentence if we can find out what part of this is valid.

    I think this — I think that the construction that Justice Whittaker is inclined to and the construction which footnote 8 suggest is the proper construction.

    I don’t see how this can be considered a gross sentence, and I don’t see how the Court of Appeals can be said to have considered a gross sentence when they use the word aggregate.

    Now, words may maybe fuzzy in points but aggregate seems to me to mean the sum of things, whereas gross sentences traditionally, a term implied — used when you impose a single sentence for all of the counts put together.

    This was the Clawson case.

    There was one sentence implied on — imposed on five counts.

    James H. Heller:

    Now, I don’t think that’s — it’s a permissible construction of this.

    Now, if that’s not true, then of course this must go back and I think the Court of Appeals must pass — unless this Court can’t and I don’t think the case is in their posture either, must pass upon the validity of these consecutive sentences.

    Now, I’m at sea, I’m not as familiar as Justice Whittaker and as other people in the (Inaudible) field with what these concurrent sentences do.

    I think the Court of Appeals felt that they were free to plug one in at count 2 and one in at count 4 and one in at count 7, but evidently I think grammatically, Justice Whittaker is right, that they are not free to do that.

    Charles E. Whittaker:

    Particularly if the Court said they are (Inaudible)

    James H. Heller:

    No, I agree with you, Your Honor and I’m anxious to adopt to the construction which is most favorable to my client, and that I think is.

    And that gives him the benefit of the doubts that are inherent here.

    I was quite surprised at footnote 8 too.

    I — I don’t see how the Government can come to this Court and say there is this possibility or this is a criminal case, it’s a very distinct possibility, the Court of Appeals doesn’t really settle it for us, but we’ll simply argue to you that the possibility, if it does exist should be ignored or disfavored.

    But if the possibility does exist, the Government says, then of course, the case has got to go back.But it seems to me that’s the function of appellate review and that’s what I have to bicker with the Clawson case even if it doesn’t rule it — even if it doesn’t govern this case.

    Appellate silences the real vice of that rule.

    You don’t know what you’ve got when you’re done the Court of Appeals and yet that’s the precise reason you went there, or at least that’s the price — precise reason the Court was instituted as a reviewing court.

    You come away from there and out of judicial parsimony or conservation of energy, which is a little more appropriate for this Court, whether it’s discretionary review, the Court of Appeal has told you nothing.

    They have assumed that they knew what the trail judge did and what he would do again.

    Now, more —

    Felix Frankfurter:

    It isn’t because of possibility or — or judicial laziness.

    James H. Heller:

    The Government says it is tough, the Government says.

    Felix Frankfurter:

    Well — and if the Government says, but that isn’t a basis as a rule.

    After all you must consider the — the whole fitness of appellate review of criminal sentences, is irrelevantly a modern thing.

    James H. Heller:

    But —

    Felix Frankfurter:

    And therefore, the question is what it is that was given to the courts to review in the light of what the whole history of criminal field were.

    James H. Heller:

    That’s right, Your Honor, but my position — my point here is that the basic thing that the Court should be reviewing which the Clawson rule doesn’t permit it to do is not the sentences of course but the judgments, then make it possible for him to go back to the trial court and say, “You have control of the sentence, but now you see what the judgment is.

    You did it once before on a false premise.”

    Now, the Court of Appeals says its only two-fifth as large, one-third as large.

    Felix Frankfurter:

    There was nothing — it’s a common place of law that if a record sustains a judgment, you don’t bother about the ground on which the judgment was passed.

    James H. Heller:

    But that isn’t the judgment.

    This is a sentence in which the —

    Felix Frankfurter:

    But it is a judgment.

    James H. Heller:

    But the trial judge has said there are unexpressed consideration or he hasn’t expressed all of his considerations and one of them in this case, it turns out, is the number of counts.

    That must be true in lots of cases where he doesn’t say that though.

    James H. Heller:

    This seems to me an obviously relevant and important matter, this isn’t anything in which I think a conservation of an energy or the fact that you can say, the appellate court can say we don’t believe he’d do differently on remand, should prevail over the rights of these cases.

    Felix Frankfurter:

    But it has no Clawson problem at all, and a sentencing judge gives a lot of — has too many judges from my case, talk too much when they sentence anyone.

    Suppose they give a lot of reasons, a lot of obsolete and illogical considerations and other things.

    This Court was — was confronted with even sections of secret reports, said — I know that was improper.

    A reviewing court under our system until we get a different kind of system like the English system, where the review sentences are on the merits, goes up and down until we get that system.

    I’m not suggesting I’m for it because that has big problems, and Lord Denman was Chief Justice (Inaudible)

    Now the Court thought as the Chief Justice and sent it (Inaudible)

    So until we have had (Inaudible) you can’t just tear out a piece out a whole long history, complicated history, which legislature particularly our Congress, most of whom were lawyers, were not ignoramus, that’s some knowledge of it.

    James H. Heller:

    I think this rule really only dates from 1891, Your Honor and certainly, it’s been questioned.

    Felix Frankfurter:

    (Voice Overlap)

    way back in — in Marshall’s time.

    He invoked that in the case of (Inaudible), one count, it’s plenty, we don’t bother about the others.

    James H. Heller:

    But — but you forfeit a specific article, Your Honor, I forfeit this.

    You can’t split that up.

    Felix Frankfurter:

    Well, that’s a fine.

    It wasn’t merely a forfeiture, it was fine from where it begins from (Inaudible) all along, this is an old rule.

    James H. Heller:

    I believe those are forfeiture of specific property, Your Honor.

    Felix Frankfurter:

    Fines too, if there are.

    James H. Heller:

    Well, I — I don’t think the rule, because of it’s discretionary application is entitled to all this concern.

    Either it’s simply because of its age, I think it — it really forfeits up on its face.

    If I may just say one thing about the Blockburger case, Your Honor, I want to tell the Court as I think we did in our brief that there wasn’t any use of the presumption in the Blockburger case.

    The trial court didn’t even charge the jury on that.

    Earl Warren:

    Mr. Heller, before you — before you sit down, I would just like to say on behalf of the Court that we appreciate the — the help that you’ve given to the Court in this case.

    You were assigned this case by the Court of Appeals, handled it there, and have handled it here because of the impecunious condition of the defendant and we always feel comforted when lawyers are willing to assume such obligations.

    And it maybe of interest to — to know that in addition to this case, three of the four cases that will be heard tomorrow and the next day are cases in which counsel have been assigned to represent the impecunious defendants and are here at great sacrifice to them — to themselves and we appreciate it very much indeed.

    James H. Heller:

    Thank you very much, Your Honor.

    Earl Warren:

    We appreciate Mr. Murphy of course, your representations of the Government.