Parr v. United States – Oral Argument – March 28, 1956 (Part 1)

Media for Parr v. United States

Audio Transcription for Oral Argument – March 28, 1956 (Part 2) in Parr v. United States

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Earl Warren:

Number 320, George B. Parr versus United States of America.

Everett L. Looney:

May it please the Court.

Earl Warren:

Mr. Looney.

Everett L. Looney:

I think, if Your Honors please, this case is before the Court in actuality, involves a conflict between the integrity of the law on one hand and the hypocrisy of the law on the other.

In order to properly present that thesis, I believe it proper to say that in about May 1954, the Attorney General said to the United States District Attorney for the Southern District of Texas, Houston Division, the case of George B. Parr for an investigation under Internal Revenue Code Section 145 (b) charging — with — with charge an attempt to evade and defeat a large portion of his income for the year 1949, 1950 and 1951.

I think it’s well to have in mind that at the time the case was sent to the Houston Division that under the venue provision of the 18 U.S.C. Section 3237 the offense to be investigated could have been investigated and indictment could have been returned if the evidence warranted.

And either the Southern District or the Houston District or the Southern — Southern District or the Western District says Section 3237 provides that where an offense has begun in one district and completed in another, it may be dealt with in either district.

Now, of course, that limitation is — there’s a limitation put on that by — by Rule 18 of the Rules of Criminal Procedure that the case must be dealt with finally in the division, in the district wherein the offense was committed.

So, after about six or seven or eight months of grand jury investigation in the Houston Division, attended by somewhat of a production in the way of publicity and not usually attended upon a grand jury investigation, one which cause the trial judge at Corpus Christi to admonish counsel when the case was later called for arraignment that no such publicity would be permitted from thereon, except if it’d be from word spoken in open court.

The grand jury returned the indictment on November the 15th, 1954 and the case was filed in the Corpus Christi Division, that being the division in which it was alleged that the offense had been committed.

The indictment alleged that the offense had been committed by preparing and causing to be prepared on the part of the defendant for filing in the Collector’s Office at Austin in the Western District, a false return by depositing the same in the sub-office of the collector at Corpus Christi in the Corpus Christi Division.

The case was immediately, in accordance with local rules, put on the trial calendar on November the 15th.

On December the 1st, the case was called for trial in the words of the judge for arraignment, actually.

And the defendant was called upon to plead at which time he plead not guilty, asking secured leave of the Court to — to have until January the 3rd, 1955 within which he filed such motion as might be thought to be appropriate.

Before the expiration of that time, the defendant filed for a motion with the Court — with the clerk, a motion for discovery, a motion for particulars, a motion for — for production and inspection of documents, a motion for subpoena duces tecum, and lastly, a motion for change of venue from the Corpus Christi Division in the Southern District to the Laredo Division in the Southern District.

The — the Court had given the Government 14 days within which to reply to such motions as it might be filed.

Then timely, the Government filed opposition to each of the motions including an opposition to the motion for change of venue, the venue motion being the change of being under Rule 21 (a) on the allegation that there were so greater prejudice against the defendant in the Corpus Christi Division that he could not there secure a fair trial, and with a prayer that it be moved to Laredo Division.

The Government countered that motion by saying that there was no prejudism in the Corpus Christi Division.

That if there was prejudice in the Corpus Christi Division, there was equally as much prejudice against the defendant in the Laredo, the Victoria and the Brownsville Division.

That actually, if the defendant wanted to change a venue where he could get a fair trial, the Government suggested it should go to the Houston or the Galveston Division where they said, “We — we know more about than you do, about where you — where you can get a fair trial.”

And so, the Government resisted the motion for change of venue only to the extent that they said — they — they chose Houston and Galveston.

Now, that’s important, if Your Honors please, because that’s where the indictment that I have spoken of was actually returned in the Houston Division, 30 — 30 miles between Houston and Galveston, the same news media in — in both areas.

But they only set, if it was to be set anywhere, first of all, it should be kept at Corpus Christi.

If it was to be set anywhere, it should be set to Houston or — to the Houston Division or — or the Galveston Division and so the Government contended.

And the defendant contended in his motion and it — and it was supported by numerous, a hundred, over a hundred affidavits although 500 newspaper clippings, that not only could he not secure a fair trial in the Corpus Christi Division, but that every other division in the District had been polluted to perhaps a lesser extent with this news media, this terrific publicity that the Court found had attended upon the defendant for years and years down there.

That the only place that, if it was to be transferred, that the defendant wanted to be transferred was to Laredo Division.

Now, it’s maybe important, if your Honors please, to remember that the defendant’s home — home is about halfway between Corpus Christi, which is where court is held in the Corpus Christi Division, and Laredo where court is held in Laredo Division.

There was a contest as I’ve said.

The Government severely contested the motion for change.

Now, the Government never did in their motion contesting them in their reply to the motion for moving for a change of venue.

Everett L. Looney:

They never did once say that the Government could not get a fair and impartial trial in Laredo if the case was transferred to Laredo.

They did in their brief, subsequently, say, not in their contest to the motion but in their brief.

They did say that the Government might be, under a severe handicap in the trial of the case at Laredo, should it be transferred to Laredo.

Now, that was filed in early January.

On April the 27th, Judge Kennerly, a retire judged, to whom the matter had been transferred for hearing by Judge Allred, the presiding judge of that division, took up the entire matter and found specifically.

He said, “It’s not only shown about preponderance of evidence, but I have no doubt but that the defendant could not receive at the hands of a jury selected in the matter provided a fair trial in the Corpus Christi Division.”

He says, “The Government suggested I send it to Houston or Galveston.

They oppose my sending it to Victoria, Brownsville or — or Victoria, Brownsville and — and Laredo.”

The Government opposes that.

Now, I find no — he says, “I find no support for the charge or the contention made in the Government’s brief that the Government would be under any handicap, under the slightest handicap, if this case would be tried to — transferred to Laredo for trial.”

He said that “I am of the opinion that Rule 21 (a), authorizing a transfer does not authorize and neither transfer it anywhere, except Laredo under the motion because the defendant has only conceded to be tried out of this district in the motion which designates Laredo.”

He went on to say that, “From the evidence that I’ve heard here, if it was within my power, I would transfer the case to Texarkana.”

That’s on the northern limit of Texas, northeastern limit, or to Amarillo which is on the northwestern limit of — tip of Texas are as far away from the seat of trouble as I could.

But as I can see the rule, I’m — I’m going to see to keep it at Corpus Christi or I must transfer it to Laredo, and finding no reason — no reason why the Government would be under any sort of a handicap if it goes to Laredo, I transfer it to Laredo.

Now, that was on April the 27th, 1955.

On May the 3rd, 1955, the Attorney General of the United States sent a telegram to — to the United States Attorney for the Southern District of Texas in care of the United States Attorney for the Western District of Texas in which he said — what page is that?

21.

Everett L. Looney:

In which he said this, “Hella tight rush.”

It was sent at 9:17 a.m. Eastern Standard Time, May the 3rd, 1955.

Malcolm R. Wilkey, the District Attorney for the Southern District, tell the United States Attorney at San Antonio, the District Attorney for the Western District, “You are authorized to dismiss indictment pending in Southern District of Texas against George B. Parr for violations of Section 145 (b) Internal Revenue Code 1939 if and when the indictment returned in Western District, signed H. Brian Holland, the Assistant Attorney General.”

Felix Frankfurter:

If and when what?

If —

Everett L. Looney:

If and when and in — the indictment is returned in the Western District.

Now, the indictment was returned subsequent to 9:17 a.m. Central Standard Time — Eastern Standard Time, 8:30 when — was when the telegram was received, Central Standard Time at San Antonio.

The indictment was returned by the grand jury between that time in 5 o’clock that afternoon of May the 3rd, or on May — at 5 o’clock that afternoon, Mr. Wilkey, the District Attorney for the Southern District of Texas, he was in attendance before a grand jury in the Western District of Texas, telephoned long distance to Judge Allred who preside at Corpus Christi and requested that the indictment there pending be dismissed, advising him that — that the Western District had returned the second indictment, and that he wanted it dismissed.

And, that Judge Allred in the memorandum that was filed, directed him to file a motion in the usual way, setting forth his reasons for it and which motion was found on May 4th.

And Judge Allred on that day, signing business — court business at Brownsville and not as if enough time to take it up, transferred the motion to Judge Kennerly to the Southern District at Houston to pass on the motion to dismiss.

Now, prior to 5 — subsequent to 5 o’clock of May the 4th or May the 3rd, the date of the indictment, we learned, I learned of the return of the indictment from the press.

And I called Judge Allred and told him that in view of what had happened, I had — I assumed that they were — that the Government was planning on seeking an indictment of the — seeking a dismissal of the first indictment, and advised the judge that the defendant wished to be heard in opposition to that move if that move was made at which time he advised me that the United States Attorney for the Southern District had previously called him from San Antonio and told him that that was the move he has to make, that he was going to make.

And so, the order of transfer to Judge Kennerly for hearing gave the defendant the right, required that the defendant be given notice of the filing and he be placed on the motion, tell him to be disposed of in accordance with the local rules.

Felix Frankfurter:

The motion of transfer by Judge Allred to Judge Kennerly is taking on his own motion, is that it?

Everett L. Looney:

I did not understand you, sir.

Felix Frankfurter:

The transfer by Judge Allred of this motion to dismiss was taken by him without — without any adversary discussion.

Everett L. Looney:

That’s right, sir.

Felix Frankfurter:

And you have no quarrel about that?

Everett L. Looney:

No, sir, I have no quarrel about that.

Now, that was a sequence — sequence of events.

On — on May the 16th, if I recall the date, the motion came on to be heard before before Judge Kennerly at Houston.

At which time, the United States Attorney told the Court, once again, Judge Kennerly in this instance, the same as he’d told Judge Allred that the defendant has no standing to be heard on this motion that I’m — to present to you, but Judge Kennerly thought otherwise.

And the motion to file contained a statement of reasons for dismissal, and that is to say, accompany, it was a statement for reasons for dismissal.

Felix Frankfurter:

Was that in the record?

Everett L. Looney:

Yes, sir, that’s in the record.

Felix Frankfurter:

Where is it?

Everett L. Looney:

Page 22, if Your Honor please.

There, it stated the — it stated the — the facts that — that had been — that the District Attorney of San Antonio, they were about to change personnel due to change in the administration and — there.

And then, again, urged that some of the witnesses for the Government might be under some embarrass mode or he might not testify as freely at Laredo as they would — as they would testify in the Western District.

And they call to the Court’s attention that when they had lodged the indictment in the Corpus Christi Division, that neither the United States Attorney or the Attorney General had ever dreamed that the case might be transferred from the Corpus Christi Division.

They could — they couldn’t foresee that that might have happened, notwithstanding, of course, Rule 21 (a) provides for that in the — in — in any kind of case where prejudice may exist.

Now, Judge Kennerly, as it’s shown in the record, when he came on to hear that, he doubted — he’s doubted whether or not he had any discretion in the matter of either granting or denying the motion to dismiss.

He commented that for 24 years on the bench, both before and after the adoption and the effective date of Rule 21 (a), he had dismissed cases on motion of the Government Attorney without any hesitation and they never had failed to dismiss one.

What’s in the 48 (a).

Everett L. Looney:

What’s that?

48 (a).

Everett L. Looney:

Under Rule 48 (a), but he said that he had never failed to do that.

That’s the dismissal statute, which — which ruled — which rule by — of course provides that the United States Attorney can, by leave of the Court, dismiss a case provided that if after his trial has begun, it must not be done without the consent of the defendant.

Felix Frankfurter:

I believe that he dismissed the — the matter of course before there was a Rule 48 (a).

Everett L. Looney:

He said, “I — I have never hesitated doing it before there was Rule 48 (a) or since there was a Rule 48(a).”

Felix Frankfurter:

Well, that’s not a reason for innovation?

Everett L. Looney:

Yes sir.

That’s right, sir.

Felix Frankfurter:

What do you say about that, it was being practiced, as far as I know it, before there was a Rule 48 (a).

Everett L. Looney:

Yes, sir, that’s right.

Now, he said — he said, “The district attorney opposed us offering any evidence in support of our opposition to the dismissal.”

But the Court said, “If he had any discretion at all, then he should hear evidence if any party wanted to offer it.”

And we — over the protest of the district attorney developed evidence from the district attorney himself, that there had been no problem that had arisen since the time the first indictment was returned down to the time the second indictment was returned that made — gave him any problem of truth as to the first indictment, from his own — from his own testimony and from the — developed and shown in this record.

In other words, he wasn’t in a position of having found after his return of the first indictment that he lack proof in support of this first indictment on the basis of venue or some other person or some other reason, and that he could get that proof in the Western District.

That — his testimony show that that had nothing whatsoever to do with the unorthodox action that I think he took.

Now, of course, this case — this case never could have arisen if these recent things have happened prior to the effective date of the Rules of Criminal Procedure, which were became effective in March 1946.

Now, when — when Judge Kennerly went to announce his decision of dismissing, he said that “I can — the defendant — the defendant has offered no good reason, has shown no good reason why I should not dismiss this indictment, and if I have a discretion in the matter, I must exercise it and allow the indictment to be dismissed.”

Felix Frankfurter:

Mr. Looney, was there any suggestions that the Western District had no jurisdiction in fact to make any claim?

Everett L. Looney:

No, sir.

Felix Frankfurter:

In fact —

Everett L. Looney:

No, sir.

Felix Frankfurter:

— no indictment could, in good conscience, be brought in that District?

Everett L. Looney:

In good conscience, yes, I made that.

Felix Frankfurter:

In fact, I withdraw that.

By good conscience, I mean that there wasn’t jurisdiction so that the district attorney could make a choice when he would remember.

Everett L. Looney:

No, sir.

Your Honor, I think that — I think that initially, he certainly had the — the Attorney General could send it to either — either of the two district.

Felix Frankfurter:

That isn’t in the case.

Everett L. Looney:

No, sir.

That —

Felix Frankfurter:

It’s a theory of the jurisdiction in the Western District.

I understand —

Everett L. Looney:

No, sir.

Felix Frankfurter:

— your objection, but —

Everett L. Looney:

No sir, no sir.

The — except for the fact that the motion to transfer had been filed —

Felix Frankfurter:

I understand.

Everett L. Looney:

— and except for the fact that the Government had joined issue on that motion.

Felix Frankfurter:

But if there had been no prior proceedings, this indictment in the Western District couldn’t be attacked as without jurisdiction in that District.

Everett L. Looney:

Not at all.

Felix Frankfurter:

All right.

Everett L. Looney:

The — the — our point, if Your Honors please, is that when we filed a motion for change of venue, had the Government didn’t come forward even at that late day and said, “We want to dismiss this indictment.

We have indicted or we will indict somewhere else.”

I don’t believe, if Your Honors please, I had to quarrel in.

But when, Your Honors please, when they did — when they — what they did was they joined issue.

They contested us right down to the last, from December until April the 27th, with evidence offered by both sides.

And what our position is that when the — when the — that that contest of the right to change of venue was an election on their part, and if the venue then was fixed in Laredo for the trial of this offense.

Now, we don’t contend as the Government seems to believe that we contend, we don’t contend that after the venue had been changed from Corpus Christi to Laredo, that under no circumstances could the — could the Court give his lead to dismiss that indictment.

We make no such contention if the — there are many circumstances in which it would have authorized the — the trial court in the exercise of a sound discretion to have ordered or approved of the dismissal.

For instance, if — if the proof of venue something that happened, the witnesses have died or if the Government was unable to proove the facts sufficient for venue in the Corpus Christi, but after the first indictment was lodged in Corpus Christi, or a number of other reasons it might be that they could.

But we contend, if Your Honors please, that for the purpose as this record shows of directly circumventing, taking a short cut, as the — as the government counsel has pointed out in their brief, “we negated” is the language they used.

We negated the order of Judge Kennerly, transferring this case from Corpus Christi to Laredo by the simple expedient of going over and getting an indictment in another district and then coming back and dismissing the indictment first brought, although, we had contested you as best we could for four months and then we’d come — come out on the losing end of the order.

John M. Harlan:

The Government’s — the Government made no misrepresentation to Judge Kennerly at all as to their desire, whatever their reasons were, to try this case in the Western District, is it?

It was fully disclosed.

Everett L. Looney:

I know of no misrepresentations made.

No, sir, Your Honor.

John M. Harlan:

It was fully disclosed.

In other words, Judge Kennerly was within his discretion that he thought the Government is trying to evade his order into a (Inaudible) that he could have denied the motion as a matter of discretion, wouldn’t he?

Everett L. Looney:

And we think he should, if Your Honor please, for that very reason.

John M. Harlan:

Do you think he thought he did — he would have done that if he thought he’d had the power (Voice Overlap) —

Everett L. Looney:

I think he’s — I think his overall opinion delivered from the bench shows that he thought his authority was very narrowly restricted.

Felix Frankfurter:

Are you — I beg your pardon.

Are you contending that in fact Judge Kennerly has discretion, where the District Judge had a discretion under 48 (a) to grant or deny a motion to dismiss?

Everett L. Looney:

I think he —

Felix Frankfurter:

That — that having such a discretion, in fact, Judge Kennerly did not exercise it, is —

Everett L. Looney:

That’s —

Felix Frankfurter:

— that your position?

Everett L. Looney:

— that’s our position, sir.

Felix Frankfurter:

And therefore, the case should be sent back to him —

Everett L. Looney:

No, sir.

Felix Frankfurter:

— and be told by us that he should exercise his discretion, is that your position?

Everett L. Looney:

Our position, if Your Honor please, is — is that he didn’t in fact exercised his discretion —

Felix Frankfurter:

I understand that.

Everett L. Looney:

— but that there were — but there were no — no facts before him which would even — had he been exercising a discretion, which will have authorize him to — to dismiss for exercising a discretion under the circumstances — and says —

Felix Frankfurter:

I understand this case to be — he didn’t have a discretion.

Everett L. Looney:

Well, we say he had a discretion, if Your Honor please, but that the discretion that the evidence in the case all pointed to one fact, and that was that the Government was taking this action purely.

The record shows we say purely for the purposes of circumventing.

Felix Frankfurter:

What you’re saying is that under the circumstances of this case, a discretion ordinarily vested or vested by Rule 48 (a) to grant or deny a motion to dismiss by the — made by the Government.

That in this case, he had no discretion, except to deny that motion and that’s your position.

Everett L. Looney:

Under the — under the showing that was made before him.

Yes, sir.

Felix Frankfurter:

It was not that he didn’t exercise the discretion, but he had to exercise it the other way.

Everett L. Looney:

Well, actually, our position is somewhat vague due to the remarks I think perhaps of the — of the judge who said that if I have a discretion, I must exercise it and I must allow this dismissal.

And because he says, “Because the Defendant has shown no good reason why I should not dismiss it.”

Felix Frankfurter:

But I — I want to repeat my question but in a different form because it makes no — a good even difference.

Which is which here?

I can understand the position taken by you that on the — that from what Judge Kennerly said, you heard that in fact he didn’t exercise his discretion.

And for all unknowingly, becomes free to pass on this motion according to his own wisdom and sense of right, he might have denied the motion.

If that’s your position then the remedy that you have is to have the case sent back to him to exercise his discretion, but it’s a very different thing if you maintain that under 48 (a), which does give a Circuit — a District Judge of a District Court discretion.

In this case, he had only one — the discretion that only was a one-way street.

If it only refuse the motion or deny the motion out of two provisions that be taken at the same time.

I mean, your position in your term, but they are very different positions falling for different remedies.

Everett L. Looney:

I recognize that, Mr. Justice.

Our — our position is exactly as you stated it, that he didn’t exercised any — any discretion.

He didn’t exercise a discretion.

Felix Frankfurter:

And they’re forcing to be sent back to impress the charges?

Everett L. Looney:

And their — with this moderate step, I think properly.

And — but had he exercised a discretion that the — the Government wholly failed to show any reason for the dismissal, except to circumvent the order of transfer and then it shows on its phase that it should have been denied.

Everett L. Looney:

Now that — I — I don’t know whether I stated well enough.

Now —

Well, the Government did state there were reasons for the transfer.

Everett L. Looney:

Yes, sir.

They stated some reasons.

Hugo L. Black:

Have you never replied to those reasons?

Everett L. Looney:

Oh, yes.

Yes, indeed.

I filed a written opposition, if Your Honor please, to their motion to dismiss and I offered evidence by questioning the district attorney, which is in the record in which I think clearly demonstrates that the real reason for the dismissal —

Well — well, where is your — where is your paper of opposition?

I’m looking on page 22 where the statement of reasons for the dismissal here.

Where — where is your statement?

Everett L. Looney:

Page 30.

And then, there’s a — a written — following that on page 34, there’s a reported transcript of the proceedings had on the motion, if the Court please.

Now, what is the basis of your opposition?

Everett L. Looney:

My — the basis of my opposition, if Your Honors please, was that we had shown that prejudice existed in — in the Corpus Christi Division, showed greater prejudice the defendant couldn’t get a fair trial.

Number two, the Government had failed to show any reason why it should not be transferred to Laredo.

Now, I recognize the fact that — that the Court might well have refused to grant our motion if the Government would — the Government should have been put under any handicap or any prejudice by transferring it to Laredo.

And — and that what they were doing was merely — the — the Court — the rules not allowing them to move themselves for a transfer, that — that they were setting themselves up, the Attorney General’s Department, the United States Attorney, setting themselves up as an appellate tribunal to review the action of the trial court in granting that transfer.

Your — your real objection was — I see on page 32 but the United States Attorney did not say the statement of reasons.

He said he is or has been, since the moment it was pronounced, just pleaded to the ruling of this Court, moving this case from the Corpus Christi to the Laredo Division.

Everett L. Looney:

Yes, sir.

Now, that — did — did you have any other reason than that?

Everett L. Looney:

Any additional reasons to that?

Yes.

Everett L. Looney:

My — my reason, if Your Honor please, is that — that I urge is that the Attorney General has no right to review a District Judge’s order of transfer and to set aside, or as the Government says in their brief, to negate it by their expedient that they appear to fall in this case.

Now, there has been — there are — there are four — there are four different Supreme Courts, the Supreme Court of Louisiana, the Supreme Court of Mississippi, the Supreme Court of Alabama and the Supreme Court of Florida, that if condemned that very practice and said they won’t let it stand.

Those cases are cited in our brief.

That the — and then, there’s a case I’d like to call — call Your Honors attention to by the — by the Eighth Circuit, which is comparable that as language that I think is clearly pertinent to this.

Such acts, I say that his acts in opposing this motion to transfer, such acts are inconsistent with and oppose to any desire to transfer the case.

Everett L. Looney:

They are consistent only within intention to and amount to the further prosecution of the suit in the Court in which it then was.

Congress did not intend.

I would say that the Court in promulgating this and these rules, 21 (a), 21 (b), and 21 (c), Congress — that this Court did not intend that a party, the Government in this case, could voluntarily proceed in the Court where the suit was filed until he became dissatisfied and then transfer the case by the simple expedient of causing the first indictment to be dismissed after having such authority conditioned only on the return of a second indictment.

I think I have the — now, Your Honor, there are — I’m not going —

Felix Frankfurter:

I think if you put the Attorney General’s telegram or is that available to you before Judge Kennerly on this argument?

Everett L. Looney:

Yes, sir.

Felix Frankfurter:

That was before then.

Everett L. Looney:

It was filed with — by the district attorney with his motion to dismiss, believed to dismiss, and wtih his statement of reasons for desiring to dismiss.

Felix Frankfurter:

What you’ve asked — that’s what you had in mind, I take it in answering Justice Harlan’s question that the cards were all on the table.

Everett L. Looney:

They were all there, yes, sir.

Now — now, if Your Honors please, I — there’s some 70 odd cases.

I think all of us or both sides due an apology to the Court for having presumed to cite so many cases.

Actually, there is — there’s no court.

There’s no court.

Of course, I have been able to find to pass on this question except the — the United States District Court for the Southern District of Texas from which I appeal in the Circuit Court which decided it on a two to one decision that it was nonappealable order.

Now, I have — I have said that — I have said when I began, if Your Honors please, that I think this a — this is a question that resolved itself around a determination of what a right is, what a right vested by reason of these transfer of proceedings.

I have said that I think it’s a question of the integrity of the law on the one hand and the hypocrisy of the law on the other hand.

Integrity, certainly, is moral soundness, honesty, freedom from corrupting practice, equity, justice and fairness, that’s the integrity that I speak of.

The antonym of that term is hypocrisy.

Hypocrisy that I speak of is a playing the part on the stage, simulation, a feigned or fictitious transaction as one to affect a fraud or one done as a matter of form, outward showed.

And the antonym of hypocrisy is honesty.

Now, I say, if Your Honors please, that either when the Court adopted these rules and when they joined issue with us on this motion to transfer, and when we spent four long months before that Court that we were — either win or gained a right of substance when that order was transferred without their being able to show some reason, the real reason for dismissal or we were just going through form.

Harold Burton:

Are you entitled —

Everett L. Looney:

We —

Harold Burton:

— to be tried in any one place —

Everett L. Looney:

Sir?

Harold Burton:

— except on — are you entitled to be tried in any one place except on the reasons of venue and prejudice?

If you’re — if you’re given a place where you can’t raise any question as to whether or not the prejudice exists against you and venue exists there, you have any right to — to be tried in any one place than that.

Everett L. Looney:

I have no right to be tried at any one place, if Your Honor please, unless procedurely under these rules when the case was transferred down there by the Court given the power to act on it, unless we get that procedural right, which is a valuable right, and which should not be taken away from us unless the Government showed some reason, some reason of basis to the — to Judge Kennerly why he — he should authorize this — this circumventing of Judge Kennerly’s order.

And I say it’s very valuable procedural right and if the defendant has got the right to be tried according to the law as if they have proposition.

Everett L. Looney:

Thank you, sir.

Earl Warren:

Mr. Thoron.

Gray Thoron:

May it please the Court.

One key fact we submit has not been called to Your Honors attention.

No mention of this fact has been made in petitioner’s brief.

No mention of this fact has been made in petitioner’s reply brief even though the Government’s brief puts highlights to this fact by putting it in the headings of the argument.

If Your Honors will turn to page 78 of the record, that is Judge Kennerly’s opinion in which he granted the motion, the Government’s motion to dismiss the indictment of Southern District.

Halfway down the page, on page 78, he states, he makes reference to the order which he entered granting the change of venue from Corpus Christi to Laredo.

And he makes this statement, this is the third paragraph on that page, “In reaching that conclusion, or rather in examining the record, I reach this further conclusion that I gravely doubted whether in the administration of justice, generally, the case should be tried in this district at all.

I reach this conclusion not as favoring, either the Government or the defendant, but more from the standpoint of a judge who is charged with the administration of justice in the district.”

He goes on to state that when he came to examine the law, he was, of the view, he was without power to transfer the case outside of the Southern District of Texas, because petitioner on this Court, the defendant below, stated explicitly, and that is on page 17 of the record, “We wish to be clearly understood that if — if the case is not to be transferred to Laredo, we prefer that it remained in Corpus Christi.”

That key finding that the interest of justice would be best served by having the case tried outside the Southern District.

We believe it puts a very different light on what happened here.

That is really the key finding and no mention is made of it in either the brief or the reply brief which the petitioner has find.

We assume that petitioner considers this fact immaterial to the — to his potential, to his position.

But we do not see how this case can be consideredother than in connection with this particular fact-finding.

Now, what is this fact-finding based on that it was in the best interest?

We can go on, on page 78 and 79 of the record.

He said, “If I had authority, I would have sent the case elsewhere.”

Mr. Looney called that to Your Honors attention, to send it to some of those places as far removed from the scene of the trouble as I could or as I could find.

This is at the top of page 79 of the record, “I would have done that, not as a favor either to the defendant or the Government, but because I feel that justice in the case would be best administered by transferring the case to one of these places.”

Now, in evaluating, a lot of reference has been made to the extent to which the cards relayed on the table, I think the opposition concedes that the — know that — but all the facts were before the Court, the Government filed the Assistant Attorney General Holland’s telegram with its motion.

It filed written reasons for its motion to dismiss set forth on pages 22 to 27 of the record.

It gave extensive oral reasons at the hearing, which Your Honors will find on pages 39 to 43 of the record, and throughout this, throughout the statement of reasons, it’s made very clear that the — the Government’s thinking was highly collared by the decision of the Court to transfer the motion — to — to transfer the prosecution to Laredo, a division in which petitioner was reputed to have a very substantial degree of political power.

We have set forth in the appendix to our brief, pages 77 to 82, two interesting affidavits which were filed by Mr. Hayden Head, a leading lawyer in Corpus Christi, one filed by petitioner in which Mr. Head said, “Though I am an opponent, I have engaged in political opposition to the petitioner.

I, as a lawyer, want to be sure that he has a fair trial”.

It seems that the publicity which was developed in Corpus Christi makes that a very doubtful whether a fair trial could be held in the Corpus Christi Division.

At the same time, he provided the Government with an affidavit that for the same reason — it’s on page 81 — it is my equally firm opinion that the United States of America could not obtain a fair and impartial trial if the trial of the courts against George B. Parr were transferred to the Laredo Division of this Court.

On page 82, the situation is the converse in Laredo of the situation in the Corpus Christi Division.

There’s a — these affidavits were filed after the petitioner had made it clear that he wanted transfer to Laredo only, and if he was content to remain in Corpus rather than transfer somewhere else.

Gray Thoron:

We call attention to the Government’s position laying all its cards on the table, page 124 of the printed record.

This was the Government’s reply to petitioner’s application for change of venue, in which on page 124, the reply analyzes the basis of the prejudice which — on which petitioner was claiming the right to transfer, the prejudice being alleged to arise principle.

Are you then saying that the reason the Government dismissed this case was in order to get a change of venue?

Gray Thoron:

The Government dismissed this case because they felt that the prosecution should better proceed in the Western District of Texas or anywhere other than in the Laredo Division.

That is correct.

We’ve stated it before the — Judge Kennerly.

We stated it in every brief that we filed.

That is our — that’s — that was a motivating factor that caused the Government to reevaluate their position.

Earl Warren:

Because the Government felt it should not get a fair trial?

Gray Thoron:

That was the Government’s feeling.

Now, Judge Kennerly did say on page 19 of the record.

That was in his opinion when he transferred the — the case to Laredo, “I do not think that the evidence shows that the Government either will or might be under a severe handicap in the prosecution of this case as claimed.

I find to the contrary, although, such lawyers as Mr. Hayden Head whom I have cited, Mr. (Inaudible), a leading trial lawyer in Corpus Christi who has tried cases all over the Southern District, made similar affidavits.”

I think on balance, if there was only a choice between two districts, as Judge Kennerly thought, that in fairness to defendants, should perhaps if there’s any doubt, the advantage should be given to the defendant.

But the position the Government took, as I was calling to Your Honors attention on page 124, we do not oppose transfer to secure a fair trial.

That’s at the bottom of page 124, a transfer to secure a fair trial the Government does not oppose and suggested this Court should be transferred to Houston, Galveston or some point outside the Southern District where according to defendant’s own facts and theory, a fair and impartial trial may be held.

Felix Frankfurter:

Mr. Thoron, can you please tell us qualitatively or with fair confidence what the law is, whether the district judgment by the rules of statutes cannot transfer outside of Judge Kennerly’s side?

Gray Thoron:

The —

Felix Frankfurter:

What is the — what is the law if you —

Gray Thoron:

They —

Felix Frankfurter:

— would clear on that case?

Gray Thoron:

The law, as we understand it, the law as we cite it on page 68 of our brief, pages 68 and 69, where we quote the Advisory Committee to the — for the Rules of Criminal Procedure.

The note on Rule 21, it was stated by the Advisory Committee by making a motion for a change of venue, however, the defendant waives the constitutional right to be tried in the district in which the crime is alleged to have occurred.

Now, that must be solved because all you would have to do in order to — all the defendant would have to do in order to pick a — a very favorable place for trial, it’s relatively easy to, in any crime, which gives rise to a lot of emotions, to establish a probability of prejudice where a lot of publicity is given to the crime.

It would invite shopping, venue shopping by defendants.

It’s — it’s known that certain judges have very disparate views of what a proper sentence within legal limits says on a particular type of offense to suggest an invitation to a defendant to — if he can establish a real question that he might get a fair trial, that he might be unable to get a fairly chosen jury in a particular district, choose a district in which a judge had a reputation for being a relatively easier sentencer than in some other districts.

You have different views on — in different parts of the country on the seriousness of particular crimes.

In my own State of Texas, the crimes involving where there has been a fight over a lady and a killing results, the jury is a notoriously very lenient, and the prosecution for — though I don’t see a federal offense there, a prosecution for that in one district might be very dishonorable from the defendant’s point of view if he could select his district.

In other words, we don’t believe that the rules over contemplate selecting one district and say, “We established a possibility or probability of prejudice.

We want to be tried in one district and this is the only one,” and that’s what Judge Kennerly’s interpretation of his power was.

Felix Frankfurter:

I suppose from the point of view of the petitioner, it doesn’t make any difference that Judge Kennerly may have misconceived the quote or his power under Rule 21, does it?

Gray Thoron:

Well, we — if — if by any chance — if he misconceived his power under Rule 48 as well as Rule 21, so that the case had to go back and we’re going to very vigorously assert there was no misconception part and this was the only result that could be held.

The case ought to go back with an instruction as to the scope of its power under Rule 21, as well, because the — he specifically stated in the record and in his opinion, “If I have the power, I’d have transferred to an area away from the route of the intense feeling about this particular controversial individual.

Felix Frankfurter:

(Voice Overlap) —

Gray Thoron:

And that — and we stand very — that was our position that we would be pleased with such a transfer if in the Southern District, we will not oppose such a transfer in the Western District to an area away from the South Texas area where it mystifies a controversial thing.

Felix Frankfurter:

But maybe if Judge Kennerly misconceived the scope of Rule (a) or 21 (a), and the meaning of which I understand the petition of — the interpretation given to it by petitioner is that — that the way it was is so-called that that could be demonstrated is — waived a little bit to the choice of another venue if we could (Inaudible) he wants to, no more.

Assuming he was wrong in that, and assuming whether he was wrong, the district would be with that and under Rule 48 (a) and it might go back and the result might turn out to be exactly what we have now.

It wouldn’t — that wouldn’t be an answer to the fact that the judge should act suppose to the rule which he imposed upon him and not otherwise.

Gray Thoron:

The — the —

Felix Frankfurter:

I mean, you might get exactly the same result, and yet, because that might and it might not be if you — to have enact according to law.

Assuming he didn’t and we won’t need it.

Gray Thoron:

That — that is a possibility.

Though, if it comes on before Judge Kennerly, I — of course, all these would be subject to reexamination.

I think he was very strongly of the view that the interest of justice on — at statement on page 78 of the record to which I have already referred that the best interest of justice is served by having the case tried away from this area.

Felix Frankfurter:

It makes a difference that he would get the same results the right way to turn —

Gray Thoron:

I don’t think it will be the same result.

His —

Felix Frankfurter:

It might be the right —

Gray Thoron:

His — his —

Felix Frankfurter:

The right way is important.

Gray Thoron:

The — the right procedural route is extremely important.

We — we believe the result which if — if that above would be a transfer to the Northern District on the — or — or to the Eastern District of Texas or possibly to the eastern most divisions of the Southern District.

Do you point it out in the term on the following brief on the legal points as to the appellant to transfer it outside the Southern District?

Gray Thoron:

You say — was the brief on that filed in the District Court?

Yes, if the Government tried to make that issue with the judge and the judge says, I don’t have the power, so I have to transfer it to Houston and (Inaudible), I suppose it is.

Gray Thoron:

I haven’t seen the briefs that were filed.

I know that it was vigorously argued in the — in the record that — that such a — that he had — that you could not have a limited waiver.

That was the Government’s basic objection to the change of venue motion.

They questioned whether, in fact, the claim of prejudice in the Corpus Christi Division has been made up, but we have no objection to a change of venue to a district that is wholly fair to both sides.

What we object to is a change to Laredo.

Gray Thoron:

The — you cannot have to select, a defendant cannot select the one district to which he is to have a trial if he makes out a case justifying transfer.

Well, why don’t you turn the — I know hindsight is better of course but, why don’t you turn in that before you met that issue or what the issue wasn’t in the — on the change of venue?

Gray Thoron:

I’m not sure that I quite follow Your Honor’s question.

So, after he generally said again, “You — how you have decided to the best interest as to turning back another indictments and claim.”

Gray Thoron:

That was on the peculiar facts of this particular case.

Why didn’t you do that when you first learned that he was going to try a part and then try to change the venue to Laredo?

Gray Thoron:

I — of course, I had nothing to do with the case at that time, but I think from reading the — the files on the the matter, it’s obvious that the Government was — couldn’t conceive that — that transfer would be made to Laredo.

They felt it can be transferred to any district which would be fair to both sides, and this particular — this particular development was not anticipated.

And not being anticipated, the Government makes no secret of the fact, but they felt this was the only way they could meet it, feeling no appealable order had been entered from a motion for a change of — of venue, which they felt was improperly decided and decided on the basis of an improper understanding of the law.

The judge said, “If I have the power, I would have transferred it away from the Southern District.

I don’t have the power therefore, I transferred it to Laredo.”

And that of course was a clear error.

But in a number of situations in criminal cases, the Government has no right to appeal and the — the Government could not appeal from an acquittal.

But this was the only — the Government has a broad area in which they think that a fair trial can be held.

It’s just in this — this — the — the peculiarities of this particular case as brought out in the affidavits, we have filed as we called to the Court’s attention in a footnote on pages — I thought it’s about page 12 or 13 — I’m in page into what we filed the — the affidavits which the Government filed with Judge Kennerly.

There are approximately 100 of them.

We filed certified photostats of those affidavits.

They are part of the record which Judge Kennerly had when he ended his order.

John M. Harlan:

Neither of you gentlemen has said a word yet about the appealability of this order.

Gray Thoron:

The appealability to us presents a very serious question, although, as we state in the — in our brief, we would prefer — the Government would prefer in this case since the question has been raised to have a decision on the merits.

We don’t — we strenuously urge the question of appealability in the Court of Appeals because it looked to us as if this move was one that would result in substantial delay of bringing the case to trial.

But now that we are here before the Court, we would prefer a decision on the merits.

We have — even though we doubt very much that the case is promptly appealable, we have one authority which we have discovered since we filed our brief which would justify the Court deciding the case on the merits where we think we’re on very solid ground.

We’re now reaching the more difficult question of appealability, and that is the case, last term of Norwood against Kirkpatrick in which Mr. Justice Minton wrote for a majority of this Court, the case involving a difficult question of the interpretation –-

William O. Douglas:

What’s the citation of this?

Gray Thoron:

The — 349 U.S., 349 of U.S.of page 29, Norwood against Kirkpatrick.

In that case, the question before the Court on the merits was whether a motion to transfer a civil action for the convenience of the parties and witnesses under Section 1404 (a) of the Judicial Code had been properly granted.

The District Judge in that case had said, “In the — in my Circuit, the Court has interpreted the Section 1404 (a) in a way that requires me to transfer.”

I believe this interpretation is erroneous, and if I could have applied my own interpretation, I would deny the transfer.

The order appeared to be nonappealable, and so, the plaintiff in that case was trying to avoid transfer, applied to the Third Circuit for writs of mandamus and prohibition against Judge Kirkpatrick who entered the order.

Gray Thoron:

The — this Court, with Mr. Justice Minton speaking for the majority, held that the section had been properly construed by the Third Circuit and properly applied by the District Judge.

In other words, answered the question on the merit and then stated, “Since the District Judge properly construed his power, it is unnecessary to pass on the question of whether mandamus or prohibition is a proper remedy.”

Mr. Justice Clark filed a dissenting opinion which was concurred in by two other members of the Court in which he pointed out that the issue was one which should be settled, and he also pointed out that every appellate court which had passed on the interpretation of this section had implicitly recognized the necessity for settling the issue, whether they had considered that the matter was appealable or properly erasable by prerogative writ.

Since we have what we think is an easy question in this case on the merits and a difficult —

(Inaudible)

Gray Thoron:

What — what was that, Your Honor?

It was in the question that (Inaudible)

Gray Thoron:

There was a very difficult question of the propriety of the use of mandamus or prohibition.

It wasn’t a question of (Inaudible)

Gray Thoron:

The — the petitioner in this case has also applied for mandamus and prohibition, and though we consider that’s an improper remedy here, we think there’s an analogy if we are entitled to it.

We’d prefer this, the issues in the case.

It’s obviously going to be raised in the West — it has already been raised in the Western District.

The District Judge in the Western District prosecution has denied the motion to transfer the Western District prosecution to the — to Laredo or in the alternative, to Corpus Christi.

On pages 87 and 88 of the record, petitioner makes his point position clear, that was his petition for mandamus and prohibition filed in the Firth Circuit.

At the bottom of page 87, he states that his motions in the Western District, that’s on the second indictment, to transfer to the Southern District.

We based on the contention that the Western District had no jurisdiction of the defendant to trial, what Mr. Justice Frankfurter referred to as a spurious jurisdictional issue.

No jurisdiction of the defendant to try him under the indictment charging an offense identical with the offense charged in the Southern District.

Since exclusive jurisdiction in venue of defendant for such offense was in the Southern District of Laredo, he goes on to explain or he explains above that this claim is based on the venue order, which having been entered by Judge Kennerly, he claims forecloses, a part in the Western District to try the case.

Now, to — if — if our suggestion, and we advanced with hesitation that the technique of the Norwood case —

Felix Frankfurter:

I don’t follow what the technique means.

It means that there are easy question on the merit itself that you don’t go to the question of appealability, is that it?

Gray Thoron:

That’s —

Felix Frankfurter:

That technique is a good word for that (Voice Overlap), but it means it doesn’t shoulder off the problem.

Gray Thoron:

I was a little startled when I — perhaps, I have misread the opinion, but it — it certainly — it’s — it’s as Mr. Justice Clark stated in his dissent, this is the kind of issue which should be settled.

And since we have an issue here that has been briefed and argued and was before this Court, we offer that as a possible route.

But if that route is unavailable, we have great difficulty saying that a properly appealable question —

John M. Harlan:

Well, you argued it.

Gray Thoron:

— has been —

John M. Harlan:

You argued it —

Gray Thoron:

— submitted.

John M. Harlan:

— in your brief.

You argue it in your brief that he reports —

Gray Thoron:

We — and we argue and I’m prepared to argue it here —

John M. Harlan:

(Voice Overlap).

Gray Thoron:

— in this case, that’s — that the issues are not properly appealable, but I wanted to make it clear that that the Government would — if we’re entitled to it, would like a ruling on the merits.

We’re not trying to avoid a ruling on the merits.

We’ve been directed by this Court to brief and argue the question of appealability.

And it’s on — we feel compelled to — to bring it forward and our analysis indicates that the order is not appealable.

Felix Frankfurter:

If I having read the page, in which if it isn’t appealable now, it’s never appealable.

Gray Thoron:

It depends on the nature.

Felix Frankfurter:

The more practical preference.

Gray Thoron:

Your Honor, it depends on the nature of petitioner’s claim which we have a hard time exactly tying him down to it.

Certainly, in the — in the Western District and in his argument to which I just referred, which he presented to the Fifth Circuit in his petition for mandamus and prohibition, he took the position that Judge Kennerly’s order, transferring the case to Laredo, gave him a vested right not to be tried anywhere, except in Laredo.

Now, if that is true, if that’s sound and we can’t see how it’s possibly sound, but if it is sound, then the Southern — the Western District’s judges’ refusal to sustain that contention is just like a refusal to — to sustain a claim of immunity to — from prosecution or a claim of a defense of double jeopardy, or — or any jurisdictional defense involved.

It’s — it’s overruled.

The case goes to trial.

An appeal is taken, and one of the points — and there’s a conviction, the appeal was — was taken.

One of the points on the appeal is there was error in overruling the motion to dismiss.

There was a motion to dismiss the Western District indictment.

An error in overruling the motion to — it’s a transfer.

If it’s a vested right, then it can be reviewed on appeal.

Now —

Earl Warren:

Mr. Thoron, before you get to another subject, let me get back to the merits of this dismissal.

As I understood you, the basis of your proceeding to dismiss was that you couldn’t get a fair trial in Laredo.

Gray Thoron:

We — we —

Earl Warren:

Now, where —

Gray Thoron:

We — we thought the case was much harder.

The Government’s —

Earl Warren:

No, you didn’t say that a little while ago.

Gray Thoron:

Well —

Earl Warren:

You said the basis of it as I understood it —

Gray Thoron:

I think — I think I have to admit —

Earl Warren:

May I — may I ask —

Gray Thoron:

— the — the — that the basis was a feeling that the trial would not be fair.

We certainly filed a lot of affidavits to that effect.

Earl Warren:

Now, where — where in your — where was your representation to the Court on your dismissal proceedings?

Gray Thoron:

There — there are — there are several — on the statement of reasons, written statement of reasons, pages 22 to 26 —

Earl Warren:

Yes, will you point out the language to me, please?

Gray Thoron:

Perhaps I can do better in pointing out the language on pages 39 and 42.

I would have said it was implicit in that —

Earl Warren:

Let me put — let me put it this way.

Did you — did you state in your statement of reasons for dismissal that the reason you wanted to dismiss was because you could not get a fair trial in Laredo?

Gray Thoron:

I doubt if it was in — in — in those words, and perhaps it should have been, but it’s certainly implicit on our statement in pages 40 and 41 where —

Earl Warren:

Well, why shouldn’t — why shouldn’t it be implicit?

Why shouldn’t it had been said in your — in your motion that you filed on May 4th, 1955, if — if that contained the statement of your reasons for dismissal as it says it does?

Gray Thoron:

The — it had been an issue which — which Judge Kennerly had apparently decided against us and in the Southern District whether we should have used a little different litigations strategy, that’s a — from hindsight, maybe we should have.

Earl Warren:

But I thought you said you laid all the cards —

Gray Thoron:

Well, I — I have just said —

Earl Warren:

— on the table, so I’m wondering why —

Gray Thoron:

— that — that they just placed the cards —

Earl Warren:

— you didn’t lay it on the table in your statement.

Gray Thoron:

— on the table on — on pages 40 and 41.

Earl Warren:

What is that document?

Gray Thoron:

And he says that this is the oral presentation by the United States Attorney, before Judge Kennerly, in the hearing on the motion to dismiss.

He starts on page 40 — page 39 when they — with this statement.

Now, I should like to point out to the Court, and I think the Attorney General owes a duty to the Court to point out the reasons why the Attorney General made the decision to ask leave of the Court to dismiss in the Southern District.

Among these reasons are these, the first reason, I think, is very pertinent or was had to do with the change of personnel in the Western District, but that explains why the indictment was first brought in the Southern District.

Earl Warren:

Yes.

Gray Thoron:

But the second and third reasons, which I’m particularly pointing out, Your Honor.

Felix Frankfurter:

Where are you reading from, Mr. Thoron?

Gray Thoron:

What is that, Your Honor?

Felix Frankfurter:

Where are you reading from?

Gray Thoron:

The United States Attorney’s of —

Felix Frankfurter:

What page and where?

Gray Thoron:

Pages 40 and 41 of the record, and the last paragraph on page 40.

A second thing of importance in the Attorney General’s consideration has been the change in the case from trial at Corpus Christi to Laredo.

And I pointed out some reasons here as to why they thought the defendant would be satisfied with the choice of trial in his own district.

He points out the — on the middle of page 41, “There’s a third thing that affects not only the composition of the jury panel, but it’s also the problem of witnesses in this case.”

Without revealing in great detail the nature of the Government’s case, he points out it were based on testimony of witnesses who are residents, long time acquaintances and friends of the defendant.

We feel that the trial in this case, towards the bottom of page 41 in Laredo, “close to the defendant’s seat of political power and with his associations there, would have an adverse effect on eliciting truth from the witnesses the Government will be forced to bring in order to establish this case.”

Three lines further down, “We feel that these witnesses will testify more freely, more honestly, more frankly, more than the truth of the matters, which should be proved in this case, the further removed they are from the district in which Laredo is located.”

That’s — that’s a — it waws a pretty strong statement it seemed to me on the fourth reason of newspaper publicity.

Earl Warren:

It might have been — it might have been that they had — that they taken it away from the — from the Mexican-American border in the first instance, but they — they initiated the proceeding on the border, didn’t they?

Gray Thoron:

Corpus Christi is about 150 miles from Laredo.

Earl Warren:

Yes.

Gray Thoron:

160 miles —

Earl Warren:

Fairly speaking, that’s — that’s 40 —

Gray Thoron:

It’s — it’s — there — they’re certainly is closer to the —

Earl Warren:

But you didn’t say exactly on the border.

You said the farther removed they are from the American-Mexican border district —

Gray Thoron:

Border, that — that’s right.

Earl Warren:

— district.

Gray Thoron:

That’s right.

Well, the — actually, there are parts of the Southern District of Texas which are in that area, and Houston and Galveston in — in parts of the Western District which were in that area, Del Rio Division, and Houston and Galveston which were in the Southern District are not in the — in the border area.

In other words, I think district was not used as technical sense.

Earl Warren:

You said border, American-Mexican border district.

Gray Thoron:

That’s right.

In the geographical sense, that covers the whole real —

Earl Warren:

You weren’t considering the — the Judicial District there?

Gray Thoron:

I would — I would interpret that as not being coterminous with the Judicial District as a matter of — as a matter of common parlance.

Gray Thoron:

Again, I’m faced with a — with a statement, which I have to interpret just as Your Honor does and though I have some familiarity with Texas geography, I assume it’s a geographical turf.

If I’m wrong on that, the Western District — parts of the Western District should be included to El Paso, Del Rio, both portions.

Other parts are — are far away from it.

I think our position is clear if we didn’t state it as — as — this is — this is what we stated.

This is what we stand and fall on.

Earl Warren:

But my — my question was, did you state it at all in the written document which you’ve filed as a statement for your reasons for dismissal?

Did you cite the thing that you say is the basic reason for the — for the Government?

The reason I asked you that is because I noticed in — in your written statements that you say this, “The decision of the Attorney General to initiate proceedings in the Western District of Texas, in no way, is to be construed as an evasion of the ruling of the Court transferring venue from Corpus Christi to Laredo.”

Gray Thoron:

That — that —

Earl Warren:

Now, how is —

Gray Thoron:

That is our position.

Earl Warren:

How can —

Gray Thoron:

We are not evading.

Earl Warren:

— you justify that with your other position?

Gray Thoron:

We — again, it’s a matter — it’s a matter of — of words and if I use the wrong words there, if we haven’t told Judge Kennerly, but we feel that our case has become more difficult by Your Honor’s ruling, we think we have a choice.

The rules appear to give us a choice as to where we may bring the prosecution.

If it hadn’t been for Your Honor’s ruling upon the venue of motion, we wouldn’t be here.

We were urging if they couldn’t get a fair trial in Corpus Christi, transfer it away from this area and that we didn’t oppose, and we still don’t.

And this is the reason why obviously this — this motion was made and Judge Kennerly understood it as such.

And I think there’s — I think there’s — there’s no doubt that the — the Government felt their case is heard by transfer to Laredo.

Earl Warren:

But as a matter of fact, the motion to dismiss and the reindictment in Austin, Texas was for the purpose of evading the ruling of the Court, transferring the venue from Corpus Christi to Laredo, was it not?

Gray Thoron:

It was — it was for the purpose of doing what we thought the judge wanted to do but felt — it was — it was to get around the — the ruling, no doubt about it.

If we are not entitled to that, there’s been error in this case.

I think there’s — there’s no question that that was the controlling factor.

You evaluate the strength of your case as matters develop, and certainly, the effect of this thing is to have trial away from Laredo.

That raises it.

Felix Frankfurter:

Was this — was this document written by tax people, whether they reflect to the tax?

You look for the term “evasion” as against the —

Gray Thoron:

Which — not — not this brief.

I — I have the —

Felix Frankfurter:

I didn’t mean the brief, I mean this document when we talk about evasion.

Gray Thoron:

I — I understood the — the —

Felix Frankfurter:

Well, how would we naturally think of evasion that’s something the law forbid?

What he wanted to say, he was not doing this thing in order to violate the law.

Gray Thoron:

That — that is — that is correct.

If — if we had no right to do this avoidance, if we used it, if we use the tax term between evasion and avoidance.

Certainly, this was to avoid the impact of Judge — Judge Kennerly’s order and he understood that as such as we submit by a reading of his opinion.

Earl Warren:

Well, he wouldn’t be entitled to understand it unless you got it from — from your representations in the statement, would he?

Gray Thoron:

That’s right.

And — and we think certainly those matters set forth orally on pages 39, 40, 41, 42, and 43 of the record.

Felix Frankfurter:

The — the statement that was made doesn’t prove that in Texas, they used (Inaudible)

Gray Thoron:

No, no, Your Honor.

I won’t make any such — any such claim.

To get back to Mr. Justice Harlan’s questions on appealability, if I may, the — if the claims are — are vested right to trial in Laredo, then it seems to me that the only way in which our petitioner has been injured, he may be forced to go through a trial.

Assuming his claim is — is valid, he may be forced to go through a trial which would have to be set aside.

That is a — as this Court has pointed out time and time again, one of the risks which has to be going — going through where this policy against piecemeal appeals, if it’s to be carried out, that’s a legislatively set policy.

That was what this Court held in 217th United States in the Heike case where there was a claim of immunity from prosecution.

We tried to take an immediate appeal and get a review on that but it was denied.

This Court, by a unanimous decision without passing on the merits said, “If there’s any validity in this claim, it will have to be raised on — on appeal from conviction.”

Now —

Felix Frankfurter:

Could you distinguish the Heike case for me for this situation?

Gray Thoron:

We think that the Heike case is virtually indistinguishable from the situation that is here.

Felix Frankfurter:

That is the case —

Gray Thoron:

If the nature —

Felix Frankfurter:

— that was the case where there was a judgment on the plea involved.

Gray Thoron:

That is correct.

Felix Frankfurter:

The plea went against the defendant.

Gray Thoron:

That is correct.

Felix Frankfurter:

He then was told the plea to the merit, he refused, he came here.

One of the justices of this Court granted a writ of error.

Felix Frankfurter:

The Government then moved to dismiss the writ of error and he’s probably been granted that was fully argued before this Court and the writ was dismissed.

The case then went to trial, a long trial of six weeks, and then they have to come back here and raise that question back to the conviction.

Gray Thoron:

That —

Felix Frankfurter:

Can you distinguish that case from this?

Gray Thoron:

I cannot distinguish it from this case if it is a vested right.

If his contention is correct that he had a vested —

Felix Frankfurter:

What appeal — the immunity granted by the immunity statute that the Act of 1893 certainly was vested to any excerpt of that in the meeting —

Gray Thoron:

That — that —

Felix Frankfurter:

(Voice Overlap) new term was taken out of —

Gray Thoron:

That — that is correct.

Felix Frankfurter:

— that certainly was vested if it applied —

Gray Thoron:

If it applied, it’s a — it’s a vested right.

Felix Frankfurter:

If not?

Gray Thoron:

If — if it didn’t apply, the district judge held it didn’t apply.

Felix Frankfurter:

But I don’t understand why you emphasize the fact that it was a vested right.

That — that doesn’t determine appealability.

Gray Thoron:

Petitioner’s argument, as I understand it in the courts below and in this Court, is one facet of his argument is that the Court lack the power to continue the — to hear the case in the Western District.

Any conviction of the Western District would be invalid.

Felix Frankfurter:

That was true on the Heike case.

Gray Thoron:

That was true on the Heike case.

That is true in petitioner’s argument here.

That’s one facet of his argument.

If that is true, then the normal appeal, the — the normal way to raise it is by appeal following conviction and not by appeal from the order refusing to dismiss the indictment.

The order refusing to sustain the plea in bar in the Heike case is similar to the order refusing to dismiss the indictment.

That’s why I find the case as indistinguishable on that facet of petitioner’s case.

Felix Frankfurter:

Well, was that possible —

William O. Douglas:

What he’s — what he’s bringing here is an appeal from an order of which it did dismiss an indictment that that’s just the opposite of (Inaudible)

Gray Thoron:

Petitioner here is appealing from an order dismissing an indictment which he wanted —

And that terminated that proceeding.

Gray Thoron:

That terminated that proceeding and there we have a very difficult problem of agreement.

Gray Thoron:

They — based on the merits, it did not terminate it on the merits, but —

Felix Frankfurter:

And there —

And terminate the possibility of prosecution when it — it terminated that prosecution.

Gray Thoron:

It terminated that prosecution and — and petitioner’s point is, “I have a right to have this prosecution continued.”

Because I have taken certain steps —

Gray Thoron:

Because I – that — that is correct.

— here that I brought it through and this is — is an illegal order that you’re entering and dismissing my indictment —

Gray Thoron:

That’s my understanding.

And you say there’s no grievance?

Gray Thoron:

The — there is no grievance in that case.

It is like any order in which a claim is made of a — this —

This claim of the right to trial —

Gray Thoron:

— this dismissal should be with prejudice.

— was a right to a trial —

Gray Thoron:

This just — (Voice Overlap) —

— in that district, that division.

Gray Thoron:

I — I think I missed part of your — Your Honor’s —

That claim to a right to be tried under that indictment.

Gray Thoron:

He — he has a claim that if I am to be tried at all -–

It may be wrong.

It may be right or wrong.

Gray Thoron:

That’s right.

He says, “If I am to be tried at all, I am to be tried under this indictment in this district.”

That’s as I understand is —

In this division.

Gray Thoron:

In the — in this district and division.

That, as I understand it, is his claim, and we say he is not to be tried at all under that indictment.

Now, he says, “If I’m not to be tried at all under that indictment, I can’t be tried under the Western District indictment.

Of course, we can’t see any merit in this contention.

Well, that’s not what is in here.

Gray Thoron:

That’s — that’s my understanding of it.

I didn’t know we had the Western District indictment here.

Gray Thoron:

The — the Western District indictment is here in one sense.

The petitioner has tried to bring everything up —

If that has been tried, there has been no steps taken in.

Gray Thoron:

That — that is right, but petitioner has applied to this Court for a writ of prohibition to prohibit further proceedings in the Western District, or the alternative mandamus to order the transfer of the Western District indictment to the Southern District.

So, that is Number 302 miscellaneous which is pending before this Court.

So, in one sense, the Western District indictment is there.

Now, as I understood, the — the question that was posed was, if we don’t have review here, do we foreclose all possibility of review?

And in answer to that question, I was trying to make out that if there is a conviction in the Western District, if this contention is valid of a vested right to be tried in Laredo, then there would have to be a reversal of any conviction in the Western District.

So, there could be a review of that question, following a subsequent conviction, not in this case, but in a subsequent case.

Now, we think that petitioner is also claiming, “Maybe I haven’t got a vested right, but as a matter of sound judicial discretion, I should have a — I should have a privilege of being tried in Laredo and not in Austin or not elsewhere because of the peculiar circumstances of this case.”

That, I think, is an alternative contention of petitions and which he say, “If I was tried and convicted in — in Austin, in the Western District, then my claim is not such a claim that it will be a reversible error in the Western District claim — case.”

Only if his claim is in those terms might you say that it would be impossible to get review in some other proceeding.

Now, I — I think that one of the Justices asked me that question and I think the answer to some extent depends on the nature of the claim.

If it’s this sort of indeterminate claim of a privilege, then I think that petitioner makes his biggest argument that the rule of Cohen against Beneficial Loan in which it was cited and abide on by both parties, its beneficial loan corporation.

That’s in 337 U.S., that under that that would a — an permit an exception to te final decision rule.

And our difficulty with that is the facts of this particular case.

There was specifically this finding which I have made reference to before that the interest of justice would be best served by trial away from the Southern District of Texas.

That is one factor which it seems to us, we submit, throws a — is extremely important as regards whether an — a further exception should be made to the common rule.

It seems to me also a factor that the Government has consistently not opposed transfer to secure a fair trial, if we can get it and that we did before any ruling was made by Judge Kennerly.

That’s on page 124 of the record, which I called to Your Honors attentions, attention towards the start of the argument.

It’s also a fact to hear as to whether the circumstances are — are called for this Court’s special review on the merits that the — the petitioner himself was so insistent upon trial in one specific district in saying, as he said that appears on page 17 of the record, “We wish to be clearly understood that if a case is not to be transferred to Laredo, we prefer that it remained in Corpus Christi.”

We have the district judge’s erroneous conclusion with — to which we have made reference as Judge Kennerly’s erroneous conclusion that his transfer of power was limited by defendant’s refusal to agree to transfer else — elsewhere.

And we also have — and this is a fact if it has not been — been made before — a — the factor of how much interference should there be with the Attorney General’s prima facie choice of where to prosecute and where not to prosecute where there is some choice.

Felix Frankfurter:

May I — may I break in on your argument to that opinion — connection to which the consideration drawn into that opinion vary on appealability.

Suppose the Government hadn’t rule to dismiss the Southern District indictment, suppose it allowed that to remain, write an indictment that the grand jury’s indictment to file in the Western District, two indictments outstanding.

Nothing would have prevented the Government to leave the Southern District’s indictment by going in and move the trial of the — due to the indictment on the Western District.

Gray Thoron:

That’s our position exactly, Your Honor.

Felix Frankfurter:

That isn’t your position.

Gray Thoron:

Well, it’s one of our positions that we advanced in the — in — in —

Felix Frankfurter:

That isn’t a fact.

It isn’t what the Government did.

The Government didn’t need to lie dormant.

The Government moved further that it — that it was.

The Government did acted to put to the Southern District indictment out of permission to (Inaudible) it and leave outstanding, only a single indictment for trial, leaving no question on argument that — that there’s another indictment, et cetera, et cetera.

Gray Thoron:

I — I am feeling wise out of fairness to the petitioner.

Felix Frankfurter:

But I’m not —

Gray Thoron:

If there are two indictments, we — we should elect.

Felix Frankfurter:

I’m not now concerned with the — that aspect of it.

If that is so, and assume the — how can you say, and therefore, there is only the Western indictment notwithstanding.

It is the Government’s position that if he’s tried on the Western indictment, convicted, a fatal effect of the judgment of conviction of the sentence if sentence there be, would be that if that and it shouldn’t have been moved here by the dismissal to be avoided that the Government avoided his opportunity to be tried before the Southern — in the Southern District, the — the conviction under the Western District is therefore faithfully defective.

In that, we would, in any event, let it tried under the Southern District, is that — what do you say to that?

Gray Thoron:

I think that — I’m not quite sure that I follow the final — the — the final step there, or certainly the — the Southern District — the Western District conviction would be vitiated.

Felix Frankfurter:

In order to — in order to urge that the dismissal of the Southern District indictment, it was not appealed, you must couple that with the recognition or the assertion that the — the improper dismissal of that indictment is at some stage or rather in case of conviction, an appeal for grounds not necessary?

It must be appealable —

Gray Thoron:

If — if it is a question which appellate court will review, if the question is just one of an exercise of discretion, which an individual judge, one judge might have felt one thing, another judge might have felt another.

I don’t think there’d be —

Felix Frankfurter:

That’s the question of the merit.

Gray Thoron:

That — that is correct.

Felix Frankfurter:

A question of the merit.

I’m saying that’s the question of the merit.

I’m saying that this dismissal claimed to have been erroneous in law must be derived from reviewability at some state if it had been in the conviction.

And therefore, if the Government is urging that the appeal is not permitted, it must admit — not admit, but it must have served that if there is a conviction on the Western indictment, the dismissal allegedly improper, either subject matter or potential reversal by this Court or the Court of Appeals of the conviction under the Western indictment.

Gray Thoron:

If there is any merit to that —

Felix Frankfurter:

Well, what —

Gray Thoron:

— that would — that would be — that would —

Felix Frankfurter:

Certainly, there’s merit.

If there’s no merit, then they can’t reverse.

I’m —

Gray Thoron:

Yes.

Felix Frankfurter:

— saying that the — there must be an appealable error urging.

If there’s no error, there — there’s no merit, then there’s no merit, there’s no error.

What I want to know is how do you work out that if there is a conviction on the Western indictment, the Southern indictment having been dismissed, what is the basis on which the Court of Appeals or this Court eventually can say, “The improper exercise of discretion by the District Judge in dismissing the Southern indictment vitiates the conviction under the Western?”

Gray Thoron:

The — the point on appeal would be that the judge in the Western District committed error in not dismissing the Western District indictment, or that he committed error in not transferring the Western District indictment to Laredo.

Felix Frankfurter:

Because —

Gray Thoron:

And the —

Felix Frankfurter:

— because, because the Southern indictment —

Gray Thoron:

Because —

Felix Frankfurter:

— is not properly dismissed.

Gray Thoron:

No, because the order of transfer of the Southern District indictment vested in petitioner, a right to be tried in Laredo.

That’s his position.

Felix Frankfurter:

But then, you are saying that this action by Judge Kennerly in dismissing the Southern indictment claimed to have been legally improper is never reviewed.

And if you say that, then —

Gray Thoron:

Not — not directly reviewed, but if it gives — if it —

Felix Frankfurter:

I don’t know what that means.

Gray Thoron:

If it gives rise to any rights at all, its rights in the Western District case.

Felix Frankfurter:

Why it was viewable — I mean, that he took action, which on the assumption — I must make the assumption that it was an erroneous act, because otherwise, you haven’t got any — any effect.

Gray Thoron:

That’s right and — and —

Felix Frankfurter:

On the assumption, if that was erroneous, at some stage or another, there must be opportunity to review it.

Gray Thoron:

You are appealing to something which appeals to me very much.

I’m not as — as much of a champion personally of the final decision rule.

Felix Frankfurter:

Well, I don’t care whether you are a champion or I’m a — a great supporter of it.

We’re guided by some — so many rules.

We’re not guided by references about rules.

Gray Thoron:

As — as I — as I read this Court’s decision in the Cohen case, there must be some peculiar — some — some specially peculiar circumstances which will call for the — the making of something reviewable where — which normally would not be and that’s spelled out in our brief.

Beyond that, I don’t — we — we welcome a decision on the merits.

Felix Frankfurter:

Because that also is irrelevant in a — an argument that the Government ought not to be making it, it’s making it (Inaudible)

That isn’t that question.

The Government is on the duty and we are on the duty to observe the rule of finality and your (Inaudible) decision on the merits is immaterial and sometimes a very foolish position for the Government’s case.

Gray Thoron:

I — I can’t conceive — concede in view of the authorities that a — that an appealable judgment has been entered, but I don’t think there is anything more that I can state on what’s in the brief and what I’ve — I’ve outlined here as to — I think we — we bring the authorities out and the — the Court has to —

Felix Frankfurter:

(Voice Overlap) — that has a —

Gray Thoron:

The issue on appealability is — as we see it, is whether the Cohen case exceptions apply and to — to orders affecting the place of trial or to a — to orders of dismissal where a defendant claims a right not to — not to have the case dismissed.

Actually, most courts say, “No defendant can appeal from an order dismissing an indictment against him, because he’s not aggrieved,” and —

Felix Frankfurter:

But I’m sure the petitioner would welcome if you would dismiss the Western District indictment and he wouldn’t be here.

Gray Thoron:

And — and he — he wouldn’t be here.

He — he — if he’s going to be tried, he insists on a right to be tried in Laredo.

The Government’s position is that if he’s going to be tried, it’s perfectly proper to try him in the Western District.

It’s proper to try him anywhere that a fair trial can be held by both parties.

And that the basic error, which caused all these diffulties was Judge Kennerly’s error in thinking that he could only transfer to Laredo, but the defendant could shop for a — a specific venue when he was able to establish a degree of prejudicism.

Since my time has officially expired and the elements on the merits have been fairly well developed in this discussion of the — of the facts, we respectfully submit that the District Court’s order which the District Court found was entered in the interest of justice.

That the interest of justice justified this dismissal to do what it felt it couldn’t do otherwise, that that order should be left understood.

If, by any chance, this Court feels that there was error, we suggest that this Court must send the case back not only for an exercise of — proper exercise of discretion, we say it’s very clear from our brief that it was exercised, but for a proper exercise of discretion as to where the case should be transferred.

Earl Warren:

Mr. Fortas.

Abe Fortas:

May it please the Court.

There is nothing in the record, I regret to say, that corresponds with Mr. Thoron’s last statement.

There was no such finding by Judge Kennerly in support of his order, granting leave of court to dismiss the first indictment.

I’ll come to that in a moment.

Now, if Your Honors please, in the few moments before the recess, and before returning to the questions of appealability and the facts of this particular case, I would like, if I may, to place this case in a somewhat broader setting.

The — the question that is before the Court, in my opinion, is — relates to the distribution of power between the judicial system of the United States and its prosecuting arm.

The question is whether a rule in an order entered by a court pursuant to the rules of this — prescribed by this Court can be circumvented or if the Government prefers the softer term, which it uses in its brief, can be negated by unilateral action of the Attorney General of the United States.

That, to my mind, is the issue and I believe that it is inescapably here, if I may say so.

Felix Frankfurter:

Unilateral plus the action of the District Court.

Abe Fortas:

I believe the position of the Government goes a little further as I shall show.That is the same terms of the position of the Government.

Now, if I may direct —

Felix Frankfurter:

(Voice Overlap) But in the case, the actual statement by a judge —

Abe Fortas:

The action —

Felix Frankfurter:

— not by the Attorney General, the judge could have said no to his motion.

Abe Fortas:

That is correct, Your Honor, in a desired position that the failure of the judge to say no was error which should not be permitted by this Court.

We feel that this Court should, in effect, instruct the District Courts that once an order of transfer has been entered under Rule 21 (a) and it’s — the same thing is true under Rule 21 (b), the Courts may not accommodate the Attorney General of the United States by entering an order of dismissal of bad indictment so as to permit the Attorney General of the United States to prosecute for the same offense in another forum that he has made — that he has selected for the second time.

Felix Frankfurter:

I understand your position.

I merely suggest the term “unilateral” is not descriptive of the circumstances of this case.

Abe Fortas:

Well, perhaps not, Your Honor.

Do you think there is a distinction between the power of the Attorney General to dismiss, to set up the Court before a transfer and the power after a transfer?

Abe Fortas:

Yes, I do, Your Honor.

That is to say I think that where there are — let us suppose that the grand jury in the Southern District here and the grand jury in the Western District had both returned indictments for this same offense, then I think it is the Attorney General’s right and duty in some of the cases say, to select the forum in which the case will be prosecuted.

He has a right of election.

Now, in this particular case, here is what happened.

For 20 years, without exception, all income tax cases for this part of Texas had been brought in Austin.

The Government broke with that tradition of 20 years to bring this prosecution of this particular defendant in Corpus Christi for the first time in 20 years, if Your Honors please.

Well, they have the choice as to where they go, do they?

Abe Fortas:

They might — they might have chosen Corpus Christi.

They did choose Corpus Christi.

A motion was then filed to transfer the case to Laredo.

The Government contested that.

And they could dismiss — they could have dismissed Corpus Christi.

Abe Fortas:

They could have dismissed at that point.

The Government contested that and it was a bitter contest as the record shows.

And then, a solemn order of the Court was entered, transferring the case to Laredo.

There was no mention at the time of the contest on the motion to transfer of the possibility of Austin or the desirability — or the desire of the Government for Austin.

And it was only after the Court had transferred the case to Laredo that the Government then decided to take it into its own hands to bring an indictment in Austin and prosecute this defendant there.

Earl Warren:

We’ll recess now.