Payne v. Madigan

LOCATION:Eagle Coffee Shoppe

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 366 US 761 (1961)
ARGUED: Feb 27, 1961
DECIDED: Jun 05, 1961

Facts of the case


Audio Transcription for Oral Argument – February 27, 1961 in Payne v. Madigan

Earl Warren:

Harry Joseph Payne, Petitioner, versus Paul J. Madigan, Warden and number 184, Thomas E. Young versus United States.

Mr. Rowe.

Frederick M. Rowe:

Mr. Chief Justice, may it please the Court.

These two cases which have been consolidated for argument are here by writ of certiorari respectively to the Court of Appeals for the Ninth Circuit and the Court of Appeals for the Eighth Circuit.

The petitioners in both of these cases are prisoners incarcerated in Alcatraz for whom counsel has been appointed by this Court.

One of the petitioners enjoys the dubious distinction as the Justice Department’s brief points out with some evident relish of once having been in the list of the FBI’s 10 most wanted men.

But the case and the issue presented by these cases rise beyond the faith of these two convicts and entails a broader issue and an important issue in the administration of criminal justice in the federal courts, a field over which this Court has traditionally exercised a supervisory jurisdiction to maintain and to improve the standards of procedure.

Basically as we shall go on to detail, the fundamental issue in both cases is whether a judge in pronouncing sentence in multiple criminal cases must impose sentence with dignity and clarity in open court so that a defendant of ordinary intelligence can learn from the sentencing pronouncement whether with respect to each charge, he must go to prison and if so for how long and when in relation to any other sentences that maybe simultaneously imposed.

Without resort to the written judgment or commitment form which is ordinarily prepared subsequently by the clerk and signed by the judge after the conclusion of the proceeding in open court.

As we will go on to detail, we feel that such a requirement that sentences be pronounced with such clarity in open court either essential not only to protect the defendant and to guarantee him the rights of procedural fairness, but also to maintain the dignity of the judicial procedure in imposing criminal sentences and to stem the rising tide of litigation in the federal courts involving challenges by petitioners who are in prison to obscure and rambling pronouncements of sentence by federal judges.

The facts in both of these cases are not complex.

In the first case, number 180, the petitioner Payne appeared in 1956 before the District Court for the Eastern District of Tennessee to plead guilty, to set separate information and one indictment charging various violations of the postal laws over a period of several years in various courts of the United States.

He agreed to transfer of his sentence and waiver of trial in the jurisdiction in Tennessee where he pleaded guilty.

After the trial judge received these pleas of guilty, he proceeded to impose sentence.

Without quoting in lengthy detail from the sentencing pronouncement by the judge, suffice it to say that the sentencing pronouncement by the judge created as the Court of Appeals below put it some confusion at the time of the sentencing and indeed the Court of Appeals before rendering its decision below suggested that some administrative procedure be taken to render this sentence a “intelligible one.”

Nevertheless, there was some misunderstanding at the time of the imposition of sentence just whether the judge had in mind 12 years, counsel thought 13 years, the clerk at one time thought a different period of years, but most important at no time even though the judge used the word consecutive during his pronouncement, at no time did he specify or issue any direction in his oral pronouncement just when anyone of these multiple sentences were to be served by the defendant in relation to any of the other sentences which were simultaneously imposed by the judge.

Several years later, having commenced the service of the sentence in Alcatraz, the petitioner sued out a writ of habeas corpus challenging his continued detention as unlawful.

His claim was that in as much as the judge in pronouncing sentence in open court had failed to specify or direct the sequence of anyone of these sentences or their commencement date of service that by operation of law, all of these sentences must begin to run from the time of their imposition ie – need to run concurrently and since he had already served a term longer than the longest individual term of these multiple sentences, that his continued detention at that time became unlawful.

The District Court denied his claim to relief, stating that it felt that the intention of the district judge in pronouncing sentence was to commit him for 12 years, for a total of 12 years although the habeas corpus court did not address itself to the question at all as to one — anyone of these sentences was to be served in relation to any of the others.

The Court of Appeals for the Ninth Circuit whose decision is here on certiorari affirmed but on entirely different grounds.

The Court of Appeals in its opinion held that the sequence of service of multiple sentences was a matter of substance, which the sentencing judge must indicate.

However, since the sentencing judge in its pronouncement had not indicated expressly any sequence of these sentences or their commencement date in relation to each other, the Court of Appeals resorted to the written forms of judgment and commitment which were prepared, so far as this record indicates, after the close of the proceeding in open court and were subsequently signed by the judge.

These written forms of judgment and commitment which as a matter of fact were not in the original record of this case, but were requested by the Court of Appeals during oral argument and were then supplied by the U.S. Attorney were taken by the Court of Appeals to specify in effect the missing sequence of the sentences or the missing commencement dates which the oral pronouncement of the judge did not contain.

And the heart of the decision of the Court of Appeals below is contained in this brief excerpt from its opinion and I am reading from page 18 of the record in the Payne case, number 180.

“Whereas here, the consecutive sentences pertain to six information and an indictment, there is authority for the view that a more precise specification of the order of sentences must be indicated than is to be found in the instant oral sentences in providing that more precise specification of the order of sentences, the written judgments and commitments entered herein did not deport from the oral pronouncements.

At most, they resolved in ambiguity.

In the oral pronouncements, it was indicated that the sentences were to be served consecutively.

The manner in which the pronouncements were made indicates that a sequence of sentences corresponding to the numerical order of the cases was probably intended.

The written judgments and commitments signed by the judge in the same date confirmed this inference.

In our view, written judgments and commitments may properly serve the function of resolving ambiguities in orally pronounced sentences.”

Frederick M. Rowe:

And then the opinion went on to say, “What we have with respect to the sequence of sentences has equal application with regard to the clarification of the total time to be served, concerning which there was some confusion at the time of sentencing.”

The facts in number 184, the Young case, are equally simple.

In that case, the petitioner, Young, appeared before the Federal District Court for North — North Dakota in 1952 to plead guilty to two separate information and one indictment alleging the larcenies and offences against the United States.

Upon receiving those guilty pleas, the District Judge for North Dakota, went on to impose separate five-year terms upon each of these indictments and information.

In this sentencing pronouncement from the bench, the judge did say and did use the word consecutive.

The judge also indicated at some point in his oral pronouncement that he contemplated a 25-year term for the petitioner Young.

Here to however, the judge in his oral pronouncement at no time indicated the sequence of anyone of these multiple sentences in relation to any of the other sentences or in effect to fix a commencement date when anyone of these sentences were to begin running.

In this case, the —

Charles E. Whittaker:

Was that evidence (Inaudible), could the law take care of that?

Frederick M. Rowe:

Well, there were several sentences.

There were five sentences imposed by the judge.

At no time did the judge say that the sentence on indictment numbers so and so or in charge number so and so will begin to run after the exploration of the sentence on indictment number so and so or count number so and so.

However, this detail which the judge’s oral pronouncement do not contain, in this case too was contained in the written form of judgment and commitment which is part of the record in this case number 184.

There was some additional element of confusion in this particular case, number 184, which is not present in the other which is that on one of the written forms of judgment and commitment specifies that two separate sentences were to run consecutive with each other.

I merely point this out for the sake of completeness since that is one element that is present in the one case but not in the other.

John M. Harlan II:

Supposing there have been counts instead of separate indictments, a single indictment, would your position be different and what was done here has been done there?

Frederick M. Rowe:

That, of course, Mr. Justice Harlan is a question which involves a basic distinction between the chief precedent relied on by the Department of Justice, the Doherty case, and the chief precedent relied on by ourselves, I may say without anticipating in my argument that I would be making the same argument of multiple counts which —

John M. Harlan II:

The real involvement here is how much vitality, if any, Doherty left in Patterson.

Isn’t that the guts of this case?

Frederick M. Rowe:

Mr. Justice Harlan, I believe that that comes close to focusing on the heart of the case, although we would take the position that regardless of the vitality of the Doherty case, we are entitled to prevail because we have multiple indictments here rather than multiple counts.

In case Number 184, the petitioner Young sought relief by way of a motion to correct judgment rather than by way of habeas corpus as the petitioner in Number 180 Payne.

Petitioner Young’s theory was that the written judgment should be conformed — to conform with the judge’s oral pronouncement and in as much as the judge’s oral pronouncement had not indicated any sequence or order of service of these sentences that too by operation of law, all sentences began to ran from the time of their imposition and that since the written judgments and commitment forms has specified a different sequence of service that these written forms should be harmonized with the oral pronouncement on which they rested.

There too the petitioner’s claim for relief was denied by the District Court.

The District Court in essence felt that the judge’s manner in pronouncing the sentence on petitioner Young indicated that he thought that these sentences should be served in the particular sequence in which the judge took up these various indictments and information and pronounced sentence although again, the District Judge did not say whether the sentence was to run in that sequence.

He only took up these indictments and — and proceeded to impose sentence having said indictment number so and so, so many years.

The Court of Appeals for the Eighth Circuit again affirmed the District Court’s ruling and it too held that the overall manner, the overall way in which the District Judge had imposed sentence indicated his intention that the sequence of service of the sentences was to be in the same sequence in which he had taken up these various indictments and imposed a sentence from the bench.

The basic issue which we urge before the Court on the basis of these two rulings is this.

We maintain essentially that a Federal District Judge in pronouncing sentence in Court on multiple criminal charges must indicate with sufficient clarity when each sentence is to begin in relation to the others that he imposes at the same time so that a defendant of ordinary intelligence will learn when he must go to prison in relation to each of several charges on which he is being simultaneously sentenced in court.

And we further maintain as we will detail that the written judgment and commitment forms which are clerically prepared, typically after the close of the proceeding in open court, cannot, as the Justice Department urges, be use to help understand what the judge has pronounced in open court from the bench because this — such a resort to ministerial and clerical forms to in a fact improve on the judge’s oral pronouncement would not only debase the dignity of the proceeding in open court, but would deprive the defendant of his traditional right to be present in open court at every stage of the proceeding, including the stage at which sentences pronounced upon him ie – the general issue that was involved in the Green case upon which the Court rendered its judgment this morning.

We feel furthermore that such a clear cut rule by this Court, namely, that the sequence of sentences must be indicated by the judge in open court will improve the administration of judges — the administration of justice and will tend to abate the numerous — the perhaps flood of litigations are now going through the lower federal courts based on challenges by prisoners to the terms of a District Judge’s sentencing pronouncement which is obscure and which is rambling such as the particular sentencing pronouncement at least in the Payne case, Number 180.

Frederick M. Rowe:

For authority, for argument, we start back with the Patterson decision rendered by Mr. Justice Bradley of this Court, sitting as Circuit Justice in 1887.

In that case, in the Patterson case, Mr. Justice Bradley entertained a writ of habeas corpus sued out a — by a prisoner challenging his continued detention as here under the terms of a sentencing pronouncement involving separate indictments concerning violations of the Federal Banking Laws.

The sentencing pronouncement in the Patterson case indicated separate terms of sentence for the separate indictments involved in the case and as a matter of fact, the District Judge, the sentencing judge in that case went on to say that these sentences are not to be serve concurrently.

Nevertheless, Mr. Justice Bradley’s opinion held that such a pronouncement ineffectual to impose consecutive sentences of five years each as were involved in that case on the ground that the failure to specify the sequence, the order in which these sentences were to be serve by the defendant, rendered the sentencing pronouncement incapable of application because no one would know from the pronouncement which of the several sentences was to come before and which was to come after the others and to quote briefly from Mr. Justice Bradley’s opinion in the Patterson case in 1887 and I’m quoting from page 12 of our brief in the Payne case Number 180.

According to Mr. Justice Bradley’s opinion, this pronouncement was uncertain and incapable of application for no intelligence is sufficient to answer the question as to which sentence applied to which of the several indictments.

And as Mr. Justice Bradley viewed the situation in the opinion, he said, if for any reason peculiar to either of said indictments as for example some newly discovered evidence should be a different face put upon the case so as to induce the executive to grant the prisoner a pardon of the sentence on that indictment, no person could affirm which of the three terms of imprisonment was condoned.

If a formal record of anyone of the indictments and the judgment rendered thereon were for any reason required to be made out and exemplify, no clerk or person skilled in the law could extend the proper judgment upon such record.

He could not tell whether it was a sentence for the first, the second, or the last term of imprisonment.

In sum and Mr. Justice Bradley’s opinion in the Patterson case held that a prisoner is entitled to know under what sentence he is imprisoned and that the vague words of the opinion characterized him in question which did indicate that the sentences were not run concurrently that these vague words were insufficient to alter the legal rule that each sentence is to commence at once unless otherwise specially ordered.

Charles E. Whittaker:

(Inaudible) is the sentence in oral of that commission or is the judgment to which the judge is the statute when he’s given the (Inaudible) and requires the judge being consolidated.

Frederick M. Rowe:

Traditionally, Mr. Justice Whittaker, and I believe still today, the sole judicial force so far as a prisoner’s rights are concerned and so far as his sentence is concerned is the judge — judge’s oral pronouncement from the bench.

Now to be sure this oral pronouncement by the judge is recorded in various ways before the adoption of the Federal Rules of Criminal Procedure, it was recorded by the clerk in the minutes.

Now under the rules, there is a form called judgment and commitment which is recommended by the rules and is typically used by the District Courts to record that judgment but to answer your question, sir, the authority on which a prisoner’s sentence rests is the judge’s pronouncement in open court.

Tom C. Clark:

You give a copy (Inaudible)

Frederick M. Rowe:

There is no requirement under the rules, Mr. Justice Clark, that the prisoner receive a copy of the commitment.

There’s nothing to indicate in this record that he did get one.

We all have been operating on — on the assumption which is not contradicted by the record that he does not get one.

And we have ascertained from the District Court here and the District of Columbia that the practice is that several copies of the form are prepared none of which is given to the prisoner, one of which is retained by the clerk and the other set is given to the Marshall and the imprisoning authorities so that in the normal course of the events, to answer your question sir, the prisoner does not get a copy of that form.

Charles E. Whittaker:

(Inaudible) judgment of conviction shall cut forth plea, verdict to binding and the adjudication of such judgment should decide by a judge who has the filing clerk, does not contemplate a written judgment?

Frederick M. Rowe:

There is no question, Mr. Justice Whittaker that the written judgment and commitment forms are authorized and are responsive to Rule 32.

The question however is, sir, and this is not answered by the rule is whether these written forms can in effect embroider and improve upon and amplify what the judge has pronounced in open court.

In other words whether the clerk, who typically prepares these forms, can in filling out these forms, improve on the judge’s pronouncement by in effect putting things in there which the judge in his pronouncement from the bench did not say.

Charles E. Whittaker:

Well, I am wondering if this rule doesn’t make the judgment, this written thing, that’s defined in that rule?

Frederick M. Rowe:

That interpretation of the rule, Mr. Justice Whittaker would in effect revolutionize the traditional function of the sentencing process in the courts because traditionally the sentence is the order pronounced by the judge in open court and is then recorded in various clerical forms.

We may get in our argument to the discussion of the Hill case perhaps where this Court held in the 1930s that the clerk, no matter what the rule of Court was, was not authorized to improve on the judge’s oral pronouncement which was recorded in exactly the same fashion as he pronounced it orally.

And — so that the clerk had no authority to go beyond in effect what the judge has said and what was recorded in open court and this is precisely the rule that we’re urging here.

We rely entirely on what the judge said and what was recorded in open court.

And our contention is, Mr. Justice Whittaker, that the clerical forms made up afterwards cannot differ with, cannot depart from, cannot amplify what the judge said or fill in any omissions by the judge in open court because it is the judge’s pronouncement which imposed a sentence and not what some clerk thought the judge intended to say even though he didn’t say it.

I have discussed the Patterson decision in which Mr. Justice Bradley in 1887 laid down the basic ground rule and in which the opinion in effect pronounced a rule which would clearly invalidate the decisions below because under the Patterson rule, even the judge’s use of the words, these sentences are not to run concurrently, could only create concurrent sentences when he failed to specify when each of the sentences was to begin running in relation to any of the others on separate indictments such as we have here.

Now to be sure, in 1926, this Court’s Doherty decision in an opinion by Mr. Justice McReynolds qualified and limited the scope of the Patterson decision of Mr. Justice Bradley.

Frederick M. Rowe:

In the Doherty case in 1926, they were involved multiple terms of imprisonment imposed on three counts of a single indictment.

The judge in imposing separate sentences on these three counts of the single indictment had also used the word sentences to be served consecutive but had not specified any order of sequence in its oral pronouncement as to which any of the three sentences was to begin in relation to the others.

This Court held that nevertheless consecutive sentences were authorized to run in the same sequence as the sequence of the several counts in the indictment.

And the opinion by Mr. Justice McReynolds said that the only fair and natural implication from the whole judgment was that the sentences were to run in the same order as the numbers of the three counts in the single indictment on which they were predicated.

However, the opinion by Mr. Justice McReynolds expressly distinguished the Patterson case and said it presented a materially different question because here there were only multiple counts of a single indictment involved whereas in Doherty, there were different indictments involved, and —

John M. Harlan II:

What is the difference really?

What is the practical difference?

You can say you distinguish the case, but what underlying there?

Frederick M. Rowe:

I would not rest my case, Mr. Justice Harlan on the profundity of the distinction drawn by Mr. Justice McReynolds opinion in the Doherty case.

However, there is a distinction insofar as when there are several counts of a single indictment.

Ordinarily one may assume that there is some nexus between the one and the other and that there’s some logical sequence or evolution of a state of facts where counts in an indictment sets forth what the offense is.

Where however you have entirely different indictments which are consolidated for sentencing in bulk and where you have indictments such as here which were brought in different jurisdictions, there is no necessary relationship whatsoever between one indictment and another indictment.

And so I believe one may say with some force that when several indictments are involved, the lack of connection, the lack of rational relationship which may attend this process requires the judge to be extra especially careful to be extra explicit in making clear when he pronounce his sentence when each of the sentences on these different indictments is to be served in relation to any of the others whereas if you have multiple counts of a single indictment, perhaps some inference slander, some inference nevertheless maybe drawn from the counts of the indictment itself the way they are phrased.

Mr. Justice McReynolds’ opinion in the Doherty case did go on to say that there were unfortunate causes referring to this type of prisoner’s litigation before the Court and that the judges in the future should avoid similar unfortunate causes by using meticulously precise language in their sentencing pronouncements.

Now as I pointed out before whatever maybe the present vitality, the present validity of Mr. Justice McReynolds’ Doherty opinion in 1926 today, after 35 years of intervening experience, our case fits the rule of the Patterson case not of the Doherty case because here we do have multiple indictments.

However, I may go on to say that even though we can’t prevail regardless of the Doherty opinion, this Court may well wish to reassess the continuing vitality of the Patterson rule promulgated by Mr. Justice McReynolds in 1926 in the light of supervening experience after 35 years in the federal courts.

And that supervening experience, if I may suggest, has indicated that the District Judges apparently have no uniformly heeded the cautionary and monetary words if by Mr. Justice McReynolds and have not used meticulously precise language.

There was certainly no meticulously precise language in the sentencing pronouncements here and that the volume of litigations which one finds in just perusing the West Digest pertaining to this particular in the federal courts would indicate that notwithstanding the exhortation by the Court in the Doherty case, there is still a sufficient problem of District Judges using rambling imprecise, perhaps even sloppy pronouncements of sentence which leave the petitioner and the clerk to make out by the exercise of judgment rather than to make out from the words of the judge himself just what the sentence is and when each of several sentences has to begin running in relation to the others.

Charles E. Whittaker:

Mr. Rowe am I wrong in thinking that I was (Inaudible) that in the federal court, prior to the adoption of rules and even since only to (Inaudible) federal courts’ judgments entered no judgments at all of record.

They didn’t write as such, did they?

Frederick M. Rowe:

No sir but they pronounced —

Felix Frankfurter:

Only one — only then these rules of requireed (Inaudible) judgments to be in writing, wouldn’t that have change in the law, the change in 1939 in civil — criminal cases and therefore substance to these he mentioned and must not now judgments of the new 32 (b) the writing in (Inaudible)

Frederick M. Rowe:

That is correct sir but nevertheless at all time and I don’t know how far I may go back in either my own recollection or on the basis of what the common law was with some feeling of accuracy, nevertheless, at all times, there was an oral pronouncement in open court by the judge which was recorded.

What today is recorded by the Court reporter and whose record is reflected really in the record of these cases.

This is the pronouncement made by the judge as recorded in open court.

Now to be sure they’re after a various steps of a clerical, a ministerial nature take place now as before, whereas before there was some kind of minute entry made by the clerk on the basis of what the judge said in open court, now we have something more formal.

Now we have this form under the Federal Rules of Criminal Procedure entitled Judgment and Commitment which is filled out typically by the clerk and signed by the judge afterwards which gives a more formal evidence really of what it is that the judge did in open court, but at no time either before or after, we respectfully submit, does the force spent by the judicial process on the prisoner come from any other source but the judge’s oral pronouncement in open court, because without this, there is no sentence and without this, there is no judgment.

Charles E. Whittaker:

(Inaudible) the court could speak through its judgment and the question is which is its judgment since these rules?

Did this Rule 32 change the law so as to require the judgment to be in right, sign of the judge?

Is that the judgment or not?

Frederick M. Rowe:

My answer to your question, sir, would be that Rule 32 required there’d be a written judgment form.

However, we don’t believe Rule 32 or any decision interpreting Rule 32 has changed the traditional principle that no written form can have any greater validity or any greater force than the judge’s pronouncement on which it rests because if it were the other way, if it were the written form that would control rather than what the judge says in effect, we would be doing a way with the judge’s oral pronouncement and all we would need is a clerical form filled out by someone in the clerk’s office as the authority for the detention of the prisoner.

We feel the interpretation of Rule 32 for which we contend takes account of the historic right of the defendant to be present in open court when the sentence is imposed by the judge rather than something that is done afterwards ex parte not in the presence of the petitioner.

Hugo L. Black:

Do you think the states would rather suggest that McReynolds should be construed merely a hope that judges would be particular said after all that they should.

Frederick M. Rowe:

I would construe it, Mr. Justice Black, as both a hope and an admonition but in either event, I don’t believe it has achieved the result.

Hugo L. Black:

That there was an opinion came down this morning similar to this.

Frederick M. Rowe:

Yes sir, there was.

Hugo L. Black:

Would you judge that thereafter the Court could with impunity violate what the Court said must be put in the — in the chance must be — must be given to defendant when he is convicted?

Frederick M. Rowe:

Well without expressing myself with respect to either the majority pronouncement or the other pronouncement in the —

Hugo L. Black:

Now, I was accepting if majority wholly and accepting the statement as they were saying theoretical, they can do it the other way, would you say that after that statement the courts to go ahead with impunity to refuse to allow to solicit personally the statement of the defendants?

Frederick M. Rowe:

I would say a pronouncement by this Court prospective retrospective whether holding or dictum is a word to the wise and I doubt whether a District Judge, whether he concentrated on the words of the minority or on the majority opinion, in the Green opinion this morning, in the Green case this morning would feel as free as it did before the decision of the Court was rendered to disregard and ignore the rights of a prisoner so far as his rights to make a statement in open court is concerned.

Hugo L. Black:

Well if that is to be accepted as a — as a holding that theoretically that has to — you have to give him that personal chance, would the same rule apply or should the same reasoning be given in connection with this holding of Justice McReynolds in the courts?

Frederick M. Rowe:

No sir, because we maintain that it would — that it would tend to a more dignified and a more effective administration of justice as well as to a greater protection of the rights of the defendant if Mr. Justice McReynolds opinion in 1926 were in effect confined to its own particular facts.

Now we don’t need such a holding in order to prevail here because we have multiple indictments and not merely multiple counts as existed in the Doherty case.

But as counsel appointed by this Court to present these arguments, I would say in all candor that the better ruling — the more just decision by this Court regardless now of whether we could win under a narrower ruling would be that Mr. Justice McReynolds’ opinion in the Doherty case should be confined to its own particular facts if not overruled because a contrary decision by this Court today would be more consonant with fair and dignified judicial procedure and would be warranted really by the experience in the interim since Mr. Justice McReynolds’ opinion which have not born out the hope or the admonition which that opinion expressed that judges should use meticulously precise language because in many cases, they have not.

Moreover to come back to the distinction of the multiple counts and the multiple indictment problem, where in Doherty they have a multiple counts and in Patterson they have multiple indictments, we believe that this form to which Mr. Justice Whittaker has had reference, Form 25 attended to the Federal Rules of Criminal Procedure, indicates that even where there are multiple counts only rather than multiple indictments there should be a clear cut specification at least so far as the written form is concerned when each of several sentences is to begin and end in relation to any other.

In other words, under this form it is not sufficient to say consecutive but rather the form requires that it be stated thereon, when each sentence if consecutive is to really run in relation to any other.

In other words, what it is consecutive too?

Now to be sure this Form 25 appended to the Federal Rules of Criminal Procedure is not mandatory.

It is not prescribed.

It is only a suggestion.

Nevertheless, we feel that the rule was promulgated under the auspicious of this Court and indicate certainly what the better practice should be and the better practice we feel is that regardless of the distinction of multiple counts and multiple indictments, the judge should be clear in what he says from the bench when he tells a defendant to go to prison just when he is supposed to be going with respect to any of the several sentences upon which he is being simultaneously sent to prison.

In no event do we feel however that this form which is clerically prepared and signed by the judge typically afterwards that in no event should this form be use to construe what the judge meant when he pronounced sentence in open court.

Since the form is typically prepared in the absence of the defendant which is what the picture is that emerges from this record to have the form control the substance, to have the form rise superior to the judge’s pronouncement, would deprive the defendant of his opportunity to be there at every step of the way which culminates in the sentencing process.

In other words, whatever counts, whatever is the decisive step in the sentencing process that must be where the defendant is present (Inaudible) his traditional right to participate in the criminal process is frustrated.

And so we feel it is the oral pronouncement, what the judge says from the bench as recorded by the Court reporter is what must be controlling rather than that this written clerical form prepared afterwards.

We —

Charles E. Whittaker:

Isn’t two or three word per word?

Frederick M. Rowe:

Mr. Justice Whittaker, I realize that under the stress of a judicial proceeding, we cannot expect each judicial pronouncement from the bench in a criminal case to be a model of clarity and precision.

Nevertheless however, when we have a judicial pronouncement which doesn’t even say when each of several sentences has to begin to run in relation to any of the others, that is the omission or shortcoming which I don’t believe the written form may properly supply.

Charles E. Whittaker:

What — what strength do you get out of (Inaudible) in this page 180 saying all the indifferent indictments will be consecutive, would have been (Inaudible) and all the different indictments would be consecutive, but what does that mean to you?

Frederick M. Rowe:

It means to me only, sir, that they are to be consecutive that being the intention of the judge without however expressing any kind of direction which of these perhaps 10 or 12 separate pronouncements here has to come before and which is to come after any of the others.

Now if the only issue was how many years the judge wanted to send the man to jail, it would be a different problem.

But what we have here is separate offenses and separate directions and separate sentences by the judge so that we can’t really rest by checking to see how many years the man was supposed to go to jail and there were separate indictments and there were separate sentences, and when you have those separate pronouncements by the judge, we feel that the judge should be sufficiently clear in what he says so that the man at least knows whether he is going to jail first on the indictment which happened in North Dakota or whether he’s going to jail first on the information which happened in Tennessee to make up some examples.

Because after all, the sentencing function is not only a mechanical process to tell a man to go to jail for a certain number of years, it is also a dignified ritual where society pronounces its judgment upon a particular defendant standing there and telling him, “This is what you have done, and for this you must go to jail”.

And to us, Mr. Justice Whittaker, this ritual function, this dignity of the sentencing process is frustrated when the procedure becomes mechanized to the point that where the judge says, well consecutive and then the clerk takes over and fills out the form.

Now we feel the defendant standing there at the Bar of Justice has a right and should know under our system of jurisprudence when he should go to jail for what particular offense and that the judge has the duty to make that clear from the bench, because that is the justification really for the judge’s function to be exercised in this manner.

Tom C. Clark:

What would you say you have to have concern to this?

What does he have to — what he said there to call at each number and he says going a year, two years, well he has to say after 10 six to six, one year and say after serving them you have to serve the next, what would you say about this?

Frederick M. Rowe:

I think certainly one easy way the he could use to clarity what he wanted to say is to say the end of it that it is my further direction that each of these different sentences is going to begin running as soon as the sentence in the previous numbered indictments expires which is in effect what the written form of judgment and commitment said, and this is what his oral pronouncement omitted to state —

Charles E. Whittaker:

This is in fact to say about not quite those words well we did to say that all the different indictments will be consecutive.

Frederick M. Rowe:

That is correct, Mr. Justice Whittaker but it didn’t say consecutive to what.

In other words, you can say there are five different sentences all to be consecutive but unless it is a matter of no substance whatsoever which goes before the other, the failure to state what the sequence is or when any particular one begins to run in relation to the other is a defect.

Tom C. Clark:

Just that beginning with 10-676, is that right?

Frederick M. Rowe:

He could have said beginning with 10, 7 — 676, I would like you to or the sentence is to run in the numerical order just like the indictments are run numerically and that the next one as to begin when the last one leaves off.

And that he did not do and that the petitioner in effect had to figure out from himself and it is something which the clerk in preparing the form in effect also had to figure out for himself —

Tom C. Clark:

You mean that you object to the word consecutive?

Frederick M. Rowe:

No sir I believe the word consecutive conveys part of the meaning but certainly it’s only part of it and not the whole.

The whole should be consecutive, yes, but consecutive to what.

Consecutive two after one or three after two, or maybe two after five, because there can be reasons why a judge wouldn’t want a particular sentence regardless of what the numbers on the indictment were to run first or to run last for reasons that are within his discretion and for reasons that are on his own.

Potter Stewart:

Mr. Rowe, under your theory in order to be entirely safe, a trial judge would probably, he will advise to write this out at the bench for mere reading.

Frederick M. Rowe:

I think, Mr. Justice Stewart that that would certainly be good and careful practice because —

Potter Stewart:

Because if he did that, that would take any benefit away from the allocution which I mentioned in the — this morning’s Green case or in fact they’re getting benefit away from anything happens to sentencing procedures.

He made up his mind in advance.

Frederick M. Rowe:

Well he could prepare notes which he could follow and certainly give the defendant his right to speak up because the Green case, of course, concerned in not the judge’s allocution but the defendant’s allocution.

And so the judge could draft an outline which he could revise in the of course of the open court proceeding, but use that written graph as a guide to his oral pronouncement rather than in effect as the judge did in Number 180, if I may use the word, ramble on.

Potter Stewart:

Well he began revising it and he’d certainly be in danger of rambling on too, wouldn’t he?

Charles E. Whittaker:

Isn’t it also a proof that as in this very case, when this Judge got on the bench he never heard (Inaudible) this case has followed an indictment to this (Inaudible) some indictments and information, some most of which were involved multiple counts.

Now he’s got to sentence him at that time or hold (Inaudible) while he figures out what he’s got to do with it, doesn’t he?

Frederick M. Rowe:

Well I — Mr. Justice Whittaker cannot tell from this record just what the claims the judge may have had with the case previously.

Frederick M. Rowe:

It maybe that this is the first time he saw the case and the defendant, but nevertheless, what we come down to ultimately is really how careful must the judge be in imposing sentence.

Maybe and now that the issue is before this Court, really this Court’s pronouncement will determine which way it goes.

Will it be in the direction of requiring greater specificity and greater care by the District Judge or will this Court’s sanction, if it should sanction the judgment below, give greater leeway or give greater authority to the District Judges to more or less be on their own.

And so we appeal to this Court’s supervisory jurisdiction in elevating, in raising the standards of criminal procedure as one of the basic grounds on which we would urge that the judgments below be reversed and I would like to reserve my time for rebuttal if I may.

Earl Warren:

Mr. Greene.

Harold H. Greene:

Mr. Chief Justice, may it please the Court.

Several things should be kept in mind initially.

In the first place, it’s clear beyond any doubt that the Court here said in both cases, said and meant and intended and everyone understood that the sentences were to be consecutive.

There’s no question about that at all.

In the Payne case, the Court stated “and all the different indictments will be consecutive.”

We computed the number of years that would — the defendant would have to serve and it’s clear that indicated that the sentences would be consecutive because the longest individual sentence was two years and the sentence was here computed at 12 and in one instance 13 or 14 years.

In the Young case similarly the Court said, “It’s the order of this Court that these sentences be served consecutively, which means to you Mr. Young a total sentence of 25 years and for you Mrs. Young a total sentence of 20 years.”

Now on the second place, Mr. Rowe has alluded to the fact that the Court made an error in addition, he at one time talked about the total sentence being 12 years or 13 years for the clerk said 14 years.

I think for the purpose of this case that’s irrelevant because no one is trying to keep the petitioner beyond 12 years.

The Bureau of Prisons has informed the Court of Appeals that the sentence has been construed to be 12 years.

He’s only served two years and 10 months.

So that the mathematical error is, I think, has nothing to do with the issues that are present in this case.

Now it’s clear from all of this that if the lower courts ought to be reversed here, it would not be because, as a matter of fact, the courts intended or said to everyone understood these sentences to be concurrent, clearly neither courts did that.

It would only be because there maybe a rule of law that regardless of what the Court said and regardless of what the Court intended, and regardless what everyone understood the Court to mean, the sentences should be concurrent as a matter of law where the sequence of service of the various consecutive sentences is not expressly stated.

Now —

Earl Warren:

What does the man know what — what term he’s serving if they are not specified by the order in which they are to be served?

Harold H. Greene:

Well he knows — he certainly knows the total term.

Earl Warren:

He knows he’s in jail.

Harold H. Greene:


No he —

Earl Warren:

But does he know or does he know what he’s in jail for at the particular moment.

Harold H. Greene:

As I will try to show it, Mr. Chief Justice, I think in this case while the — in these both of these cases, while the sequence was not expressly stated, the sequence of service was certainly — it was implied to sufficient clarity to inform the prisoner and to satisfy the requirements of the — suddenly of the Doherty case and any other cases in which — which might have been dealing with the subject.

Earl Warren:

Well do you rest it on that grounds?

Harold H. Greene:

No my — my point is that the prisoner here did know from the way — from the manner in which the sentences were imposed, from the way the Court imposed these sentences in numerical and chronological order.

The prisoner did know and everyone there must have understood, if I may anticipate my argument, everyone must have understood when the Court said your sentence on indictment number 1, indictment number 2, indictment number 3, indictment number 4 and so on, all these sentences to be consecutive, it seems to me would be pretty farfetched to assume from that, that the Court intended that the indictments will be serve number six first and then number three and then number four and then number one.

Harold H. Greene:

The natural implication of that is, it seems to me, that the sentences would be served in the same number in which — in the same order in which they were imposed and at least one Court of Appeals has held that that — that the — that sentences should be interpreted in that way.

Now there is a second way in which this — these petitioners could tell how the sentences were to be served and that is the same manner as was done in the Doherty case.

In the Doherty case, there was no — no specificity at all as to the various counts.

But the Court — this Court held unanimously that they would — they would imply from the fact that these counts in the indictment are numbered one, two, and three, they would imply from that and infer from that, that the sentences were to be served in the same order.

Now it so happens in this — in both of these cases the chronological order, the numerical order and the order of imposition were the same.

So under both of those tests of implication, the prisoner and everyone else would know that this was the order in which the sentences were to be served.

Now it’s true, I concede it didn’t say it expressly, but the question here is, if the Court please, whether an express statement of the order must be made and whether if — if an express statement is not made, well that’s fatal to the consecutive and to the intention of the Court’s and post consecutive sentences.

Now —

Earl Warren:

When we’re dealing with the liberty of a man, is it too much to expect of the Court saying those things specifically?

Harold H. Greene:

It certainly is — is desirable to have as much specificity is as possible and — and we certainly don’t — don’t come here to argue that the most specificity that can be — can be obtained is desirable, but these — all we’re arguing here that under the test which have been laid down by the Court thus far and the test of reasonableness, these sentences were amply sufficient to impose consecutive sentences.

Now if — the rule that that regardless of the intention or regardless of the statement of the sentencing court, the rule that regardless of that, the sentences must be made concurrently as a matter of law comes as Mr. Rowe indicated from the Patterson case in 1887.

Since that time, there’s no case which we have been able to find or that counsel has cited except the dictum in one case that the courts have followed the rule propounded by Mr. Justice Bradley in District Court in the Patterson case.

In every case which has come along since that time including this Court in Doherty, the courts have either distinguished the Patterson case or it flatly refused to follow it.

And I suggest to the Court that there is some reason for this reluctance of the courts to go along with the Patterson case.

And I might say that the Patterson case might — might be appropriate on its own peculiar facts because there, it was impossible from anything the Court said to deduce the order of — in which the sentences were to be served.

There was simply one sentence and he said they were all to be serve not concurrently but there was no — none is here a — the order.

Each sentence being imposed separately, each sentence being the — the numbers being stated separately, the type of offense that’s involved being stated separately.

All of those things were absent in the Patterson case.

And because of that perhaps the Patterson case stands up as appropriate on its own thoughts.

But in Patterson itself, Mr. Justice Bradley said if materials were available from which he could deduce the order of sequence in which these sentences were to be serve at least he under made it the decision might have been differently.

Now where a prisoner is complaining about not knowing the order of consecutiveness, what is he really complaining about?

He certainly can’t show any tangible present prejudice.

It’s true, it’s been said that if he doesn’t know which sentence he is serving, he can’t make a motion perhaps under Section 2255 if he feels one of the sentences is — is an illegal one or it’s been said in — in — I believe in the Patterson case, and counsel states also that he can’t get a pardon.

If he wants to get the pardon on one of the sentences, not on the others so the executive might — might wish to give him the pardon, he should know which sentence he is serving or more basically he just should know which sentence he is serving.

And that’s certainly true but the remedy for that, I submit, is not to make concurrent as a matter of law, what is consecutive as a matter of fact.

The remedy for that is to let him know which sentence he is serving.

The remedy doesn’t just — doesn’t fit the problem.

In this case for example, in the Payne case, he now knows which sentence he is serving.

Perhaps if — even if you assume for the sake of argument that originally he did not know, that originally he was in doubt although as — as I say, I feel that the sentence was sufficiently clear to make him understand, to make everyone else understand the sequences which they were served, but then if he goes back and files a motion — you know a petition for writ of habeas corpus or motion to Rule 36 which we suggest is the proper remedy and then the Court construes the sentence then he knows if the — which sentences is being served.

I don’t think the remedy for — for this type of a problem where no present tangible prejudice can be shown except merely the desire to know, the remedy for that it seems to me is not to wipe out the intention of the court and wipe out what the court said and make the sentences concurrent, the remedy it seems to me is to let the prisoner know which sentence he is serving.

Earl Warren:

Well suppose — suppose you have two accounts or two — two indictments that he is sentenced on, and there is no certainty as to which one is serve first and he seeks a writ of habeas corpus and the Government served what have here isn’t serving on this one.

He’s serving on the other — the other count and a man goes before the lower court.

The Court says “Yes, we think this is clear enough.

We think that a defendant can divine which one of these he — he is serving at this particular time and that denies him a writ of habeas corpus because he is — he is serving on a valid — valid indictment.

Then he has to come all the way up to this Court in order to get that reversed and then the meantime, he’s doing about two more years in the penitentiary just because a judge has been imprecise in his — in the judgment.

Now is that any material thing?

Is that a slight thing so far the rights of a defendant are concerned?

Harold H. Greene:

Well I would assume Mr. Chief Justice that if he came to the Court complaining about not knowing which sentence he is serving, the sentencing court would then as the sentencing court did in these cases specify if there is no insufficient specificity.

I’m not — I’m not arguing here that if nothing whatever is said in any of the sentences with respect to consecutiveness or if nothing is said, nothing can be implied with respect to the order in which the sentences are to be serve that there might not be some right to — to have the sentences serve concurrently.

But what I am saying is in this particular type of case where the consecutiveness itself, the consecutive character of the sentence is absolutely clear where there can be no question about it and where the order of service can be implied, in that type of case it seems to me, it would not be appropriate simply to disregard all of that, and to say that notwithstanding all of that, the sentences should be made concurrent.

In that type of case it seems to me the remedy would be to, if there is this lingering doubt which on these facts, I don’t believe there is, but if there is a lingering doubt, the remedy would be to find out from the sentencing if necessary what the sequence of sentence is.

Earl Warren:

So you have — you have to come all the way here to be sure of what his rights are?

Harold H. Greene:

Well I —

Earl Warren:

In that regard?

Harold H. Greene:

The sentencing court is certainly best qualified, and best equipped to determine what the sentence is.

Now sentence is a sentencing court.

The sentencing court pronounced the sentence.

I don’t believe that it should be assumed that the sentencing court will not properly construe.

It will not properly tell which of the sente — in which order the sentences were to be imposed.

Earl Warren:

Well then I understand you — you seek to confirm the sentence by saying that the judge must be precise but he was precise here.

Harold H. Greene:


Our principle argument is —

Earl Warren:

That is your argument.

Harold H. Greene:


Yes indeed.

Earl Warren:

Well if that’s it, alright, but you use the word imply — it could be implied that this was true so that’s a little different to me.

If — if you say that the court marshal should be precise but that there was adequate precision here, I can understand very — very well what your position is.

Harold H. Greene:

I don’t want to — I don’t’ want to mislead the Court.

The Court did not expressly — the Court — the Court did not expressly state the order in which these consecutive sentences were to be served.

But I say that the Court with sufficient precision that the order of consecutiveness can be implied from the whole entry as — as this Court put it in the Doherty case.

Harold H. Greene:

This Court said in that case that if the order of consecutiveness can be implied from the whole entry that is sufficient under the — at least under the judgment of the Court at that time.

In the Doherty case itself there the Court only the sole sentence of the Court was this and I’m quoting, “The prisoner to be sentence for the term of five years on each of the said three counts, said term of imprisonment to run consecutively and not concurrently, that’s all the sentence on the consecutive part that the Court impose in the Doherty case not as here where the sentences were specifically in the counts, in the indictments but specifically identified each by number.

Each was identified by subject matter.

Each sentence was separately imposed.

In Payne when the Court in Number 180 when the Court intended for two counts to run the sentences in two counts to run concurrently, it specifically said so.

In both cases the courts added up the total number of years.

All of that I suggest to the Court is far more precision, far more of an expression by the courts as to not only the consecutive character of the sentences but also the order in which those sentences were to be serve.

Earl Warren:

Is that the case where — where once I’ve said — Congress said it was 12, the other said it was 13, the judge said it was 14, and then it ended up in the written judgment as 12.

Is that the case you’re talking about now?

Harold H. Greene:

I’m talking about both cases.

This is certainly one of those cases.

There was some confusion.

There was confusion about the total number of years which the prisoner was to serve.

But as I indicated, I don’t think that this confusion as to — in the addition of the number of years has any bearing whatever on the question of the consecutiveness of the sentences and the order in which the sentences were to be served.

The judge may have been wrong in adding up the sentences and as I say ultimately the petitioner was given the benefit of the minimum number of — of those years, but I don’t believe that this is a confusion if it was that or just poor mathematical ability reflects in anyway on the consecutive character of the sentences or on the — on the order in which they were to be served.

William J. Brennan, Jr.:

Why is that so?

Page 8 of the record, I mean my addition is no good either but mine is a total 13.

You say the confusion was straightened out by giving in the benefit of doubt making it 12.

Harold H. Greene:

He ultimately got 12 — the — the —

William J. Brennan, Jr.:

How was that done what you have is one plus two plus two plus two plus two plus two plus two, that’s 13 if my arithmetic is any good?

Harold H. Greene:

Well, the Court of Appeals inquired of the Government in this case as to the total number of years that Mr. Payne wants to serve and the Court of Appeals was advised that as the Government construed the sentences, he was to serve 12 years.

Hugo L. Black:

The government what?

Harold H. Greene:

12 years.

Hugo L. Black:

You said they were — the Court of Appeals was advised what?

Harold H. Greene:

That as the Bureau of Prisons construed these sentences, as to Bureau of Persons understood these sentences they imposed no more than 12 years.

Hugo L. Black:


I don’t understand.

It seems to me like it was 14 under the — and the judge said 14 and there were seven cases.

What was that basis?

Harold H. Greene:

No, the judge I don’t — I believe the 14 years was simply someone stated 14 years but —

Hugo L. Black:

(Inaudible) you said the Court.

I figured 14.

Harold H. Greene:

That’s what the Court said but as I indicated, the Court may have been a poor mathematician but he didn’t — he at no time imposed 14 years on the specific sentences that he — that he imposed ov each specific counts.

William J. Brennan, Jr.:

(Inaudible) mathematician then because certainly that adds up to 13, isn’t it?

Harold H. Greene:

No Your Honor.

The — the —

William J. Brennan, Jr.:

It doesn’t.

One plus two is three, isn’t it, plus two is five, plus two is seven, plus two is nine, plus two is eleven, plus two is thirteen.

Harold H. Greene:

Well the confusion that arose came in on — on sentence on 10681 on the indictment on 10681.

If you will refer to — on page 7 to where the Court for the first time, where the Court imposed actually imposed the sentences on — on indictment number 10681, he said one year on each count concurrent.

Then when you recapitulate on page 8, he said on 10681 two years and that’s where the confusion came in.

William J. Brennan, Jr.:

Well I know but he’s repeated it.

Well who’s the general (Inaudible)?

Is that the Attorney General so and so?

10681, how is that?

It is two years the clerk says?

Harold H. Greene:

Well it was repeated at that time the original, the sentence that was originally imposed what we consider to be the proper sentence was 12 years.

The written judgments that were made out contained only 12 years and when the Bureau of Prison was asked in the — the Government was asked by the Court of Appeals as to what they considered to be the sentence, they said 12 years and I’ve come — from all of that, we believe that 12 years is the — is the sentence that was imposed here but all of that doesn’t go to the question on whether the sentences were to be consecutive or concurrent because the largest single sentence was two years, the largest single separate sentence.

So it — it couldn’t have been — he couldn’t have meant whether it was 12 or 14 years, he couldn’t have been concurrent under either and under any of the interpretations.

Earl Warren:

What is the sentence, the oral sentence he gave that day or the — or the written judgment?

Harold H. Greene:

We would agree that the sentence of the Court is the oral sentence.

Earl Warren:

And that the written judgment cannot alter or change that — that oral statement.

Harold H. Greene:

The written judgment, we believe, if it differs in a matter of substance from the oral sentence, it is void, it cannot — it cannot change that.

However, we do argue that the written judgment can be used to resolve an ambiguity if there is an ambiguity, but I would like to emphasize that —

Earl Warren:

And it can supply certainty that — that it wasn’t there when the defendant was sentenced.

Harold H. Greene:

It can supply certainty where — well, in these cases where the implication from the whole entry was that these sentences were to be consecutive in a certain order, then I think the written judgments can be use to confirm that that implication if further confirmation is necessary.

We don’t say in — the only cases have been cited are cases in which the written judgment totally differs from the oral pronouncement.

If that so, certainly the written judgment cannot vary and cannot overcome the oral sentence.

But I don’t believe that the Court should close the eyes to the written judgment where it was signed and entered at the same day by the same judge who — who pronounced the oral sentence.

But —

Earl Warren:

Does the record show this was signed the same day?

Harold H. Greene:


Now let me — let me emphasize that we do not rely on the written judgments initially.

We only rely on the written judgments in the alternative and only on the assumption that our principle argument may not be accepted.

I believe that — that on our principle argument, that the oral sentences themselves were sufficient to impose consecutive sentences, we really never need to refer to the problem of where the written judgments can be use for that purpose or not.

Now —

Charles E. Whittaker:

May I ask you?

Do you rely on the written form of oral pronouncement alone upon the ground that written judgment under the Rule 32 is not the “judgment’ or what is your basis to this?

Harold H. Greene:

Well, the oral sentence is certainly the sentence known to the law as the sentence of the courts.

Charles E. Whittaker:

It is your position that (Inaudible) the defendant wasn’t present then the written sentence was witness was (Inaudible)

Harold H. Greene:

I think there would be great difficulty in maintaining the position that the written judgment was the judgment of the Court and which supersede the oral sentence because of the fact that the defendant is not present, yes Your Honor.

Charles E. Whittaker:

That I can understand.

Tom C. Clark:

Is the written commitment available?

Harold H. Greene:


It’s in the record.

Tom C. Clark:

(Inaudible) can he write to clerk to get a copy of everything that transpired (Inaudible)

Harold H. Greene:

In the two cases of course in the — in the Payne phase, the written judgments didn’t get into the — into the Court until the time that the Court of Appeals asked for them.

In the Young case, the written judgments were there right from the beginning because this was in the sentencing court.

The Young motion was brought into sentencing court.

In the Payne case, the writ of habeas corpus was brought in a — in a district other than the sentencing court and therefore, there was — there was some difficulty about getting the records.

Tom C. Clark:

I’m not talking about the sentence.

Could he write letters to make the sentences (Inaudible) contention to say along which is similar at (Inaudible) then send him a copy or not.

Harold H. Greene:

I just don’t know.

Now some argument is made that the Doherty case should not control here because they’re with different counts of an indictment were involved and here we have different indictments and that this should make some difference.

Now it’s true that indoor may the Court referred to the Patterson case, Mr. Justice Bradley’s opinion and said that the question was different in that case.

But I — I don’t believe that can be construed as an endorsement of Patterson.

At best, it was simply a way of not overruling the case where it wasn’t absolutely necessary.

But whatever maybe the merits of that, I think as a matter of substance, no tenable distinction can be made between different counts of an indictment and different indictments in this — on this type of question.

The seven Court of Appeals decisions in three circuits which have dealt with this problem, not one has been able to see and has been able to decide the question on the basis of that distinction.

The only thing the petitioners point to is that multiple counts in one indictment typically have to deal with transgression and that because of that, this factor of one transgression might clarify the sequence in which the sentences are to be served.

Harold H. Greene:

I think both of these suppositions and propositions are erroneous.

In the first place on the Rule 8 (a), you can join in one indictment and various counts a number of criminal acts whether they occur out of one — one transgression or not, as long as they are the same with similar character.

Except for the fact that in this case, the indictments came from different districts, I suppose, these — these offenses could have been tried to the counts of one indictment.

So to make the clarity of the sentences depend on that, seems unrealistic, but even if the different — even if the different counts came from one transgression if you had only a single indictment.

I don’t believe that would prove anything as to the sequence in which the sentences were to be served.

Supposing for example on narcotics case, one count charged the illegal possession without a written order form.

Without more, I don’t believe from that you could deduce the order or the sequence in which sentences on these two counts were to be served.

So the distinction that petitioners try to draw between counts of one indictment, in different indictments for these purposes simply is untenable and if Doherty is still the law, it would have to of course apply to both situations.

Mention has been made upon 25% which is attached to the criminal rules and it’s true that in form 25 or footnote to the forms says that the form — the Court in preparing the judgments should give the order or the sequence in which the sentences are to be served, but two things ought to be born.

In the first place under Rule 58, the forms themselves are only illustrative and not mandatory.

In the second place form 25 applies to the written judgment under Rule 32 (b).

It doesn’t apply to the oral sentence under Rule 32 (a).

So to make an illustrative form which applies to written judgments, to make that mandatory for oral sentences seems — seems again not — not appropriate.

Let me just allude briefly to a question of jurisdiction which arises out of the peculiar way in which these cases came out.

The Young case, Number 180, came up by a petition for writ of habeas corpus in the District in which the petitioner was confined.

On the other hand, the Payne case, Number 184, came up by a motion to correct sentence in the District in which he was sentenced.

Now the petitioners’ claim that they can properly bring either a motion under Section 2255 of Title 28 or petition for writ of habeas corpus to raise the same issue.

Now Section 2255 specifically provides in the last paragraph that it’s — you cannot apply for writ of habeas corpus unless a motion under Section 2255 is unavailable.

In other words the two remedies are mutually exclusive.

So I don’t believe it’s possible to bring the same question up in the — in two different districts.

Also the habeas corpus petition isn’t proper because on a collateral attack under the decision of this Court in the Hill case, on the collateral attack, the judgment of the courts is the judgment and no — no court in any other district can go behind that judgment.

For those purposes, the written judgments, the judgment under Rule 32 (b) is the judgment of the court and not the oral sentence as the Hill case makes quite clear although in the Hill case it didn’t have a written judgment but you had the equivalent of docket entry signed by the court.

So that for that reason alone in the Payne case for jurisdictional reasons, the petitioner could not raise this question in the courts in the manner in which he did.

We believe the appropriate manner and the proper manner to raise this kind of a question is by a motion to correct under Rule 36 which is a motion to correct clerical errors or omissions if — if in fact the written judgment departs in that manner from what the true sentence of the Court is, then a motion under Rule 36 would lie.

And while the petitioner in Young didn’t call his motion, a motion under rule 36 apparently, he thought he was filing a motion under Rule 2255 — Under Section 2255.

I think his motion can be construed to be a motion under the Rule 36 because at least it was in the sentencing court and the court which has the papers there which has the judgment and which it entered the judgment, and this judgment should be good against the whole world.

Charles E. Whittaker:

Well that wouldn’t raise Mr. Rowe’s point however, would it, where he contends there’s much more here than a mere clerical mistake, does he not?

Harold H. Greene:

Well he would contend, I believe, that there is a clerical mistake in that the written judgment doesn’t correctly reflect the true sentence of the court.

He would say that the true sentence of the court was that the sentences were to be concurrent and since the written judgment doesn’t provide for concurrent sentences the written judgment was in error and should be corrected to reflect — to intent in the two judgment of the court.

Charles E. Whittaker:

So maybe I misunderstood — I understand him to contend that these sentences, none of them being denominated to succeed other sentences all ran concurrently and then when he’d served the period of the longest when he’s entitled to release.

Charles E. Whittaker:

Isn’t that his claim?

Harold H. Greene:

That’s right, but he is entitled to that release under the oral sentences, under the sentences that were imposed orally.

And to the extent that the written judgments do not conform to that, they’re obviously an error if he is correct on the merits on the substance of his claim.

And I suggest that a motion under Rule 36 is a good a way of raising this — this problem as any particularly since habeas corpus is unavailable because it’s in the different districts, district and particularly also since the motion under Section 2257, I believe, is also unavailable, because it only goes to illegal sentences and this sentence is not illegal.

It merely says he serve the full term.

So he obviously must have some remedy, and I suggest to the motion under Rule 36 would be the appropriate remedy.

Earl Warren:

Mr. Greene, what do you have to say to the argument of Mr. Rowe that in the case that you rely United States versus Doherty, 35 years ago, the Court although sustaining the judgment of the District Court said this and similar unfortunate causes should it manage the trial courts to require the use of meticulously precise language in all judgment entries.

Special care is essential where sentences for crime are imposed and the fact that nothing has happened to clarify that matter and that it’s about time that this Court should do something to see that they do follow that admonition that was given and in the case you rely on.

Harold H. Greene:

Well, number one, I think as I’ve indicated, I believe these cases are much more precise than the judgment and the sentences that were imposed in the Doherty case.

So to that extent the District Court here did comply with the admonition of the Court in the Doherty case.

Also since that time we have of course had the Federal Rules of Criminal Procedure and Form 25 which in the written judgment at least, sets forth precisely all of the things in — in both as to consecutiveness in order of sentence in a very precise and meticulous manner.

All that I’m suggesting is that you cannot expect in a — in a — in oral pronouncement, it will be difficult to expect the same kind of precision as you would have in the written judgment unless the whole thing were written out in advance.

So to answer your question quickly, I believe that these sentences all much clearer than the sentences in the Doherty case and they clearly set forth the consecutive character and the order of consecutiveness and that’s about what could be expected.

Hugo L. Black:

I don’t quite understand why it’s clearer than the Doherty case, is that it?

I’m not sure that that settles the case though but I was just reading the Doherty sentence for the term of five years which was set on three counts as I believe he’s been discharged that terms (Inaudible) consecutively and concurrently.

I don’t understand why you say this senate is clearer than the Doherty case with reference to the affirmance.

Harold H. Greene:

Well in this — yes.

Well in this sent — in this sentence, the Court treated separately each of the various indictments and discussed each of the various indictments by number and by subject matter and then at the end said, after discussing them all in that order, he said now all of — all of the sentences should be a consecutive.

The — the implication from that — the much clearer implication from that is that there would be consecutive in the order in which they were imposed.

Whereas in Doherty, all you had was the — the pronouncement said term, I believe the Court didn’t even use the plural, he said, said term of imprisonment to run consecutively not concurrently which is a much vaguer pronouncement than what we have in this case.

Hugo L. Black:

And what do you say about the effect as Doherty case distinguished between the counts and the indictments?

Harold H. Greene:

I believe that no tenable, no rational distinction can be drawn at least none has been suggested that would — would make sense with — for these purposes.

You would have distinction between counts and indictments because in many instances, you could have — you could bring the same kind of charge on indict — on different indictments or different counts.

And to make the clarity of the sentence depends upon whether similar offenses — a series of offenses were charged in one indictment and in one number or in several indictments for several — several in number.

I just don’t believe it can be done because the fact that different counts different indictments are involved doesn’t illuminate at all the sequence in which the sentences are to be served.

Hugo L. Black:

Is it pretty clear whether that’s right or not, the Court in Doherty thought it made it.

(Inaudible) the fact not merely what you’ve said — in fact you said, we think the reason of that opinion is not applicable to present situation.

Nealy versus United States (Inaudible) —

Harold H. Greene:

Nealy case —

Hugo L. Black:

And that was based upon the fact that’s otherwise different not different indictment.

Harold H. Greene:

There’s no question, Mr. Justice Black, but that in the Doherty case, the Court said about the — what the Court said about the Patterson case and Nealy case was that, it was not addressing itself to insofar as — as its rule in this case was concerned.

It didn’t mean to apply it to counts, but what I’m suggesting is, it didn’t mean to apply different indictment.

What I’m suggesting is that no rational distinction can be drawn, so either you’ll have to go back to Do — to the old Patterson rule and — and hold that as a matter of law, these sentences are ought to be concurrent regardless of the — of what the Court said and what the Court intended or Doherty would have to be held to apply to both counts and indictments.

Earl Warren:

Mr. Rowe.

Frederick M. Rowe:

Mr. Chief Justice, may it please the Court.

I believe that the argument for the Department of Justice points out the really fundamental issue permeating this entire case which is whether after 35 years of experience with the Doherty decision on the basis of developments in the interim, this Court should render a decision which either raises or perhaps lowers the required standards of clearness and specificity in criminal sentencing.

I believe those are the basic alternatives because if on the one hand this Court would sanction what happened in these cases below and where counsel says that these sentences were specific, I regret to say some they were not specific and those were considered specific.

And then —

Tom C. Clark:

You should think perhaps the rule of — growth of Doherty?

Frederick M. Rowe:

I believe that Mr. Justice Clark that the Doherty opinion as shown by the developments of a 35 years has in effect given too much leeway to the trial judges which they have not employed in such a manner as to have required specificity in the sentences.

The Court had managed in effect that caution that exhorted the judges to use meticulously precise language but certainly it has shown that —

Tom C. Clark:

And what about those in judgments?

You get along and come through and say that judgment shall be entered.

Frederick M. Rowe:

Well —

Tom C. Clark:

That did on a form.

Frederick M. Rowe:

I had thought, Mr. Justice Clark in the basis of the briefs, said that this point was opened but I believe that counsel for the Government has not taken the position which he might have taken that what we look to is the written judgment rather than the oral pronouncement with that kind of state his case has specifically for him did have the clear impression that what he was saying is — and this agrees with our position that it is the judge’s oral pronouncement in open court which controls and that any departures, any substantial departures in the written form from what the judge has pronounced an oral court is inconsequential and in effect null and void.

Charles E. Whittaker:

This seems — this seems to be (Inaudible)

Frederick M. Rowe:

Quite so and that was the reason why we urge that possession, Mr. Justice Whittaker that the rule must not be and cannot be lawfully that something is controlling on the sentence where the prisoner, where the defendant is not present because that is one of the most fundamental guarantees of our criminal procedure and that the defendant must be in Court, must be present when that happens which determines whether he must go to jail.

And for that reason, counsel’s concurrence in our basic position, I think, simplifies this Court’s decision on this case.

Earl Warren:

And I think and also in effect, is it not that the time for appeal runs from the oral sentence?

Frederick M. Rowe:

I, Mr. Chief Justice, I cannot give you a confident answer to your question.

I would believe it to be the case but I cannot be sure.

Earl Warren:

And then it did — and if it did and the written judgment does not prepare for some days he wouldn’t have any 10 days in which to appeal from the judgment, would he?

Frederick M. Rowe:

That is correct, sir.

Traditionally, it is what the judge does on offense rather than the important thing.

What the clerk does afterwards — afterwards is necessary, is useful, and must be done by somebody.

But certainly, nothing that the clerk does can rise superior in authority to what a judge does on the bench and his oral pronouncement.

And that is the heart of our contention, of course, that it is what the judge said and not what the clerk did afterwards that must determine how long and when these petitioners must serve their sentences that were imposed in open court.

Tom C. Clark:

How did he get into penitentiary, this prisoner?

Frederick M. Rowe:

The —

Tom C. Clark:

He’s in the jail when he’s tried, let’s say, and how did he get into penitentiary?

Frederick M. Rowe:

There, the written judgment and commitment form, as we understand the practice is executed in triplicate or quadruplicate and one copy is given to the martial or to the other official corresponding to a martial in the sentencing court, and this form then, this copy which the martial has is the authority by which the body of the prisoner is delivered to prison.

Tom C. Clark:

And the prison has a copy?

Frederick M. Rowe:

The prisoner himself has not furnished a copy.

Tom C. Clark:

I mean prison authority?

Frederick M. Rowe:

The prison authority has a copy.

Yes sir.

Potter Stewart:

This was signed not by the clerk, it’s signed by the judge.

Frederick M. Rowe:

It is signed by the judge.

It is prepared by the clerk in type written form customarily after the end of the proceeding on the basis of observations made by the clerk when he sits there, and the subsequently, the judge signs.

Potter Stewart:

Entered on the same day.

Frederick M. Rowe:

In this case it was on the same day but there’s certainly no requirement that as the judge signed it on the same day and then inquiring of the local district court as to their procedure that we were told that it’s signed by the judge either on the same day or on the next business day which frequently has became Friday and Monday, yes.

As I started to say, I believe this decision really is a turning point insofar as whatever decision is rendered by this Court will either mean that the standard is raised upward or that what has been done below is approved and so the necessary tendency will be that any leeway that trial judges felt they had on the basis of the Doherty case to render pronouncements such as were rendered by the district judge here will continue and to our mind would really aggravate a continuing problem of challenges by prisoners in the courts to obscure pronouncements which they cannot make out on the basis of the judge’s own words.

The question on the one hand is, as I believe, Justice Department counsel has put it whether the sentence pronounced by the judge should be governed by what the fair implication is or what the reasonable implication is, about what the natural inference is, I think we must recognize that defendants appearing in court for a sentence on a criminal charge are not semantic experts that they’re not philosophers.

They’re people of normal, if not subnormal intelligence, and if they are to rely on natural inferences and reasonable understandings or fair implications of what the judge is saying, I believe they’re being deprive of a right which they have guaranteed under our procedure namely to find out when they go to court to be sentenced, when they must go to prison, and if so, for how long, and when in relation to each criminal charge on which they have been brought before the bar of justice.

Counsel —

Charles E. Whittaker:

What have you to say, sir, in respect to argue — the argument of counsel for the Government about the jurisdiction of the courts below to enter an order of habeas corpus with respect to these men who were confined in Alcatraz?

Frederick M. Rowe:

Mr. Justice Whittaker, I believe the contention that habeas corpus was not a proper vehicle for securing the remedy which the petitioner in Number 180 sought.

It’s rather a belated and a tardy discovery on the part of the Department of Justice because it was never urged in any stage of the proceedings below either in this case nor in any other case that we’ve been able to ascertain and certainly no court has ever said that habeas corpus was not a proper remedy, but passing up that aspect of the situation —

Charles E. Whittaker:

I’m not talking about proper remedy.

I’m talking about jurisdiction.

Frederick M. Rowe:

Jurisdiction, we believe that in effect that the Department of Justice has answered its own point when it has said that the vital incident of this case is not the written judgment but it is rather the oral pronouncement of the judge in open court.

Because we are relying on the essential and the vital incident, the judge’s oral pronouncement and the Government having stated that this is, yes, that this is the important incident in the procedure is now precluded, we think, from saying that what we have done is to go behind the judgment of the Court.

We’re not going behind it, we’re relying on it.

Charles E. Whittaker:

I think I had made myself clear.

As I understand in the habeas corpus case, the relief can only be granted by the District Court that has jurisdiction of the person or the district the person or the accused exists.

Frederick M. Rowe:

Yes sir.

Charles E. Whittaker:

These men were incarcerated in Alcatraz.

One of them filed a habeas corpus proceeding in North Dakota.

Frederick M. Rowe:

Oh no, sir.

Frederick M. Rowe:

I’m sorry.

I did misunderstand your question because the prisoner who sought relief by way of habeas corpus did move in the Southern District Court of California.

And there is no question but that, that is the proper venue where and he can secure relief by way of habeas corpus.

The North Dakota incident arose when the one prisoner filed a motion to correct the judgment with the sentencing court in North Dakota.

He didn’t file habeas corpus in North Dakota.

Charles E. Whittaker:

Well not habeas corpus (Inaudible)

Frederick M. Rowe:

So the question to which you eluded and which I misunderstood, I don’t believe is the case.

But counsel did raise the point that habeas corpus is never the proper remedy in these proceedings.

And our position there is that when counsel has agreed with us, that the essential act as the judge’s oral pronouncement, then habeas corpus is necessarily the proper remedy because we’re not going behind the judgment of the Court.

We are relying on the judgment of the Court when we say that when the District Judge fails to specify any sequence in the sentences that he imposes from the bench, then by operation of law, all of these sentences must be held to run from the time they are imposed and not some other time.

And with respect to the remedies also which the Department of Justice has suggested in effect what their suggestion adds up to as we understand it is if the test is the natural implication of the reasonable understanding or the fair meaning of what the judge says in open court in effect the prisoner has to get a declaratory judgment sometime later to find out from the judge what he meant the first time.

This is what it comes down to unless this Court promulgates a rule that the judge has to pronounce the sentence clearly from the bench in such a manner that the defendant can understand it the first time around, not years after in some kind of declaratory judgment proceeding because if every prisoner in order to find out under what sentence he was serving, had to file a motion whether it’s called a motion to correct the inquiry or motion to correct the judgment or habeas corpus, then the District Courts would be clogged with prisoners trying to find out what the term of sentence is and under which particular judge — under which particular charge they were currently serving in prison.

And for that reason we believe that a clear cut specific vigorous rule is necessary in the case of this kind so that for the next 35 years, we will not have the problem that we have had with the Doherty rule for the last 35 years that namely, if the court fails to say those very simple few words which apprise the prisoner when he must go to jail of any particular charge in that event, all the sentences will run from the time of the imposition and we feel that such a rule by this Court requiring that kind of specificity will not only raise the standards of judicial procedure but will ensure unlike the Doherty experience that from now on in the judges will be as precise as I believe counsel for the Department of Justice agrees with us, they should be.

Thank you very much.

Earl Warren:

Mr. Rowe, before you sit down, I should like to express the appreciation of the Court to you for having accepted the assignment of the Court to represent this indigent defendant as public service.We’re always comforted by thought that lawyers are willing to take such cases and pursue them with the diligence and understanding that you have.

Thank you very much.

Mr. Greene, I should like also to thank you for the diligence and the helpfulness that you rendered to the Court in representing the Government in this matter.