Prince v. United States

PETITIONER:Prince
RESPONDENT:United States
LOCATION:Kingsley Books, Inc.

DOCKET NO.: 132
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 352 US 322 (1957)
ARGUED: Dec 11, 1956
DECIDED: Feb 25, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – December 11, 1956 in Prince v. United States

Earl Warren:

Number 132, Ollie Otto Prince versus United States of America.

Mr. Jenkins.

Joseph P. Jenkins:

May it please the Court.

This is a criminal case on certiorari to the United States Court of Appeals for the Fifth Circuit which had overruled an order entered by the United States District Court for the Western District of Texas, whether affirmed in which he had overruled an order for a motion filed by the defendant asking the court to placate or correct an illegal sentence.

It involves interpretation of that part of a Bank Robbery Act which I believe because of the contentions of the Government and because of the Fifth Circuit Courts of Appeal relative to the entry with intent provision has placed that particular provision in a rather unique position insofar as the (Inaudible) of our jurisprudence is concerned with criminal matters because this Court is being asked to construe the bank robbery statute.

First, to define the purpose of the 1937 Amendment to the statute, secondly, to determine what is a maximum sentence imposable under subsections (a), (b) and (d) of the statute which are the traditional or classic form of bank robbery, if I may the use the term.

And thirdly, if a person is accused of entering a bank with intent to commit a robbery or felony therein or larceny and counsel makes the act particularly under aggravated circumstances as involved in this case, whether or not the entry with intent act, which is peaceful in this case, merges with the aggravated robbery provision.

The sole contention of the petitioner here is that count two of the indictment here it involved is legal and that no crime was committed thereon.

And if a crime was committed, it was merged in the first count of the indictment.

The statute involved is Title 18, Section 2113, the Federal Bank Robbery Act.

This Act was enacted in 1948 as a reenactment of the original bank robbery statute, Title 12, Section 588 (b) amended in 1937 and repealed at the time the reenactment was held.

Subsection (a) of the Act prohibits two crimes, robbery by force and violence and intimidation and entry of a bank with intent to commit a felony therein affecting such bank and larceny and a 20-year penalty is assessable.

Subsection (b) prohibits grand and petit larceny.

Subsection (d) which is a rather unique statute prohibits any of these acts to be committed by the use of a dangerous weapon or device by assault.

And if so, a penalty of 25 years is assessable.

This is known as the jeopardy or aggravated portion of the statute.

Now, the facts —

William J. Brennan, Jr.:

Now, 15 years that he had on the second count, does that —

Joseph P. Jenkins:

Yes, sir.

William J. Brennan, Jr.:

— consecutive to the 20 years?

Joseph P. Jenkins:

That’s correct.

The facts are simple, Your Honor.

And that I was returned against this petitioner in 1949 charging him with two counts.

Count number one was commission of the act of bank robbery under aggravated circumstances.

Count number two was entry of the bank to commit the robbery.

Trial was held and the evidence show that he had entered the bank at Malone, Texas during daylight hours, during regular business hours through a duly designated entrance without any force or violence as other people had done familiar to customer while where he was invited.

While there, he asked certain directions of a bank officer.

He was given directions.

He then displayed the weapon and consummated the act of bank robbery which is prohibited by subsection (d) of the Act under aggravated circumstances.

He was sentenced after being found guilty for 20 years on entering the bank or the robbery forcing thereof and 15 years on the second count which is the entry with intent, these sentences to run consecutively or for a total of 35 years.

Joseph P. Jenkins:

He is now serving the 20-year sentence, a motion to enlarge —

Earl Warren:

What is the maximum — what is the maximum punishment for those crimes?

Joseph P. Jenkins:

The maximum punishment, well, that’s the crux of this case.

Earl Warren:

Well, for the — I mean for the major crime of a bank robbery.

Joseph P. Jenkins:

Major crime in my opinion, if the Court please, in a typical bank robbery is subsection (d) or 25 years.

Now, a motion to enlarge has been —

Stanley Reed:

Well, which — which one of these did he serve first?

Joseph P. Jenkins:

He is now serving the 20-year sentence which has been imposed on the actual crime of bank robbery.

The Court could have given him 25 years but chose to give him 20.

He is now serving that level with penitentiary.

Stanley Reed:

And you brought — they discovered?

Joseph P. Jenkins:

No.

Stanley Reed:

(Voice Overlap) —

Joseph P. Jenkins:

Under Rule 35, a motion can be filed any time —

Stanley Reed:

To correct.

Joseph P. Jenkins:

— to correct in legal sentence.

Stanley Reed:

And that — and you’re — you’re moving under that.

Joseph P. Jenkins:

And this motion was filed in the sentencing court under Rule —

Stanley Reed:

You don’t have any problem in which one he serves?

Joseph P. Jenkins:

No, that’s not the problem at all.

William J. Brennan, Jr.:

And what is the maximum on that second count?

(Voice Overlap) —

Joseph P. Jenkins:

The maximum on the second count is 20 years.

A motion to enlarge is in the record and that was — it was granted by the court and the last four pages of the record pertain to how the bank was entered which is important we believe in this case.

And as referred to by both the Government’s brief and the petitioner’s brief at the supplemental record, it’s actually pages 17 to 20.

Now, in 1955, a motion to correct or modify in legal sentence was filed under Rule 35 with Federal Rules of Criminal Procedure.

It was overruled by the trial court, Judge Ben Rice presiding.

It was appealed to the Fifth Circuit.

Your Honor, it was affirmed and certiorari was granted by this Court last June.

The contentions of the petitioner are two-fold.

Joseph P. Jenkins:

First, that when Congress enacted the 1937 Amendment to the Bank Robbery Act, they did not intend to cover anything but burglary and larceny.

Burglary being in a tradition or classic form or in the form under the modern statutes and it was not intended to cover mere peaceable entry of a bank walking in the front doors in this case.

And secondly, that if this Court feels that this particular type of crime or entry is within the purview of the 1937 Amendment in any event when the culminated act, when the intended act is completed.

Congress isn’t interested in sensing for both but merges into the completed act particularly when the 25 years sentence is imposed under subsection (a) of the Act, that being we submit to this Court, the maximum penalty accessible under the Bank Robbery Act, Sections, (a), (b) and (d), leaving out kidnapping and murder which are covered in other subsections.

But the traditional, the classic form of bank robbery is covered in (a), (b) and (d) of the statute.

Now, the point A, my first point refers to what did the 1937 Amendment to the Act cover.

Now, the Government in its brief rather oddly, I believe, submits that this Court doesn’t have to go behind the statute but can just read the words and that words themselves will show what the intent of the Congress was.

I heard just in this Court yesterday that we cannot apply artificial, mechanistic reasoning to interpreting words of a statute like the hieroglyphics of shorthand.

We must go behind the statute to determine what is the intent of Congress.

This — the history of this Act is very revealing.

The 1934 Act only included robbery by force and violence and then if it was committed under aggravated circumstances, a — an additional sentence was then imposable.

They had requested the Attorney General that this Act include larceny and burglary, but for some reason, the Congress did not deem that.

It should be so and did not enact that procedure.

Now, in 1937, this was found to be a mistake.

This Act was not all-inclusive and something else should be added to the Act and this was done.

The Attorney General directed a letter to the Speaker of the House and he said that he wanted this Act amended to include burglary and larceny.

And he submitted a — a draft of proposed legislation in which he uses the words entry with intent.

Now, the House Judiciary Committee and the Senate Committee reported favorably on the bill, both of their reports referred to the bill as an act to amend the Bank Robbery Act to include burglary and larceny.

There were some debates on the floor between Representative Rankin and Wolcott and both of them referred to the Act as burglary.

They used the word breaking and entering no less than five times when — when the Act was read to the — to the House, to the Floor, the clerk used the words, enact to amend the bank robbery statute to include burglary and larceny.

The request of the Attorney General was heeded and the Act was enacted, but nowhere in any of the history, debates, letters, reports was there anything said, this Act should include burglary under the circumstances here if that is at all burglary.

Now, was there any intention to increase the penalties under the Ac, now, was there any intention to redefine burglary far beyond any concept that I know in the state courts or any concept known in the federal courts.

Now, for some reason, the courts, some of the courts below, there are just a few of them that have interpreted the statute, have felt that peaceful entry is burglary and that this particular part of the statute means that peaceful entry is prohibited.

If the necessary animus is present, even though a person may abandon his intent, he is still committed the crime.

He is a felon, even though the act itself has no — no intention whatsoever of that purpose.

Now, burglary, we all know is a very serious crime, particularly the old classic form of burglary in the nighttime with — of dwelling house with occupants.

But our modern versions have redefined burglary, so that now, today, burglary may be entrance without force of a place in the daytime.

But there was always the element of trespass involved.

In my home state of Kansas, there are four degrees of burglary, but the least of the degrees, the fourth degree, is far more serious than merely walking in a bank where the public is invited with the necessary animus.

The Government contends that this statute is modeled after Section 190 of the Penal Code.

Joseph P. Jenkins:

What does that section say?

Breaking and entering a Post Office with the intent to commit a felony therein, breaking and entering.

We submit that if this Court feels that this statute covers peaceful entry, even though the legislature meant burglary and larceny and clearly pass the Act to cover that and the Attorney General requested that, we’ll be going far beyond the ordinary concepts of burglary.

Now, the penalty is 20 years according to the statute.

Now, that’s in line with the regular burglary of penalties in most of the States.

The most serious form of burglary, however, first degree of burglary is usually 20 years, maybe 25.

My state is 20.

But fourth degree is one of five in my state.

It has a more serious crime than walking the bank, in 20 years, can be had in this particular instance.

Furthermore, burglary is considered under this statute.

Entry is more serious than larceny.

So a person may steal a $100,000 from a bank and he can get 10 years under the statute.

If he enters the bank, intending to steal a fountain pen because — because larceny is a misdemeanor under the statute, he can still get 20 years for entering the bank, theoretically, and addition of one year for the larceny if consummated.

If not consummated, he can still get 20 years and inconceivable.

Robbery, under the Act, subsection (a), without a dangerous weapon, but the words force and violence is used and intimidation carries a crime or whether a sentence of 20 years.

Entry is also 20 years.

I believe it is clear that the — that burglary in its traditional form or its redefined form as most of the state courts have now done, legislatures was meant and not mere peaceful entry.

The maximum we submit is 25 — 25 years under the statute which is aggravated form of robbery.

Now, we believe that the penal statute must be strictly construed against the Government and as Justice Frank said, a penal statute is not to be generously construed in favor of the Government.

Well, as to point B, in the event the Government feels, this Court feels, the Government will certainly does so feel, that peaceable entry was included under the statute.

What does it mean?

Justice Huxman said this, in cases not similar to this, this particular provision was enacted to provide the omission in a case where a party enters the bank intending to commit a felony and then abandons his purpose or as apprehend before he commits it, not to cover this particular type of situation.

If the petitioner is wrong, this particular amendment, 1937, which is part of — of the Act today, the 1940 Act, it act — merely consolidated the earlier Act, if the petitioner is wrong, not only was this Act expanded, which is — it seems to be the motivating force behind it, but the penalties have been increased, even though the Attorney General has showed no interest in increasing the penalties.

Under the interpretation of the Fifth Circuit, a man can get 55 to 60 years for the traditional form of bank robbery without hurting anyone and he can get 21 years or, say, 30 years, we can juggle the statute in all different ways for entering a bank and maybe stealing $101 and we don’t believe that’s the intent of the legislature.

I’ve got a question for you (Inaudible)

Joseph P. Jenkins:

If —

(Inaudible)

Joseph P. Jenkins:

If it was done, it is in the power of Congress to place any sentence it wishes on any act.

(Inaudible) is simply as a matter of statutory construction.

Joseph P. Jenkins:

We believe that it is a matter of — of statutory construction, but however, it has amounted to double jeopardy because I’m going to — it has amounted to double jeopardy and that we don’t believe that Congress meant, these two particular acts to be subdivided, I was getting to that point, so that the commission of one is a separate crime from the commission of the other.

Joseph P. Jenkins:

We’ve mentioned that in the court below but we still feel that does involve statutory construction.

Felix Frankfurter:

Well, I’m — I meant you are — it’s clearly what the purport of your ends for Justice Harlan’s question.

Joseph P. Jenkins:

I feel that —

Felix Frankfurter:

Do you think there is a question of constitutionality or do you disallowed that?

Joseph P. Jenkins:

I believe — I believe there is a question of constitutionality.

Felix Frankfurter:

There is.

Joseph P. Jenkins:

Yes, Your Honor, I certainly do.

But as I have stated with honor, the question is somewhat integrated with construction of the statute and intent and it’s hard to say whether we can separate the two or not.

If the statute is being construed wrongly, there is double jeopardy.

That’s the only way I can look at it.

Felix Frankfurter:

You — you mean to say if — if it should be construed if not allowed sentences for both, cumulative sentences for both, when Congress disallowed it and rends it — that if a court goes wrong to allow that or you’re wrong to prevail with amounts of punishment for something that’s — in relation of punishment, but suppose Congress explicitly say in this case, 20 years or 15 years for one and 20 years for the next.

Joseph P. Jenkins:

Then there would be no question.

Felix Frankfurter:

There’d be no question.

Joseph P. Jenkins:

That’s correct.

Felix Frankfurter:

There’s no question of double jeopardy, wouldn’t there?

Joseph P. Jenkins:

That’s correct.

Felix Frankfurter:

What you say that the same were severed and therefore, it’s a matter of construction, they made construction.

Joseph P. Jenkins:

I believe you — please, very well.

William J. Brennan, Jr.:

Well, Mr. Jenkins, may I ask, actually I — I gather is the second paragraph of subdivision (a) —

Joseph P. Jenkins:

That’s the —

William J. Brennan, Jr.:

— they signed it here, isn’t it?

Joseph P. Jenkins:

That’s right.

William J. Brennan, Jr.:

As well as (d).

Now, that creates an act offense dichotomy, I gather.

The same act as this appears, may be two offenses.

Is that what you would think the Government —

Joseph P. Jenkins:

That’s correct.

I — my opposition is that (a) and (b) are actually four separate and distinct offenses, all of which fall into subsection (d) if the crimes are committed —

William J. Brennan, Jr.:

Well, what —

Joseph P. Jenkins:

— as aggravated crimes.

William J. Brennan, Jr.:

— I’m trying to get at is in effect, the same act is made two offenses, is it not?

Joseph P. Jenkins:

I say no.

William J. Brennan, Jr.:

I see.

You say no because you say that (d) embraces (a).

Joseph P. Jenkins:

That’s correct.

William J. Brennan, Jr.:

Is that it?

Joseph P. Jenkins:

That’s correct.

William J. Brennan, Jr.:

Well, now, if there’s a matter of statutory construction, that should — we should conclude that was not the case and that (a) and (d) are separate offenses.

Are you raising your constitutional question based in the fact that the same act is made two offenses?

Joseph P. Jenkins:

No, I’m raising a question that statutory construction will arrive at the conclusion that subsections (a) and (b) of the Act contained four separate and distinct crimes, each of which will stand by itself and will not integrate in the others that Congress meant four separate crimes to be involved here and that — if one crime is committed, the other crime cannot.

For example, petit larceny and grand larceny, they can’t stand together.

Robbery, taking a property and petit larceny, no court has ever held they can stand together in the Bank Robbery Act, but we have taken away the — the one concept of entry and placed that by itself and say that can be added to any of the other act so that we can have two crimes committed at (a) and (d) — (a) and (b).

We’ll I’d say, and I believe and the other courts have so held, that only one crime can be — can be committed under (a) and (b) and if it’s an aggravated form, it merges into —

William J. Brennan, Jr.:

Into (d).

Joseph P. Jenkins:

— (d).

William J. Brennan, Jr.:

Well, I’m still trying to find out whether in the event we don’t quite agree and should feel that (d) has a different offense from (a), although both go out of the same act.

Are you — which are making any constitutional point of that?

Joseph P. Jenkins:

No, I — I would — I would say this that a smacks of double jeopardy, and a person being sentenced twice for one crime.

The courts have held that have interpreted —

William J. Brennan, Jr.:

Well, then he said no but it smacks the double jeopardy.

That tells me, no, it isn’t constitutional question, yes, it is.

Joseph P. Jenkins:

Well, I believe it would be under the Fifth Amendment, yes.

And I — I urge that point below.

Now —

William J. Brennan, Jr.:

(Inaudible)

Joseph P. Jenkins:

I might have, Your Honor.

I might have.

I wasn’t going to press that point on this short time I have here.

Now, if Your Honor please, the courts below have held over and over again the that (a) and (d) are only one crime, is a massive citations in the — both briefs that (a) and (d) cannot stand together, but these all have referred to the robbery, prohibited in (a) and then (d), the same robbery under aggravated circumstance and the courts have held unanimously one crime with the 25 years sentence including this Court whether obliquely perhaps in Holiday v. Johnston, when it was sent back to lower court to change the sentence.

The courts have — maximum to being 25 years.

Joseph P. Jenkins:

Now, the courts have even held that when seven or eight persons are in — put in jeopardy that only one count will stand because the maximum again is 25 years under this Act.

However, the — the particular question involved here when entry not under aggravated circumstances is charged and then, the bank robbery, under aggravated circumstances, those are (a) and (d) crimes, the Fifth, Sixth and Ninth Circuit have met the problem head on.

Only the Fifth of all the courts has held that an — an aggravated entry will stand with aggravated robbery so that a person may be sentenced to a maximum of 45 years, while the Sixth Circuit has said, no, there is a merger into the — into (d), a maximum of 25 years.

And the Ninth Circuit has held that similarly, except in dictum because they sent the case back to the — to the trial judges, there were two of them, and simply said that they had no jurisdiction, hard case of the quicksand of law, you should apply for executive clemency.

Clearly holding that there is a merger of (a) and (a) crime has committed into (d), particularly entry with intent.

But the Fifth Circuit has held if the entry with intent is not committed under aggravated circumstances, then it will not merge into (d) which simply means that if you commit the entry with — with aggravated circumstance and walk in and threaten a guard when you walk in and then commit the robbery under aggravated circumstances, they will both merge into subsection (d).

But if you don’t commit the entry under aggravated circumstances, they won’t merge, which means a more serious penalty for the lesser crime.

And if this is hard to believe, on page 17, or rather in the brief in pages 37, the Court has quoted and this only shows the confusion may arise if we interpret this as separate crimes is inconceivable that a person who enters a bank under unaggravated circumstances can be sentenced to a heavier sentence than one who does enter the bank under aggravated circumstances and then commits the robbery.

The court truly held below that that could be done.

Now, the Fifth Circuit has also held just last year that there is a merger, holding my point of view.

However, in my case when I stressed Heflin case to them, they said that the Government had conceded the error.

And since the Government conceded the error, they felt that was not — they were not bound by their own decision.

When again they said, and this Court has said, the maximum penalty under (a), (b) and (d) which covers the classic bank robbery is 25 years.

In this case, 35 years was imposed.

Now, I submit and — and this might answer the questions put to me that Congress meant to cover omissions, Huxman and Frank said so.

In dissenting opinions Huxman — rather Frank was upheld by this Court in the Jerome versus United States.

It — it supplies an omission in a certain kind of case.

That is, of course, if we — if we say peaceful entries in the first place intended to be covered.

We have four separate distinct crimes which can be put in place in compartments.

If anyone has committed, then that particular crime would be the only crime chargeable.

If it is committed on aggravated circumstances, it then merged into (d).

Now, in our particular instance, I believe that Congress never intended to — to place prohibitions against successive steps in this transaction.

They intended to supply an omission.

When the transaction finally consummate in the intended act, it is the submission of the petitioner that that’s what Congress wanted and therefore there is a merger so that the intended act is the one upon which sentence can be imposed and I believe no matter how we look at the legislative history, no matter how we examine this particular act, there is nothing to show that Congress intended any type of permitting as is done in this case and as can be done in another cases instead of the 25-year sentence.

Judge Edgerton once said that, in King v. United States, that sentencing should not be a game in which the wrong move by the court will grant immunity to the prisoner.

We have the same thing here just reversed.

The prosecutor can by manipulation of the various sections of the statute, that is of each one of those crimes in (a) and (b) can be charged in addition to other crimes in (a) and (b) by merely manipulating the section of the statute, we can get sentences varying 50 to 60 years depending upon the ingenuity of the prosecutor.

Yet, this hasn’t been done.

The courts have seemed to interpret this reasonably, except the Fifth Circuit in this particular type of case.

There are no cases anywhere in our — among our circuits that hold that what this Fifth Circuit has done in this case can be done in any other type of bank robbery case.

Joseph P. Jenkins:

So if the Court please, we feel that — that the maximum sentence is 25 years imposable under this Act.

Now, armed robbery, which is a serious crime, the general prohibition against it will carry a sentence of about 25 years.

That’s if no murder was done or any other harm, 25 years.

It does not seem conceivable that Congress intended the Bank Robbery Act to go beyond 25 years when no kidnapping or killing is involved.

Yet, that’s what can be done if the prosecutor and some of our district judges are giving a license to pyramid these offenses far beyond 25 years which seems to be reasonable.

This Court itself has said in the Holiday case, the maximum sentence imposable under the Bank Robbery Act, of course, in that case, we had robbery and then aggravated robbery, and the court said you couldn’t sentence on both, but the maximum sentence is 25 years and this Court has never changed its view and no other court in United States has changed its view except the Fifth Circuit and even that court, just last year held that 25 years was the maximum sentence, why it change its mind in our case, I do not know, but when this was pointed out, the court refused to follow its own decision.

Now — now, if the Court please, we submit finally that armed robbery under aggravated circumstances which contains a maximum sentence imposable embraces the entry.

Congress, I believe, would be satisfied if this entry were embraced within the Act.

I can use the word merger.

There is no intent to increase the penalties merely to cover the — or expand the Act to include another type of crime which is larceny and burglary.

So, as Justice Hudson once said, nothing is a crime unless specifically made so by a statute.

Crimes do not arise by implication and that is what we have here.

We submit to Your Honors first that burglary was meant to be covered by the clear intention of Congress and if this Court feels that burglary should be expanded to include a peaceable type of entry which I submit is unheard-of under this type of case because everyone has a right to go into a bank, then in any event a merger was held because the maximum sentence is 25 years.

Thank you.

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

May it please the Court.

We’re dealing here with a statute first that’s 1934 and amended by the material here in 1937.

When that statute was proceeded by a number of decisions of this Court ranging by — from the Burton case about 1905 through the Albrecht case in 273 United States, must have been in that — in that period about 10 decisions dealing with the question of whether one transaction resulted in one offense or more than one offense.

And the court in that 30-year period spoke not only frequently but unequivocally consistently.

And it is our basic position here that there is nothing in the legislative history or the language of this statute to take it out of those decisions.

But those decisions must — cannot be ignored when you’re trying to decide with intent of the legislature in 1937 with respect to a bill suggested by the Attorney General and that in the light of those decisions, entry with intent to rob and a robbery are separate in distinct offenses and separately punishable.

Now, out of the many decisions that were decided in this period between 1905 and 1937, (Inaudible) should I want to talk about in particular because I think it is fair to say that they established as the regular method of interpreting federal criminal statutes.

The proposition that where a statute rebating to what would normally be a series of steps in one transaction, the Act would normally be interpreted as punishing each step as well as the completed transaction itself.

In the first decision to that effect, Burton against the United States in 202 U.S., where the statute punished, in just one paragraph, anyone who shall agree to receive or receive any compensation of the type prohibited, Burton case discussed on page 17 of our brief.

And the court there said, Congress intended place its condemnation upon each distinct, separate part of every transaction coming within the messages intended to be reached and remedied.

Therefore, an agreement to receive compensation was made an offense.

And so the receiving of compensation in violation of the statute whether pursuant to the previous agreement or not was made another in separate offense.

There is in our judgment no escape from this interpretation consistently with the established rule that the intention of a legislature must govern.

Now, I looked the briefs in those cases and the decision of the court itself and the intention of the legislature so far as it is manifested by the briefs or the opinion stems from no more than the words of the statute itself which I said in the beginning prohibited any member of Congress who “shall receive or agree to receive any compensation.”

Then in 237 United States, we come to a case that’s very much in point to the problem here.

Beatrice Rosenberg:

Morgan against Devine dealing with the post office statute that post office offense is defined in one paragraph forcible entry with intent to commit a felony — no, with intent to commit larceny — what was section 190 of the Criminal Code.

In another paragraph, larceny, the post office matter and the third paragraph which was not involved in Morgan against Devine also had a robbery statute with provision for increased punishment for the aggravated crime.

And to that particular problem of burglary followed by a larceny, there was that the opinion below admits a conflict in the federal courts and an even greater conflict as there is quite generally even now among the state as to when one transaction — well, when it becomes one offense or two, whether one merges in the other.

And the court had argued to it and dealt specifically with the argument that after all what was involved in one post-office theft was — that any intent at the time of entry was exactly the intent at the time of the stealing.

And in answer to that, the court said, it’s quoted at page 15 in our brief, the test is not whether the criminal intent is one other thing inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the Act of Congress.

And the very case to which I was to refer as the case of Albrecht against United States dealing with violations of the National Prohibition Act, which in one paragraph punished possession, manufacture, sale, receipt, almost anything that we don’t have in relation to intoxicating liquor.

Mr. Albrecht was punished or was charged an indictment with on the same day possession of liquor and sale of liquor.

And the actual proof that was adduced was that somebody went in and ordered a drink and he went in the back and got out a bottle and gave him the drink.

That was the proof related to the possession and sale at the same time.

And the argument was made that that was not — those — those were not separate offenses and that since it was almost impossible to separate possession and the sale, that you couldn’t make a sale without having possession, that there was a violation of the constitutional protection in double jeopardy.

And in answer to that, this Court said there was nothing in the constitution, that’s quoted on page 18 of our brief, there is nothing in the constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.

Now, that (Inaudible) in constitutional terms, but of course, to reach the constitutional problem, there also has to be a statutory construction problem.

It must have been — it employs a holding, of course, that Congress did to intend to punish separately the possession and the sale of liquor.

From — we haven’t attempted in our brief to summarize the — I think literally hundred of Court of Appeals cases which follow the principles laid down by the courts in these cases.

(Voice Overlap) —

Felix Frankfurter:

When you’re — when you’re saying these cases, Ms. Rosenberg, how — how many — what — what litigation or adjudication has there been in the District Court or in the Court of Appeals on this very statute?

Beatrice Rosenberg:

On this very statute, I was coming to that, Your Honor.

I’m going to take it up now.

Felix Frankfurter:

These generalities, I don’t know why — why everyone spent so much time when Justice Holmes said wildly.

Practically, every question of statutory construction is unique problem.

These generalities don’t you get anything.

Of course, Congress has that power.

Beatrice Rosenberg:

It’s more than the power, Your Honor.

It seems to me that the legislative history of this statute —

Felix Frankfurter:

All right.

Beatrice Rosenberg:

— and the congressional intent in 1937 cannot be judge without referring to the climate of legal thinking of the time.

After all, it is a well-known fact that Congress consists in the part of lawyers.

This was a bill that was drafted by the Attorney General —

Felix Frankfurter:

This bill —

Beatrice Rosenberg:

— and submitted —

Felix Frankfurter:

— this bill?

Beatrice Rosenberg:

— this bill.

Felix Frankfurter:

Yes.

All right.

Beatrice Rosenberg:

This bill.

Now, it seems to me that if this retained over, if this were the first criminal statute that was called upon to be construed, it could be regarded equivocal, I regard every one of these decisions by this Court as subject to arguments, one way or one another, various States have gone various ways on this.

It seems to me very valid and — and very important, both as a matter of legislative intent, as a legislative intent of this statute to recognize that there was a climate of judicial thinking which presumably the Attorney General knew and — and the members of Congress.

And that when you get to a statute where it seems to me neither the wording nor the legislative history per se is conclusive, it is very significant that for the whole 30 years preceding, that was the almost automatic approach of a court to this problem so much, though as a matter of fact and that I will come to in a moment taking up this particular statute.

When they had a statute which was different in one respect, and this was in relation to robbery.

Most courts didn’t recognize the difference.

So that we had the problem that arose about Holiday against Johnston, which came from a particular format was enacted.

It — it — let me turn now to the legislative history of the statute to explain what I mean.

When the Attorney General suggested in 1934, he suggested a draft which is Appendix A of our brief on page 46.

And that read, there was a section punishing, driving into the bank with intent to commit a felony, common law of burglary.

It was Section 4 (a) punishing robbery and 4 (b) with Section 3, punishing burglary, Section 4 punishing robbery.

And it had robbery in the simple form, robbery in the aggravated form.

And I had forgotten, I started at 3, I should have started at 2 which was the section punishing larceny.

So we had one section punishing larceny, one section punishing burglary, one section punishing robbery, which (a) and (b) had the simple in the aggravated form with the greater offense.

For some reason not disclosed in the legislative history, Congress omitted in 1934, Congress decided not to make bank burglary or bank larceny an offense and it passed only the robbery part as a proposed draft.

And so we got what was 12 United States Code in the form before the 1948 revision, 588 (a) and (b), passed as such, so we had — without — the robbery provision alone with a provision for aggravated form and not the others which would made it clear that they were creating separate offenses.

Now, I think that the bill had been passed in — in its original form.

It would never have gotten into the difficulties that it did because as with the separate burglary provision, the separate larceny provision and then the robbery provision simple and aggravated.

It was clear from the language of the statute.

One, that the aggravated form of robbery related to robbery and also I think clear from the form of that statute in the light of the decisions of the time that burglary and larceny was separate from the robbery.

But coming as it did with just the robbery and with the general approach of separate statutes being separate offenses which had permeated federal thinking for 30 years before this statute was passed.

What happened was that the great majority of district courts began to consider both robbery and aggravated robbery as separate offenses also and that was the form in which the statute read when Holiday against Johnson or at least at the time of a Holiday against Johnson offense by this Court.

And at that time when only robbery was punished by the statute, this Court said, “No, that’s just one offense.”

And the Government, as a matter of fact, agreed to that interpretation, but it was talking about the situation where we had what was originally Section 4 of the draft, simply robbery in the initial and aggravated form.

And it was, in a sense, the result in confusion from being faced with a statute where the court has said, it was only offense which was extremely unusual in federal law that we get some of the problems here.

Felix Frankfurter:

I think your own recitals, Ms. Rosenberg, shows that the mental climate changes even more than the mere erotical climate.

Felix Frankfurter:

The lower court said there were two offenses, robbery and aggravated, because they were still moving in this mental — in this adverse here which you speak.

But by the time, Holiday and Johnston, the Holiday case statute with — in 313, the air here began to be a little different.

Beatrice Rosenberg:

May I suggest, Your Honor, in that the Court of Appeals that they had it, did not do so.

It was largely based on the legislative history and based on the particular legislative history represented by Appendix A where I think, as I said, that in the form that — if that statute had, where you have Section 2 or Section 3 and where the aggravated form applied only to larceny, it would have been done and after the change of climate.

I was coming to that later because of the period between 1937 and 1948.

May I point to the decision of this Court in 1947 in Michener against the United States, where — what was involved was a 15 years sentence for possession of a counterfeit plate and a 15-year sentence for causing a counterfeit plate to have been made.

Now, the Eighth Circuit in a very limited decision said, “We agree the possession and manufacture can often be separate offenses.

But where the only possession you charge is that the very same time as a possession of a counterfeit plate about to be made, we think that merges.”

Now, that was the conflict with the Ninth Circuit.

As a matter of fact, this was the same defendant and that question was brought here.

Now, as late as 1947 with this Court with some dissents.

But nevertheless, this Court disposed of that question by reversing the Eighth Circuit in a per curiam opinion citing the cases that I have mentioned before including those I haven’t undertaken to discuss here, Gavieres and some of the others that are cited in our brief.

So that if neither at the time of the enactment of this statute, nor at the time of the reenactment of the code in 1948, had there been any significant change in this general climate of approach which was to the effect that each step of a transaction as well as the whole transaction should — could be separately punishable.

There were, in addition, judicial constructions specifically on this point which I won’t get to it at this time.

Earl Warren:

We’re going to finish this —

Beatrice Rosenberg:

Oh, I’m —

Earl Warren:

— now, Ms. Rosenberg.

Beatrice Rosenberg:

— sorry, no one told me.

In the years between 1937 when this statute was amended and 1948, there were a few cases on this problem.

There are notamended whether because they are handled in the sentencing procedure, I do not know.

But the one case —

Felix Frankfurter:

What do you mean by that handled — what do you mean by handled in the sentencing procedures?

Beatrice Rosenberg:

In that — in that whether because courts have not given consecutive sentences for this or — I do not know, but they aren’t really about — I suppose altogether about 10 cases where the question had been litigated, several of them for the — from the Fifth Circuit.

Now, those cases are discussed in our brief at pages 31 to 35.

And the most precise question, handling of this question, precisely dealing with the question of whether entry and the subsequent robbery were separate offenses was Wells against the United States in 124, coming from this same circuit.

Now, there we had exactly all the difficulties, the fact that aggravated robbery and robbery itself had been sentenced to separate sentences as well as entry within intent to rob.

And the Court said it is true that aggravated — that robbery and aggravated robbery are separate offenses — are not separate offenses and therefore, you can punish only one for the aggravated form.

But entry, on the other hand, is a separate offense and for that, consecutive sentences may be imposed because that’s in court withholding in this case.

I am almost afraid to point out since I am not attaching any significant to it, but the fact is that a petition for certiorari raising precisely that point of whether there could be an entrance with intent to rob was presented to this Court and denied.

Now, there was at that time no (Inaudible).

Beatrice Rosenberg:

The other explicit holding on that point was in the Tenth Circuit.

It was the same offense and it was dicta when the question was not correctly involved, but exclusive recognition of that same point of view by the Seventh and the Eighth Circuit.

The case is cited at page 33 of our brief.

As against that, there was one holding to the contrary in a rather oblique case which had complications in its sentence in another form in the Sixth Circuit and possible dicta.

It’s not even clear that the Court was ruling on this question in the Ninth.

So that by the time of the reenactment, the way the judicial authority was in court with — with what was then the prevailing view generally as federal criminal statute and that is to the effect that entry with intent to rob and robbery are separate offenses.

Now, let me say that —

William J. Brennan, Jr.:

Ms. Rosenberg, may I ask, did the first paragraph of paragraph (a) come in at the same time as the second paragraph?

Beatrice Rosenberg:

No, that’s the difficulty.

You get — it will be traced best by looking in our appendix.

The first — the Act that — was first passed in 1934, Mr. Justice Brennan, took what was — as I say the robbery section of the proposed bill and that’s set out in Appendix B on page 47.

William J. Brennan, Jr.:

Well, where did this paragraph (a) come from?

I mean the — if the paragraph (Voice Overlap) —

Beatrice Rosenberg:

That came from the 1934 Act —

William J. Brennan, Jr.:

That’s (Voice Overlap) —

Beatrice Rosenberg:

— paragraph (a).

William J. Brennan, Jr.:

Well, now tell me this.

Suppose you had an employee of a bank who came to work in the morning with nothing on his mind at all, in the course of the day, he decided he’s going to rob the bank and he takes a gun and he does just what this defendant did here.

Now, as I read this first paragraph of paragraph (a), now that would be, would it not, a taking with intimidation of money of the bank.

Beatrice Rosenberg:

I take he — from the presence in presence of another.

William J. Brennan, Jr.:

Well, I’m reading now from the first paragraph of paragraph (a).

Beatrice Rosenberg:

Yes, by intimidation, it takes from the presence or presence —

William J. Brennan, Jr.:

That’s right.

Beatrice Rosenberg:

— of another.

William J. Brennan, Jr.:

I’m saying —

Beatrice Rosenberg:

He has to rob someone.

William J. Brennan, Jr.:

— he did it what this — this defendant did here.

Beatrice Rosenberg:

Oh, yes — yes.

William J. Brennan, Jr.:

He’d be guilty of offense under paragraph (a).

Beatrice Rosenberg:

That would be an offense under paragraph (a).

William J. Brennan, Jr.:

But he’d also be guilty since he used the gun on paragraph (d).

Beatrice Rosenberg:

Well, that’s the aggravated form of the —

William J. Brennan, Jr.:

All right.

The same thing —

Beatrice Rosenberg:

But it’s one offense.

William J. Brennan, Jr.:

— you think are on both instances.

Felix Frankfurter:

No.

Beatrice Rosenberg:

It’s one offense.

William J. Brennan, Jr.:

Well, in that instance, that’s my question.

Would that be one offense?

Beatrice Rosenberg:

Yes.

William J. Brennan, Jr.:

Only one offense?

Beatrice Rosenberg:

Only one offense.

The idea is that as to paragraph (d), the interpretation and then courts had been completely consistent about this, that paragraph (d) —

Felix Frankfurter:

Paragraph (d)?

Beatrice Rosenberg:

(d) of the present statute.

Felix Frankfurter:

Where is it?

Beatrice Rosenberg:

On page 3, defines an aggravated form —

William J. Brennan, Jr.:

Yes, you see —

Beatrice Rosenberg:

— of whatever offense it applies to.

William J. Brennan, Jr.:

— you see what I’m trying to get at, if — if that’s right, then under the first paragraph of now paragraph (a) of 2113, in the situation I put to you, that would be an offense while an offense under that paragraph and also under (d) would be only one offense.

Beatrice Rosenberg:

That’s right.

William J. Brennan, Jr.:

Why is it that we have two offenses where it’s an entry and causing the question, the second paragraph of paragraph (a) of 2113?

That’s what I’m trying to get at.

Beatrice Rosenberg:

Because the arrangements here can be understood only in relation to the history of the —

William J. Brennan, Jr.:

Well, I certainly agree with that.

Beatrice Rosenberg:

Only in relation to the history of the statute.

As I say what happened was that you had first the proposal to make —

William J. Brennan, Jr.:

Well, I know your arguments, no needn’t repeat it.

I just wanted to see.

William J. Brennan, Jr.:

Then your answer —

Beatrice Rosenberg:

All right.

William J. Brennan, Jr.:

— your answer to me is that that first paragraph of paragraph (a) came in, in 1934 and the second paragraph for very different purpose in 1947.

Beatrice Rosenberg:

1937.

William J. Brennan, Jr.:

1937.

Beatrice Rosenberg:

And then when — but it had been in existence from — what happened is that when the statute, read (a) and (b), when the Attorney General then said to Congress, “You made a mistake in admitting the larceny and burglary provisions.”

Then the statute then had (a) and (b) instead of going back to its old form and suggesting separate paragraphs.

If (a), he could in the definitions of larceny and burglary and so then, you get the statute.

It will seem even clearer, I think, why (d) got separate.

If you look at pages 4 to 5 of our brief, which is the predecessor statute as enacted in 1937, and there you see — they said, whoever by — 588 (b), but paragraph (a) have the separate offenses burglary, robbery, larceny and petit larceny and then it provided for the increased punishment in the aggravated form of the offense.

Now, the revises in 1940 (a) separated this (a) into the — (a) and (b) and (c), and then they added the (d), but it’s — that’s a historical accident because it is clear here that from the predecessor statute that the offenses were divine first, and then there was a provision for increased punishment for the aggravated forms of the offense.

And it is that history that we say shows that in the light of the decisions, in the light of the blinking of the time, these were intended to be separate offenses.

Now, let me say one word about the peaceful, the absence of violence in this.

It’s hard for a statute to be more explicit than this one.

It simply says entry.

Congress had before it and the Attorney General’s first suggests were forcibly entry or breaking and entering.

So that the addition of the simple word entry was intended, we think, should be deliberate.

The court —

William J. Brennan, Jr.:

Now, Ms. Rosenberg, that means I gather that in the case I put to you, the — the employee come to work in the morning intending to do what he finally did in the — in the end of the day.

He could have the same sentence as this fellow has.

Beatrice Rosenberg:

If he —

William J. Brennan, Jr.:

That’s two sentences.

Beatrice Rosenberg:

Well, there’d be question of when the intent occurred.

I take it.

William J. Brennan, Jr.:

Well, I’m assuming he enters, he attempted to enter when he came to work in the morning and his intention when he entered that morning was that he was going to rob the bank during the day with a gun and he did.

And that circumstance, he could have, as this defendant did, get the enhanced punishment, right?

Beatrice Rosenberg:

Yes.

William J. Brennan, Jr.:

But that he came and made up his mind during the day to rob the bank, couldn’t he?

Beatrice Rosenberg:

That’s right.

It seems to us not essentially different from agreeing to receive and receiving compensation.

Beatrice Rosenberg:

Normally, one doesn’t get a bribe or under lawful compensation unless one agrees to take it.

This Court has said those are separate offenses.

Earl Warren:

Ms. Rosenberg, suppose a man went into the bank two or three times with the idea of robbing it when — when the time was propitious and he have cashed a check and he say, “Well, this isn’t the time.”

So he’d walk out and he waited a little a while and come back and suppose he did that about three times during the day and then — and then finally he robbed it about the fourth time.

Could you give him 40 years on the last one, 20 years for entry and 20 years for robbing and 20 years on each one of the others?

Beatrice Rosenberg:

Your Honor, the (Inaudible)

Earl Warren:

[Laughs] I don’t know.

Beatrice Rosenberg:

offense statute —

Earl Warren:

I don’t know.

Beatrice Rosenberg:

— allows Congress defined it, congress defined it as entry.

People have gotten five years for selling narcotics not in a blank order form, five years — that’s the Blockburger case, five years for — not with a — in a pursuant with Steins, five years not with — pursuant to a written order form.

The court said there, sentencing is now here for the District Judge.

As I say, it — this seems to me, I suppose, that one could agree on three different occasions to take the bribe.

If he did, according to the Burton case, that’s separate offenses.

Now, there was a choice of doctrine and as I say the States were not divided on this — were not agreed on this question at the time these decisions of the court.

But the court from 1930 to 1946 was very consistent.

Earl Warren:

Thank you.

I think you have one minute according to —

Joseph P. Jenkins:

One minute, yes, Your Honor.

Earl Warren:

— the clock, Mr. — Mr. Jenkins.

Mr. Attorney General:

If the Court please — pardon me, if the Court please, the answer to your question is yes, undeniably yes, as to whether or not he could be charged with three or four different counts with each time, all indeed is unanimous and the crime is committed irrespective of whether or not you consummate the crime.

If the Court please, turn to pages 2 and 3, I believe, I can answer the question of Mr. Justice Brennan of the Government’s brief.

Subsections (a) and (d) have been held together to be only one crime unanimously.

Subsections (b) and (d) have been held to be one crime unanimously.

Only the Sixth Circuit has held that if (c) — if the second part of (a) is committed and (d) that there is no one crime, that is the only exception I do not know why.

Thank you.