Heflin v. United States

PETITIONER:Heflin
RESPONDENT:United States
LOCATION:Union Station

DOCKET NO.: 137
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 358 US 415 (1959)
ARGUED: Jan 14, 1959 / Jan 15, 1959
DECIDED: Feb 24, 1959

Facts of the case

Question

  • Oral Argument – January 15, 1959
  • Audio Transcription for Oral Argument – January 15, 1959 in Heflin v. United States

    Audio Transcription for Oral Argument – January 14, 1959 in Heflin v. United States

    Earl Warren:

    Number 137, Lurton Lewis Heflin, Jr., Petitioner, versus United States of America.

    Mr. Cooper, you may proceed.

    Jerome A. Cooper:

    If the Court pleases.

    We are here on a petition for certiorari, a writ of certiorari to the Fifth Circuit Court of Appeals in a matter arising under the Federal Bank Robbery Act.

    The petition seeks review of a judgment of the Fifth Circuit which in turn had affirmed a decree of the District Court, Northern District of Alabama which refused to vacate or reduce or correct a sentence which as then existed was in three counts before the District Court.

    There is a little history to this case prior to the action on that motion to the District Court, which was a 2255 motion and, which I mentioned parenthetically, was not opposed on any procedural or jurisdictional ground by the U.S. Attorney who had notice and appealed and argued and was not — when it eventually reached the Fifth Circuit challenged on any jurisdictional or preliminary or premature argument and was read by the U.S. Attorney in the Fifth Circuit.

    Prior to the action of the District Court of which we complain here, there had been, in 1954, a trial on a five-count indictment arising out of a single bank robbery and charging three individuals on five counts with participation in a bank robbery and receipt and disposition and so forth of the stolen funds.

    An appeal was taken from the conviction of guilty on all five counts by the counsel who were — who was appointed by the District Court to serve the then appellant before the Fifth Circuit.

    In the Fifth Circuit, on the direct appeal from the conviction, various arguments were raised by the appellant including the argument that he had been subjected improperly to successive sentencing when that was not allowed by the statute.

    The Government confessed there apparently in that appeal to the Fifth Circuit, and two counts were found by the Fifth Circuit then to be incorrect and were ordered eliminated.

    Those were counts which charged the defendant with both being guilty under the provision of the statute making robbery a crime and the provision making larceny a crime, so that on remand, from the Fifth Circuit then, the District Court was ordered to eliminate two counts and we were left with three counts.

    William J. Brennan, Jr.:

    Well, how many had the petitioner wanted to eliminate?

    Jerome A. Cooper:

    All five.

    William J. Brennan, Jr.:

    Wanted all five.

    Jerome A. Cooper:

    Yes, sir.

    And as will later appear, the — the Fifth Circuit enacting in the — in the decree, which I now challenge, in part rested its present decision on the fact that this was a repetition of the argument which had been made in the first direct appeal to it.

    So that when we got back to the — when they got back to the District Court, I have not yet in the case, the sentence was reduced from 20 years and two days to 10 — to 14 years and one day which results from the three counts based on robbery, aggravated robbery, that is robbery in which an assault upon an individual was committed, conspiracy and the count, which I now challenge here, the count based on subsection (c) for receiving and possessing and disposing of the funds which were taken in the robbery.

    On that count, we were given a year and a day, basically, therefore, the issue we —

    Earl Warren:

    That’s the only one that’s in issue here?

    Jerome A. Cooper:

    That’s the only one that’s in issue —

    Earl Warren:

    Yes.

    Jerome A. Cooper:

    — issue, yes, sir.

    Basically, therefore, we have the — the question under the Bank Robbery Act can the crimes of robbery and the crime of the receipt of stolen money be made the basis of separate indictments and separate sentences — separate counts, excuse me.

    Disposition.

    Jerome A. Cooper:

    I beg your pardon?

    And disposition, yes, sir.

    I — I would say though in regard to that there’s very little evidence in this matter of what disposition if any was made.

    And I am — although I am getting little ahead of it, I — I’m prepared to say that in this case, it seems to me that the Court can do one of two things, it can decide and dispose of the question of the validity of Count 4, the one that I am now challenging because the indictment itself in the record, the — the true record that’s before this Court shows that they were considering — both courts below were considering a single robbery, a single transaction or single impulse, however you wish to put it.

    And if, as I was surprised to find, that it is possible to bring before this Court now, as the Government is doing, a transcript of the evidence taken in the first trial at this late hour, I would technically think that’s wrong.

    The Circuit Court of Appeals did not consider it.

    Jerome A. Cooper:

    I think that that is — that creates a situation in which a petitioner likely might be prejudiced, but I don’t feel that we are here.

    I don’t think the facts are much in dispute.

    I am prepared either to stipulate the facts, although I have not been invited to do so and only learned quite recently that the Government wished to file here a transcript of the evidence.

    And when I use the term “transcript of the evidence” I am talking about the testimony that was taken in the trial as distinguished from what I considered to be the — the true record that’s before this Court.

    There is a printed record here.

    That transcript of evidence will show that our position, I think, is unassailable.

    William J. Brennan, Jr.:

    That transcript is not printed, I gather.

    Jerome A. Cooper:

    No, sir, it’s just in the folios of the court reporter, and I might say that we had a problem about that because when I got into the case and decided that that record was not before the Court, I sort of dismissed it from my mind.

    But later, I thought that I ought to know what had taken place in the trial, and I said about trying to get hold of the transcript of the evidence.

    None was available.

    Apparently, the Government had lost it, so I didn’t get one.

    The only one that we could find was the one that’s filed in the Clerk’s Office of the District Court.

    And the Court was kind enough to let me withdraw that so that I might read it.

    And then the Government — the Attorney General’s Office got after us to let them use the copy that we had withdrawn, which we were glad to do.

    And now, they want to file that with the Court over my objection, but I am really not objecting because I don’t think the facts are here us at all.

    Felix Frankfurter:

    How big a record is it?

    Jerome A. Cooper:

    It’s about 800 somewhat pages.

    It’s four folios of — that does include, Mr. Justice, the argument and, as I recall, and the Court’s charge.

    The Court’s charge unfortunately for my client was more or less just a reading of the statute.

    There wasn’t much discussion of the problem of whether or not you can convict a man twice for robbing a bank of money and then for receiving that money that you — that he — he took in the robbery.

    Felix Frankfurter:

    That wouldn’t be a jury question.

    Jerome A. Cooper:

    Sir?

    Felix Frankfurter:

    That wouldn’t be a jury question.

    Jerome A. Cooper:

    Wouldn’t be a jury question but I think it would have been helpful to the defendant if the jury had — had explained to him.

    Felix Frankfurter:

    (Inaudible)

    Jerome A. Cooper:

    That problem, yes.

    Felix Frankfurter:

    Unless you take special verdict, unless you — unless the facts were in dispute (Inaudible)

    Jerome A. Cooper:

    Well, the facts were in dispute because my man denies and still denies guilt.

    And there was a total issue.

    (Inaudible)

    Jerome A. Cooper:

    He was convicted of both, as we now stand —

    Both.

    Jerome A. Cooper:

    Yes, sir.

    We — we now stand on — through — with three counts.We are convicted of aggravated robbery, that’s section (d), as I recall, of the Act where a man commits a robbery and an assault takes place in the course of it.

    We are convicted of the receipt disposition and so forth of the stolen money on a second count and then a third count under the conspiracy statute.

    I am not in position to raise the question of the conspiracy because that was not raised in the petition for certiorari which I did not file and — and so, I — as I indicated before, we — we have a limited problem.

    Felix Frankfurter:

    What was he given under (d)?

    Jerome A. Cooper:

    He — he was given 10 years under the aggravated assault and three years on the conspiracy and a year and a day on the count which I am —

    Felix Frankfurter:

    (Inaudible)

    Jerome A. Cooper:

    Yes, sir.

    And the reason — one reason that impels me as — as litigant to be willing to admit the facts or stipulate that other record is that my man, if he is to get some relief, can only get a year and a day reduced from his sentence.

    And I don’t want to go back to the District Court and litigate anything with respect to what the facts are or to the Circuit Court because we are getting near the point at which we’ll be eligible for parole, as I understand.

    And if we don’t get the benefit of the decree now determining that Count 4 is invalid and we will win rather empty victory, assuming that we’ll win at all.

    And for that reason, we — we think that you — you are in position to do just what you did in Prince.

    You are in a position to say here that you’ve got a — a typical bank robbery that has then, for purposes of Congress, dealt with in stages but for purposes of punishment, does not warrant imposition of — of successive sentences where all the man does is rob the bank and take the money at the time and put it in his pocket so to speak.

    Now, we think that our argument is supported a little bit better in this instance by the history of the Act and by what the Act itself says.

    The Government belittles the fact that the 1948 codification eliminated from the provision of the statute that deals with receipt and disposition and so forth, a provision for $5000 fine and so forth and instead, merely says in effect that a man who receives the stolen money should be punished in the same manner as the taker.

    In common ordinary English, that dealing with one, the receiver and two, the taker.

    It — you can’t mean anything else.

    The Government has found some difficulty itself in deciding what this Act provides with respect to successive sentencing because they went into the Fifth Circuit, as I understand, in the Heflin — in the case, the Heflin case on the first appeal and confessed error, said, “You’re right, you can’t convict a man for robbery and larceny at the same time.”

    And then according to one of the footnotes as I recall in the position of this Court in the Prince case, they said we were wrong in doing that, we still think now that you can sentence him for everything, for entering, for robbery, for larceny and aggravated larceny — robbery and so forth.

    So that the Government finds itself unable, at all times, to be sure just what this Act provides.

    And I think probably a little more, definitely than — it occurs in most of the legislative history that was considered in Prince.

    Our legislative history shows what Congress had in mind.

    The Senate Report, for instance, and we’ve set it out on page 9, we refer to it, of our brief, it says, captions, “Senate Report Number 1801” which was the report from the Senate leading to the 1940 amendment which added the crime that we are concerned with in the receiving count.

    That Senate Report was captioned “Punishment for Receivers of Loot From Bank Robbers.”

    And I think a common sense reading of that obviously means that they were dealing with the receiver distinctly from the man who is the robber and that basically is our case.

    Now, certainly, in view of the doubts which the Government has had in view of the — at best, ambiguity in the statute, the doctrine of lenity has some — has some real application here.

    The Court has been considering that problem and has heard argument about it for two days, and I’m not going to go back over those cases.

    However, I — I think that if ever there was a — a perfect case for the application of that doctrine of construction, this is it, which leads me finally in — to consideration of the Prince case itself.

    Jerome A. Cooper:

    We’ve said frankly to the Court in our brief, we think the Prince case decides this.

    We think it does.

    We think that as near as possible, the Prince case has said, “You’ve got a statute here that deals with bank robbery.”

    It — it deals with all phases of bank robbery.

    However, although Congress has seen fit to deal with a bank robbery as a crime which can have various phases before, during and after, those phases are not, when committed by one who completes a bank robbery, each entitled to be made the basis of a separate count and a separate sentence.

    In Prince, of course, the man committed the first phase.

    He entered the bank and then the robbery occurred, and he was found — and this decision — the Court — the decision of this Court in Prince holds that he couldn’t be sentenced twice for that.

    Well, what we are looking at here is what happened after he robbed the bank and he left and put the money in his pocket so to speak.

    If there is any distinction between Prince and my case, it’s chronological and nothing else because in — in the amendment that we are dealing with, the 1940 amendment, Congress reached out to be sure that it brought within the net people who deal with bank loot after the robbery has been completed.

    In the 1937 amendment, as I recall, that was before the Court, Prince, Congress was dealing with — with people who were intended felons but for some reason, did not complete their bank robbery.

    And I submit that it’s perfectly reasonable to assume that a man in Prince, for instance, might enter a bank and remain there several hours and decide not to complete the robbery or the — his confederates fail to appear or the — the strategy doesn’t work out, and he’d be guilty if proven to have had this plan underway.

    And he may spend — he may very well spend considerably more time than was spent after the bank robbery by my — by this petitioner who, as the record will show if the Court does look at this transcript, immediately after the robbery which occurred in the West End branch of the First National Bank of Birmingham in West End, they drove using two cars, drove several blocks to their apartment and they proceeded immediately within a matter of an hour or two to divide up the loot according to the testimony.

    Potter Stewart:

    Mr. Cooper —

    Jerome A. Cooper:

    Yes sir.

    Potter Stewart:

    — with respect to the Prince case, what if the man who enters the bank, national or federally insured bank today, then robbing the bank and for some reason, his plans go arise, so he walks out of the bank and then he and his confederate plan to do this whole thing all over again the next week, he enters the bank and this time, he’s successful in robbing it, suppose proof of all that under the Prince case, is that still all you want to (Inaudible) don’t you think?

    Jerome A. Cooper:

    I think it might be.

    I am prepared to go that far for this reason, nothing is being sacrificed by that.

    If this — if it’s the same bank and the same plan, the same intended robbery, nothing is being sacrificed from a public policy point of view because they are going to convict this fellow as being a bank robber and they can give him the maximum as a bank robber anyway, and you won’t have the problem that — that might trouble us of someone of — state in punishment.

    If — when they —

    Potter Stewart:

    (Voice Overlap) —

    Jerome A. Cooper:

    — complete the robbery the second time, he is — he is liable to 25 years and he will probably get it, if — and he will get it if he is guilty so that —

    Potter Stewart:

    Omitting that question to your case, the present case, what if the man robs a bank today and hides the money for a week, for a month and then disposes them, would he then be guilty of a separate offence under subsection (c) of the statute?

    Jerome A. Cooper:

    Well, Mr. Justice, when I started worrying about this case, that was one of the problems that worried me and I was grateful after I read the transcript to find that I didn’t have that problem in my case.

    Potter Stewart:

    (Inaudible)

    Jerome A. Cooper:

    However, my personal opinion is that — that if he is dealing with the same loot that he robbed, it’s this — I give the same answer I gave a while ago, he can — they can’t — they can’t prove that he is disposing of loot unless they prove that it is loot which he stole and therefore, at any — I mean and — and get a conviction so that there is no public —

    Potter Stewart:

    Well, unless, they prove that it’s loot — it’s been stolen on receipt (Voice Overlap) —

    Jerome A. Cooper:

    Well, if they’ve proven it — proven it was stolen by somebody else, we don’t have the problem because there, he — that’s — that’s entirely different set of facts.

    I am assuming you are addressing your question to the situation where the man robs a bank —

    Potter Stewart:

    And then a month later —

    Jerome A. Cooper:

    — takes the same loot and does something with it.

    Potter Stewart:

    (Voice Overlap) —

    Jerome A. Cooper:

    In — in that event, I say the maximum punishment he gets is as a robber.As long as the criminality that they are trying to impose upon him relates to the money that he stole.

    I think Congress has given him a maximum sentence — subjected him to a maximum sentence.

    I think the Government has got to elect that.

    That’s what they want to try him for.

    That’s all they could try.

    Potter Stewart:

    But you do say that we don’t need to answer that question in this case, is it not?

    Jerome A. Cooper:

    I do, yes, sir, because the facts are, as I put them to you, roughly, and they — the — I didn’t mention that in my brief.

    I — at the time I wrote the brief, I didn’t understand this practice of presenting to this Court in 2255, in fact, I didn’t understand 2255 of the fact but [Laughter] matters that had not been considered by —

    William J. Brennan, Jr.:

    (Inaudible)

    Jerome A. Cooper:

    Sir?

    William J. Brennan, Jr.:

    You have a lot of (Inaudible)

    Jerome A. Cooper:

    Well, I [Laughter] — I’m in the less select portion of the company because I hadn’t heard of it.

    I mean there may be others who heard of it and didn’t understand it.[Laughter]

    Felix Frankfurter:

    That’s because you — that’s because you’re not even younger than you really are so — that you have been later (Inaudible)

    Jerome A. Cooper:

    Yes, that’s true.

    Felix Frankfurter:

    [Laughs]

    Jerome A. Cooper:

    I should have heard of it, however, we feel that —

    Felix Frankfurter:

    (Inaudible) later, you would have.[Laughs]

    Jerome A. Cooper:

    We — we still in Alabama just have — the old fashion habeas corpus in that — before we are very familiar with —

    Felix Frankfurter:

    Well, now, may I ask this question?

    If I understood your answer, do I understand you to say that you’re happily aren’t confronted with the problem of robbery one day, secreting the loot and then coming back a month later or a week later and disposing of it?

    You’re not confronted with that question you say, is that right?

    Jerome A. Cooper:

    That’s correct.

    Yes, sir.

    Felix Frankfurter:

    I — may I suggest that you are confronted with that question, well, not explicitly because of your claim that (d) applies to somebody else but not the robber.

    You say you partly rely on the caption and you say that — that (c) deals with another person than — than the other fellow?

    Jerome A. Cooper:

    Well —

    Felix Frankfurter:

    Thereby — I should think — I suppose it’s right, you’re not confronted with it.

    Jerome A. Cooper:

    I’m not.

    Felix Frankfurter:

    But — but if you’re right about that, then the answer ought to be simple.

    If it’s the same person, it doesn’t matter if it’s same day or two weeks later.

    Jerome A. Cooper:

    It does not.

    And I — I meant to take that position in response to Justice Brennan’s question.

    Felix Frankfurter:

    I see, I see.

    All right.

    Jerome A. Cooper:

    The Government has — has not made much of the facts in this case.

    And after I read the brief and heard the argument that my colleague has made preceding me, I can understand why they wanted to argue most about the facts in the Woody case.

    They — the Government gets considerable comfort as they frankly admit it from the facts in the Woody case but they don’t get much comfort and they relegate the facts to a Footnote Number 7 on page 22 of their brief in my case.

    There, they make this argument.

    They say that the record shows that the petitioner did not even carry the money from the bank.

    I don’t know what the relevance of that is because he was convicted of it.

    He was the head of [Laughter] group of men that were carrying it for him.

    The loot consisted of currency and redeemed t-bonds.

    It was counted later.

    Now, that was within — that was right afterwards not just later.

    They got in their car and drove over to the apartment and divided up the loot.

    I think I now too may have a lapse because they left part of it in one escape automobile and had to go back and get that.

    The division of it is among the — among the robbers, wasn’t it?

    Jerome A. Cooper:

    That is the testimony that the jury heard, yes.Of course, the petitioner — I — it isn’t relevant and we’re not litigating it but the — the petitioner denied all participation in — in this.

    Charles E. Whittaker:

    Is this the case in which the loot never was recovered?

    Jerome A. Cooper:

    Yes, there was testimony by the — I think, by one of the bank officers that it had never been recovered, and they mentioned that in — in this footnote.

    But the interesting thing that I wanted to call the Court’s attention to, and I am not being facetious is that they — they found it necessary to point out that they concealed it in brown paper bags.

    Well, actually, it was a lot of money according to the testimony, and they had to pick it up.

    So they picked it up, put it in paper bags out of a gripper or briefcase, something they were carrying which is a same act as putting it in — in the robber’s pocket obviously.

    Now, that’s a long way from committing, it seems to me, subsequent acts of concealment involving independent impulses or involving independently begun transactions subsequent to the main robbery.

    Charles E. Whittaker:

    Under your theory of these, doesn’t make any difference?

    Jerome A. Cooper:

    It does not.

    No, sir.

    I — I thought, however, that I might point out — it — it might be helpful to the Court to indicate that the Government had not borne down very hard on the facts in this case at all because they — they get very little — little aid from them.

    Jerome A. Cooper:

    Now, as I say, I was surprised to learn of this procedure or I’ve learned from reading the briefs and looking at the proceedings in the Gore case that the Government or the parties do make available to this Court the trial transcript at the time and — and I am agreeable to that here because for the reasons that I have already indicated.

    I think that the evidence will at least sustain me in part in the argument that I have made briefly to the effect that this is the — this — most appealing type of situation in which a doctrine of lenity will be applied in construing what is, at best, an ambiguous statute.

    Felix Frankfurter:

    But you make — you make two arguments, as I understand it, that (c) only applies to a person other than the robber.

    Jerome A. Cooper:

    That’s correct.

    Felix Frankfurter:

    And two, that if words like receive, possess or conceal, stores, barters, sells or disposes maybe applied to the robber, there must be some discontinuity in the — in the activity involved, is that right?

    Jerome A. Cooper:

    I haven’t found it necessary actually to go — to make that concession that there may be some discontinuity.

    Felix Frankfurter:

    (Voice Overlap)

    Jerome A. Cooper:

    I have — I have adopted the conception of this crime as being — as I tried to explain before.

    If the criminality — if — if the culpable act of the defendant, who is charged, relates to the money that he stole, they’re going to have to prove in that proceeding that he stole the money and therefore, I say the maximum and only punishment for him is as a stealer of money, a taker.

    Felix Frankfurter:

    Well, but that’s — that wouldn’t apply to robbing today and getting away with the loot to extent, I mean your argument I understand —

    Jerome A. Cooper:

    I — I would reply to that.

    I would reply to that.

    Felix Frankfurter:

    Yes.

    Jerome A. Cooper:

    As long it’s the same loot because he is still the bank robber and he’s —

    Felix Frankfurter:

    But you don’t — you don’t say even though, you don’t even argue.

    You stand on that proposition —

    Jerome A. Cooper:

    Yes, I do.

    Felix Frankfurter:

    — comprehensively and you don’t even fear assuming it could be applied to this situation, it doesn’t — the record here doesn’t —

    Jerome A. Cooper:

    Well, I — I meant —

    Felix Frankfurter:

    (Inaudible) shows an organic single thing contemporaneously transpired.

    Jerome A. Cooper:

    I meant to suggest, of course, I was saying the matter that — that’s why I’m willing to — in oppose, no objections to considering the — the evidence and so forth.

    But what I meant to conclude with was the fact that reading this record, it makes such an appealing case for the doctrine which this Court has — has evolved in Bell and the Universal C.I.T. case and — and has repeated in the Ladner case recently that here, the — the disadvantage is, in this type of proceeding, are all against the — the accused and largely with the Government.

    It’s — it’s an eye opener to read a record like this and realize that this man, and here again, his guilt is not before, but he was convicted largely over his denial, largely on the testimony of an accomplice who was indicted with him and turns state evidence.

    It was — the Court of Appeals found some corroborative evidence in the — at best, I would call sort of tremulous uncertainty of the ladies in the bank whose testimony was — was hardly positive.

    They — the — the jury convicted this man largely on the testimony of that accomplice who was brought there by the Government from some federal institution, as I recall, in Indiana or somewhere, and whose wife was under sentence at the same time, whereas, the defendant, represented by the court-appointed counsel, was unable to obtain the testimony of the other — the other co-conspirator who was at the time waiting the imposition of the death penalty in a Florida institution and who, according to a showing which the Court permitted, was prepared to say, as he faced this maker that — that this man, Heflin, was not a participant in the robbery.

    And the only way that information got to the jury was through a showing.

    It would permit it — the counsel was permitted to read, which is considerably less effective as we all know.

    Charles E. Whittaker:

    You mean an offer of proof that (Inaudible)

    Jerome A. Cooper:

    It was what we call a showing, Mr. Justice.

    In other words, counsel for the accused was permitted to read a statement and say to the jury, “If I could get this man here, he would testify to this effect.”

    Jerome A. Cooper:

    And, of course, the Government, by agreeing to that showing, does not wave its right to impeach it or attack it and does not actually do anything more than agree that that’s what the man would say.

    However, after that showing was in, and I’m getting pretty far-field but I think it’s very interesting.

    After that showing was in, the Government was permitted to put the wife on of the man, whose statement had been read, to testify over objection of the accused that that was not a correct statement of his views and that he had previously stated something to the contrary.

    That was obvious hearsay and inadmissible, incompetent.

    And counsel did at best to keep it out and later, the judge charged the jury — reconsidered and don’t consider that.

    That — that was incompetent ever, saying we should not have heard it but juries are — juries, they — that — that was a — a sort of thing that, I think, happens in the course of trials frequently and the judge was doing the best he could ruling hurriedly.

    But I say that this fellow has been put to enough burden without having a strict construction of the statute imposed on him.

    I don’t think Congress meant for him to be subject to consecutive sentences for what the indictment shows and what the evidence will show.

    Felix Frankfurter:

    But if you — if you concede in your position, you will be going beyond what you’re doing for this fellow, you’ll be (Inaudible)

    Jerome A. Cooper:

    Well, I — I think that because we are having so much trouble in this field, I didn’t realize until I started reading all these cases that perhaps a pronouncement, a little more general than the facts of my case require for, would be helpful to the bar.

    Felix Frankfurter:

    Well, they have to construe the statute, don’t you think?

    Jerome A. Cooper:

    Yes, thank you.

    Earl Warren:

    Mr. Gilinsky.

    Theodore George Gilinsky:

    Mr. Chief Justice, Associate Justices of this Court, may it please the Court.

    I believe there is a preliminary question for decision which I feel obligated to call to this Court’s attention before I discuss the matters of multiple sentencing here.

    Very briefly, petitioner has filed a motion under either 2255 or Rule 35.

    Very briefly, it is the Government’s position that under either case, there is no jurisdiction to hear the matter.

    Under 2255, we feel that this is an outgrowth of habeas corpus.

    As such and as the statute, itself, notes —

    William J. Brennan, Jr.:

    (Inaudible)

    Theodore George Gilinsky:

    We did not raise this in the District Court in those terms and it was not raised in those terms in the appellate court.

    However, I don’t believe that makes any difference on jurisdiction because McNally versus Hill upon which we rely also very clearly noted that the jurisdictional question was not raised below.

    Under 2255, it’s premature because he is presently in custody under an admittedly valid 10-year sentence to be followed by a sentence which he is not contesting of three years or a total of 13 years, that he is uncontesting here, to be followed by the year and a day sentence which he is presently arguing about.

    Therefore, under habeas corpus as well as well as, we believe, under 2255, since he cannot be released from custody, he has no standard either in habeas corpus or 2255 to bring this type of motion under that section.

    Under Rule 35, which is unrelated, as we feel, to the question of custody, however, is a rule of a federal criminal procedure and has so been held by this Court.

    As such, if this is under Rule 35 where we think most probably this type of matter lies, he is also late in coming to this Court because he has filed an untimely petition for certiorari.

    I say parenthetically that this is no fault of his present counsel because his present counsel was not in the case, so the fact that he is late, however, is not to be relegated to his present attorney, nevertheless, he is late.

    As such, we feel that there is no jurisdiction then.

    Couldn’t he go back and make a motion all over again?

    Theodore George Gilinsky:

    He can go back and make a motion all over again under Rule 35.

    Theodore George Gilinsky:

    That is true.

    That does not — I assume that is —

    We’re — we’re powerless to — we should disagree with the Government’s position.

    We’re powerless to anything except go through that rigmarole.

    Theodore George Gilinsky:

    If Your Honor please.

    I — I believe it’s a little more than rigmarole.

    The petitioner here has already gone through, for example, a rigmarole because what he has done here is sought review of a 1955 ruling by starting all over again.

    In 1955, at the Court of Appeals, he directly attacked exactly the same thing he is attacking now, and he got partial relief.

    He didn’t seek review of that.

    But what he did was go through the rigmarole of starting all over again by — and incidentally, consolidating his gains, he started all over again in the District Court with a 2255, Rule 35.

    In other words, this is a practice which has gone through.

    I think it also possibly has some merits however because after all, this is a rule of this Court, Supreme Court rule of 30 days.

    Felix Frankfurter:

    May I ask you this?

    Under — a motion under Rule 35 brought before the concededly valid terms whether or not he is in confinement, a concededly valid term, he brings — applies under Rule 35 for the exertion of an allegedly illegal extension of that term if and when it expired for the District Judge deny that motion, is that appealable?

    Is that a final judgment or appealable?

    I should think it’s not.

    Theodore George Gilinsky:

    I think I have difficulty with it.

    But I do know this, that that is what happened in Prince, so that it did get here.

    In Prince, if this Court will recall, the Court — the District Court considered the motion under Rule 35 in this Court’s opinion in Prince, very carefully, I — at least, I thought, noted that that was a motion under Rule 35.

    Also, I should mention, although it’s not in our brief, Holiday versus —

    Felix Frankfurter:

    (Voice Overlap) we — we —

    Theodore George Gilinsky:

    Pardon me.

    Felix Frankfurter:

    — we review the Court of Appeals.

    Theodore George Gilinsky:

    That’s correct.

    Felix Frankfurter:

    I was just wondering — I’m just interested whether because that makes it less than a — I should think that, I maybe all wrong, but I don’t think that would be a final judgment.

    I don’t think it would happen anyhow until the fellow’s full term has expired (Inaudible) 2255 or — or on the other hand, it might be argued that it’s the motion, since Rule 35 is intended to serve some purpose, perhaps, the ability is implied.

    However, we haven’t got the proper —

    Theodore George Gilinsky:

    Well, this Court once had (Inaudible) which had this problem.

    And while it doesn’t deal directly with this issue that you raised — treated it, and — so I — I can’t answer any further on that — on that point.

    But I — I feel called upon at least to bring either of these to this Court’s attention.

    Theodore George Gilinsky:

    Lest, however, as we say, petitioner be mislead into thinking that an otherwise meritorious contention which first was turned down in 1955 is again rejected solely because of some procedural defect — defect which he has been noted, he can start all over again.

    We submit that petitioner’s great reliance upon the Prince decision, the facts or the legislative history therein is in this context misplaced and this bring us to the second issue, whether one, who has successfully consummated a bank robbery of a bank which either is insured by the United States or is a national bank, can then proceed to conceal for future use or dispose of the fruits of this crime to the detriment, obviously, of the United States without any fear of prosecution or punishment for such further separate activity.

    And this — there are two very clear points to be made, we feel.

    Usually a defendant in a criminal case insists upon a strict construction of the penal statute.

    We feel that what the petitioner here desires is to the contrary.

    He wishes to write into subsection (c) an exception to the fact that he was the bank robber.

    And I suggest to this Court, and this is not what Congress did in the statute, he used all inclusive language and they did not write in the exception that this property must be first stolen by any other person.

    Now, I go further in this case or we can always imagine and figure out words to be placed in statute to create a favorable situation.

    In this particular instance, however, Congress did have a prototype.

    Now, this, unfortunately, is not in our brief but we feel that because of what has been discussed in regard to what language could go into statutes, it is very necessary that we call this to the Court’s attention.

    In 1940 when this statute was passed, there was on the books, Title 18 United States Code, 1946 edition, 101 also 35 Statute 1098.

    Now, I emphasize the 1946 Code because it has been subsequently changed.

    But in other words, this statute that I have now cited was on the books in 1940 when subsection (c) was added to the bank robbery statute.

    Now, this section held in connection with the theft of government property in regard to the receiver and it had this wording, “Whoever shall receive, conceal and so forth,” the typical wording, “with intent to convert to his own use and so forth, any money property and so forth of the United States which has heretofore been embezzled, stolen or purloined by any other person, by any other person,” I emphasize, “knowing the same have been embezzled and so forth shall be punished.”

    In other words, what we are saying to this Court is what petitioner is asking this Court to do is to write into subsection (c) of the bank robbery statute, whoever does these things with money which has been stolen by some other person shall be punished and so forth, but we suggest not only is that not what was done by Congress but we further suggest that if that was what they wanted to do, if that’s what they wanted to do, they have the prototype at the time in the context of not just transporting, which gets to another jurisdictional constitutional problem, but in the context of theft which is what we have in the bank robbery statute.

    Felix Frankfurter:

    May I suggest that when you say they had a prototype, you are implying a process of rationality to congressional legislation that I wish were justified, but I don’t think is, I don’t know anything about your statute except what you told me and the 35 Stat.

    That means somewhere 1900 and whatever it is.

    Theodore George Gilinsky:

    1909.

    Felix Frankfurter:

    9, somewhere around there, is that it?

    Theodore George Gilinsky:

    That — it was in before that.

    Felix Frankfurter:

    So that you’ve got a statute passed some 30 years before, at least 30 years before, coming out of, the Lord knows what, committee of the Congress, framed by, the Lord knows, what draftsman and when you say prototype, you assume that Congress dealt with this problem in 1940, the draftsman of this committee has that before it and said, “Ah, this is my example I shall not follow.”

    That’s a — that’s a little too irrational, what goes on under Hill, isn’t it?

    Theodore George Gilinsky:

    I — I agree that that is not the type of thing that — as a matter of fact, that is not what happened.

    So I mean we don’t have to speculate because I think the legislative history, as I will get to in a moment, is much clear than that, so we don’t have to speculate.

    This — this was not said in so many words, as I am saying.

    But what I am saying is that this is what the petitioner is reading the statute to read, and I am saying that in the usual criminal case, it’s just the opposite.

    He doesn’t want to have anybody change any words.

    He wants to read it as it is.

    And I suggest as it is, as it is, it covers “whoever” and as such, covers bank robber and anyone else.

    Felix Frankfurter:

    But do you not think (Inaudible) argument is that you don’t read any statute that I do not know maybe criminal statute literally just as a matter of words.

    Theodore George Gilinsky:

    That’s correct.

    Felix Frankfurter:

    And therefore, in connection with this, he gave it.

    He says this contemplates the first (Inaudible) not the original robbery.

    You are going to tell us why the legislative history (Inaudible) aren’t you?

    That’s what you have to do.

    Theodore George Gilinsky:

    I am going to come not quite in that context but it will come close.

    Felix Frankfurter:

    All right.

    Hugo L. Black:

    Did you cite that 35 statutes in your brief?

    Theodore George Gilinsky:

    I did not.

    Hugo L. Black:

    (Inaudible)

    Theodore George Gilinsky:

    I will give it again to you.

    Hugo L. Black:

    I — I have them.

    Theodore George Gilinsky:

    Oh, I — I did not say it in brief.

    Hugo L. Black:

    I was looking to see what point (Inaudible)

    Theodore George Gilinsky:

    Yes, sir.

    This statute — first I give the United States Code, it’s 1946 edition, 18 United States Code 101, 35 Statutes 1098.

    This, by the way, is now 18 United States Code 641.

    It does not contain that language.

    I move on to the legislative history because I think this also is not as simple as petitioner would have this Court believe and does not lead us into the same type of problem that Prince led us into.

    The legislative history of this subsection is brief but it is very much to the point.

    It is based almost entirely, almost entirely upon a letter which was sent by the then Attorney General to both the House of Representatives and the Senate.

    There was no debate on the floor of the House or the Senate.

    There were no amendments made to the proposal.

    I can find no discussion of it.

    We are therefore left with solely this letter, which, by the way, composes almost the whole of the Report of the Senate and composes almost the whole of the Report of the House.

    In this letter, which we have set out for the greater part on page 15 and 16 of our brief, the Court will note that one thing — that certain things are made very clear.

    First of all, the letter clearly called for a separate substantive offense In specific language, it called for that and I assume that’s what it meant, number one.

    Number two, unlike Prince, this was not a problem that arose because somebody got into a bank that they weren’t able to convict him of.

    This clearly came from two other statutes, the wording of — of the bank robbery receiving statute, in other words, clearly came from the National Stolen Property Act and the ransom provision in the Federal Kidnapping Act.

    I say “clearly came” because the present statute contains seven verbs and the only way you can get them is to put these two together.

    Theodore George Gilinsky:

    But the legislative history clearly says that’s where they got this provision.

    I should also mention at this time then in order to relate it to the previous case that there is also no question that the National Stolen Property Act wording came directly from the Dyer Act.

    So what we have, what we have in this section are a series of words which, I assume, have some meaning then in relation to theft of cars, transportation of cars, interstate transportation of other property and securities in relation to the disposition of ransom money and although it’s not mentioned here, it’s quite clear that the same provision is also involved in receiving stolen cattle.

    And there are numerous others federal statutes, in other words, that have exactly the same meaning.

    Now, this becomes important in this sense.

    This statute, subsection (c) was passed in 1904.

    The bank robbery provisions which this Court considered in Prince were substantially completed by 1937 with almost all their amendments.

    This came in, in other word, at a separate time and at a time when these same words, these same words in the context of some of these other acts had — we believe already had a uniform consistent interpretation.

    In other words, by 1940, for example, there was no question, at least it had not been raised as a question which had been cited adverse to the Government that the transporter as well as the receiver could be the same person under the Dyer Act.

    As such, we suggest then, if these are the same words, and it’s such a much later date and written and suggested coming from Attorney General who we suggest most probably knew of these other cases, then if we read anything from this, as to intent of the legislation, we suggest it should be read that they intended, that they intended then that both sections could apply to the same one and the same person.

    Felix Frankfurter:

    Aren’t you making a jump there?

    It means — it means saying that the Attorney General recommended that Congress exceeded his recommendations.

    We had a separate substantive offense, we still have to decide what the scope of the offense is which they created.

    And automatically, it doesn’t follow that — doesn’t reject the view that the new section dealt with recipient of loot, that there was already enough — there were enough penal provision, penal feature being with the perpetrators of — of the — getting the loot.

    Theodore George Gilinsky:

    I agree with what you have said.

    I am not sure that I — I understand what you mean by made an extra jump because to my mind —

    Felix Frankfurter:

    Well, I mean the fact you emphasize — you emphasize very strongly that (Inaudible) that Congress meant to create a new substantive offense.

    The Attorney General said that the (Inaudible)

    Theodore George Gilinsky:

    Well, as I — I thought I mentioned.

    Maybe this is not an answer.

    At the time, I don’t mean to be repeating but I am not sure, at the time I feel these words did have a regular meaning —

    Felix Frankfurter:

    But did they have a —

    Theodore George Gilinsky:

    — 1940.

    Felix Frankfurter:

    — did they have a regular meaning?

    Theodore George Gilinsky:

    Because there were a number of cases by 1940.

    In other words what I am saying is that by 1940, when this section came in, there were already a number of cases which had been decided under the similar wording in these other statutes.

    Felix Frankfurter:

    The National — take the National Stolen Property Act, what is quoted, was —

    Theodore George Gilinsky:

    Well, I —

    Felix Frankfurter:

    — that a U.S.C. Title 18, Section 460 (Inaudible) that must be different from your 1940 101, is that right?

    Theodore George Gilinsky:

    It is.

    Felix Frankfurter:

    If that section —

    Theodore George Gilinsky:

    But it is —

    Felix Frankfurter:

    (Voice Overlap) —

    Theodore George Gilinsky:

    — sir.

    But it is.

    Felix Frankfurter:

    (Voice Overlap) that section, 416, and the Federal Kidnapping Act, 18 Section 408 (a) and (c) (1).

    Was the proposal of the Attorney General Jackson based on legislation then on the books for all practical purposes, it then would be a prototype for all practical purposes as (d) is now phrased which had been construed by court to include as a disclosure the original purpose, is that what you are saying?

    Theodore George Gilinsky:

    And that’s what I am saying.

    But I am saying it a little further because I must go one more step and that is I have said that the National Stolen Property Act in turn came directly from the Dyer Act.

    Now, the Dyer Act is the one that was involved in the Woody case.

    But I say that because by 1940, the bulk of the cases are obviously transportation of stolen motor vehicle rather than of securities.

    But I say this, that by 1940, it was a consistent and only one that the perpetrator of the transportation could be the same person who also could be charged and convicted as the receiver.

    Felix Frankfurter:

    Your — your brief, I take it —

    Theodore George Gilinsky:

    Cites on —

    Felix Frankfurter:

    — documents — documents the cases —

    Theodore George Gilinsky:

    — on page —

    Felix Frankfurter:

    — which construe legislation and you’re arguing that when the Attorney General opposes legislation to fill a gap which he found to have been filled in other domains of national concern.

    Presumably he took along the construction (Inaudible)

    Theodore George Gilinsky:

    That’s correct.

    Felix Frankfurter:

    (Inaudible)

    Theodore George Gilinsky:

    On page 17 of our brief, Your Honor, we cite from three jurisdictions, Court of Appeals, at various times before 1940 what we think are representative examples.

    And I — I can’t say that I checked every case but all that I have read, I find that this is the consistent position.

    And as a matter of fact, the Court will recognize that we have gone still further and said that even up to now and as many courts have understood there has still been no radical change from this in these transportation and receiving cases that should have bothered any one up to now.

    So that certainly, by — by 1940, what I am saying is, a construction had been put on these words, and the Attorney General, I assume and I — I think should assume this, knew that.

    And when he recommended these words and directly from these statute he says so that that’s what he meant at least.

    Potter Stewart:

    Mr. Gilinsky —

    Earl Warren:

    Is there any helpful legislative history on — on the National Stolen Property Act or the Federal Kidnapping Act, Mr. Gilinsky?

    Theodore George Gilinsky:

    Not as far as I could find that is helpful in the context of our problem.

    Earl Warren:

    Is there anything in there to show whether these — these two Acts were — were enacted to apply to offenses rather as — as to where it is in the underworld as distinguished from the thieves themselves?

    Theodore George Gilinsky:

    The statutes of the National Stolen Property Act as well as kidnapping came in at a time, I believe it’s 1934, when there were a number of anti-gangster statutes, I believe they were called.

    Theodore George Gilinsky:

    And as I recall, there were seven or eight various Acts which were put in all at one time in this one period.

    Felix Frankfurter:

    I think Attorney General Cummings that was —

    Theodore George Gilinsky:

    That’s correct.

    Felix Frankfurter:

    — was the prime mover of that.

    Theodore George Gilinsky:

    That’s correct.

    And if this Court will recall, that — that was the background of these two statutes, but there is no question that the National Stolen Property Act came from the Dyer Act, that is the motor vehicle which is much older because all the way through that history, they say that all we are doing is extending the Dyer Act to the National Stolen Property situation.

    I might say here there is good reason to suppose that the Attorney General wasn’t — could not get at the same result by using the National Stolen Property Act.

    Although in a typical bank robbery case are — there is no doubt, I suppose, that in an ordinary run, there is an interstate transportation also so that they would have another receiver clause that he could have used.

    Although, I think it’s clear that what he wanted here was something that was not limited by an interstate jurisdictional problem, one.

    And two, they didn’t want to have any limitation as to amount which the National Stolen Property Act has a limitation on in order to avoid every offense that goes across state lines.

    Potter Stewart:

    Mr. Gilinsky, the risk of confusing two separate issues in this case, two separate arguments, may I ask you this?

    Is there any language in either the — in the Dyer Act or the National Stolen Property Act or in the so-called Lindbergh receivers part of that Act, similar to the language that we have here imposing by reference the punishment provided by another subdivision for the taker?

    Theodore George Gilinsky:

    I think I better explain if we go back a little bit and explain how this gets in there first.

    I think —

    Potter Stewart:

    All right.

    Theodore George Gilinsky:

    — that might explain it.

    This is another part of legislative history.

    The Act — subsection (c), as originally passed, did not have this language in it.

    Now, we have set this out also in our brief.

    It had a separate penalty clause, unrelated to this question and the taker.

    In 1948, in the general codification of the whole criminal code, a number of changes were made in all — in other sections including this section.

    The thought being to make a uniformity of punishment, in other words, the reason this word gets in there now at least as far as we can see is this.

    Prior to this — to the 1948 re-codification, there was a possibility, you see, under the change in the robbery provision that a difference in amount robbed could lead to different sentences.

    This was not in the receiving clause because it had its own penalty provision.

    As explained in not only this statute but in all the others in the attempt to make uniformity without separately spelling out the uniformity, this was one of the means.

    In other words, to put this phrase in then made it so that whoever receives and so forth under this amount will not be punished by the greater penalty.

    That — now, we don’t think it has — makes one — helps one way or the other.

    And we further cite in our — in our brief but we — we suggest that at the time of the 1948 codification, not only in the report, but on the floor, Senator Taft asked the question of what — what is this huge bill?

    Is there any real changes in here?

    And he was told that in the 1948 codification, the intent of Congress was not to change the purpose, not to change the purpose of any of this legislature.

    Theodore George Gilinsky:

    Whatever we can draw from, we suggest that the words in the penalty clause now do not help us one way or the other in regard to construction as to what the purpose of the present statute is.

    Potter Stewart:

    In —

    (Voice Overlap) —

    Potter Stewart:

    Excuse me.

    (Inaudible)

    Theodore George Gilinsky:

    They mean this.

    They mean that whoever receives, disposes, conceals and so forth shall be punished depending upon the amount, depending upon the amount that he disposes, conceals and so forth which is as the taker because as the taker, you see, can be punished now differently depending upon whether he takes more money or less.

    Potter Stewart:

    And your point is — and your point is just like — let’s see if I have it, that these other statutes do not have this language in it, this language as you say did not come until the re-codification of the law because in these other statutes, there is no difference in the — in the punishment to be imposed dependent upon the amount, is that it?

    Theodore George Gilinsky:

    I can’t answer that for sure because I’ve not made a detailed analysis for that.

    But I — I think I’d be called upon to make — to answer for sure.But one of the problems, you see, is this.

    There are very few federal crimes of theft.

    As such, you don’t — you don’t find the taker in the ordinary statute because we — we don’t have a constitutional basis to grab on to the jurisdiction.

    Potter Stewart:

    It’s usually transportation.

    Theodore George Gilinsky:

    That’s right.

    Potter Stewart:

    Yes.

    Theodore George Gilinsky:

    So that we don’t — we — we just — chances are we don’t get this type of relationship so that I — I can’t positively say without studying many of the others.

    Potter Stewart:

    But in any event, in answer to the question I originally asked you, I — the answer I expect is no.The other statutes do not have this language in it.

    Theodore George Gilinsky:

    I suspect that’s correct.

    Potter Stewart:

    Is — is that —

    Theodore George Gilinsky:

    I suspect that’s correct.

    Although they would have — there are other codifications which have taken out penalty provisions and referred them to other section which I — so far as I’m concerned, that’s all this does.

    It refers to penalty to another section.

    Earl Warren:

    Well, Mr. Gilinsky, it’s your theory as — that the moment that the robber scoops up the money in the bank that he commits two crimes in that — at that precise moment, he both took and received the money.

    Theodore George Gilinsky:

    No, that is not my position.

    Earl Warren:

    Where then — where then is the dividing line?

    Theodore George Gilinsky:

    Your Honor, this — as I understand, the same type of question we had in Woody and I think —

    Earl Warren:

    Well —

    Theodore George Gilinsky:

    — I think it’s consistent to say.

    Earl Warren:

    I don’t think you’ve got — I don’t think it’s exactly —

    Theodore George Gilinsky:

    No, it isn’t exactly the same.

    Earl Warren:

    (Voice Overlap) on the facts not that the —

    Theodore George Gilinsky:

    That’s right.

    Earl Warren:

    — same but can you answer that precise question?

    Theodore George Gilinsky:

    Yes, I think what we have here is a problem of offenses.

    Now, I may explain it in different terms and it has been explained before, but I’m trying to say the same thing.What we have here are different offenses.

    To me, to my mind at least, it requires something other than an initial impulse.

    In other words, I would say to you if receiving means the same as when he scoops up the money, and I don’t believe it does, but if it means that, then I would say no, you cannot convict a man twice —

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    — who robs the bank.

    You cannot do that.

    Under this statute, I don’t —

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    — think you do either.

    To — let me start here.

    Although these are not dictionary words, to my mind, they — to start with, they have a different — they have somewhat of a different meaning.

    In other words, when a man receives something, at least, I assume there’s been a tender.

    You don’t have that with a taker.

    A taker — there’s no tender to a taker.

    But more — and a more — but more important, I think the word “receiving” in this statute takes on meaning from the rest of the words in the statute as well as the whole purpose and purport of the section.

    In other words, what we had in the previous sections, as you stated in Prince, I believe, was the gist of the crime is to steal.

    All of the words, entering or robbing, all relate to this — to this intent of stealing.

    But these words, I suggest, Your Honor, do not relate to this.

    These words are a group of words intended to cover all possibilities, not necessary that they all apply it once, but all possibilities of people who are dealing with funds which had been taken from banks and, I suggest, which the Government obviously in the case of insured or a national bank has certainly a perfect right to deter.

    In other words, if they’re taking our money and disposing of it, certainly, the Government should have the right to penalize someone.

    Earl Warren:

    Oh, yes, of course.

    No questions that if the Government wanted to do it —

    Theodore George Gilinsky:

    Yes.

    Now, there’s —

    Earl Warren:

    — especially that the Congress did it.

    Theodore George Gilinsky:

    Right.

    Earl Warren:

    Now, where — where in this case, Mr. Gilinsky, would you say that the — that the receiving entered into — into the case of this petitioner?

    Theodore George Gilinsky:

    I don’t think it did.

    Earl Warren:

    You don’t think, then he — then how could he committed that crime?

    Theodore George Gilinsky:

    Well, let’s — let’s just before careful.

    Let see what he was charged with.

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    You see, he is charged — he — he is also charged with disposing and concealing.

    Now, if — if we get to the facts, counsel has said that they are not — that — that they — they don’t hurt him, I think they do.

    Let me call this Court’s attention to this.

    He — he doesn’t seem to think there — as much to the fact that the Government didn’t get back or the bank didn’t get back its money, didn’t get it back.

    I suggest that this is really evidence of disposition.

    This is more than — than an ordinary type of thing.

    This isn’t a question of a man who just robbed a bank.

    This is a man who has done something entirely separate.

    He is disposed of the money.

    He is concealed it or disposed of it.

    Now, it’s true, the Government can’t prove maybe where he has buried it or can’t prove where he has got rid of it but certainly, we can prove that we didn’t get it back.

    Now, he has done something to it.

    We think this is —

    Earl Warren:

    He sold it.

    Theodore George Gilinsky:

    Or sold it.

    Let’s say he sold it —

    Earl Warren:

    (Voice Overlap) —

    Theodore George Gilinsky:

    — or — or handed it somebody else to get rid of it because he was afraid that there was — that the serial numbers would be found out or he is — maybe he has got it still buried.

    Earl Warren:

    Sure.

    Theodore George Gilinsky:

    But in any event, certainly, this came as a separate matter.

    It — it comes as a separate impulse.

    It could — there could be more than one crime here and certainly, the Government having insured the bank or if it’s a national bank has a right to deter this action.

    Now, we think that when you get a separate impulse or separate facts, and as previously mentioned in Woody, most of these cases have separate facts, then you certainly do have two crimes.

    Earl Warren:

    Well, can you conceive of a man who — who robs a bank, who doesn’t, at the same time, have the — the impulse to — to conceal the — the property that he steals —

    Theodore George Gilinsky:

    Let me —

    Earl Warren:

    — at the precise moment?

    Theodore George Gilinsky:

    I — I think the problem is this, Your Honor.

    The question is whether someone who starts on a course of crime doesn’t really consider some of the end results.

    And I think that’s true.

    In other words —

    Earl Warren:

    But I don’t think it’s that by — isn’t the most evading instinct, the most evading impulse of the man when he stills it to take it for himself and keep it?

    Theodore George Gilinsky:

    Very true.

    Earl Warren:

    Not — it isn’t collateral thing, it’s — it’s not something he doesn’t think through.

    He does it because he wants it for himself when he takes it.

    Theodore George Gilinsky:

    But there is also this, Your Honor, that I think — and I think it’s probable and possible that after committing that act — and I — I will say this.

    He is — he is going to rob a bank and there is no question that he is going to get some profit out of it.

    He is either going to sell it or something.

    After he robs the bank, then the next question is what does he do?

    I am not so sure in the typical case he has thought the whole thing through.

    And if this is possible, then we may be able to show separate acts of concealing which are — as a matter of fact, could very well be thought of afterward separate acts, as a matter of fact, which do not relate even to the same sum of money because he is obviously now relegated to do it, for instance, in this case.

    Well, I — it’s hard to tell whether it’s a four but they split it up some way, so he isn’t dealing even with the same amount when he is concealing as when he was stealing.

    He may do even further.

    He may conceal part of it and he may spend part of it.

    Earl Warren:

    But where in the — in the facts of this case do you consider the concealment to have started?

    Theodore George Gilinsky:

    Well, I think, Your Honor, that the facts of this case were these, that the — that the concealment came into effect after the bank robbery had been committed.

    What are facts of concealment?

    Number one, I think, is the fact that a number — two witnesses here testified that over a year and three or four months later, none of this money has come into — has come back.

    Number two, I think that the evidence in this case showed that he — they went to this house that night and they spent considerable time dividing the money and the next day, the next day, they packed it away separately into these bags and in the cars and took off.

    The evidence produced in this particular case shows that on the following the day, they arrived at a place where they picked his wife and there is some more talk now about.

    And one of the accomplices is with them about where the money was at that time because the landlady who helps put him some luggage doesn’t see the money in the car.

    He — it has been concealed as more evidence of purposeful now not just part of scooping up but purposeful concealment.

    Now, certainly, it’s been disposed of.

    Earl Warren:

    You don’t think — you don’t think they didn’t take the same trouble to conceal it when they took it to this place where they divided up an hour later?

    Theodore George Gilinsky:

    I know they didn’t because the facts are that petitioner did not take any of the money from the bank, he did not conceal anything because he walked out of the bank without any money.

    Theodore George Gilinsky:

    The — of — some of the others took the money.

    They took it in two stolen cars as getaway cars in separate directions.

    They got the money —

    Earl Warren:

    For the purpose of concealing.

    Theodore George Gilinsky:

    Purpose of concealing.

    But we can’t charge him with that.

    They also get into this house and they don’t bring all the money in at the same time.

    And he doesn’t have it even then.

    They talk about splitting the money as to what division should be made, so I assume that the jury has a right to suppose they weren’t even sure how they were going to divide it yet.

    So that even at this point, petitioner doesn’t know how much money he is going to profitably get rid of.

    It is split and part of it is not split evenly because there is some talk about whether others have debts.

    And I only mention this because I think that is an indication of a possibility of disposing of something prior to the time even he even have it so that there wasn’t possible talk of a crime then.

    In other words, what I am trying to say is there are number of acts, I think, that anyone and at anytime could have been suffered.

    And I am saying further that from this whole set of facts which goes on for a period of time after the bank robbery.

    And certainly, none of this is admissible if all we have is a bank robbery because anything happens after it becomes irrelevant really, if all we are going to do is charge a man with bank robbery.

    All this becomes — all of this evidence becomes irrelevant as a matter of fact.

    So that — what — what all this evidence adds up to is this, that a year and four months later, the Government still hasn’t found the money, so it has been concealed part of it.

    And I emphasize not the money that has been robbed but the part of the petitioner has as not been returned to the (Voice Overlap) —

    Earl Warren:

    Well, then, in your — under your theory, did they catch him — a robber immediately after the robbery is committed one crime but they don’t get you —

    Theodore George Gilinsky:

    That’s correct.

    Earl Warren:

    — for years committed to.

    Theodore George Gilinsky:

    Not — not necessarily.

    Earl Warren:

    Well —

    Theodore George Gilinsky:

    I —

    Earl Warren:

    — he’s — he’s concealed it for a year (Voice Overlap) —

    Theodore George Gilinsky:

    Yes, if — if there is some evidence of that.

    Earl Warren:

    — as — as you say and if that’s — if that’s —

    Theodore George Gilinsky:

    If there is some evidence of that.

    Earl Warren:

    — the evidence that —

    Theodore George Gilinsky:

    If there is some evidence.

    Earl Warren:

    — you rely on for concealment, you say the things that happened right afterwards don’t count if — so — since —

    Theodore George Gilinsky:

    Well, it isn’t solely a matter of time, Your Honor.

    At least, I don’t relate this problem solely to a matter of time.

    I think time is a factor but I think it has to do with what —

    Earl Warren:

    What was the main factor in this case?

    Theodore George Gilinsky:

    I think it’s separate acts, entirely, separate acts.

    Earl Warren:

    I know, but what acts?

    Theodore George Gilinsky:

    Acts of putting it into a bank and concealing it in a different form than it was because — let me — let me pose this.

    I think that in an ordinary case, if you see a brown paper bag, a brown paper bag in a backseat of a car, this — an ordinary shopping grocery bag, this is not a suspicious article.

    This is not a suspicious article.

    I think, in other words, that that is not just an innocuous or a happenstance that they did that.

    I think this is a purposeful concealment —

    Earl Warren:

    Well, of course, there’s a —

    Theodore George Gilinsky:

    — just as painting of the car in the stolen car case is a purposeful concealment while not the mere driving of the car across the line.

    Driving may not be the concealment, although it has — has been suggested it could be.

    And that’s not a separate one.

    So that — but, in any event, I think that’s — that’s what the acts are.

    But furthermore, in this case, and I — I should say this to the Court, the reason we didn’t put a lot of facts into our brief is not because we don’t believe they substantiate our position, we do believe they do, we think what — we didn’t want to be inconsistent with Woody and just not bring this case here because that would be suspicious.

    But we think that petitioner and rightfully so, petitioner’s counsel has posed the question here unrelated, unrelated to the factual context.

    In other words, after — you couldn’t tell this from the petitioner’s petition as he wrote it to United States but in counsel’s word and as the brief is prepared, we feel that he has presented a question which is unrelated to the facts.

    In other words, he is saying no robber regardless of the factual situation, no robber can ever be charged and indicted for the crime of concealing and disposing.

    And in that context —

    Potter Stewart:

    Well, I think his argument is a little different.

    Wasn’t it that the Government had to take its choice between these sections?

    Theodore George Gilinsky:

    That was a subsequent argument.

    I think the argument in the brief is directed to this.

    Now, the question of choice of — and — and this — and I will say this, this question of choice came up, I think, in the relation to some other suggestions in Prince because that was the type of situation suggested by Prince.

    And if that is so, I would like at this time to go to this case and point out what we feel are some of the distinguishing factors.

    Why this is not Prince?

    Perhaps, that would in turn show why the — the question of multiple choice on the Government’s part is not the answer to the question.

    Felix Frankfurter:

    Before you do that and — and perhaps before the hour is up, I — I need your help, Mr. Gilinsky.

    I now looked at the two sections to which Attorney General Jackson refers in his letter, namely, the National Stolen Property Act and the Lindbergh Act, I find that this section (c) which is, as I understand, what he submitted and what was passed, is that correct?

    Theodore George Gilinsky:

    That’s correct.

    Felix Frankfurter:

    Has sudden — the —

    Theodore George Gilinsky:

    Right.

    Felix Frankfurter:

    — sudden — sudden condemnation.

    I find that 416 and 408 respectively have difference but he is taking — he has clubbed all the verbs from the two sections.

    Theodore George Gilinsky:

    I — I can make —

    Felix Frankfurter:

    Now —

    Theodore George Gilinsky:

    — it simple, I believe.

    I can say this.

    Felix Frankfurter:

    Before — that is — my point is that as I understand you, you say that there were rulings certainly in the lower court under 408 (c) and 416 respectively and with the Chief Justice’s permission I would like very much if you could submit a memorandum indicating what decisions there were which construed those two respective sections.

    All of which was then compounded into present (c).

    Theodore George Gilinsky:

    I am afraid I can’t —

    Felix Frankfurter:

    Or did I misunderstand you?

    Theodore George Gilinsky:

    I — I didn’t mean to say that if that’s what I said, although the reasoning is the same.

    I — I said that the subsection (c) in the bank robbery statute came from the two that you have recited.

    I made a further statement though that I think is essential here, and that is that the National Stolen Property Act came from the Dyer Act.

    Now, I say that because a great bulk of cases, down to 1940, that arrived at the Court of Appeals are under the Dyer Act and are not under the National Stolen —

    Felix Frankfurter:

    All right.

    Theodore George Gilinsky:

    — Property Act.

    Now, I have documented —

    Felix Frankfurter:

    The Dyer Act is the parent of the National —

    Theodore George Gilinsky:

    Right.

    Felix Frankfurter:

    — Stolen Act —

    Theodore George Gilinsky:

    Right.

    Felix Frankfurter:

    — and you said (Inaudible) under the Dyer Act —

    Theodore George Gilinsky:

    Right.

    Felix Frankfurter:

    — which, presumably (Inaudible) that was taking your words (Inaudible) does apply.

    Theodore George Gilinsky:

    Right.

    Felix Frankfurter:

    And therefore the fair — they could say that the encrustation of the decision under the Dyer Act would apply to the Stolen Act and therefore, your argument is to this Act.

    Now, what about the Lindbergh Act, any decision under that?

    Theodore George Gilinsky:

    There is only — there is only one decision, which I attend gently, uses this section and it’s not in point.

    For your benefit, it is Ben Laska versus United States.

    I say I attend generally because Laska was convicted of conspiracy and really was convicted prior to the — unconnected with the ransom section.

    Felix Frankfurter:

    So that we — so that we would have to decide — we may have to decide in the future whether a group of kidnappers (Inaudible) finally get a ransom of $50,000.

    One of them does all the operating and they then divide the $50,000 whether they could be convicted both for the attempted kidnapping, assuming there was no death, as I happily assume, and also under 408 (c) for the disposition —

    Theodore George Gilinsky:

    I’m —

    Felix Frankfurter:

    — but that — we — we have to construe that, wouldn’t we?

    Theodore George Gilinsky:

    I believe so.

    I believe it’s the same problem.

    Felix Frankfurter:

    Yes, so that — so that — unless the Dyer or National Stolen Property Act helps you out a little, we still have the problem of what the — of what the meaning of the two statutes relied upon means.

    Theodore George Gilinsky:

    Well, I think all the — I think all the problems are the same.

    Felix Frankfurter:

    Yes.

    Theodore George Gilinsky:

    If — if they are all the same, Your Honor, then I suggest I have a right to rely upon the cases that I have cited down to 1940 —

    Felix Frankfurter:

    You mean the Dyer cases.

    Theodore George Gilinsky:

    The Dyer cases.

    Felix Frankfurter:

    All right.

    Well, are — those are the only ones then and they are all —

    Theodore George Gilinsky:

    The only one that they have found.

    Felix Frankfurter:

    — they are all in your brief.

    Are they all set forth?

    Theodore George Gilinsky:

    They are.

    Now, I’ll — I can explain perhaps —

    William J. Brennan, Jr.:

    (Inaudible) in the Woody case.

    Theodore George Gilinsky:

    Well, except the Woody brief goes beyond 1940.

    Earl Warren:

    You cite your cases.

    Theodore George Gilinsky:

    That’s right.

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    You mean —

    Theodore George Gilinsky:

    That —

    Felix Frankfurter:

    (Inaudible)

    Theodore George Gilinsky:

    — that is not — oh, I take it back.

    That is not all the cases down to 1940.

    This is — these are cases from three separate circuits, three different times.

    I mean I didn’t — I do not have all.

    Felix Frankfurter:

    Have you then readily available in — in the department?

    I mean (Inaudible) you could have a memorandum tomorrow?

    Theodore George Gilinsky:

    I — I have not —

    Felix Frankfurter:

    If you have them —

    Theodore George Gilinsky:

    No, no.

    Felix Frankfurter:

    — it’s — all right, I thought you might have it.

    Theodore George Gilinsky:

    I might check the others but I have not.

    Felix Frankfurter:

    All right.

    Theodore George Gilinsky:

    I was going to mention briefly a fact.

    This is not Prince for a number of reasons.

    One, I think this is not the unique type of statute that we had in Prince.

    There is not conflict below by the way.

    There is one other bank robbery case of a consecutive type and I should mention this because they also do not get the money again, so that they have a similar factual problem.

    But I think we noticed in Woody that is the typical problem where there are other facts.

    This also is not Prince because it was not put into — cover any loopholes somebody trying to rob a bank, they got away with it.

    It has no connection with that.

    So — so it was put in at a separate time for different reasons and is clearly to — at least in my mind, is related unlike some of the Prince section.

    This section is clearly related to other statutes.

    I mean regardless of how you may interpret the other statute, certainly it is the same words that are used in other statutes, and I would assume we cannot give to these words one meaning here and a different meaning in the other statutes.

    Now, one brief word on a problem posed but not argued too greatly about petitioner in regard to double jeopardy.

    I do not believe this case poses this question either under the Constitution as an offense and I suggest that Holiday versus Johnson clearly rules that this was not a double jeopardy problem as well as that case holding that it is a — not a habeas corpus question but a Rule 35.

    In conclusion, I would say that in all of the three questions which we have submitted, one, jurisdiction, two, the meaning of subsection 3 and (c) on the double jeopardy.

    In each instance, we can go to the statute and the jurisdictional statutes, we think, like we are reading of it that what we have suggested is there is no jurisdiction under 2255, that a clear reading of subsection (c) includes the robber and does not have any language which excludes the robber and that so far as double jeopardy, the Constitution has a separate offense.

    The legislative history here, if there is this power, has clearly said at least that this is a separate offense.

    Charles E. Whittaker:

    May I ask you one (Voice Overlap) —

    Theodore George Gilinsky:

    Yes, Your Honor.

    Charles E. Whittaker:

    I thought your (Inaudible)

    Theodore George Gilinsky:

    That’s correct.

    Charles E. Whittaker:

    (Inaudible) is that right?

    Theodore George Gilinsky:

    He — he is subject to parole.

    That’s correct.

    Charles E. Whittaker:

    (Inaudible) Now, but suppose there is one bad sentence (Inaudible) he would be entitled to consideration for such release (Inaudible)

    Theodore George Gilinsky:

    That’s correct, Your Honor.

    Charles E. Whittaker:

    (Inaudible)

    Theodore George Gilinsky:

    That’s correct, Your Honor.

    The case which clearly, by a unanimous court, held that and solely on the question of parole because I am sure the petitioner is not in that position yet, but solely on that question is McNally versus Hill in the 293rd United States.

    Charles E. Whittaker:

    (Inaudible)

    Felix Frankfurter:

    What is it hold?

    Theodore George Gilinsky:

    Not only that this is consistently refused to review this type of thing upon habeas corpus but the petitioner in McNally claimed that the reason he had a right to bring the habeas corpus was because he was being denied a right, you see, on a parole.

    He said, “Well, I can — he made exactly the argument that Your Honor has made.

    He said, “Well, I can’t get my parole going.”

    And the Court unanimously held that “You cannot be released from custody,” which is the purpose of habeas corpus and that is not — does not go to the question of whether someone will give you a parole.

    And there — that’s the case.

    Charles E. Whittaker:

    (Inaudible)

    Theodore George Gilinsky:

    It might except that United States versus Hayman, I feel, said that 2255 was put in, in order to — to take the place of a habeas corpus in a different forum.

    But the purpose of 2255 was that all of the habeas corpus petitions not be presented out of Alcatraz but be presented in a forum where the prisoner had been convicted.

    So that what we had in 2255 both by history and as a long judicial conference history as well as anything else as well as Supreme Court case law is to the effect, I believe, that 2255 is merely a substitute for and not an extension of habeas corpus in a different forum.

    2255 also provides for habeas corpus in its last section, if there is something else that comes up that can’t be handled.

    Felix Frankfurter:

    But listen — but you’re quite right in saying that and there is language in Hayman which justifies you, but the great point that is decisive, importance of 2255 is the one that you just indicated, namely, that the matter should be brought before the sentencing court and not where the man is detained.

    And I suggest that the question raised by Mr. Justice Whittaker is not — is not foreclose by the talk or what said in Hayman, in that you have got a different situation that 2255 isn’t habeas corpus, it doesn’t require custody of the person.

    So that if we have — if we — if a problem of not releasing from custody, which is what habeas corpus would mean, habeas corpus would mean he is let out.

    2255 doesn’t mean such thing at the time.

    It’s a declaration of rights in a way, isn’t it?

    And therefore, I think the point that Justice Whittaker raises is of detention, whether a rule which you rightly say was the rule under habeas corpus isn’t affected by the difference, the — the important difference that 2255 introduced.

    Theodore George Gilinsky:

    Well, I believe my time is up.

    Earl Warren:

    (Voice Overlap) —

    Theodore George Gilinsky:

    I shouldn’t —

    Earl Warren:

    Yes.

    Theodore George Gilinsky:

    — take time to answer.

    Earl Warren:

    Mr. Cooper, the — we’ve arrived at adjournment time but if would you like to finish tonight, we’d be very glad to accommodate you under the circumstances.

    Jerome A. Cooper:

    Well, I appreciate that very much, Chief — Chief Justice —

    Earl Warren:

    Yes.

    Jerome A. Cooper:

    — but I — I don’t think my time is important enough to ask the Court to (Inaudible)

    Earl Warren:

    No.

    Well, no, you — you do —

    Jerome A. Cooper:

    — and —

    Earl Warren:

    — just as you please.

    We’ll be willing to hear you now if — if —

    Jerome A. Cooper:

    If it is convenient and if it will not inconvenient —

    Earl Warren:

    All right.

    Jerome A. Cooper:

    — the Court, I will —

    Earl Warren:

    You —

    Jerome A. Cooper:

    — undertake —

    Earl Warren:

    — you may.

    Jerome A. Cooper:

    — briefly to reply but I —

    Earl Warren:

    You may take.

    Jerome A. Cooper:

    — I hesitate to do it.

    It will not inconvenience me greatly to return in the morning, and I’ll be happy to take a few minutes in the morning, if I may do so, to reply —

    Earl Warren:

    Very well.

    Jerome A. Cooper:

    (Inaudible)

    Earl Warren:

    All right.