Lewis v. United States – Oral Argument – January 07, 1980

Media for Lewis v. United States

Audio Transcription for Opinion Announcement – February 27, 1980 in Lewis v. United States

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Warren E. Burger:

This case is submitted.

We’ll hear arguments next in Lewis against the United States.

Mr. Wood, we’ll just wait until the courtroom clears, you may be seated if you wish.

Mr. Wood, I think you may proceed whenever you’re ready.

Andrew W. Wood:

Mr. Chief Justice, and may it please the Court.

I represent the petitioner, George Calvin Lewis, Jr.

The facts of the case are as follows.

Lewis was charged in a two-count indictment, one count of which is relevant to Your Honors’ consideration.

They charged him with a violation of Section 1202 of 18 U.S.C. App. that is the possession of a firearm having previously been convicted of a felony.

The case came on before the United States District Court in Richmond without a jury, on the morning of trial, counsel in a motion in a context of a motion for a continuance pointed out to the Court in a proffer that the conviction which formed the basis for the indictment had been obtained in counsel’s judgment in violation and pure violation of Gideon against Wainwright.

Counsel told the Court that he had called a lawyer in Florida that had been kind enough to check the records and that the records of the Florida court, the records on the day of trial showed affirmatively that Lewis had no lawyer.

Collaterally, the — was also represented to the Court that the indictment possibly was defective although that that issue was not pursued in view of the trial court’s ruling on Gideon.

Harry A. Blackmun:

Mr. Wood, did it — did it show affirmatively that they had no lawyer or did it just show or fail to show that he had one?

Andrew W. Wood:

No, sir.

This is not a — a solid record.

I — I was told that counsel was told by the lawyer in Florida that it showed affirmatively that Lewis had no lawyer.

Harry A. Blackmun:

Is there anything on the record other than that counsel told?

Andrew W. Wood:

No, sir.

It was a proffer though and was accepted by the Government for prep is of course ruined.

I would submit that — that settles that issue.

I might point out so that the actual record which was introduced were the orders on the day of sentencing that the orders with respect to the finding of guilt, I believe that order that is in the record recites that Lewis having previously or earlier have been found guilty came on this day to be sentenced.

That is a silent record.

Harry A. Blackmun:

What — what is your position here if we go along with you — is it your position that the conviction must be reversed?

Andrew W. Wood:

No, sir.

I am happy to accept the burden of proof, if Your Honor please.

Harry A. Blackmun:

Say it again.

Andrew W. Wood:

I am happy to accept the burden of proof.

You’re saying reverse and dismiss, I’m — I may have misunderstood you.

I offer the proof, granted the continuance that Lewis in fact had no lawyer also made a proffer of indigency.

So that this is unlike some of the earlier cases in the dissenting opinions in which no burden of proof was even attempted to —

William H. Rehnquist:

Do you disagree with Judge — or Judge Russell’s statement in the opinion for the Fourth Circuit on the first page of the petition for writ of certiorari which has its App.1 where Judge Russell says, “The defendant does not deny in this appeal the receipt and possession of a firearm neither does he dispute his earlier conviction in Florida or that such conviction is facially valid.”

Andrew W. Wood:

Mr. Justice Rehnquist, I do dispute that.

I say things sometimes not knowing what I’m saying.

But I don’t recall ever conceding that and Judge Winter pointed out in his dissent that I do not understand the appellant Lewis, to concede that is facially valid.

Warren E. Burger:

Did the dissenting judge make any issue of that?

William H. Rehnquist:

Yes, sir.

He pointed it out, Mr. Chief Justice that — as I’ve just said, he did not understand my position to be conceding facial validity.

I might add if it’s responsive that I frankly see no difference between facial validity or invalidity for that matter.

He may need or had a lawyer or he didn’t and to me that is a technical nicety which has no place —

But if you go back 20 years, it may be very difficult to find out whether he had a lawyer or didn’t.

Andrew W. Wood:

Well, that — that question has been addressed by this Court with — with agony I’m sure sometimes, but it’s never too — too late to cure a wrong that was done whether it’s 20 years ago or 50 years ago.

Certainly it’s — it’s a problem.

I might say practically, sir, that it would not have been a problem.

I don’t think in this case in view what I was told by this lawyer in Florida.

Warren E. Burger:

Well wasn’t there some other way to make that a little more clearer and eliminate it as an issue in the case?

The proof of whether there was or was not counsel.

Andrew W. Wood:

Well, as the same, Mr. Chief Justice it came on — on a proffer.

I presume that had the judge agreed with me, I presume that he would’ve granted the continuance.

It was a non-jury trial.

It only took a couple of hours to try.

Potter Stewart:

Well, Mr. Wood, the — Judge Winter’s dissenting opinion says that in arguing the correctness of the District Court’s ruling, the Government in fact concedes that for the present purposes, the conviction was obtained in violation of defendant’s Sixth Amendment rights.

And I had understood that for the purposes of the case here, the Government makes the same concession

Andrew W. Wood:

I had always —

Potter Stewart:

I assume at least accepts the hypothesis.

Andrew W. Wood:

Yes, sir.

I — I have never understood their position to be any different.

Potter Stewart:

And argues upon that hypothesis.

Andrew W. Wood:

Absolutely, sir.

Warren E. Burger:

Is — is the final sentence in his or final two sentences in his dissent put a mild amount of question on that because it — Judge Winter would remand in order to determine whether or not.

Remand for a new trial at which time it could be demonstrated unequivocally one way or the other, he hold those.

Andrew W. Wood:

I think so, Mr. Chief Justice.

I presume there would be a remand.

And I didn’t take it as a stipulation so much as simply for the purpose of argument for the purpose of my proffer.

Warren E. Burger:

Between Judge Winter’s view that could not be accomplished except by granting a new trial —

Andrew W. Wood:

By — by re —

Warren E. Burger:

— making a new record.

Andrew W. Wood:

Yes, sir.

An inquiry into that factual inquiry.

Thurgood Marshall:

That’s what you tried to do, weren’t you?

Andrew W. Wood:

Yes, sir, absolutely.

Warren E. Burger:

(Voice Overlap) exactly what you’re doing.

Thurgood Marshall:

And that’s what you complained aboutm did you remember them.

Andrew W. Wood:

Yes, sir.

Thurgood Marshall:

That’s all that was doing.

Andrew W. Wood:

Yes, sir.

Harry A. Blackmun:

Mr. Wood, under 922 (h) —

Andrew W. Wood:

Yes, sir.

Harry A. Blackmun:

— it would be sufficient if your client were merely under indictment.

Andrew W. Wood:

Yes, sir.

Yes.

Harry A. Blackmun:

Is that square with your position as to convictions?

Andrew W. Wood:

Oh, absolutely sir.

I — I think Mr. Justice Blackmun that the congressional intent in the indictment phase is obviously — indictment of course is a temporary disability.

One has his constitutional guarantees for example to a speedy trial which will remove it in a short time and the use of the word indictment certainly is unequivocal.

May it please the Court, in constructing the statute I would argue that it is not necessary to reach the constitutional issue.

The Government I think, the trust to the Government’s argument has been and seems to be that if Congress had meant to exclude Lewis from the scope of the statute that is to exclude people who’ve been convicted in violation of Gideon that it would have spelled it out.

I think the reverse really is true I think that had Congress with its awareness of Gideon had meant to include people like Lewis.

I think it’s just as logical to say that they would have spelled that out.

I’m told that — for example, after this Court’s decision in Miranda and some other cases, there was considerable congressional discussion about certain cases.

And of course I don’t believe there’s ever been any great congressional stir over the Court’s ruling in Gideon so that certainly they were aware of Gideon.

Andrew W. Wood:

I believe Burgett is the — a year prior to the enactment of the Act of 197 — 1968-1970 where Burgett — so that I think the constitutional issue can be avoided simply on statutory construction.

Likewise, we are dealing with a penal statute.

Now it must be strictly construed.

I would suggest if Your Honors please that the statute is ambiguous for more than one reason.

Obviously, if you took a literal reading of the statute one who was convicted of a felony and one on appeal for example and had the thing dismissed, and later, possesses the firearm.

Well, if you read the statute literally, this man has been convicted of a felony.

I don’t believe it excludes people.

Warren E. Burger:

Well, but doesn’t the reversal affirmatively vacate the conviction so that there is at that time no conviction extent.

Andrew W. Wood:

Yes, sir.

Warren E. Burger:

That — is it quite like the situation you have here, is it?

Andrew W. Wood:

That’s right.

And — and yet, Lewis, even if he had filed his writ of coram nobis, petition for writ of coram nobis or what have you, and had the judgment vacated, Mr. Chief Justice, he still would have been convicted of a felony at some time prior.

So I think the — the statute is ambiguous.

I think there’s an ambiguity or latent ambiguity in — in the word felon or felony or convicted of a felony.

I think it’s arguably certainly and I think convincingly that that means validly convicted, certainly not void.

I don’t think there’s been any question in this — in this Court’s rulings in Loper, and Burgett, and Tucker.

That — that’s devoid — they’re not voidable convictions and violations get in.

As a matter of fact, I believe, that in Loper against Beto, you — you frame the question in those words may the petitioner attack, avoid judgment, avoid conviction.

William H. Rehnquist:

Do you — do you think the language of Congress on its face is susceptible of in — including within its sweep the position of a person who has been convicted by a jury as appealed and as the Appellate Court has reversed the judgment and directed a judgment of not guilty to be entered?

Andrew W. Wood:

Yes, sir.

I — I think so but I think there is an important difference.

William H. Rehnquist:

And you — do — and you really see no difference between that and the question of a person who’s been convicted and who, after — after he’s prosecuted under the statute, and has — who’s never appealed as now says, I didn’t have a lawyer.

Andrew W. Wood:

I do see a difference.

I think the — the man that you mentioned first, the man who had his jury trial presumably had a fair trial.

I think it might be more analogous to say what if he had a jury trial but no lawyer.

We’re talking about, Mr. Justice Rehnquist, the most precious of all federal rights that you — that this we know, the rest of them are meaningless.

I think there is a difference.

At least, that man has had it fair and square.

If he argued —

William H. Rehnquist:

Well, but he — he was — he was successful too and —

Andrew W. Wood:

Yes.

William H. Rehnquist:

— and the guy’s conviction reversed.

Here, this person never bothered to take any action to get his conviction set aside until he was indicted for a new trial for —

Andrew W. Wood:

That’s correct sir.

William H. Rehnquist:

— for another offense.

Andrew W. Wood:

That’s correct and it raises an interesting point that I’ve thought about is what if Lewis had come into — to my office and I hope I don’t publically confess malpractice or potential for it.

But — but if he’d come in and said, “Look, I’ve been convicted in violation of Gideon against Wainwright.

I had absolutely no lawyer, and what I’ve got to do?”

I don’t think it would be malpractice for a lawyer to say nothing.

That is do nothing.

It’s a void conviction.

Now I think that — that law —

Warren E. Burger:

Unless you were planning on going out and buying a firearm.

Andrew W. Wood:

No, sir.

That’s right, sir.

I — I mean obviously, we’d take the precaution but —

Harry A. Blackmun:

So you were you going to apply for a job wherein you list any prior felony conviction I suppose it might be desirable to have his record clear, wouldn’t it?

Andrew W. Wood:

I — I think it would be to have his record clear.

Yes sir,

Harry A. Blackmun:

Because most of the times that would be a bar to employment.

Andrew W. Wood:

Yes, sir.

It may be (Voice Overlap) —

Harry A. Blackmun:

Of course also, I assume he could probably take some risk of retrial whenever he does it too.

If he sets — decide whatever the conviction was and the statute hasn’t ran, he takes his chances on what will happen the next time around.

Andrew W. Wood:

Yes, sir.

Of course Lewis, I believe it’s four years, if I recall, two or three or four years, whatever, that was the time to — to do it, why he didn’t do it, of course none of us know.

Harry A. Blackmun:

Mr. Wood, supposing instead of no lawyer he’d offered to prove and for purposes of decision the Government accepted the fact that his conviction rested entirely on a conviction that was obtained from him by stringing him up over a door and beating him up or something like that.

And therefore, the conviction was void.

What do you — what would you say about that kind of case?

Andrew W. Wood:

Sir, I — I think as the law review article, the Harvard Law Review article points out, I think, a line has to be drawn.

Andrew W. Wood:

But unfortunately, I think and I haven’t provided a line —

Harry A. Blackmun:

But the conception of that would be void — that would be a void conviction, I suppose.

Andrew W. Wood:

A void, sir.

Harry A. Blackmun:

That would be a void conviction, I guess but that’s —

Andrew W. Wood:

I think so.

It — it might be that a — a proper distinction to make is between a conviction that’s void or one that’s voidable if anybody can determine what that is.

Harry A. Blackmun:

But that’s just as void as one where you don’t have a lawyer, is that —

Andrew W. Wood:

I agree.

Harry A. Blackmun:

Yes.

So that distinction would mean he’d have — if you prevail here, he should have the same right, wouldn’t he?

Logically, it is.

Andrew W. Wood:

I think so, yes, sir.

Warren E. Burger:

I’m not sure I have your response clear in mind.

Do you say that kind of conviction as voidable?

Andrew W. Wood:

No, sir.

I didn’t mean that.

I — perhaps was over responding but I was suggesting that obviously a line has to be drawn.

You can’t come in collaterally attack on any ground.

Warren E. Burger:

And did you — did you say that he spent four years in prison under this conviction?

Andrew W. Wood:

He spent — he spent some years in prison, Judge — Mr. Justice Burger.

Warren E. Burger:

So he certainly didn’t think his conviction was void during that period, did he, whether that makes some difference or not.

Andrew W. Wood:

Well, he was — he knew he’s behind bars.

I don’t mean — no, sir, he never attacked it —

Warren E. Burger:

He had no — he had no habeas corpus, no collateral attack of any kind on the conviction.

Andrew W. Wood:

No, sir.

Of course, you know, as you pointed out in a dissent, Mr. Chief Justice, when Lewis was convicted, I mean, it was the law of the land.

I believe he was convicted just prior to Gideon.

And — and put away in prison in Florida, I believe, this is in the records, I’m not going outside it when he — when he got out of in Florida, he joined the army and went to Vietnam.

And then came out — so no, he didn’t think it was void obviously.

I would like to, if it please the Court, to touch on some more aspects of the constitutionality.

Andrew W. Wood:

As — as I said, I believe throughout the case in my brief, I think the — the issue before you boils down to an interpretation of three cases chiefly Burgett, Loper and Tucker, and analyzing each of the three, I come not only within the majority opinions but I believe that I am safe on the dissents as — as well.

I know again, Mr. Chief Justice, that some members of the Court were concerned because in Loper and in Tucker, you — you were speaking not only or not of a prospective application of Gideon but you were talking about a retrospective application.

That is, these trials where the evidence was introduced of the Gideon violations.

These trials have taken place long before Gideon was ever decided and at the time they were introduced, this is the case, I believe, in Tucker, the — or in Loper.

The trial judge rule correctly was law of the land.

That is not the case here, of course.

Lewis’ trial in — in Richmond a couple of years ago, the law of the land was Gideon and he had been clearly convicted in — in violation of that.

So I believe I have excluded that portion of the dissent.

I find it impossible or difficult as Judge Winter did to make any meaningful distinction between this case and Burgett against Texas.

I had thought that the Court had made it clear that a conviction obtained in violation of Gideon was useless to any purpose due to enhanced punishment or to establish guilt, and both were done in this case.

That is — he gets 18 months to serve for — by reason of this conviction so he’s got an enhanced punishment and it was used as a predicate for the conviction itself.

That is the — the whole basis for it was this conviction in violation of Gideon.

I would, Mr. Chief Justice ask the balance of my time be reserved for whatever rebuttal I had.

Finally, I had one thing that I — I think I’ve made clear but it’s worth repeating and that is, the Government and I apparently differ on the phraseology of the issue.

I phrased it so in the petition that whether one convicted in violation of Gideon against Wainwright could defend a firearms charge on that basis.

The Government has a more sweeping phraseology and they had throughout their brief referred to.

It has made one attack to the constitutionality.

I come here today on the wings of Gideon, Loper, Burgett, not on any other basis.

Harry A. Blackmun:

When was this section passed under which you’re client was —

Andrew W. Wood:

1968, if Your Honor please.

Harry A. Blackmun:

1968.

Was there a predecessor or not?

Andrew W. Wood:

Judge, I don’t know.

I believe there may have been but I — I honestly don’t know.

Thurgood Marshall:

This is part of the Omnibus Crime Bill, isn’t it?

Andrew W. Wood:

I’m sorry, Mr. Justice.

Thurgood Marshall:

Isn’t this a part of the Omnibus Crime Bill?

Andrew W. Wood:

Oh, yes, sir.

Yes, sir.

Thurgood Marshall:

That was the passed one.

Andrew W. Wood:

Yes, sir.

As — as this Court has pointed out I believe in Bass and in Batchelder.

Warren E. Burger:

Mr. Levander.

Andrew J. Levander:

First, Mr. Chief Justice, and may it please the Court.

In response to Mr. Justice Blackmun’s and Mr. Justice Stewart’s inquiries, I think, that the Government has conceded for the purposes of the proceedings here that the petitioner has alleged that his conviction was invalid under Gideon against Wainwright.

If the Court accepts either petitioner’s statutory or constitutional claim and objects the Government’s arguments then the appropriate remedy, I think, both petitioner and respondent agree would be remand to the District Court for determination of whether or not in fact the prior conviction was void under Gideon against Wainwright.

As I understand his proffer, the record of the conviction does not affirmatively show that the — that the petitioner did not have counsel at — at the time of his 1961 conviction.

Rather the — I believe that the Florida lawyer indicated to Mr. Wood that the record or transcript of — of the proceedings did indicate that he was without counsel.

Warren E. Burger:

Well, let me see if I have that there.

Show that he was uncounseled or did not show that he had counsel, which is it?

Andrew J. Levander:

Well, I believe that —

Warren E. Burger:

There’s a difference?

Andrew J. Levander:

Yes, I agree.

That he alleges that — that the Florida lawyer told him that the transcript indicated affirmatively that Mr. — the petitioner was without counsel at the time of his prior conviction.

We’ve never had an opportunity to explore that as a matter of proceedings because the District Court and Court of Appeals correctly in our view said that whether or not he was without to counsel at his 1961 conviction is irrelevant.

He was convicted in 1961 and he never overturned that conviction.

He never obtained a pardon and he never pursued his administrative remedies under the Act.

William H. Rehnquist:

But that had been admissible, that proffer even in — in the present trial.

I mean its double hearsay.

Andrew J. Levander:

That’s correct.

When he — I think what happened was that he asked for a continuance so he could find out more fully what the actual facts were.

And the judge said, “Well, there’s no need for a continuance because it’s irrelevant,” which is our point.

And he started to say — petitioner was convicted in 1961 in a Florida state court of a felony.

That conviction has never been overturned and he has never obtained a pardon and he has never pursued his administrative remedied under the Act.

Nonetheless, he claims that the Act should be construed to permit him to attack the validity of his prior conviction for the first time in his federal gun law prosecution.

Alternatively, he claims that if the Act does not provide such a defense that the Constitution requires it at least where it is alleged that the prior conviction was obtained in violation of the right to counsel.

In our view, the language and structure of the Act refutes petitioner’s statutory claim.

The Act —

William H. Rehnquist:

Mr. Levander, let me get back a minute to this continuance question.

I can fully understand the Government’s desire to resolve a case on a fairly broad basis, but after the continuance was denied, a trial took place?

Andrew J. Levander:

That is correct.

William H. Rehnquist:

And was any evidence adduced at trial to show that the prior conviction was uncounseled?

Andrew J. Levander:

From the record, I understand that at the conclusion of the Government’s case, Mr. Wood put petitioner on the stand and that he said, “Now, judge I would let him — want him to testify about the prior conviction and my — and his lack of counsel and the judge said, “Well, but we’ve already gone through this.”

He said, “I agree.

I just want to make my objection that — that he would testify.”

And the judge said —

William H. Rehnquist:

So the judge refused the proffer during the trial?

Andrew J. Levander:

That’s correct also.

That’s how I understand it.

I think that the — the transcript as far as I — I know is the partially printed in the appendix and if the Court needs a formal transcript, we can obtain one.

As I start to say, the Act unequivocally and broadly declares that any person who was convicted of a felony may not receive, posses, or transport a firearm.

The plain meaning of that sweeping language is that any person who has an outstanding conviction, particularly one such as petitioner who served four years for that conviction is barred from possessing a firearm.

No exception appears in the language for a prior conviction that it’s invalid or a prior conviction that’s invalid because of Gideon against Wainwright or anything like that.

Warren E. Burger:

What you’re saying is — is it what you’re saying that if the man wants to purchase a firearm for whatever reason, let’s assume he was going to be a guard at a plant or a bank that his first step is to go and have — take affirmative action like collateral attack on the conviction and have it set aside on that ground.

And then, proceed to purchase the firearm in which he could recite that there was no valid conviction outstanding against him or words to that effect.

Is that what you’re saying in effect?

Andrew J. Levander:

That’s absolutely correct Mr. Chief Justice.

I will point out a couple of things.

First, of course in this case the petitioner was not going to become a guard at an institution.

He was arrested for having a concealed weapon on his person as he was about to enter an illegal gambling casino.

I would further point out that the Act gives the defendant who was been convicted and think he’s either being convicted unfairly or who thinks that his conviction is not indicative of his propensity to misuse firearms, three alternatives before going out and possessing the firearm.

First, he can collaterally attack his conviction in the appropriate court.

Here, he should have gone back to Florida state court where they are familiar with Florida law and Florida proceedings and Florida records and not raise it for the first time in a federal court after going out in possessing the firearm.

Second, he could obtain a qualifying pardon under Section 1203 of the Act.

The pardon must state specifically, not only that his pardoned but that he’s pardoned and can use firearms or can posses firearms.

Third, failing — the ability to overturn the conviction for one reason or another or get a pardon.

The convicted person has the alternative under Section 925 (c) of the Act to petition the Secretary of Treasury for dispensation.

This is not a meaningless procedure.

In the year 1978, some 1700 and 54 applications were made by convicted felons for dispensation.

And of those, something like 574 were actually granted.

Andrew J. Levander:

And so, this is a real procedure which is followed by many people who are apprehensive about their prior conviction.

Now — so far, there’s no exception in the Act, there’s no defense in the Act regarding the validity of the prior conviction and such a defense would similarly be reconcilable with Congress’ decision to impose a similar firearm disability on persons under indictment.

If — if a person — if petitioner is correct by the statutory construction of the Act then he would attribute to Congress the following purpose.

The person who was convicted, albeit without counsel, obviously has already been indicted yet even though he was indicted and a jury or judge has found him guilty beyond a reasonable doubt albeit without counsel, he would be deemed more trustworthy than a person who’s merely under indictment.

Yet, a person whose conviction is overturned for lack of counsel is not scot-free, he is still under indictment.

It’s simply irreconcilable with — with the congressional language to the construe the Act to permit a validity defense.

We think the absence —

Thurgood Marshall:

Well, in — well, in this case, there were no discussion in Congress about any of that?

Andrew J. Levander:

Well, that’s not exactly true, Your Honor.

The language — the legislative history —

Thurgood Marshall:

(Voice Overlap) it must have been about 10 minutes.

Andrew J. Levander:

Well, the — that there’s a lot more discussion about the parallel provisions in Section 922 and those were enacted the same time and use the exact same language, has been convicted.

And the legislative history as a whole shows a — a clear congressional purpose to broadly reach out as this Court has recognized in Scarborough, in Barrett, in Huddleston, and in Bass, a broad purpose of Congress to limit the flow of firearms to persons who might potentially be dangerous to society.

And certainly, petitioner fits into that category.

And it’s particularly reflective of congressional intent that there is no specific validity defense because first all, there are exceptions and defenses contained within the Act, express ones but not — not the one sought by petitioner.

Moreover, where Congress has thought it appropriate to allow defendants to challenge prior convictions it has so provided.

For example, in the special dangerous offender statute which is found at 18 U.S.C. 3575 (e), Congress has specifically provided the defense sought by petitioner here.

Interestingly — and not provide in this Act, interestingly, the special dangers offender statute was enacted as Title X of the Organized Crime Control Act of 1970.

Title XI of that very same Act is an explosive control statute which in haec verba adopts the gun control provisions and yet in that Title XI, no special defense is made, the defense of the — a validity that is sought by petitioner.

So it’s therefore clear that Congress knows how to create such a — a defense or exception when it wants to and it purposely did not here.

And that’s quite understandable given the general thrust of the Act which is that persons who by their prior acts or characteristics have indicated they might be dangerous, should clear their name first before going out in possessing a firearm, it’s a clear bright line rule.

Petitioner’s construction of the Act would encourage defendants and people who have been convicted to simply guess whether or not they think that their prior conviction is valid.

That would certainly narrow the ambit of the Act and would also tend to defeat the purpose of Congress, which was to make sure that people who are running around with firearms or getting firearms are to be trusted.

Warren E. Burger:

What was that question, whether they be trusted or whether they are the kind of people, people who fit into the category that Congress said should not be permitted to have firearms?

Andrew J. Levander:

That’s right.

Congress has sweepingly created these categories of persons and a convicted person has various options to show that he doesn’t belong in that category.

One of them is simply not to go out and buy a firearm and ignore the fact of his conviction.

Warren E. Burger:

But if he had been indicted and the indictment had never pressed, he’d never been tried and was out on bail for three years, four years.

Now, the statute — would the statute apply?

Andrew J. Levander:

Well, the under indictment part would apply presumably he would go into court and simply have it dismissed for failure to prosecute under the Speedy Trial Act of something of that nature or the speedy trial for the Constitution.

Warren E. Burger:

Well, I would — but I’m assuming —

Andrew J. Levander:

He has done nothing.

Warren E. Burger:

— he’s waited three or four years and has done nothing and he’s still under indictment and he’s then in the same posture as this fellow going into an illegal establishment with a — packing a gun.

Andrew J. Levander:

He would’ve violated the Act under 922 (g) or (h) if — if the receipt of transportation can be shown under the statutory language, under indictment is under indictment, convicted means convicted.

We think that the — basically, that the thrust of a petitioners argument is this constitutional claims based on a Burgett line of cases.

Before turning to that though, I think that — that in our view this is really a due process case and the question is whether or not Congress has the power to keep firearms out of hands of persons that they think have exhibited characteristics which might suggest that they may misuse the firearms until such time as they’d cleared their name.

Potter Stewart:

Well, that’s not really the issue in this case, is it?

I mean, I — I haven’t heard the petitioner question for example that Congress — the power of Congress to keep firearms out of the hands of people who have been indicted for something.

Andrew J. Levander:

Well, if that —

Potter Stewart:

That — that’s not the issue in this case, is it, with the due process issue?

Andrew J. Levander:

Well — well, let me try to explain.

Potter Stewart:

All right.

Andrew J. Levander:

If — if Congress could pass an act, if Congress is constitutionally empowered to say people under indictment may not possess a firearm and that’s valid.

Potter Stewart:

Yes.

Andrew J. Levander:

Then it cannot be for — or it would be completely illogical for the Sixth Amendment to acquire that persons who how have now only be indicted but have been convicted and have not done something about that conviction cannot (Inaudible) possess of firearm, you ignore the fact of their conviction.

Potter Stewart:

Oh, I did not understand Mr. Wood’s basic argument to be that Congress would not have had the power to do this but that in fact Congress did not.

That it’s a matter basically of statutory construction.

Andrew J. Levander:

I think —

Potter Stewart:

Maybe I misapprehended both.

Andrew J. Levander:

Yes.

I think he makes both arguments.

I think that — that as I try to — to demonstrate in my last few minutes that all of the indicia of congressional intent, the sweeping language, the legislative history, the policy and the express exemptions and other acts show that — what Congress intended to do.

He not only claims that Congress did intend to do it but —

Potter Stewart:

Did not do it but also that he could not.

Andrew J. Levander:

That’s right.

Potter Stewart:

That he could not.

Andrew J. Levander:

And under — and as to that point —

Potter Stewart:

As to that argument that you’re not addressing yourself.

Andrew J. Levander:

Right.

William H. Rehnquist:

Well, under your reason you can make Burgett into a due process case.

Andrew J. Levander:

Well, I think probably that the Court might have decided under — due process principles.

I mean the use of so many — a collateral and perhaps prejudicial convictions was simply a violation of due process as opposed to the Sixth Amendment.

Harry A. Blackmun:

Well, Mr. Levander, well, do you say that if a — if a prior conviction has been set aside that he is still subject to this section?

Andrew J. Levander:

No.

Harry A. Blackmun:

No.

Andrew J. Levander:

That once the prior —

Harry A. Blackmun:

Well, he has been convicted.

Andrew J. Levander:

Well, I think that would be a — first of all as of —

Harry A. Blackmun:

Well, he has been, isn’t he?

Andrew J. Levander:

Well, the Chief Justice —

Harry A. Blackmun:

That’s what — that’s what the statute says —

Andrew J. Levander:

Well, as the Chief Justice point out, once a persons conviction has been overturned, the judgment of conviction is vacated and so therefore he is no longer a convicted felon.

Harry A. Blackmun:

That isn’t what the statute says, it says he has been convicted.

Andrew J. Levander:

Well, I think that would be an overly literal interpretation of the language which would work.

Harry A. Blackmun:

Well, that’s the argument — that’s the argument your colleague uses.

It’s a very — why don’t you just say valid conviction?

Andrew J. Levander:

Well, we — we say if someone who has an outstanding conviction.

The — the language that you would had —

Harry A. Blackmun:

You would have — you would have that word rather than the other.

Andrew J. Levander:

The other language would be more appropriate if Congress said, who has ever been convicted regardless of whether or not —

Harry A. Blackmun:

It might be but it said, who has been convicted.

That’s — and that literally would cover my case.

Andrew J. Levander:

Well, then it would —

Harry A. Blackmun:

And you say no, you should construe that out of the statute and your colleague says, well, you just should — if that — if you’re going to do that what — you had to ask Congress.

Surely, they wouldn’t have intended to include an invalid conviction on this prohibition.

Andrew J. Levander:

Well, the existence in the statute of a pardon procedure and administrator procedure for people who have outstanding convictions strongly suggest that Congress intended that convicted meant an outstanding conviction.

Person who’s had their conviction overturned certainly doesn’t need a pardon.

And — and if you went through a governor of the State of Florida and said, I’ve had my conviction overturned by want to pardon, he would say, you’re crazy.

He would not — that would not be a normal procedure I don’t think.

And I think that the normal plain meaning of the language has been convicted of a felony is someone who has an outstanding conviction.

Harry A. Blackmun:

What about — you mean either if he served his sentence especially if he served his sentence.

His conviction is still, you say a valid conviction and —

Andrew J. Levander:

Well, it’s presumptively valid under Johnson against Zerbst until such time as it’s been overturned.

And — and certainly, a petitioner who served for years for his crime, in Florida in 1961, knew that he had been convicted.

I started to say that if the general classification of the statute is a irrational one and into a limited — a civil disability regarding firearms that it’s been posed by Congress validly as to all people who have outstanding convictions then it follows that Congress could impose a criminal penalty on someone who ignored the fact of that conviction and failed to pursue his administrative or judicial remedies to overturn that conviction prior to possessing the firearm.

As this Court stated in Yakus against United States and I’m quoting from page 444 of Volume 321.

There is, “No principle of law or provision of the constitution which precludes Congress for making criminal, the violation of an administrative regulation by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity.”

So therefore, if the classification is valid and we submit that it is, we submit that it’s valid for several reasons, then the imposition of a criminal penalty by one who ignores the fact of his conviction and fails to avail himself of the adequate procedures that have been supplied by Congress will — then there’s no questions as constitutionality of the Act.

Harry A. Blackmun:

What about — what about one who’ve been convicted but he’s appealed with his case and the case is pending.

Andrew J. Levander:

Well, in United States against Liles, in the Ninth Circuit, they held that both the Act applies to someone who has an outstanding conviction on appeal and that there’s no constitutional impediment to convicting him.

Harry A. Blackmun:

And you agree with that?

Andrew J. Levander:

I agree with that.

Yes.

Thurgood Marshall:

What happens to the poor man that didn’t have a lawyer when he was convicted and didn’t have a lawyer during the four years when he was serving his time and he hadn’t got a lawyer yet.

He’s just in bad shape, isn’t he?

Andrew J. Levander:

Well, no sir.

Thurgood Marshall:

If he happened to buy a gun, he’s in awful shape.

Andrew J. Levander:

Well, but if — if he’s been convicted, it’s Congress’ judgment that he should clear his name first.

I mean, he could send — simply send a letter to the Secretary of the Treasury saying, “Gee, I —

Thurgood Marshall:

Who would tell him that?

Andrew J. Levander:

Well, 1800 —

Thurgood Marshall:

He didn’t have cents enough to get a lawyer the first time.

Andrew J. Levander:

Well, 1800 —

Thurgood Marshall:

He is a sort of a non-lawyer man but he still is a citizen of the United States.

Andrew J. Levander:

He certainly is sir.

Thurgood Marshall:

He doesn’t have had the benefit of lawyers.

Andrew J. Levander:

Well, but 1800 felons knew last year to send applications to the Secretary of Treasury.

Thurgood Marshall:

I thought constitutional rights of individual.

Andrew J. Levander:

They — they certainly are —

Thurgood Marshall:

And weren’t limited by 1800 or 18 million, am I right?

Andrew J. Levander:

That’s absolutely correct.

We think that the Congress knowing that there was a tremendous and precipitous rise in violence and particularly that violence was connected to gun possession by people with criminal records or characteristics that it was entitled to broadly provide that anyone who has been convicted whether or not the conviction maybe subject to collateral attack, they cannot a possess a firearm until such time as they clear their name.

It’s particularly constitutional and meets the equal protection analysis challenges because 925 (c) makes sure that the statute is individually tailored.

Someone who thinks that their conviction is not indicative of their propensity to misuse firearms can go in and apply to the Secretary for dispensation.

Moreover, and we submit that even by focusing on the subclass of person’s whose convictions are possibly subject to a collateral attack, that that statute is still irrational.

Certainly, a person who has been convicted even without counsel has been both indicted and found guilty beyond unreasonable doubt and that those facts differentiate him from the populace at large.

Byron R. White:

Well then how about the case where the possession of firearms takes place before a conviction has been overturned but it’s overturned prior to indictment.

Andrew J. Levander:

He still violates the statute.

Byron R. White:

So is — it just depend — it’s the crucial — it’s when he possesses a firearm.

Andrew J. Levander:

The crucial determination is that he must clear his name before possessing the firearm.

Byron R. White:

And if he — if he’s cleared it under — in habeas corpus and that is on appeal by the state.

Andrew J. Levander:

If he cleared his name — once he clears his name either —

Byron R. White:

It isn’t clear, the state has appealed it.

Andrew J. Levander:

Say that — say that again, the coram nobis proceeding, is that —

Byron R. White:

A habeas corpus proceeding — his one at — in the trial — in the Federal District Court.

Andrew J. Levander:

Well then, he’s — once he has overturned his conviction —

Byron R. White:

Yes, but the state has appealed it.

Andrew J. Levander:

And a state his appealing, then he is still under indictment under Section 922.

Byron R. White:

So what purpose does that make?

Andrew J. Levander:

Well, then he can’t go out and receive or transport a firearm if he’s still under —

Byron R. White:

He’s still under indictment but how about — let’s say he possesses a firearm.

Thurgood Marshall:

He’s as bad — awful as the man who didn’t have a lawyer.

Byron R. White:

Well, go ahead.

Andrew J. Levander:

Thank you.

The main reliance of petitioner is on the Burgett line of cases.

And we think those cases are distinguishable for several reasons.

First of all, in Burgett, and in Loper, and in Tucker, the reliability of the individual conviction was at issue which is to say that a sentence was enhanced or credibility destroyed by reference to an uncounseled conviction.

That is not the case under the federal gun laws.

The reliability of the individual conviction as an indicator of the individual defendant’s propensity to misuse firearms is simply not at issue in the federal gun law.

Potter Stewart:

Just before you proceed Mr. Levander, I didn’t understand — I didn’t — I don’t think I got your answer to my Brother White’s questions.

Potter Stewart:

I —

Andrew J. Levander:

I’m not sure I got Mr. Justice White’s questions so —

Potter Stewart:

Well, at first — as I understood it, a person is convicted, he then collaterally attacks his conviction successfully and has that conviction set aside and a state appeals and at that time, may he be indicted for violation of Title 18 (Voice Overlap) —

Andrew J. Levander:

After he overturns his conviction, he receives a firearm?

Potter Stewart:

And it’s pending on appeal by the state.

Andrew J. Levander:

Then he has violated Section 922 (g) or (h), excuse me, which refers to the receipt of a firearm but anyone under indictment for a felony.

Potter Stewart:

No, I’m talking about 1202 (a) (1) which is —

Andrew J. Levander:

There’s no provision under 1202 (a) (1) for persons under indictment and if —

Potter Stewart:

Well, no, no.

But that’s the statute that’s involved here, isn’t it?

Andrew J. Levander:

That’s right.

Potter Stewart:

All right.

So we’re talking about that statute —

Andrew J. Levander:

So after his conviction is overturned.

Potter Stewart:

Yes.

Andrew J. Levander:

Then he is not subject to the limitations of Section 1202 —

Harry A. Blackmun:

Even though it’s on appeal.

Potter Stewart:

Although, he’s literally within the terms of the statute because he has been convicted by a court of —

Andrew J. Levander:

Well, but — but some court has vacated the order of conviction —

Potter Stewart:

But he has been convicted.

Andrew J. Levander:

Right.

It doesn’t mean who has ever been convicted.

Potter Stewart:

Well, that’s what it says.

Andrew J. Levander:

The statute as we construe it —

Potter Stewart:

The statute says “who has been convicted” and that would make it illegal for such a person to possess a firearm even though his conviction had been set aside on direct appeal.

Harry A. Blackmun:

Isn’t that the same point Mr. Justice White made before that —

Potter Stewart:

Yes.

Andrew J. Levander:

Yes.

And I suggested that that might literally be what that statute says.

Potter Stewart:

Well, that is what the statute says literally and you’re relying on the literal terms of the statute I assume, aren’t you?

Andrew J. Levander:

Well — well certainly, if that is the literal reading of the statute which we don’t have to decide here because here we have —

Potter Stewart:

Well that is what the statute says.

Andrew J. Levander:

Well, the literal —

Potter Stewart:

The literal term is what the statute says.

Andrew J. Levander:

Well, when you think of someone claiming or someone who has been convicted of a felony, you don’t think of someone who has overturned that conviction because the order of conviction has been vacated.

Potter Stewart:

Maybe you don’t think of somebody as such but the Congress said, made the statute applicable, made it a criminal offense for anybody who has been convicted regardless of the ultimate fate of that conviction.

Andrew J. Levander:

Well, for the purposes —

Warren E. Burger:

Can he be convicted — can he be indicted and convicted for having violated the statute by obtaining a gun while there’s an outstanding indictment against him.

Andrew J. Levander:

Yes, he could.

Warren E. Burger:

Because the habeas corpus judgement doesn’t nullify the indictment.

It nullifies only the conviction.

Andrew J. Levander:

That’s right.

Potter Stewart:

But it can’t be under 1202 (a) (1), can it?

Andrew J. Levander:

Not going to argue it.

Potter Stewart:

That’s the statute about here, isn’t it?

Andrew J. Levander:

That’s right.

If — if the man has had his conviction overturned, he’s no longer someone who has been convicted.

Potter Stewart:

Well that — well, how come?

Andrew J. Levander:

Because the word convicted is used by Congress there and our view means that someone who has a conviction outstanding.

Potter Stewart:

In other words, you’re telling us the statute doesn’t mean what it says.

Andrew J. Levander:

Well, the Court need not decided that question here since in any event your broader reading of the words has been convicted certainly applies to a petitioner who has never overturned his conviction.

Potter Stewart:

Well I was wondering just how — what your argument was.

Andrew J. Levander:

Well, but we’re —

Potter Stewart:

You’re not relying on the words of the statute.

Andrew J. Levander:

Well we are.

We are saying that the plain meaning of that statute is not the broader definition or literal definition that you’re pressing upon me but rather a median position between what petitioner can —

Potter Stewart:

Somewhere in between with what it says and what it doesn’t say.

Harry A. Blackmun:

Mr. Levander, isn’t it is just like the First Amendment, Congress shall make no law means Congress may make some law.

Potter Stewart:

Some people think —

Andrew J. Levander:

Thank you.

Andrew J. Levander:

Thank you Mr. Justice Blackmun.

Harry A. Blackmun:

Maybe you have because of your petite policy and you don’t indict in this cases where and they can be set aside.

Andrew J. Levander:

That’s in any way — I’m aware of no federal persecution for someone who has possessed or received a firearm after the time that their conviction was overturned and that is the policy that the Government follows with regards to this Act.

I started to try to distinguish Burgett and that line of cases and I first — at the first distinction, is the distinction that this Court drew in Loper itself.

In a footnote in the majority opinion in that case, the Court distinguished between two things.

First of all there is a — what was not good in that case, was the use of an uncounseled conviction to impeach a defendant’s testimony generally.

However the Court’s suggested a different result would be reached if on direct testimony the defendant got up and said, “I’ve never been convicted” simply ignoring the fact of his prior conviction albeit uncounseled.

In that case he would just be for ignoring the historical fact of his conviction as opposed to its — the general impeachment where the reliability of the conviction is critical to its impeachment value and here we say the same thing.

The reliability of the individual conviction with regard to the defendant’s propensity to misuse firearm is only relevant in two aspects.

First, in the administrator proceeding before the Secretary of Treasury and also that the general groups of persons who have been convicted are more likely to misuse firearms than the populace at large.

However, in the criminal trial itself is only the historical fact of conviction which is at issue.

The second distinction I would draw between the Burgett line of cases and this case is that Congress has simply provided a timing differential.

The defendant who was personally been convicted must go out and clear his name prior to obtaining the firearm.

And the civil disability which is imposed by the statute attaches immediately upon conviction.

The criminal penalty is imposed when he simply ignores the civil disability and ignores the administrative procedures set up by Congress or judicial proceures.

In Burgett and in Loper and in Tucker, the first time that the prior conviction allegedly uncounseled convictions in those cases became relevant was that the criminal proceeding itself, not immediately upon the conviction.

And therefore it was appropriate to allow the defendants in those cases to challenge the validity of their prior convictions at the criminal trial.

Here, petitioner eschewed his right to challenge those — his prior conviction at an earlier stage which Congress recommended him to do so and for failing to do that, Congress has imposed a penalty.

If counsel’s interpretation of the Burgett line of cases and the Sixth Amendment is correct, it would lead us to conclusion that a person who is convicted albeit without counsel and is in jail could escape from jail without any kind of penalty being attached.

You could only ignore the fact of his conviction and walk-out tomorrow because under his theory there’s no — it’s as if there is no such thing as the conviction.

And I don’t think that’s what Congress or this Court meant in those cases.

Potter Stewart:

Mr. Wood tell us his in your plan of briefs that Virginia has held just that.

Andrew J. Levander:

Well, Mr. Wood suggest the Court didn’t — I think corrected that — that case says that the Court didn’t reach that issue.

It didn’t have to and the court in Virginia has never said that and the other courts that have suggested quite the opposite.

That person can’t simply ignore the fact of his conviction and escape.

Potter Stewart:

Why do you think that conclusion inevitably follows from his argument anyway?

Andrew J. Levander:

Well, I think he says that —

Potter Stewart:

We were dealing with an Act of Congress and it’s really at least one of his points is, it’s a matter of construing that Act of Congress.

Andrew J. Levander:

Well —

Potter Stewart:

And maybe the — maybe the Act of Congress makes it a penal offense to escape from a jail, a prison would have a — that would be a question of construing that Act of Congress quite a different statute.

Andrew J. Levander:

I’m now referring to his constitutional argument and not his —

Potter Stewart:

No —

Andrew J. Levander:

— and not his statutory argument.

Potter Stewart:

No.

Andrew J. Levander:

And as to that the logic disposition leads to conclusion that the Sixth Amendment would justify such as an escape as a defendant just could simply ignore the fact of his conviction and walk out the jailhouse store.

Thank you very much.

Warren E. Burger:

Do you have anything further Mr. Wood?

Andrew W. Wood:

Mr. Chief Justice, and may it please the Court.

Just a few comments if I may.

The — excuse me — the joint appendix if Your Honor please beginning at pages two, three and so on show clearly that the point I believe was preserved.

The appendix will show that the — after the Government had rested its case-in-chief, and I — I believe called Mr. Lewis to the stand to testify on other matters, we made the proffer again and that as we told the judge that in view of his earlier ruling that the evidence of the Gideon violation would not be received that we would not go into that matter.

Of course it’s conceivable that we could’ve gone forward even without any records and had the man testified to it, he may have been believed.

But in view of the judge’s earlier ruling he held that that would not be necessary to present that such proof.

I would only have a few more comments if I have time and that is the Government has stressed that Lewis and people like Lewis should have their convictions expunged, file petitions for writs of coram nobis.

Real life just is not that way.

Lewis is not an educated man as are many people who are in his fix and it just doesn’t happen that way.

And I think this Court knows it and I see — to me it’s unthinkable that the Constitution would permit some kind of penalty for his failure to have done that.

He is already in trouble as Mr. Justice Marshall has —

Byron R. White:

Oh, I suppose you would say he could be convicted even if he didn’t know anything about the gun law.

Andrew W. Wood:

No, sir.

I’m talking about a deprivation of a constitutional right.

Byron R. White:

I know.

I know but even if he — even if he knew nothing whatsoever about 1202, and got the gun and I suppose he could be convicted no matter how innocent he thought he was.

Andrew W. Wood:

Oh certainly sir.

There’s a difference between saying ignorance is no excuse so or no defense and saying that we’ve got to place an obligation on the man.

Byron R. White:

You mean it’d be different if he were told — if he had been told that prior to his possession of the gun, now remember, don’t pick up any guns because either you’ve been convicted and you haven’t had it set aside.

Andrew W. Wood:

No, sir.

It would not be —

Byron R. White:

Well then what relevance is it whether he’s uneducated or not.

Andrew W. Wood:

Well I think that the Government — I think makes a fallacious argument on this score.The Loper decision has submit is controlling.

Andrew W. Wood:

The real holding in that case is that it simply can’t be used affirmatively by the prosecution and that’s the essence of it and we just don’t —

Harry A. Blackmun:

Mr. Wood, if the extent of — just confining it to a constitutional inquiry, supposing some cities do they have this regulation that you can’t be a cab driver if you’ve been convicted with felon, they have a form —

Andrew W. Wood:

Yes sir.

Harry A. Blackmun:

— that you fill out and one of the questions is, have you ever been convicted of a felony and if you —

Andrew W. Wood:

Yes sir.

Harry A. Blackmun:

— and he answered this falsely, he’d be indicted for perjury.

Andrew W. Wood:

Yes sir.

Harry A. Blackmun:

He just ignores it because it is totally void, can he be indicted for perjury as a matter of constitutional law?

Andrew W. Wood:

Judge, I’ve thought about that a good deal this morning and about the perjury aspect of it, I think it’s an interesting analogy.

I think — I can’t remember the leading case this Court decided not too long ago on perjury but I remember reading it sometime back and I would think that we have a difficult time convicting him of perjury.

I think there is enough ambiguity in the word felon.

I think it means validly convicted felon.

I think it certainly excludes the man who is convicted of a so-called felon in the absence of flagrant denial of a Sixth Amendment right.

Byron R. White:

I suppose then you’re saying that in the 1202 persecution you can litigate the validity of your prior conviction on any ground you want it.

Andrew W. Wood:

No sir.

Byron R. White:

What?

What do you mean — you mean facial validity, is that it?

Andrew W. Wood:

No, sir.

I make no distinction really.

Byron R. White:

What if he — what if he just says my conviction was invalid because they introduced tainted evidence.

Andrew W. Wood:

Well — I don’t —

Byron R. White:

Unless the 1202 forward here that kind of an attack on his prior —

Andrew W. Wood:

No sir.

Byron R. White:

Why not?

Andrew W. Wood:

Well, I think the line can be drawn with the case you have before you today is a Gideon violation.

Byron R. White:

Well, I know but —

Andrew W. Wood:

I think the —

Byron R. White:

— this is a Fourth Amendment violation.

Andrew W. Wood:

Yes sir.

Byron R. White:

Assume that he claims that he was convicted on the basis of evidence illegally seized without a search warrant in violation of the Fourth Amendment.

Byron R. White:

And the Government says, “Well, so what.”

Let’s assume that it was.

You would say that — would that have — kind of the claim have to be heard in your case, in the 1202 case?

Andrew W. Wood:

I’m sorry Your Honor, I may have misunderstood you.

I have — I’m —

Byron R. White:

Well, in the 1202 case would the Court have to entertain that kind of a defense?

Andrew W. Wood:

Yes, and I don’t think so.

I think the Court can draw a line let’s assume that —

Byron R. White:

Between what?

Between one constitution (Voice Overlap) —

Andrew W. Wood:

Between those that are — that are — for example, obviously void and those that are voidable, whatever that is.

I confess not to be able to articulate the distinction very well.

But I think mine is an obviously void case.

Warren E. Burger:

A number states have a provision that the person is incarcerated in the prison under a life sentence —

Andrew J. Levander:

Yes, sir.

Warren E. Burger:

— and it commits a homicide and never to escape for example —

Andrew J. Levander:

Yes, sir.

Warren E. Burger:

— that death penalty is mandatory.

Andrew J. Levander:

Yes, sir.

Warren E. Burger:

And suppose you have the land who is in prison uncounseled conviction for murder is under the guilty plea without counsel —

Andrew J. Levander:

Yes, sir.

Warren E. Burger:

— and he is in for life.

He commits the homicide.

Andrew J. Levander:

Yes, sir.

Warren E. Burger:

You would have to say I suppose that he could not be under that statute because he is in custody under an uncounseled — therefore unconstitutional conviction.

Andrew J. Levander:

Judge, I would have to say that.

Yes, sir.

I think my time is up.

Thank you.

Warren E. Burger:

Thank you gentlemen.

Warren E. Burger:

The case is submitted.