Parr v. United States

PETITIONER:Parr
RESPONDENT:United States
LOCATION:

DOCKET NO.: 320
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

ARGUED: Mar 28, 1956
DECIDED: Jun 11, 1956

Facts of the case

Question

  • Oral Argument – March 28, 1956 (Part 1)
  • Audio Transcription for Oral Argument – March 28, 1956 (Part 1) in Parr v. United States

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

    Earl Warren:

    Mr. Fortas, you may proceed.

    Abe Fortas:

    Thank you.

    If Your Honors please, may I direct your attention to page 3 of our main brief, which is in the white cover.

    You will note Rule 21 is set out there, 21 (a) under which this case arises provides for transfer upon motion of the defendant in a case where so great a prejudice exist against the defendant that he can’t obtain a fair trial.

    21 (b) also provides for transfer upon motion of the defendant.

    21 (c) provides that when a case is transferred, the prosecution shall continue in the district or division to which the case was transferred.

    Your Honors will note that this rule does not give the Government the privilege of applying for the transfer of a case.

    Prior to the adoption of the rules, of course, there was no right of transfer in the defendant whatsoever.

    This rule gave the defendant that privilege for the first time but it did not give to the Government the privilege of applying for a transfer of the case.

    Felix Frankfurter:

    I suppose they couldn’t.

    Abe Fortas:

    The reason for that is —

    Felix Frankfurter:

    I suppose they couldn’t.

    Abe Fortas:

    I beg your pardon?

    Felix Frankfurter:

    Suppose they couldn’t.

    Abe Fortas:

    Do you mean because it’s constitutional?

    Felix Frankfurter:

    It —

    Abe Fortas:

    It could give the Government a right to transfer from one division to another of the same district.

    Felix Frankfurter:

    The same — in the same district.

    Abe Fortas:

    Yes, but it gave the Government no right to apply for transfer, whatever.

    Felix Frankfurter:

    For several districts, several divisions in one district is relatively an easy figure.

    Abe Fortas:

    Yes, but in any event, there is no such right in the Government.

    Now, the basic reason that justifies that is that the Government has an initial choice of venue where you have multiple venues as frequently happens.

    The Government can choose the venue in which it is to file its case.

    And presumably, at least, we all hope that the Government’s initial choice of the venue in which to bring the case will be based upon considerations of proof and considerations of fairness which should always appeal to the Government.

    Now, let us follow this through if we may — if I may and direct your attention to Rule 48 at the bottom of page 3, which governs dismissals.

    Rule 48 was also announced venue principal.

    Rule 48 provides that the Attorney General may, by leave of court, file a dismissal of an indictment.

    Prior to this rule, the Attorney General could, at any time prior to trial, dismiss an indictment without leave of court.

    This rule, the provision in this rule, requiring leave of court or the dismissal of an indictment was inserted by this Court, the Advisory Committee’s recommendation left that out.

    In other words, the dismissal was to be solely the prerogative of the United States Attorney.

    Abe Fortas:

    The requirement that leave of court be obtained was inserted by this Court.

    It is our position that Rule 48 (a) requiring leave of court was intended to require that the District Court, when the United States Attorney file a motion for leave to dismiss, that the District Court would then look at the problem presented and would exercise real and not mechanical discretion so to speak.

    In other words, that he would make a judgment on the facts and on the law.

    And it is our contention that in this case, the district judge erred in permitting dismissal for the purposes that were clear here for the reasons that were clear in this case.

    And let me state it this way.

    Looking at Rule 48, looking at Rule 21, the issue in this case as we conceive it is the following.

    Should the District Courts give leave to dismiss an indictment for the purpose of permitting the United States Attorney to make a second choice of forum in which to prosecute for an identical offense because the United States Attorney is wholly displeased with the forum provided in a transfer order and because the United States Attorney wishes to negate that transfer order duly entered on evidence and as to context, that I take it is the issue in this case.

    I used the word — I carefully used the word “negate the order”, that is what the Government says on page 72, I think, it is of the — of its brief, was the purpose in this case for dismissing the first indictment.

    We have used the less kindly but I believe accurate word of circumvention that —

    You argue this on the premise, straightforward premise, that there was — although there was an exercise of discretion here, this was an abusive discretion.

    You don’t stand on the proposition that there was a failure to exercise discretion.

    Abe Fortas:

    We do both, Mr. Justice Harlan.

    It’s a little difficult to know from what Judge Kennerly said, just exactly how it appeared to him.

    He said that in 24 years on the bench, I have never refused the — a — an effort on the part of the United States Attorney to dismiss the case.

    He said, “I’ve done that both before and since.

    The rules — the rules seem to indicate that I have some discretion here and if and to the extent that I have a discretion, I’m going to exercise it to dismiss here because” he said, and this is important, he said, “because the defendant has not shown reasons why it should not be dismissed.”

    Now, we submit that that is an improper standard in the context of this case.

    Felix Frankfurter:

    But you — you must contend it before, as I should think, in order to urge a reversal or rather to urge that he committed error.

    You must urge that he didn’t exercise and allowed the discretion, otherwise, the remedy assuming the agreement is to send it back to him to exercise this right.

    Abe Fortas:

    Precisely, Mr. Justice, and I’d like to make that perfectly clear since it has been the subject of a good deal of discussion here.

    Let us assume that Justice — that Judge Kennerly had made it perfectly clear that he was exercising his discretion.

    Let’s assume that.

    If he had exercised his discretion to permit dismissal on the facts of this case, it would be our position that that was error.

    Felix Frankfurter:

    Therefore, the answer to — to your answer, if I may so, to Justice Harlan’s question is that under those circumstances, could he have exercised the discretion in the way which you did and therefore, they should give direction to him to undo what he did.

    Abe Fortas:

    That is our position, Your Honor.

    Yes —

    Stanley Reed:

    And —

    Abe Fortas:

    — that’s our position.

    Stanley Reed:

    — and that is based on 21 (c)?

    Abe Fortas:

    It’s based on 21 (a) and (c).

    Abe Fortas:

    And we rely heavily on 21 (c), Mr. Justice Reed.

    Stanley Reed:

    (c) — (c) is what keeps it in this new district, is it?

    Abe Fortas:

    That’s correct, Your Honor.

    Stanley Reed:

    A new division.

    Abe Fortas:

    21 (c) says that after a transfer order has entered, the prosecution shall continue —

    Stanley Reed:

    And your —

    Abe Fortas:

    — in the transferee district.

    Stanley Reed:

    — and your position is that the — if the prosecution shall continue is to be read literally in those words?

    Abe Fortas:

    Yes, Your Honor.

    Stanley Reed:

    And that the other rights of — that might have existed before to dismiss can no longer exist —

    Abe Fortas:

    That’s — that’s our position.

    Stanley Reed:

    They can only make one removal.

    Abe Fortas:

    That’s our position.

    I’ve got it then.

    Abe Fortas:

    Yes.

    Well, couldn’t — supposing the defendant had said that they found that the conditions are prejudicial to the removed district, do you say that he couldn’t make a motion to remove further to another district?

    Abe Fortas:

    I’m — there’s no — there are no cases on that that I’ve been able to find —

    There can’t be some —

    Abe Fortas:

    — Your Honor.

    I think that if the — there had been a — a litigation of the district to which the case was to be removed.

    And if there had been a finding after the issue was litigated, I think, the defendant would be bound.

    I think, in other words, that would be res judicata of the place to which the case should be removed but I can’t be positive about that.

    Felix Frankfurter:

    Let I ask you this, Mr. Fortas, suppose as I did in my question for Mr. Thoron, suppose the Government has not moved the way they did, suppose they merely reindicted in the west or indictment in the Western District?

    I take it you agree with your associates that there was no jurisdictional defect.

    Abe Fortas:

    I have trouble with the word but I — I agree, yes.

    Felix Frankfurter:

    Well, the indictment couldn’t be —

    Abe Fortas:

    Standing alone —

    Felix Frankfurter:

    — sustained, could it?

    Abe Fortas:

    — could not be set aside.

    Felix Frankfurter:

    Pardon me?

    Abe Fortas:

    Standing alone, the indictment in the Western District was — could not be challenged.

    Felix Frankfurter:

    You then have these two — there was — there were then the — these two indictments outstanding.

    The Government then moved the western indictment for trial.

    What power would the judge in the Western District have to say, “No, you must try the Southern District indictment first”?

    Abe Fortas:

    I think it wouldn’t have that power, Your Honor.

    I think it would be —

    Felix Frankfurter:

    You mean, he would have to exert — assume he had, would he have to exert it?

    Abe Fortas:

    That — I don’t know the answer to that but let me see if I can be very clear about it because I have some views about it.

    Felix Frankfurter:

    Is that — we still have the —

    Abe Fortas:

    Let us assume —

    Felix Frankfurter:

    — the question.

    Abe Fortas:

    Yes, sir.

    Let us assume the facts in this case just as they are, that is to say an indictment brought in Corpus Christi Division of the Southern District, transfer after hearing to Laredo in the Southern District.

    The Government thereafter indicts in Austin in the Western District but does not move to dismiss the first indictment in the Southern District.

    On the contrary, the Government merely goes down to Judge Rice in the Austin court in the Western District and says, “Let’s go to trial.”

    Now, I cannot conceive of Judge Rice going to trial on those circumstances and I believe that that’s the reason the Government moved for a dismissal because Judge Rice would have said to the Government, “I am not going to proceed whether it’s a matter of law or principle of comity.

    I am not going to proceed with the trial of this second indictment for the same offense in the Western District after a transfer order has been entered by my Brother, Judge Kennerly, in the Southern District fixing the place of trial, subject to 21 (c) which says that the prosecution shall continue in the transferee forum.”

    Now, I’ve asked myself the question why didn’t the Government do that.

    Why did they go to the trouble and get themselves involved in a difficulty of moving to dismiss this first indictment in Laredo.

    And the answer, which is, of course, must be speculation on my part because I don’t know what the Government’s reasons are, the answer is that they were afraid and I think properly so or with reason not properly but with reasons that Judge Rice would not have permitted them to go trial while the first indictment was outstanding subject to a transfer order.

    Felix Frankfurter:

    I think — I think your speculation is not unfair, but I think you’re unjust to your imagination to say that it’s inconceivable that a judge would agree to the Government’s motion to move a trial before a hearing.

    All sorts of consideration come into play while later — a later indictment should be tried first.

    Certainly, I don’t — I don’t know.

    I find it difficult to — to conceive on my part that there’s any — any restriction of law that would compel Judge Rice or any other judge in the Southern District not to entertain the Government’s motion.

    Abe Fortas:

    Your Honor, this —

    Felix Frankfurter:

    It cannot be compelled (Inaudible) for entertaining it.

    Abe Fortas:

    They might in another case, Your Honor.

    My — my statement that it’s inconceivable was intended to be limited to the facts of this case.

    And the facts of this case would, I believe, have persuaded — might have persuaded Judge Rice and certainly it would persuade me, that the purpose of the Government in going to Austin and filing the second indictment was solely and entirely to circumvent the order entered transferring the case, the first indictment to Laredo.

    Felix Frankfurter:

    The Circuit read —

    Abe Fortas:

    Mr. Justice —

    Felix Frankfurter:

    The Circuit read it as a dirty word and it doesn’t ask the question of how.

    Abe Fortas:

    Mr. Justice, let me point out to you that this is, again, that this is the first case that in 24 years, first income tax evasion case, that in 24 years had been brought in any forum in the State — in the State — in this part of Texas except Austin.

    Has my time expired?

    No.

    I —

    Earl Warren:

    You still have —

    Abe Fortas:

    I should like, if I may, to spend a moment on this question of appealability.

    We have tried to brief that and analyze the relevant decisions of this Court as careful as we could in our — particularly in our reply brief at pages 5 to 13 and particularly pages 8 to 10.

    I do not accept the Government’s occuring tender that the Norwood case or another — a decision of the Third Circuit that they cite, are helpful which are discretionary appeals of something of the sort.

    We believe that the appealability of this case is soundly based on the prior decisions of this Court.

    The order that was in it under 48 (a) terminated the prosecution in the first indictment.

    It was an order of dismissal.

    I believe that the only consideration here that — that requires any attention is the question of agreement.

    We say that agreement existed here to the petitioner.

    This indictment was dismissed as the reasons for a dismissal show only because the Government obtained another indictment.

    The power of the United States Attorney, his authorization, to file a motion to dismiss the first indictment was expressly limited to and conditioned on is being able to get a second indictment.

    Now, it seems to me that that sufficiently establishes our agreement.

    We fought for an order of transfer.

    We obtained an order of transfer.

    The Government obtained another indictment solely to deprive us of the benefits of that order of transfer.

    And we think that —

    Felix Frankfurter:

    Would you — would you phrase what the nature of the benefit is?

    Abe Fortas:

    The nature of the — what?

    Felix Frankfurter:

    The benefit that you obtained.

    You said you obtained the order of benefit to you.

    Abe Fortas:

    Yes.

    Felix Frankfurter:

    And I would like you to spell out what the nature of the legal benefit is that you obtained by having the indictment transferred to Laredo.

    Abe Fortas:

    In the first place, we obtained an order transferring the indictment from — away from a forum which was prejudiced to us, Your Honor.

    And the second place under Rule 21 (c), we had a right as we conceive it to have the prosecution continue in that venue.

    Abe Fortas:

    Now, if you’re asking me Your Honor whether Laredo is more favorable to petitioner here because of factors with which I’m not familiar, then Austin would be, I can’t answer that.

    You always have that question on a transfer here.

    But the fact of the matter is that the judge here found contrary, I believe, some of the things that have been said today, number one, on page 18 of the record, that the Government when it presented its opposition of the motion for transfer did not, when the case was first submitted, claimed that it could not obtain a fair and impartial trial at the Laredo Division.

    And then further down, later in its brief, it modified such claim even a claim of severe handicap and said merely that it might be under a handicap.

    And then Judge Kennerly found, as shown on page 19 of the record, that the — “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,” said the trial judge.

    And the fact of the matter as I’ve already mentioned is that giving the entire trial on the question of transfer, the Government never once suggested a transfer to Austin.

    They brought this case.

    They brought their second indictment later in Austin, specifically for the purpose and with the effect as their brief and — admits to negate the order of transfer duly entered by the Court after hearing and the taking of evidence.

    Felix Frankfurter:

    He seems to have changed his mind as it is with the (Inaudible)

    Abe Fortas:

    No, Your Honor.

    Felix Frankfurter:

    What is the date of — what was the date of the hearing taken?

    Abe Fortas:

    Well, that opinion appears to the — you’re talking about his opinion on dismissal.

    Felix Frankfurter:

    No, the one as to the Court of (Inaudible)

    Abe Fortas:

    Page 18 was his order on the motion for transfer.

    Felix Frankfurter:

    Have you found the date (Inaudible)

    Abe Fortas:

    That — oh, the date of that — when was the —

    April 27.

    Abe Fortas:

    April 27th.

    Felix Frankfurter:

    Well, it’s a friendly — Mr. Thoron, most essentially you, what he said on May 19th?

    Abe Fortas:

    That was in connection with the motion to dismiss.

    Felix Frankfurter:

    Yes, but he — but he did — I understand that.

    But he did agree regardless of the case (Inaudible)

    Abe Fortas:

    Yes, Your Honor.

    But I don’t believe that — as I read that opinion on the motion to dismiss, he said that he — he doubted whether the case should be tried in this District law not because of offense to either side.

    But he said in the administration of justice or words to that effect and I believe that what he had in mind as I read this, Your Honor, what he had in mind was that the case down there would be attended by a great deal of publicity.

    If he had something more than that in mind, I don’t think the opinion says it.

    Felix Frankfurter:

    But that has a relation to the administration of justice.

    Abe Fortas:

    I beg your pardon?

    Felix Frankfurter:

    I don’t know if that has a relation to the administration of justice —

    Abe Fortas:

    Yes, but —

    Felix Frankfurter:

    — were the worst abuses of American criminal justice is precisely that.

    Abe Fortas:

    I understand that, Your Honor, but the question is whether it has a relationship to the claim of unfairness to the Government —

    Felix Frankfurter:

    What?

    Abe Fortas:

    — which is what Mr. Thoron was talking about.

    Stanley Reed:

    Why — why did Judge Kennerly say that he didn’t think he had authority to transfer it to the Western District?

    What — what case did you say that?

    Abe Fortas:

    The — his ruling was based upon what —

    Stanley Reed:

    Was there a motion to transfer?

    There was no motion to transfer to the Western District, was it?

    Abe Fortas:

    No, there was no motion of transfer to the Western District.

    The petitioner —

    Stanley Reed:

    Wholly a comment on his part as to where he thought it ought to be tried.

    Abe Fortas:

    Well, the petitioner made it very clear that the petitioner wanted it to transfer it to Laredo.

    And Judge Kennerly concluded that he — he didn’t have power to transfer it to anywhere except Laredo.

    The Government had indicated other possibilities in the Southern District such as Houston (Inaudible)

    Stanley Reed:

    Well, there was never anything in the Western District.

    Abe Fortas:

    Never.

    But Kennerly said he could not transfer to the Western District out — just out of his own thought and thinking about it.

    Is that the way that came up?

    Abe Fortas:

    Well, Judge Kennerly said that he couldn’t transfer it anywhere except to Laredo because he apparently thought that the petitioner’s —

    Put it outside of the district.

    Abe Fortas:

    — petitioner’s indication of the place to which the case should be transferred was binding on it.

    I think that’s what he thought, Your Honor.