Milanovich v. United States

PETITIONER:Milanovich
RESPONDENT:United States
LOCATION:Trailways Bus Terminal

DOCKET NO.: 79
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 365 US 551 (1961)
ARGUED: Feb 20, 1961
DECIDED: Mar 20, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – February 20, 1961 in Milanovich v. United States

Earl Warren:

Mike Milanovich et al., Petitioners, versus United States.

Mr. Davis.

J. Hubbard Davis:

Mr. Chief Justice and members of the Court.

I am J. Hubbard Davis of Norfolk, Virginia representing the petitioner, Virginia Milanovich.

Mike Milanovich is represented by Mr. Bergan.

We are here today on a writ of certiorari to the United States District — I mean, Court of the Appeals of the Fourth Circuit.

We are appealing on the grounds that she was erroneously convicted.

Virginia Milanovich was erroneously convicted of both stealing and having possession of the stolen goods and also that the Court erred, in failing to instruct the witnesses not to discuss their testimony, both of which, for prejudicial and harmful error to the petitioners.

Briefly, the facts are that in June 2nd, 1958, Mike and Virginia Milanovich, husband and wife, Mike being a chief in the Navy of some 18 years experience, had met the three accomplices who were called in the lower court, the three thieves.

They had been — met them sometime earlier in the spring, April or May and they had come to Norfolk with the — Norfolk, Virginia, with the idea that they would go into business.

Mike lent them their — his automobile.

It was licensed to travel in and out the military installations because of the proper sticker that was on the windshield.

On June 2nd, 1958, the jury still believed from the evidence presented that Mike and Virginia Milanovich and the company of the three accomplices, entered the United States Naval Amphibious Base, Norfolk, Virginia and burglarized the commissary store.

The jury so believed that Virginia Milanovich was a driver of the car and that Mike was present therein, neither of the two Milanovich has touched any of the stolen property, did not enter the building, did not enter the safes.

The three thieves broke into the building, broke into the safes and some $14,000 in cash, currency and checks were removed.

The burglary took such a lengthy time that according to the evidence that the jury believed, the Milanovichs did not wait in their automobile at the appropriate rendezvous, but returned to their home.

The three thieves, finding their transportation gone, buried their loot in the nearby woods and found a way by devious means to the Milanovich’s home, subsequently left for their respective homes in Ohio.

Some two weeks later, on June 18th, Mr. Grammer, one of the three thieves, returned to Norfolk and visited with the Milanovich.

And the jury so believed that at that time, he and the company of Virginia Milanovich went to the Amphibious Base and recovered some of the stolen loot.

On the morning of the 19th, the FBI, on information, raided the home of the Milanovichs and there found Mike and Virginia Milanovich, a female friend by the name of (Inaudible) and one of the thieves, Mr. Grammer.

At that time, with permission of the Milanovichs, their home was searched and approximately $1000 wrapped in bank wrappers of coins, were found in two containers.

One of which was a cosmetic bag of Virginia Milanovich.

She denied knowledge of the money.

She said it was the property of the other woman in her house.

Be that as it may, the jury so believed that this was stolen property of the June 2nd break-in that it was in the possession of Virginia Milanovich.

And under the instruction given to the jury, the jury returned a verdict of guilty as a principal and as a receiver.

The charge to the jury, we say, was erroneous and should not have been given.

We say that the jury should have been so instructed that they could have found Mike and Virginia Milanovich guilty as a principal under the larceny statute or as a receiver of the stolen property, not both.

The charge is given to the jury was, as I quote, “I might say in passing, that if they did participate as aiders and abettors that they may be found guilty as principals, then as to the count as to receiving.”

Now of course, if they had actually removed the contents of the safe themselves, they cannot be guilty of receiving those same contents, but the evidence is clear in this case that either Mike Milanovich or Virginia Milanovich actually had their hands on the safe or removed any money from any safe.

J. Hubbard Davis:

The Court is drawing a fine line of distinction, saying the fact that they were principals in the theft, that they could also be guilty of receiving the stolen property, because they did not touch the loot at that time.

Yet it’s inconceivable to think that these two individuals, if they did participate as they did by driving the three thieves to the scene and had the loot and transported to their automobile at that time, then it would have been split the five ways at that time, then there’d be a clearcut case and no question would’ve been raised by the District Court nor would we be here today.”

But, here, they are present and certainly if they were present and as drivers of the gateway vehicle or the transportation, they certainly expected to participate in the proceeds.

And even though there were some two weeks delay in the actual receipt apart of the money and of course, as it might say in passing, the other $13,000 has never been accounted for, has never been found, only the $1000 in coins, which could not be removed at the time, has been recovered.

And we say that they expected to participate in the loot and the interven — intervention of the time has no bearing whatsoever, that it is one offense and one alone.

The fact that they were tried on the charge of — of receiving as well as the principal, we in the lower court, asked constantly that the — the prosecution elect.

Of course the judge said, “It could not be and rightly so.”

But the jury should have been instructed that their verdict of guilty, if they found either the defendants guilty, would be that of either the receiving or as a principal.

John M. Harlan II:

Didn’t the Court of the Appeals set aside the sentence on the receiving counts?

J. Hubbard Davis:

The majority of the Fourth Circuit did set aside the receiving charge, yes.

William O. Douglas:

How does that correct in the error then?

J. Hubbard Davis:

Because Virginia Milanovich asked for a jury trial.

We feel that in the case of Com — Commonwealth versus Haskins, a Massachusetts case in 1880, where a person was found guilty of stealing a cow and having the cow in his possession, was found guilty of both offenses and the Court at that time, the District Attorney — Commonwealth’s attorney asked that the case be now cross as to receiving, the trial judge so upheld it, but the court of — the Supreme Court of Appeals in Massachusetts reversed the case saying that the verdict was inconsistent in law and therefore, no judgment could be sustained.

And we say the same in this case.

It was up to the jury to decide which count they were guilty of.Virginia Milanovich was given ten years for the larceny, five, for the receipt.

The evidence is such that the jury, had he been properly instructed, may have found that the evidence was more credible as to the receiving count and would have found her guilty of that alone, rather than the larceny.

And we say —

Felix Frankfurter:

But the guilt of larceny in turn, on the ruling of the law, whether an aider or an abettor scam the principals, doesn’t it?

J. Hubbard Davis:

Yes, sir.

Felix Frankfurter:

Is that a matter for the jury?

J. Hubbard Davis:

No, sir.

Felix Frankfurter:

Presumably, if the jury instructed it, you find that they in fact did aide and abet.

They are principals, proper, the jury had any choice.

They can — the jury can do anything but he can’t go behind their determination.

J. Hubbard Davis:

Well, we say that this case falls in the ruling of this Court in the Heflin case, where it was set forth, very clearly that one cannot be guilty of robbing a bank and possession of the stolen goods.

That case was decided in the spring of 1959, which was after this particular trial, but we say it is applicable —

Felix Frankfurter:

Well, it is that they couldn’t be guilty or — but you can’t impose two punishments —

J. Hubbard Davis:

You cannot —

Felix Frankfurter:

— or what is — or what had you argued a minute ago, it’s only offense in — in its — in its sequence.

J. Hubbard Davis:

That’s right.

Felix Frankfurter:

Suppose — suppose, appellee Milanovichs — Milanovichs — I beg your pardon, had left as they did and the money has been — the loot has been accomplished by the so-called three thieves and the money had been dissipated by them so that (Inaudible) come to the couple, would they be tried for larceny?

J. Hubbard Davis:

Yes, sir.

Because they were aiders and abettors, they were there at the scene.

They were responsible for the three thieves to get to the building.

They were as much guilty as the three thieves, who actually touched the money.

Felix Frankfurter:

In fact, they will give them money.

In fact they will give them money.

And they were indicted on two separate counts, the two offenses not pleading him as murder, is that correct?

J. Hubbard Davis:

Right, sir.

Felix Frankfurter:

And then the Court of the Appeals set aside one of them.

J. Hubbard Davis:

They vacated —

Felix Frankfurter:

I — I don’t get the course of your answer to Justice Douglas’ question, other than to take care of the situation.

William O. Douglas:

It wouldn’t take care of the situation if the jury had to determine the sentence.

J. Hubbard Davis:

But we feel that had the jury been so instructed that they could only find the defendants guilty as a principal or as a receiver.

We feel that that was a correct inter — correct interpretation of the statute.

We say that this larceny statute of 18 U.S.C. 641 is no different from that of the bank robbery statute, which this Court so decided in the Heflin case, that one could not be guilty of bank robbery and receiving the loot.

Felix Frankfurter:

What we said is they can’t be punished, because it’s only one offense, but they can grip more because there had been no receipt subsequently in aiding and abetting making them principals wouldn’t have evaporated.

They would’ve been guilty of that, they — after they received money and they can’t be punished for both, but one offense hasn’t evaporated.

There’s one thing to say, people can’t be punished for what turns out to be a single move that can — having two constituents, (Inaudible) but the offenses having been committed.

J. Hubbard Davis:

Well, we think that the jury should have — should have been so instructed that they could bring in only one verdict that a person cannot be found guilty of both as a principal and as a receiver.

And I think, it was the intent of Congress and the legislative history is rather meager, just as it is in the bank robbery statute.

First, we had the offense of larceny.

Then some ten to 12 years later, the second paragraph was added to reach a new group of wrongdoers that it was not the intent of Congress to pyramid penalties, and that is what’s being done in this case.

And we say that the — no court, no judge can vacate a sentence and say that justice was done to the defendant.

And we feel that this case should be reversed, this conviction is reversed and remanded to the District Court for retrial under proper instructions that the jury should be so instructed that they can bring out one verdict either for the larceny or the receiving.

John M. Harlan II:

Do you object that the charge as given by the Court?

J. Hubbard Davis:

Yes, sir.

On page 315 of the record where it was said —

Hugo L. Black:

315.

J. Hubbard Davis:

315, where it was by Mr. Kutulakis who is one of the attorneys in a District Court, “I feel they were not fully instructed on the law of larceny and receiving.”

J. Hubbard Davis:

That is a reference that was made as to the charge that was made to the jury.

Hugo L. Black:

Where, it’s on?

J. Hubbard Davis:

At the middle of the page.

John M. Harlan II:

So that as after the charge you’ve been given?

J. Hubbard Davis:

That’s after the charge it been given.

John M. Harlan II:

But at the time the charge was given, did he make any objection or request its amplification?

J. Hubbard Davis:

At that time, no, sir.

He did not make any objection at that time.

It was after the charge had been given, then we felt it came to mind that they should have been instructed that they could only bring in a verdict of guilty as a principal or as a receiver.

We distinguish the Aaronson case in this matter.

That was one where the defendant applying the offense, several days in advance, made arrangements with two other people to steal certain government property.

He was never near the scene, did not even participate in it at all, but did receive the stolen property.

But in this case, Virginia Milanovich was right on the scene and as any — you got a lookout and now, with the getaway car, just as guilty as the others.

It’s not possible in a situation like this time was not usual I should think.

For all, I want to go into the building.

They were there and ready to make a quick getaway, if necessary, if caught.

Felix Frankfurter:

When they — when their car left, when their car left and assuming as of that time, the — the three accomplices had rifled the safe, part of the situation with reference that they had him.

Before they receive a penny, what was the legal situation and what could properly be charged — for what could they be properly indicted and what could be properly charged against them?

J. Hubbard Davis:

They could be properly indicted and charged under — a larceny count as a principal, as being an aider and abettor.

Felix Frankfurter:

But you say, if two weeks later, they received some money, they can no longer be charged for larceny, as well as considering the intervening time also for receiving goods and having the proper charges to each on which the jury could find either or both, leaving the question of what punishment should be involved is a very different problem.

J. Hubbard Davis:

As Judge Sobeloff said in his dissenting opinion, that the intervening time made no difference —

Felix Frankfurter:

I know he says it, but I’m trying to test it whether what he says is so.

J. Hubbard Davis:

Well, we feel that it was just a matter of circumstances that the money was not divided as of the actual time of taking.

Had the —

Felix Frankfurter:

But it’s a matter of circumstances that some people don’t carry out a planned crime and therefore, the result is a very different thing.

J. Hubbard Davis:

But had they been there at the time the loot was carried out, they would’ve probably and could have been charged similar manner, since they did not actually go into the building, did not touch the contents of the safes, could be probably found under this charge as given to the jury, would have been found guilty by this jury of both as a principal and as a receiver.

Because the judge says, “It makes no difference.”

He said — he says, “If they had actually removed the contents of the safe themselves, they cannot be guilty of receiving those same contents.”

But the fact that somebody else gave it to them, made the difference.

And we say, it makes no difference because —

Felix Frankfurter:

Do you mean it’s charged and referred to the intervening time?

J. Hubbard Davis:

No, sir.

It did not mention the intervening time.

Felix Frankfurter:

But that was before the jury, the whole — the evidences.

A charge was made with reference to what the evidence showed.

J. Hubbard Davis:

The evidence was before the jury that there was an intervening time.

Earl Warren:

If we leave out a consideration for the moment, the conviction for larceny, is there any infirmity in the evidence, so far as — as knowing you’re receiving stolen property is concerned?

J. Hubbard Davis:

It is affirmed and the evidence is there that the stolen property was found in the Milanovich’s home.

Earl Warren:

You know in fact the sufficiency of that evidence (Voice Overlap) —

J. Hubbard Davis:

We do not attack the sufficiency of that evidence, but we sit —

Earl Warren:

Nor on the evidence — yes, nor on the other hand, do you attack the sufficiency of the evidence on the larceny charge?

J. Hubbard Davis:

Not as presented to the jury in this case, as it now stands.

Earl Warren:

Now, is there — is there any interweaving of — of the testimony which would compel him to which — to which the jury would consider some of the testimony on the larceny in order to convict on the knowing or receiving stolen property or vice versa?

J. Hubbard Davis:

Yes, sir.

Earl Warren:

What would you point that out?

J. Hubbard Davis:

But we didn’t say that it is more creditable that they would be found guilty of receiving, rather than as a principal, because the testimony that makes them a principal in this crime is based entirely on that of the three accomplices, the three thieves.

The other evidence that the Court so found is rather weak as to the identification of the Milanovichs as being a principal.

But it’s conclusive as to the receiving that the money was found in the Milanovich’s home in a piece of luggage, which belonged to Virginia.

Felix Frankfurter:

Are you saying that the jury of layman can understand the people get the money, a thousand dollars, they received and those thousand dollars that were stolen.

The jury can well understand that they are the recipients of a thousand dollar stolen good.

But you are saying that the idea of being a principal to the rather aider and abettor, is the more complicated thing for a jury to understand and therefore, they could — might rather disregard it, the judge’s charge on the matter of law, that’s what they said, (Voice Overlap) —

J. Hubbard Davis:

Yes.

But we say also that if the judge had so properly instructed the jury and said, you can find them guilty of only one or the other, that the evidence is such.

That we feel that she would have been found guilty as a receiver, rather than as a principal and since the last —

Felix Frankfurter:

Not because the evidence was lacking for them to solve a crime, but because it’s this metaphysical notion that the person who aides and abets in the law, is a principal.

J. Hubbard Davis:

Yes, sir.

Earl Warren:

Why do you think it’s more likely that they would find her guilty of receiving than — than of — of the larceny, because they did find her husband been guilty of the larceny and — and his conduct was almost precisely the same as her, wasn’t it?

J. Hubbard Davis:

At the time, yes, sir.

But as to the receiving, his conduct was so different that he could not have been found guilty as a receiver as well.

Earl Warren:

Then so the — so the judge held and took it away from the jury, didn’t he?

J. Hubbard Davis:

Yes, sir.

And the Fourth Circuit so also took it away, by vacating the lesser sentence and allowing the larger to stand.

And we say, in view of the fact that there is the largest sentence, that this Court should not allow that to stand and take it away from the province of the jury, when it is very probable and possible that they would impose a conviction on the receiving and that the lighter sentence would be given to Virginia.

Tom C. Clark:

What makes you think that?

What’s the maximum on the lighter — on the proceeding?

J. Hubbard Davis:

Same as the principal and yet —

Tom C. Clark:

Would you like to think the judge wouldn’t have given him ten years on the receiving?

J. Hubbard Davis:

It’s very possible that he would’ve, but he didn’t.

Tom C. Clark:

The jury wouldn’t have to anything to do with that, wasn’t he?

J. Hubbard Davis:

No, sir.

The jury would have nothing to do with it.

Tom C. Clark:

The judge had all the facts the jury has.

The jury only gives a maximum of ten years on both counts.

One has confirmed that.

J. Hubbard Davis:

But we say that it was error to allow it to go to the jury.

Even regardless of what the sentence was that the verdict was inconsistent in law and that it should be reversed.

And that the trial court and the jury should decide what a person is guilty of, just following the Heflin case.

We’re not asking for that the rule of lenity be applied in this case, which was applied in both the Heflin and the Prince case, which is where both the defendants were already serving their sentences.

In this case, no sentence has been served, no time has been spent and we’re asking that the convictions be set aside and that a retrial be issued on the grounds of — that they were improperly instructed.

And we feel that the statute is very clear that you can only be guilty of one, whether you’re an aider or an abettor and you’re found guilty as a principal, you cannot be found guilty as a principal.

And that setting aside the sentence does not alter the fact that they have been found guilty of two separate and distinct offenses though they’re very related.

The larceny and receiving has always been held as two separate offenses and in this case, that the jury should have been so instructed.

It’d be one or the other and not both.

Felix Frankfurter:

How do you ask for a new trial rather than a modification of a sentence?

J. Hubbard Davis:

Because we feel that the defendants were deprived of the proper rights in the court by not having the jury so instructed.

We feel that Virginia should have the charge only if the court so feels of being found guilty as the receiver and not as a principal.

And as such, if she is so found guilty as a receiver, that her sentence would be the lighter one, rather than the heavier one.

Felix Frankfurter:

My question is why don’t you ask this Court the lighter sentence — that the sentence be modified there’d a direction or remission for the District Court or a modification of the sentence to the lighter one?

You don’t say that as a matter of law, they couldn’t be found guilty of either and that the evidence justified the jury in finding them guilty of either.

So why do you want to do a trial?

J. Hubbard Davis:

Because we feel they’d be up to the jury to decide rather than for the Court.

And at the end, that justice would be better reached by having the decision so made that one cannot be found guilty as a principal and as a receiver.

Felix Frankfurter:

No, I understand your argument.

But if — if they could’ve been — they could’ve been found guilty of either and weren’t back upon guilty of both and sentences were imposed to the reference to both, although not — although not in sequence or no — why isn’t the answer say since this was only one offense as a matter of whatever it is for the fashion in good sense that the lower (Inaudible) and not the higher.

J. Hubbard Davis:

The Court could so do that and that’s exactly — well, the Fourth Circuit —

Felix Frankfurter:

That’s why you’re asking — you’re asking for a new trial.

J. Hubbard Davis:

Because we feel that possibly — that in a new trial, I would say that there’s other evidence, which could be presented, which may or may not offer the verdict of the jury.

John M. Harlan II:

It might get off on a new trial.

J. Hubbard Davis:

Yes, sir.

Felix Frankfurter:

Yes, but —

That’s not the point —

J. Hubbard Davis:

That’s not the point.

We’re saying that in view —

Earl Warren:

May I ask you this discretion, suppose under these instructions that you complained of, the jury had found Mrs. Milanovich guilty only of knowingly receiving stolen property and the judge had given her ten years, would you be here?

J. Hubbard Davis:

No, sir.

There’d be no question.

No error.

Earl Warren:

Well, —

J. Hubbard Davis:

No reason for it.

Earl Warren:

— as I understood — as I understood, the judge did not instruct the — the jury that they could only find her guilty of one.

Didn’t you say that?

J. Hubbard Davis:

No, sir.

They — they said they — the charge the jury was that she could be found guilty of both.

It wasn’t an either or.

Earl Warren:

Alright.

J. Hubbard Davis:

It was that she would be found guilty as a principal and guilty as a receiver, because she did not actually touch the contents of the safe.

Earl Warren:

Alright.

But you think those instructions were wrong?

J. Hubbard Davis:

Yes, sir.

Earl Warren:

Alright.

Earl Warren:

Now, suppose under those instructions, she had been found guilty only of knowing they’re receiving stolen property or only of larceny and he had given her ten years and her husband five, was he did, would you be here?

J. Hubbard Davis:

We would not be here today.

Earl Warren:

Alright.

J. Hubbard Davis:

There’d be no grounds for it.

No reason for it.

The reason we’re here is because she was found guilty of both, when she should —

Earl Warren:

Well, I can’t see much difference then between that situation — situation you got here, if — if we decide that she cannot be — does not have to serve time for both.

Now, you’re — you’re in exactly the same position you would be on those circumstances, are you not?

J. Hubbard Davis:

True, sir.

Earl Warren:

Well then what — how was she injured?

J. Hubbard Davis:

If the Court so found that she would get the lesser sentence, then she would not —

Earl Warren:

Both, no.

Not the lesser when we — we — they know of no reason why we should —

J. Hubbard Davis:

Well, we don’t — we don’t see — we don’t see —

Earl Warren:

— no reason why we should have to pick out the lesser ones.

J. Hubbard Davis:

But we say it was error in the first place, the fact that they were not separate, that they could only be found guilty either as a principal or as a receiver.

Earl Warren:

But if you base it on — on a bad charge to the jury, I can’t see what makes much difference to you whether — whether she was convicted on one or both, if we set one aside.

That’s exactly what you would have if they’d only found her guilty of one of those offenses.

J. Hubbard Davis:

But we feel it goes back to that Massachusetts case, where it said they both were inconsistent and that they could only be found guilty of one or the other.

Earl Warren:

Yes.

J. Hubbard Davis:

And that is up to the jury to decide, not for the appellate judges or any of the trial judges.

Felix Frankfurter:

Not in consistent to have been — to have her — to had her indicted for both.

J. Hubbard Davis:

No, sir.

She’ll get —

Felix Frankfurter:

It would not have been inconsistent to select either of the two and stand on that, would it?

J. Hubbard Davis:

No, sir.

Felix Frankfurter:

It would not be inconsistent for the — for the judge to allow the jury to find on either and then to — for her to receive the ten-year sentence, would it?

J. Hubbard Davis:

For either, but not for either of —

Felix Frankfurter:

Then on this — on this speculated set of physical point, some error is in the case, which one can’t palpably touch like — isn’t that right?

J. Hubbard Davis:

The trial —

Felix Frankfurter:

You just say that an obstruction here, which has done nobody any harm, but somehow that the law frowned upon the irregularity like that.

J. Hubbard Davis:

Yes, sir.

And the charge should again an either or and not both.

Potter Stewart:

Well, isn’t also your point as quite apart of many abstract, metaphysical point, that as a practical matter, we don’t know what sentence the judge would have imposed, had the jury brought in the verdict only of receiving?

J. Hubbard Davis:

We do not know.

No —

Potter Stewart:

Nor do we now, what sentence would have been imposed had the jury brought a verdict in only of larceny?

J. Hubbard Davis:

We do not know because that’s within the province of the judge alone.

Potter Stewart:

Of the jury.

And — and —

J. Hubbard Davis:

— as to sentencing.

Potter Stewart:

— and the sentencing province the judge and that opportunity, because of error was — was never presented?

J. Hubbard Davis:

That’s right.

Felix Frankfurter:

We do have a pretty good idea that he thought the transaction was worth ten — ten years I suppose is.

J. Hubbard Davis:

But her husband will only receive five years for his part.

Charles E. Whittaker:

Well, didn’t you say to her that you have (Inaudible) has not been —

J. Hubbard Davis:

That is not in the record.

It’s true that he said that and her life of crime consistent of one conviction for a misdemeanor of which she served nine months in the state institution, welfare institutions in Virginia, was illegal sale of whiskey.

John M. Harlan II:

Where does that expression come from, where I could find?

J. Hubbard Davis:

Right in the judge’s statement.

John M. Harlan II:

Why don’t you say that it wasn’t in the record?

J. Hubbard Davis:

It’s — in — I’m sorry.

It is in the record, where he does so make that statement.

And that’s her life of crime.

The rest of it is merely his own knowledge of her over a period of years, as what’s personal knowledge —

Hugo L. Black:

(Voice Overlap) to make statement as to why he was imposing different sentences on the different counts?

J. Hubbard Davis:

No, sir.

Only to the fact that he said, “You, Virginia Milanovich have led a life of crime.”

Hugo L. Black:

But in (Voice Overlap) —

J. Hubbard Davis:

— and the only sides, the one conviction —

Hugo L. Black:

(Voice Overlap) ten and one to five, didn’t he?

J. Hubbard Davis:

Yes, sir.

Ten for the principle.

Hugo L. Black:

Did he make any statement as to why he thought she could only suffer five years of receiving (Voice Overlap) —

J. Hubbard Davis:

No sir, nothing was said.

No comment.

Mr. Bergan will take up the other question which relates to both.

Earl Warren:

Well, you used up all your time and that’s — that’s the difficulty with trying to have two counsel in — in the summary docket cases and variably as this way and — and we shouldn’t do it.

I’ve granted the time against my better judgment, but I’ll give you three minutes to — and more, to argue your other point.

But really in the summary cases, should not be more than one counsel and — and counsel should ask to divide their time.

You may proceed.

Raymond W. Bergan:

Mr. Chief Justice, may it please the Court.

I think three minutes will be sufficient for this second point.

The second point which is in the case before the Court is one which affects both convictions.

But the only one which affects the conviction of the petitioner, Mike Milanovich, simply stated the position of the petitioners in this point, is that once having excluded prospective witnesses from the courtroom, it was error for the trial judge not to make this exclusion effective by failing to admonish them not to discuss their testimony.

At the early stages of the case before the first witness was called upon the request of the counsel for the defendants, the judge excluded.

The trial judge excluded the witnesses from the courtroom.

The further request of counsel for the defendants that the witness be admonished not to discuss their testimony with each other before they had testified or to discuss the testimony which had already been given with witnesses who already had testified, was denied by the trial court.

His ruling appears on the record at pages 33 and again at pages 50 to 52.

Now of course, we concede that exclusion of witnesses from the trial of courtroom in civil and criminal cases as a matter of discretion for the trial court.

But without a very good reason, it appears logical and it would appear that logic alone would require that once having exercised is right and his discretion to exclude witnesses from the courtroom that the judge ought to have a very good reason not to make his exclusion effective.

I think if the Court will refer to the ruling of the Court of Appeals in this case, which is at page 344 of the record, you will note the Court of Appeals although not reversing the conviction on this point, point it out that we wish to indicate our view, this is halfway down the first paragraph.

“We wish to indicate our view that ordinarily when a judge exercise his discretion to exclude witnesses, it would seem proper for him to take the further step of making the exclusion effective.”

In fact, what the trial judge did in this case was not to exercise any discretion as to decline to instruct witnesses to give them this admonition.

The trial judge as appears on pages 33 of the record, when the request was made, pointed out to counsel for the defendants, “I do not think the Court can possibly police such a situation.

The fine points of questioning or matters of course that are relevant that there is not much I can do about such situation.

Despite my size, the trial judge continues I’m only one man and I cannot be in more than one place at a time.”

Again at page 50, the trial court says, “Mr. Kutulakis, I cannot be a policeman.

The witnesses have been separated, but there is no law at anytime which prohibits them from talking to anyone — prohibits anyone from talking to the witnesses.”

We submit the trial court erred in saying that there was no law that prohibited the witnesses.

Raymond W. Bergan:

The trial court could have made such a law.

This Court has sanctioned the punishment of — of contempt for the violation of such ruling in the Holder case.

The trial court has the authority, the discretion if it wishes, for the violation of such a rule to exclude the testimony.

Now, we submit that it’s analogous to the case of Charles versus the United States, which is reported at 215 F.2d, at page 828, where the District Court of Hawaii had refused to issue a rule excluding witnesses because we don’t do that anymore it said.

The Court of Appeals for the Ninth Circuit pointed out that this was not reason enough.

It’s a matter that’s addressed to the discretion of the Court.

We submit that in — particularly in the case of this type, where it’s all accomplished testimony that the rule should have been issued.

Earl Warren:

Mr. Bishop.

J. F. Bishop:

Mr. Chief Justice, may it please the Court.

On both of the issues presented for petitioners, I looked at some of the record and maybe of assistance here, see what happens, see which witnesses testified to which facts, what instructions were asked for, when they were to asked for and what instructions were given.

Preliminarily as to the point just argued with respect to the witnesses, Government’s position is relatively simple.

That is, we know of no rule promulgated by this Court and the federal rules of criminal procedure.

We know of no congressional enactment, no constitutional provision and no decisions, which are sought to circumscribe the discretion of a trial judge in dealing with witnesses in a particular case, under the particular circumstances.

And with a look at the record, I believe we will show that there was not something of the type of the Charles case, where the port abdicated its function, but that was here an exercise the discretion by a judge, whom we perhaps, can’t even evaluate on the pulled record who had a difficult problem, some 50 to 70 witnesses and did what it could about it.

But we’ll get back to that with the record.

Returning also preliminarily to the first point with respect to Virginia Milanovich alone that has been explored rather extensively by the Court and what has been suggested by the Court of course, is the Government’s position.

Virginia Milanovich was convicted of aiding and abetting, the three safecrackers, who went on to the Naval Base and also of assisting in their escape.

On that count, separate instructions were given.

There were separate facts we submit and there was a separate verdict.

We don’t have the problem here of a general verdict of a jury where we have any doubt as to what the jury found.

There were two separate verdicts on the two separate counts.

Now, the second count as has been observed by members of the Court was the count of receiving and concealing.

Dealing with a matter some two weeks later and relating only to one of these safecrackers who gave some of the money to Virginia Milanovich.

Now, as to that count and as to the instruction on that count, issue was taken.

And as to that issue, we are not here discussing a question of multiple sentences.

That sentence on the receiving count has been vacated and we know of no challenge of any of the instructions, the separate instructions if you please, on the aiding and abetting of larceny, so that we end a familiar case which has appeared before this Court, perhaps some numbers of times, but one count being bad, that has been separately handled, not on a question of fact or any inconsistency of the facts.

There is no question that both of these things happened.

That Virginia Milanovich did both of these things.

The question is — has — as has been suggested, the question of law and that maybe noted that the Court of Appeals below did not set aside the sentence on receiving in any idea, without reaching at all, the question that there was inconsistency of facts.

But solely, on the basis that in and their interpretation of the statute, they felt that the rule of this Court and Heflin applied and that there could be only one punishment.

J. F. Bishop:

And accordingly, set at the receiving, sentence aside and with that, we insist that all has been done for her that needs to be done.

Earl Warren:

Mr. Bishop —

J. F. Bishop:

Yes, sir.

Earl Warren:

— may I ask you to address yourself to this question?

Assume that the — the judge feels that receiving stolen property is not a serious crime as – as larceny, yes.

And that that is the reason why he gave her five years on the receiving and ten years on the — on the larceny.

Is there not a — some reason to believe that if the jury had only found her guilty of receiving, that he might have given her five years instead of the ten and the five to — to run concurrently?

J. F. Bishop:

Accepting the assumptions which upon a —

Earl Warren:

Yes, yes.

There’s (Voice Overlap) —

J. F. Bishop:

Yes.

Accepting those assumptions, that is correct.

Earl Warren:

Yes, yes.

J. F. Bishop:

In other words, the judge had here two, shall we say separate —

Earl Warren:

Yes.

J. F. Bishop:

— things, separate counts, separate verdicts.

We know what the judge — at what amount the judge evaluated the aiding and abetting larceny.

He gave ten years on that and that is not to be colored by the fact that he gave Mike Milanovich five years.

Because as we show indicate when we get to the record —

Earl Warren:

Yes.

J. F. Bishop:

— there were reasons, substantial ones, as to her participation and the like.

Earl Warren:

Yes.

J. F. Bishop:

But when — if you — if the assumption is made by the Chief Justice which I must accept, —

Earl Warren:

Sure.

J. F. Bishop:

— that — that if this jury instead of finding guilt of aiding and abetting larceny, had found only receiving, I am not sure that we’re permitted to assume that he would have given only five years, simply because his evaluation of the total of what she should receive seem to have been ten years, on the offense that she was found guilty of.

And I don’t believe that we are — that we are or that we need to speculate as to what he would have given on that count.

That count is not before us.

That has been wiped out.

We do have as the Government insists, a valid count on aiding and abetting larceny, on instructions that were not challenged as to aiding and abetting, and as I — I’ll try to show briefly, we’re very carefully separated from the others and on that, his valuation was ten years.

And the reason it was ten years instead of the five years for Mike Milanovich, appear — has already been suggested by Mr. Justice Harlan and the Court spoke not of just one offense, but of a record of crimes going from the year 1926 —

Earl Warren:

Yes.

J. F. Bishop:

— to 1951.

We don’t have that in the record, but that is what he had before and but we have statement as to why he did that.

Earl Warren:

Well, I — I agree with you.

We’re not entitled to assume that, but take the — take the other horn — horn of the dilemma and say that she had been acquitted of — of larceny, because the jury believed that the — the proof was better, that she had been — was guilty of receiving.

Now, have we any assurance that the judge would have given her more than the five years imprisonment that he did inflict for that particular crime?

J. F. Bishop:

I couldn’t speculate on that at all.

Earl Warren:

Well, then —

J. F. Bishop:

We haven’t — we do have the assurance that — that he felt that her offenses and her record had been —

Earl Warren:

Yes.

J. F. Bishop:

— so great that he — I — I — if — if you wish to my speculation, I would’ve say he would have given her ten years on that because he gave his five years on receiving in the full knowledge that there would be a ten-year sentence.

Earl Warren:

Yes.

J. F. Bishop:

And if — if the Chief Justice wishes me to speculate, I would say from the — from considerable delving into this record, from the feeling of the judge’s comments throughout, —

Earl Warren:

Yes.

J. F. Bishop:

— that if he had had only one sentence to give, he would have given ten years, on receiving.

Earl Warren:

Well, do you think it would’ve made any difference whether the jury found her guilty of both larceny and receiving or whether the jury had found her not guilty of larceny, but had only found her guilty of — of receiving?

J. F. Bishop:

I do not.

Earl Warren:

You do not.

You do not think so?

J. F. Bishop:

That is an impression from extensive reading in the record, but I submit to the Court will cover the same conclusion when they see how she was entangled in this matter and the laboring when she took it —

Hugo L. Black:

What was it — excuse me.

J. F. Bishop:

I’m sorry.

Hugo L. Black:

I just tried to ask you, what was the source for the Court of Appeals’ power to choose one of these, rather than the other to leave an effect?

There was —

J. F. Bishop:

The source of —

Hugo L. Black:

Either one could have been left, could it not?

J. F. Bishop:

I — the — the source of the — the Court’s power was the only one of these was invalid.

Hugo L. Black:

But there had to be a choice made that made a difference of five years to the defendant.

What was the source of the Court’s power to choose the one who gave ten, rather than the one who gave five?

J. F. Bishop:

Well, I — I still must dissent from that word, choose.

J. F. Bishop:

The Court did not choose.

Hugo L. Black:

Well, is that what they did, didn’t they?

J. F. Bishop:

No.

Hugo L. Black:

Well —

J. F. Bishop:

The Court wiped out one count and one verdict that was invalid.

Hugo L. Black:

Or what was the court — what was the court — source of the Court of Appeals’ power to wipe out one that was five and leave in one that was ten?

J. F. Bishop:

Because the five was on the invalid count on verdict and pretend —

Hugo L. Black:

Invalid?

J. F. Bishop:

Yes.

The receiving count was invalid on the Court’s opinion that you cannot add a punishment for receiving.

Hugo L. Black:

Didn’t — didn’t both — couldn’t do both, but the Court didn’t say that you couldn’t do one, did he?

J. F. Bishop:

No, the Court said that I — I submit the contrary.

The Court said that you have to have a conviction of larceny before your receiving count is impugned.

And the reverse is not true.

A person can be a receiver even though he participated in the larceny, but the reverse is not true.You cannot wipe out a receiving count because he is also guilty of the larceny.

Hugo L. Black:

Well, your — your argument — this is — I didn’t know the Government —

J. F. Bishop:

That is — you were asked —

Hugo L. Black:

You’re asked — you’re arguing that the Court had to do what it did.

J. F. Bishop:

That’s right, that’s right.

Hugo L. Black:

It had no choice as the jury would have had.

J. F. Bishop:

That is correct.

The choice was for the jury and it was left to the jury.

The jury was asked to find the facts.

Hugo L. Black:

But what about the District Court, was there any choice for him if he had reached the conclusion that he was wrong in his charge?

J. F. Bishop:

If he had been — if he had known that he could not give both sentences, I — I explore that somewhat with the Chief Justice, but I can only give you my guess — best —

Hugo L. Black:

I’m not talking about what he would’ve done, what could he have done?

J. F. Bishop:

If — what could he have done, he could have given exactly that ten-year sentence, which he did.

Hugo L. Black:

Now, he could’ve given a ten-year sentence on either one.

J. F. Bishop:

He could’ve (Voice Overlap) —

Hugo L. Black:

For what he could have done, with reference to choosing the one rather than the other.

J. F. Bishop:

If he had been advised of the Court of Appeals’ view, which was that when one is convicted of larceny a — and sentenced for that, that you cannot at the same time, punish him again for receiving.

If he had been advised of that view, then there’s no reason to suppose that he would’ve acted any differently.

He did impose a sentence on the valid count of larceny for ten years.

And the receiving count —

Hugo L. Black:

Well, assuming —

J. F. Bishop:

— was the one on which there was the incorrect instruction and if that was wiped out, its five-year sentence would’ve been wiped out.

Hugo L. Black:

It’s your position that the Court of Appeals didn’t have any discretion that it had to if it’s accepted one, except the larceny?

J. F. Bishop:

Not the large one, the one that was valid.

Hugo L. Black:

Well, he had to accept the one that was used — it’s your position that he had to accept the larceny, because the larceny was the one that is invalid.

J. F. Bishop:

That’s right.

Hugo L. Black:

And he could not have accepted the — the receiving count conviction because that was not valid.

J. F. Bishop:

That’s right.

The instruction on the receiving count is what is valid — is invalid.

Hugo L. Black:

Suppose you were wrong on that — suppose — suppose you were wrong on that and —

J. F. Bishop:

On — wrong of what?

Hugo L. Black:

— (Voice Overlap) for either one, then what’s the source of the power of the Court of Appeals, is it the discretionary power and its general power to do what justice required?

J. F. Bishop:

Well, I wouldn’t undertake the —

Hugo L. Black:

The statute says that, doesn’t it, with reference to an appeal?

I thought it did.

J. F. Bishop:

Well, I —

Hugo L. Black:

Which it says disposition of the case as justice required, I thought.

J. F. Bishop:

Correct.

But in our — in my view of the Court of Appeals’ decision, the Court of Appeals did not undertake any election of offenses or any election as to which of these verdicts.

It would sustain.

It felt bound by Heflin, just as this Court did in Heflin.

The receiving could not be of sentence, could not be pyramided and it was error for that receiving —

Hugo L. Black:

It wasn’t pyramided, but could it — could it have been imposed under this evidence?

J. F. Bishop:

Well, as to — as to what — could it have been imposed under this evidence?

Hugo L. Black:

Could — could she have been found guilty of receiving legally?

J. F. Bishop:

No.

Hugo L. Black:

That’s opposite.

J. F. Bishop:

That’s right.

Hugo L. Black:

That sacrifice had considerably (Voice Overlap) if that’s correct.

J. F. Bishop:

Has —

Felix Frankfurter:

You don’t — you don’t mean to suggest Mr. Bishop that on the charge — on the charge as given by the Court and what he left to the jury with reference to the two counts.

They could not have brought in a verdict of a quicker as aiders and abettors principals and brought in a verdict of guilty as receiver.

We don’t need to deny the jury could have done that but whatever reason, isn’t that right?

J. F. Bishop:

That is correct.

But if they had brought in the count on the receiving in this particular case on the instructions that were given here, then that could have been set aside.

In other words, the —

Felix Frankfurter:

Well, what was the advice of the instruction that could’ve —

J. F. Bishop:

The — the —

Felix Frankfurter:

— been invalidated?

I thought the difficulty was that the receiving grew out their participation — or participation in the aiding and abetting.

What was the substantive advice that would have invalidated the receiving a verdict of guilty on the receiving count and if you agree to the most capricious verdict of quickly on the larceny count?

J. F. Bishop:

This is the instruction that was invalid with respect to receiving count.

Felix Frankfurter:

As such.

J. F. Bishop:

As — as such.

Felix Frankfurter:

Alright.

J. F. Bishop:

The judge speaking of the receiving count stated that, it states a separate charge, that is, that these defendants did unlawfully receive concealing the same.

Now, here is the part that is incorrect.

Felix Frankfurter:

Yes.

J. F. Bishop:

I — I’m quoting now, “Now, of course, if they had actually removed the contents of the safe themselves, they cannot be guilty of receiving those same contents.

But the evidence in — is clear in this case that neither Mike Milanovich or Virginia Milanovich actually had their hands on the safe or received any money from any safe.”

There is no question about that.

So therefore and here’s the inaccuracy, “If they received any money and I do not suggest that they did or did not receive any money, they must have — they must have received it from some other party.”

And then we go into the discussion of whether they received with intent to convert to their own use or gain.

That is where the — the District Court departed from what the Court of Appeals later found to be the statutory intent.

That is that you cannot punish the person, the same person who committed the larceny.

Felix Frankfurter:

But that is — if I may say so, the vice is not in what he charged.

Felix Frankfurter:

The vice is the connection of the receiving count with the larceny count.

And that’s why all these talk about speculative to be doesn’t touch reality.

There was no speculation here that in fact as I understand it or you haven’t told in the record, in fact, there was no controversy.

I don’t mean to say there was no defense, but essentially, there was no doubt about the fact that she did share in bringing the three looters to the station and, in fact, waited there for them to do their job, is that right?

J. F. Bishop:

She waited and then they left and then —

Felix Frankfurter:

But that she (Voice Overlap) —

J. F. Bishop:

— she came back at —

Felix Frankfurter:

— the outward knowledge of the fact that this is what was on the report.

J. F. Bishop:

Correct, correct.

Felix Frankfurter:

Therefore, this is a case like the second Massachusetts case, not the first one.

This is like Justice Holmes’ decision in (Inaudible)

There is no inconsistency in the larceny and receiving count in this case, in any sense for the inconsistency has any meaning, in any sense that the doctrine of this Court is to be observed.

This Court doesn’t believe in the doctrine of inconsistency in counts, no matter what the jury does.

And in this case, the jury could’ve found either one of the other and was perfectly claimed that the sentence was imposed by the judges with full awareness of all the circumstance in reference to this defense, so we don’t have to speculate much, do we, in this case?

Am I wrong about that?

(Voice Overlap) —

J. F. Bishop:

I — I would state that you are more firm in thinking that the judge did — then I stated a moment ago, that the judge did impose this ten years upon the entire picture that was before him.

Felix Frankfurter:

Assumed that’s an affirmance as if the question whether the facts justified affirmance?

J. F. Bishop:

I believe the facts do.

That is the basis of my response to the Chief Justice to the effect that it would have been ten years.

Earl Warren:

But my problem was — my problem is this Mr. Bishop.

J. F. Bishop:

Yes.

Earl Warren:

Should we assume — are we entitled to assume that the judge would give exactly the same sentences in this situation that he would have given, if the jury had found her not guilty of larceny, but only guilty of receiving stolen property?

J. F. Bishop:

I believe, Your Honor, on the record as to his reasons given for the totality of what occurred there.

His reason — in other words, what disturbs — I presume what is disturbing about this is that he did give five years concurrent sentence on the receiving count.

But I must confess that I am not as disturb by that because he did that not as he would have treated a receiving count alone, but in full realization that there would be ten years in any event.

And if — I — I must again answer that on the totality of the picture, if we were to consider what he would have done on the receiving count alone, I would say the — the larger sentence would have been imposed on that.

Felix Frankfurter:

May I suggest one — I beg your pardon.

Earl Warren:

I’m just going to ask though —

J. F. Bishop:

Yes, sir.

Earl Warren:

— so, if we can make that assumption legally, are we entitled to assume legally, that if the jury could only find her guilty of one of the two, if it had found her guilty of receiving, but not of larceny that — that the judge would’ve given her as much time as he did give her, when the jury found her guilty of both?

J. F. Bishop:

My answer to that question is yes.

I believe we may assume that legally on the cases which we site in our brief in which a number of decisions have indicated that the higher sentence is selected in some of these cases.

Felix Frankfurter:

Well, I think the reason for that is I may say so, in going out in old experience, is the common place.

At least in my experience, well, what — what happen doesn’t yield in watching sentencing by federal judges.

That if the second sentence is concurrent, they throw that in as a sort of — with not much concern what their — if it’s — if it’s a concurrent sentence, if — if it’s not to be add — if it’s not be added to the punishment, but is merely directed formally to a verdict of guilty.

That’s the very common place to think.

They can give him ten years or eight years and then let’s say on a second count whatever the difference is, two years drawn concurrently, hadn’t much meaning.

They just want to fix the sentence to that for which they will not be in addition of serving of sentence.

Hugo L. Black:

So how can we know either way of that, we can’t can we?

I would think that probably a judge might proceed on one of the counts.

He might be reversed on one of them, if you get speculated.

What we have is a case where we cannot know what the judge would have done, isn’t it?

If there had been a five — if sentence or conviction merely for the one different, don’t we?

We can’t know it.

But we do have a case where the Court of Appeals looked at it and selected whatever you want to call, wiping out or the other.

It left one in effect and obliterated the other.

The one that was left in effect was the larger one.

It could have done either, couldn’t he?

I don’t — I don’t understand your argument here, that’s why you say it couldn’t have left the other in effect.

The jury could have found either way.

It’s was Justice Frankfurter, suggested they couldn’t be as capricious as they desire, if that caprice.

J. F. Bishop:

The jury can be capricious, we may assume as to its finding of facts, but after it has found the fact and found both of the —

Hugo L. Black:

Wrongfully — wrongfully under the law.

J. F. Bishop:

Well —

Hugo L. Black:

Well, it’s what the Court of Appeal said.

J. F. Bishop:

Well, the — no.

The — Court of Appeals didn’t say that they found anything inconsistent as a matter of fact.

Only —

Hugo L. Black:

(Voice Overlap) but inconsistent, they found that they convicted on two counts.

Hugo L. Black:

When under the law, they could only convict on the one.

J. F. Bishop:

But that had nothing to do with the facts, the facts on both —

Hugo L. Black:

That had nothing to do with the fact except it did have something to do with the sentence, which is the only thing it interest us here.

That she has gotten a ten-year sentence, by reason of the action of the Court of Appeals when it had said has said, “We’ll leave the out of effect, should it gotten filed.”

J. F. Bishop:

Well, I — I can only repeat their — their decisions on that which we have cited and notably the Audett case on page 26 and 27 of our brief, in which the Court said, “The trial judge by imposing the maximum sentence on Count 1 and allowing the sentence on Count 2 to run concurrently, indicated that he intended the maximum sentence to be 20 years.”

In these circumstances, the policy followed —

Hugo L. Black:

Now, let — that’s talk about another case —

J. F. Bishop:

Yes, sir.

Hugo L. Black:

— where we do not have this problem.

J. F. Bishop:

This one rules out and this will solve our problem.

Hugo L. Black:

What we have here is an actual problem of what we’ll do, where there were ten-year in sentence and a five-year sentence.

The Court said it’s wrong.

You couldn’t convict them on both.

One of them happens to be concurred.

We don’t know what — we — we can’t possibly know what could’ve been done.

And our problem is whether, what is our power, our duty and connection with what the Court of Appeals did.

J. F. Bishop:

Well, in any of —

Felix Frankfurter:

(Inaudible)

J. F. Bishop:

Pardon?

Felix Frankfurter:

— isn’t — the question of Justice Black as what the real question, namely, our duty with reference to what the Court of Appeals did.

And we say, the Court of Appeals on this record, misinterpreted the provision of the sentence.

Out of an independent judge or what we think ought to be done on the record.

J. F. Bishop:

As I understand Mr. Justice Black’s position, at the most, it goes to the question of whether it should be returned to the district judge to impose the sentence that he —

Hugo L. Black:

It doesn’t go to any consequence at all, except we’ve got to review what the Court of Appeal did.

If it had a right — if it had a right and power to do what it did, then I assume that we should stay that way, unless we think, if in some way, it was — so badly wrong that we should reverse it and say that it should have taken the lighter — impose the lighter sentence.

Accepted the lighter sentence, I suppose that’s it.

Felix Frankfurter:

Or — or throw it back to the District Court —

Hugo L. Black:

Or then —

Felix Frankfurter:

— to impose a new sentence.

Hugo L. Black:

That’s right.

J. F. Bishop:

In any event, this discussion as I understand it is only to the question as to whether it should be sent back for resentencing.

We insist of course that — that there was —

Hugo L. Black:

Oh yes, but my question —

J. F. Bishop:

— nothing beyond that to the extent of a new trial.

Hugo L. Black:

— involved any idea of a complete reversal of the case.

J. F. Bishop:

No.

And while we are on that, since the Court appears so interested in the — the question of the — the receiving and concealing as against the — the larceny charge, we of course, take a strong issue as I had hope to develop and we’ll review of the evidence here with the statement that the — that there was greater strength for the receiving count in the evidence than there was for the larceny.

We don’t find that true at all.

We do not find true that there was no cooperation because in — in many respects for instance, the sentries at the — at the Naval Station, though that appears in our brief, corroborated these stories that the — in many respects here.

For instance, Virginia Milanovich herself, in — in the statement she made to the FBI as contrasted with her final testimony, gave valid ground to the jury for finding her as guilty of aiding and abetting in this larceny, as in the other matters.

John M. Harlan II:

What page is in the record is reflected about the trial that said in sentencing?

Can you (Inaudible)

J. F. Bishop:

Yes, I can.

Yes, sir.

John M. Harlan II:

236?

J. F. Bishop:

That’s right.

Felix Frankfurter:

Mr. Bishop, may I ask you whether you’ve been to several cases in which you indicated there was before the Court of Appeals a longer sentence and the shortest sentence and for one reason or another, one of the sentences fails and the decision was that that longer sentence should — should be prevail, is that right?

J. F. Bishop:

I cited the Audett case in our brief on page 27.

That was where I read that quote.

Felix Frankfurter:

What page?

J. F. Bishop:

Page 27 of our brief.

Felix Frankfurter:

What page?

J. F. Bishop:

27 of our brief, the Government brief.

Well, it’s the case about —

Felix Frankfurter:

No, no.

27?

J. F. Bishop:

Audett versus United States.

Felix Frankfurter:

Oh, yes, at the bottom, 26 to 27.

J. F. Bishop:

Yes.

Felix Frankfurter:

Now, the picture you cited there, you also cited some on — none of which I’ve looked at it yet.

Felix Frankfurter:

You also cited some on page — what about those cases on 25, page 25?

What I should like to have you do if you will, give me the cases that I — you think are precisely of this character, namely, two counts for jury verdict on both or a — a jury — not a general verdict, which is a different story and yet — but a specific verdict of guilty on each count, on appeal, one of the counts fall and the longer sentence was retained.

Now, which one of your cases extend for that proposition, on the assumption — on the assumption that the record convinced the Court of Appeal that the judge’s longer sentence is the one you would have been imposed, because although there may have been two counts, there was one transaction?

Which cases has a less proposition?

J. F. Bishop:

As I recalled the Audett case, which was 265 F.2d 837, certiorari denied, 361 United States 815.

As I recall that case, I don’t have the facts of all of these in mind at the time.

And there — when you — when the — when the statement is made precisely —

Felix Frankfurter:

I —

J. F. Bishop:

— we need to safeguard the fact —

Felix Frankfurter:

— I don’t mean the parties names have to be debate on —

J. F. Bishop:

Some come up on — no, I mean some come up on reversal on — on suggested reversal of sentence, some of them come up collaterally.

But basically, the Audett case, as I recall it, is one such and — and the remainder of those cases on page 26 of the Government brief also, (Inaudible), Williamson, Leather and Audett.

And the cases cited within those cases, I recall, I maybe in error here, but I recall a number of cases cited by them to the same effect and that is that they seek to ascertain the intent of the trial judge, if that can be reasonably obtained.

Perhaps, it’s no more than the speculation that I was asked to make here, but they do act upon that and I think fairly and legally.

Hugo L. Black:

Is there any possible way to come in or went near ascertaining that?

J. F. Bishop:

Yes, I think —

Hugo L. Black:

If — if it is to be ascertained, except to take — send it back to the judge and say, “Now, you were wrong in imposing sentence on both, we don’t know what you would have done, sentence the prisoner.”

J. F. Bishop:

Speaking in any absolute sense, your — there is no absolute way —

Hugo L. Black:

But that wouldn’t be absolute because he might do differently now than what he would have done then.

J. F. Bishop:

There is —

Hugo L. Black:

But I assume if — if that’s the test that we should follow, that’s the nearest we could come to it rather than to just indulge in speculation or what some other courts had speculated in some other cases about what a judge would or might have done.

J. F. Bishop:

No.

I can only answer that the courts have sought to finish these cases and where the record has indicated to them, the reasoning or the basis for the Court — for the trial judge’s sentence as is extremely pronounced here —

Hugo L. Black:

Well, if the —

J. F. Bishop:

— that that has been done.

Hugo L. Black:

— if the defendant is entitled to be (Inaudible) according to the judge who has the initial power to sentence him, what’s the harm if — when the —

J. F. Bishop:

The harm —

Hugo L. Black:

— new situation comes up, he’s given a right to sentence him according to his belief, if that’s his right and has found.

If it’s a defendant’s right to have him to —

J. F. Bishop:

I can only say that here, at least, the judge evaluated the sentence that did the —

Hugo L. Black:

Under the circumstances then before it.

Felix Frankfurter:

Well, it isn’t only —

J. F. Bishop:

Correct.

Felix Frankfurter:

— that, it isn’t only that.

It is that he’s imposed the sentence of ten years on a count that is not invalid.

J. F. Bishop:

That is my point.

Hugo L. Black:

Then he’s imposed the sentence of five years on one which it might have been the one or might not.

Felix Frankfurter:

And therefore, you set aside the one in which he’s invalidly imposed a sentence.

Hugo L. Black:

Should we assume that he’s a — it’s his desire to give here the heavier sentence — sentence possible under all circumstance and traditions because he gave out one sentence and then added five years concurrently —

J. F. Bishop:

My answer is —

Hugo L. Black:

— which might have been imposed on him maybe?

J. F. Bishop:

My answer is that we don’t necessarily assume that as an invariable rule, but that we have considerable authority for the judge finishing — for the Court finishing the job, where there is an indication of the trial judge’s intent.

Earl Warren:

We’ll recess now.