Lott v. United States

PETITIONER:Lott
RESPONDENT:United States
LOCATION:Mapp’s Residence

DOCKET NO.: 238
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 367 US 421 (1961)
ARGUED: Apr 18, 1961
DECIDED: Jun 12, 1961

Facts of the case

Question

  • Oral Argument – April 18, 1961 (Part 2)
  • Audio Transcription for Oral Argument – April 18, 1961 (Part 2) in Lott v. United States

    Audio Transcription for Oral Argument – April 18, 1961 (Part 1) in Lott v. United States

    Earl Warren:

    Number 238, H. A. Lott et al., Appellants, versus United States.

    Mr. Wellen.

    C. W. Wellen:

    May it please the Court.

    Now, this case here is here, as a result of certiorari to the Court of Appeals for the Fifth Circuit.

    This is an income tax evasion case.

    As a result of which, the petitioners were illegally sentenced to the penitentiary.

    It involves the tax returns of the Farnsworth & Chambers Corporation, for that corporation’s taxable years, 1951 through 1954.

    The Farnsworth & Chambers Corporation was one of the largest construction companies in the United States.

    It had several hundred employees and during the period in question, it did several $100 millions worth of business involving tens of thousands of separate transactions.

    The corporation was owned and controlled by Richard A. Farnsworth and Dunbar N. Chambers.

    Together, they controlled and owned 74% of the stock of the corporation and through a stockholders’ agreement, controlled the balance of the stock which was owned by certain employees.

    The petitioners in this case among them, owned 7% of the stock at the corporation, which was subject to the stockholders’ agreement and therefore, under the control of Richard Farnsworth and Dunbar Chambers.

    The petitioners in this case along with Richard Farnsworth were indicted in the spring of 1958 for aiding the corporation in evading its taxes.

    Dunbar and Chambers, the other substantial stockholder, would undoubtedly have been indicted with this group, had it not been for the fact that he was killed in a hunting accident some months earlier.

    After the indictment was returned, the petitioners each pleaded not guilty.

    They then filed motions to dismiss the indictment on the grounds that it was insufficient and void.

    They also filed motions for bills of particular and they filed a motion to sever their case from that of Mr. Farnsworth on the ground that it was alleged that Mr. Farnsworth had diverted assets and income from the corporation to himself, whereas the petitioners have never been charged with profiting from the alleged wrongdoing, nor have they’ve been charged with personal income tax evasion.

    It’s purely the affair of the corporation.

    The Government supplied the petitioners with a token bill of particulars.

    It was vague and meaningless.

    And the petitioners properly requested a supplemental bill of particulars, which was denied.

    Potter Stewart:

    What do you mean a token bill of particulars?

    That’s a new —

    C. W. Wellen:

    It is a —

    Potter Stewart:

    (Voice Overlap)

    C. W. Wellen:

    — in the record, Your Honor.

    It — it’s watchfully —

    Potter Stewart:

    Is there anything in the suit —

    C. W. Wellen:

    — reiterated the provisions of the indictment.

    Potter Stewart:

    That’s just your characterization in developing —

    C. W. Wellen:

    That’s my characterization.

    Potter Stewart:

    I see.

    C. W. Wellen:

    Yes, Your Honor.

    Potter Stewart:

    I see.

    C. W. Wellen:

    That’s my characterization.

    Charles E. Whittaker:

    The bill of particulars, it doesn’t particularize, is that it?

    C. W. Wellen:

    Yes, sir.

    That’s exactly right, Your Honor.

    Thereupon, the District Court for the Southern District of Texas denied all of petitioner’s pretrial motions.

    After denial of all of their pretrial motions and after the death of their leading counsel, Mr. Malcolm Mccorquodale, the petitioners elected to seek re-arraignment for the purpose of entering pleas of nolo contendere.

    This was vigorously opposed for the Government, but despite the opposition of the Government, the Court received the pleas of nolo contendere.

    Thereupon, instead of sentencing the petitioners, the Court, the same judge presiding, proceeded with the trial of the Farnsworths, Mr. Richard Farnsworth and his son Alan.

    Charles E. Whittaker:

    After the Court has sentenced him on the plea of nolo?

    C. W. Wellen:

    As his customary, Your Honor, after a plea of nolo is entered it, then the — the Court has an investigation, an independent investigation, hears character witnesses and then will enter sentence accordingly.

    It’s most unusual —

    Charles E. Whittaker:

    Does the Government (Inaudible) in the plea of nolo?

    C. W. Wellen:

    Your Honor, as I understand it, the mere plea itself, confesses the facts such as they are in the indictment.

    Charles E. Whittaker:

    (Inaudible) I did not confess.

    C. W. Wellen:

    That’s is exactly right, Your Honor.

    Charles E. Whittaker:

    (Inaudible) judgment?

    C. W. Wellen:

    Yes, sir.

    It does, Your Honor, according to the decisions of this Court.

    William J. Brennan, Jr.:

    I thought it was for the Supreme Court.

    C. W. Wellen:

    Yes, Your Honor.

    The Farnsworth trial lasted between 10 and 11 weeks.

    Since the petitioners were named as conspirators in the indictment, an unlimited amount of testimony was permitted by both Government counsel and the Farnsworth counsel against petitioners during this trial.

    Since petitioners were not part of this, for this proceeding, they had no opportunity to confront the witnesses against them.

    They had no opportunity of cross-examination.

    They had no opportunity to — to present rebuttal or explanatory testimony.

    The Farnsworth trial ended in the acquittal of Alan Farnsworth, the son, and the jury was unable to agree on a verdict with respect to Mr. Farnsworth, the dominant stockholder in this organization.

    C. W. Wellen:

    Needless to say, this was a bitter and frustrating defeat for the U.S. Attorney.

    And it was in this atmosphere at the conclusion of the Farnsworth trial that petitioners were summoned before the court, the same judge presiding for sentencing.

    In this atmosphere, the petitioners were sentenced to penitentiary terms and were each fined $20,000.

    Motions for reduction or suspension of sentence were denied.

    Thereupon, petitioners each filed a motion, denominated a motion in arrest of judgment, again attacking the validity of the indictment.

    Potter Stewart:

    Just so I don’t understand the facts.

    I — I — one of the Farnsworths was acquitted and as to the other, there was a hung jury?

    C. W. Wellen:

    Yes, Your Honor.

    The jury divided eight to four in favor of conviction of Mr. Farnsworth’s father, the dominant stockholder.

    Potter Stewart:

    Did he get a public result in the jury vote?

    C. W. Wellen:

    It was — there was information later that that was the result.

    Potter Stewart:

    Was there — was there a retrial of the —

    C. W. Wellen:

    That — there has not been — no, Your Honor.

    John M. Harlan II:

    How many convictions were there (Inaudible)

    C. W. Wellen:

    None.

    Those were the only two that went to trial.

    The petitioners did not participate in the trial.

    William J. Brennan, Jr.:

    You said the other principal had died or they killed him?

    C. W. Wellen:

    Yes, sir.

    The other principal had been killed in a hunting accident.

    The motion in arrest of judgment was denied by the Court, same judge presiding, on July 13th, 1959.

    Within four days after the denial of this motion, the petitioners each filed a notice of appeal for the Court of Appeals for the Fifth Circuit.

    Some months later, the U.S. Attorney for the first time, raised the point of timeliness of the appeal and filed a motion to dismiss the appeal on the ground that it had not been timely presented.

    The Court of Appeals for the Fifth Circuit, by a divided court, dismissed the appeal saying that notice of appeal had not been timely filed.

    Thereupon, certiorari was sought from this Court and was granted.

    While much likely said, concerning the fine reputation and character of the petitioners before us today or much might be said about their high standing in the community and while much might be said about the reasons which prompted petitioners to enter their nolo contendere pleas and the disappointments resulting therefrom, it is believed that these points are not germane to the issues before us so I won’t develop.

    The issues before us are, one, whether the appeal was timely.

    Two, whether the indictment was sufficient, three, whether by in affect trying petitioners in absentia, the judgment was illegal and four, whether the judgment, the written judgment purported to find the petitioner’s guilty of a misdemeanor offense, filing false and fraudulent returns and conspiring to do so, but then they imposed felony terms upon.

    Charles E. Whittaker:

    I understand — do I understand correctly that the Fifth Circuit held the appeal was not timely and did not go further or reach the merits?

    C. W. Wellen:

    That is correct, Your Honor.

    Charles E. Whittaker:

    And if they are wrong about that, then wouldn’t that end our inquiry here?

    Can we just send it back to them and to decide the case on the merits?

    C. W. Wellen:

    I think not, Your Honor.

    We applied for certiorari on all points and the writ was not limited.

    We have briefed all points and we’re prepared to argue all points.

    The record is fully developed.

    It presents only questions of law.

    Charles E. Whittaker:

    Well, but if they fail to hear an appeal, they should’ve heard.

    Should they not now hear that appeal?

    C. W. Wellen:

    It would seem that since it is before this Honorable Court and since it involves questions of extreme concern not only to these petitioners, but to the country as a whole and see — since these are questions which undoubtedly will come to this Court, this Court should pass upon them while it’s before it.

    I’ll turn to the timeliness of the appeal, this essentially involves Rule 37.

    In taking the case to the Court of Appeals, the petitioners meticulously followed Rule 37.

    The motion, denominated motion in arrest of judgment was filed within four days after the judgment.

    And within four days after the Court denied the motion in arrest of judgment, the notice of appeal was filed.

    In each instance, Rule 37 permits 10 days.

    Permits 10 days to file a motion in arrest of judgment and permits 10 days to file a notice of appeal after a motion is denied.

    In each instance, the time taken by petitioners was much less.

    However, it is the argument of the Government that under Rule 34, this motion in arrest of judgment was not timely.

    Therefore, it was void and was of no effect under Rule 37.

    But the answer to this is, one, Rule 37 merely states that if a motion in arrest of judgment is filed within 10 days after the judgment, then after — you have 10 days after such motion is overruled to file a notice of appeal.

    It is not said in Rule 37.

    The only rule which purports to be applicable to appeals that a motion of — an arrest of judgment filed pursuant to its terms, must be timely under Rule 34, there’s no reference to Rule 34.

    Nor does Rule 37 say that such a notice or such a motion of arrest of judgment must have any other quality.

    John M. Harlan II:

    What’s wrong with your argument placed beyond the argument of Rule 34?

    C. W. Wellen:

    None, Your Honor, none, in this situation on appeal.

    John M. Harlan II:

    Or perhaps in reference to the (Inaudible) 37 and 34 (Inaudible)

    C. W. Wellen:

    Now, that — that’s first of my argument and which has been adopted by the —

    John M. Harlan II:

    — (Voice Overlap) you apply — you apply the fact to the timeliness (Inaudible)

    C. W. Wellen:

    Yes, sir.

    The second portion of my argument would be this.

    C. W. Wellen:

    That even if Rule 34 applies, even if the motion in arrest of judgment described in Rule 37 must be timely under Rule 34.

    The second part of our argument is that this motion was timely under Rule 34.

    Rule 34 provides that a motion in arrest of judgment to be timely under its provisions must be filed within five days after “determination of guilt.”

    The Government would say that when the nolo contendere plea was filed here, that was a determination of guilt.

    And they say the Third, Fifth and Ninth Circuits supports that view, but these decisions do not support that view.

    Each of those cases concerned verdicts of guilt.

    None of them concern nolo contendere pleas.

    The only prior decision, the only prior decision that we have been able to find that concerned a nolo contendere plea is a decision by this Honorable Court in the Sullivan case.

    In the Sullivan case, we have facts very much analogous to the facts of the case before us today, with a nolo contendere plea and then a judgment following the judgment, a motion in arrest of judgment and then appeal to the Tenth Circuit and then certiorari to the Supreme Court.

    The facts were very similar to the facts of this case.

    And this Honorable Court took jurisdiction of the Sullivan case.

    It exercised jurisdiction and decided the case on the merits.

    John M. Harlan II:

    But there has been a (Inaudible)

    C. W. Wellen:

    I would not — if — either agree or disagree, I — I don’t recall any case that has passed upon that point.

    John M. Harlan II:

    Well, I was just wondering whether your position on (Inaudible) to your argument.

    It’s been (Inaudible)

    C. W. Wellen:

    The nearest precedent to the point I know of is the Sullivan case which involved the nolo contendere plea and it apparently did not start the five-day period because this Court exercised jurisdiction and decided the case on the merits.

    And I’m certain you inquired into your jurisdiction before it.

    John M. Harlan II:

    (Inaudible) said on the subject.

    C. W. Wellen:

    There was nothing said on the subject.

    No, Your Honor.

    If it’s overlooked, then the Government says that reference should be made to Rule 34.

    They say it is applicable.

    If this Honorable Court overlooked it, then this Court did the same thing we’re supposed to have done in this case.

    Charles E. Whittaker:

    On what —

    C. W. Wellen:

    And that — pardon me, Your Honor.

    Charles E. Whittaker:

    What on March 7 (Inaudible) and the pleas of the nolo or (Inaudible) was there any who have left?

    C. W. Wellen:

    I know of nothing that there was and to arraign.

    Charles E. Whittaker:

    (Inaudible) judgment?

    C. W. Wellen:

    There was no judgment.

    C. W. Wellen:

    No, Your Honor.

    And we say there should have been no motion at that time.

    Earl Warren:

    We’ll recess.