Saldana v. United States – Oral Argument – March 20, 1961 (Part 2)

Media for Saldana v. United States

Audio Transcription for Oral Argument – March 20, 1961 (Part 1) in Saldana v. United States

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Earl Warren:

— you may continue.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

Just before the recess, I had called attention to the two sessions before Judge Peirson Hall at which he vacated the plea of guilty, rejected a further offer to plead guilty to the first two counts, denied a motion to return the case to Judge Clark, and then put the petitioner on trial.

Felix Frankfurter:

I hope I’m not interrupting you, Mr. Solicitor, when I refer to, what I shall refer to earlier, about the understanding of the assumption that 3, 4 and 5 would be dismissed.

I certainly wouldn’t draw that inference from what took place after the clerk called the Court’s attention to it on page 17.

The clerk, “Just a minute, don’t go, Mr. Sheraton.

Mr. Sheraton, we hold thee.”

The court, “We’re going to hold thee.

Mr. Sheraton, hold those.”

And this would hold the disposition without any word from counsel for defendant.But that doesn’t read to me.

I don’t — I’m not suggesting — I don’t know what — if any significance it has but, certainly, one cannot attribute into the significance of an assumed dismissal of the other counts after the plea of guilty to 1 and 2.

(Voice Overlap) —

Archibald Cox:

I — I would quite agree with that.

I think that it’s — while it is fair to say that the petitioner and his attorney is left with the expectation that the other counts would be dismissed.

Felix Frankfurter:

But you’d have to draw that out of the air, not from —

Archibald Cox:

They — well, I think —

Felix Frankfurter:

— not from the page of the record.

Archibald Cox:

It is — I was going on to say that, by no stretch of the imagination, did Judge Clark — there was no motion to dismiss them.

Felix Frankfurter:

No, there was the lawyer —

Archibald Cox:

A fortiori, Judge Clark did not grant a motion to dismiss them.

Felix Frankfurter:

None was made.

Archibald Cox:

The —

Felix Frankfurter:

None was made.

Archibald Cox:

Right.

Both points.

Felix Frankfurter:

Yes.

Archibald Cox:

I agree.

There was no motion and certainly, there was no order entered which could, in any sense, be said to be a granting of the motion to dismiss.

Felix Frankfurter:

It would lead the opposite, if anything.

I’m not —

Archibald Cox:

Well —

Felix Frankfurter:

— I’m not suggesting what the meaning of it is, but it were not the difficulty of sitting here in judgment on what took place to human voices.

Earl Warren:

Well, Mr. Solicitor General, I’m just wondering though, in the — in the light of everything that happened there and the fact that the judge had the indictment before him with the — with the five counts and the District Attorney accepted the plea to two counts, and the judge said, “I’m — I’m going to give you five years.”

I wonder if it isn’t a fair interest from everything that was said there that the judge had in mind that all he was to suffer as a result of — of that proceeding was five years for his crime.

Archibald Cox:

I — I would — I’m going to answer your question directly, but —

Earl Warren:

Yes.

Archibald Cox:

— I think, to give the —

Earl Warren:

Yes.

Archibald Cox:

— meaningful answer that I must —

Earl Warren:

Yes —

Archibald Cox:

— come at it a little —

Earl Warren:

— in your own way.

Yes.

Archibald Cox:

My — my interpretation is this.

As long as we are talking about the expectations that were generated in the defendant’s mind and the representations, the impressions created by Judge Clark, then the only conclusion that I can fairly come to is that the defendant went away expecting that on July 21, he would be brought before Judge Clark and would be sentenced to five years and that these counts would be dismissed.

I —

William J. Brennan, Jr.:

Mr. Cox, suppose (Inaudible)

Archibald Cox:

No, I think that was undoubtedly the impression of the United States Attorney.

On the other hand —

Felix Frankfurter:

I don’t know how we can guess that when we’ve got the word of the — of the U.S. Attorney that these counts subsist and continued.

Archibald Cox:

I would —

John M. Harlan II:

(Voice Overlap) some confirmation of it on page 27, isn’t there, where the attorney for the defendant says that he had arraigned with the United States Attorney, which at least in his mind, then counsel’s mind, assumed that the — led him to understand this disposes the whole case and the District Attorney made no objection to that representation.

Archibald Cox:

I think that’s some confirmation.

The point at which I would agree with Mr. Justice Frankfurter and possibly, disagree with the implication of what Chief Justice said would be this.

A court, as Justice Frankfurter implies, acts through orders and decrees.

When it’s passing sentence, the judge passes sentence.

But as soon as we begin talking about what the Court did here and not about impressions people could go away with, then, it seems to me plain that there was no motion and that the Court clearly did not enter an order dismissing these counts and that nothing the Court said could reasonably be interpreted as an order dismissing this count.

Now, this goes to the essential difference, I think, between my approach to the case and the position which has been argued by the petitioners and in the briefs filed by the Civil Liberties Union.

Felix Frankfurter:

And I think you should add counsel of — it was a short intermission.

I don’t know what that intermission was about.

Felix Frankfurter:

I don’t know what it is about.

If I’m to go and sail on the wide, wide ocean of speculation, I could do all sorts of things.

I think myself, the sentence — the whole statute scheme for narcotics is, for me, a form of (Inaudible)

I think the sentences are outrageous.

I think they are self-defeating.

All of which has nothing to do with the spirit in which I must read the record.

Archibald Cox:

When — when we come to the orders, as I was saying, I think it’s clear that no order was passed dismissing these counts.

I think a misimpression was created.

Now, here is where I part company with counsel for the petitioner.

Their contention, as I understand it, is that, as a matter of law, the promise — and perhaps as a matter of constitutional law, the promise made by Judge Clark is binding and must have been honored no matter what other circumstances existed.

I reject that.

I think that’s attempting to read into the Constitution.

What may be the appeal of a particular and rather extraordinary case, I think, as I shall argue later, that there are no such rules as he relies it.

On the other hand, when I first came to this case, it seemed to me that there was a situation here which certainly must have left a deep resentment in the petitioner and which another detached, fair-minded person could say, “This is bad for the administration of justice.”

This, in the words Justice Frankfurter used this morning, is unseemly and if this happened very often, it would destroy confidence in the fairness and rationality of justice in our courts.

Now, I think that involves an overall view of what happened and particularly, a view of what happened in terms of the final sentence imposed.

Furthermore, I don’t think that the question is all one-sided.

Let me state first, the points which bother me about the trial taken as a whole and then the points on the other side because I think there are some on the other side.

The points that bother me are, first, that in any instance, wide divergence in sentences tends to undermine confidence by making the administration of the criminal law appear on part to depend on the whim or caprice of the individual judge.

And that danger is certainly much greater when you get a wide divergence in sentencing, the same man on the same indictment by two different judges.

It makes it look as if it all depended on who you came before and this is not good for the courts.

And third, here, that even though I feel that this representation ought not to have been made, I say that with some diffidence about the District Judge but I do not think it was consistent with good practice, the representation that he would, someday, impose a light sentence.

Still, it was made and there is, as with all of us, if the court — the law does not keep its promises, this, too, tends to throw some doubt upon the integrity of the whole proceeding.

Now, if that were all, I’m not sure that I would be here.

If Judge Clark — if Judge Hall, on having the case come before him, had said to the defendant, “I do not feel bound by this promise made by Judge Clark, the courts don’t make promises, the courts act through orders.

And I feel that this was an unwise expression of opinion made without study of your record, made without learning about the crime, made without an investigation in the sentence.

I will give you — I’m not going to be bound by it.

Now, in view of the fact that I’m not going to be bound by it, I will give you an opportunity to withdraw your plea.

You can stand on your plea if you wish.

If you do, you do it with full awareness that I am going to pass sentence here after an investigation of the facts.

Archibald Cox:

If you wish to withdraw your plea, I’ll permit you to withdraw it and give you leave to stand trial.”

In that case, I say, I’m not sure that I would be taking the position I do.

The thing that bothers me the most about this case is that the sequence of events in which it took place makes the whole thing look like an elaborate ritual for going behind the representations made by Judge Clark.

And I think that that does a great threat, a greater amount of erosion of confidence in the proceeding.

Then, if the judge had simply squarely said, “This shouldn’t have happened.

I’m not going to be bound by it,” but instead, he forced the defendant to trial without much of any explanation and then, after trying him, imposed the 20-year sentence, four times that originally imposed.

And it is the feeling I get that, I can’t think of any better way to put it and yet, I’m not happy with the way I phrased it, that it became sort of a mock proceeding for the preordained purpose of quadrupling the sentence without any square acknowledgment of the problem.

That troubles me most deeply.

Now, even as I say that, I do feel obliged to say that there is a good deal that can be said here in defense of Judge Hall’s action once we acknowledge that he was, perhaps, a little abrupt.

In the first place, as has been pointed out already, the representations about the five-year sentence were made, apparently, without any real investigation of the case or of the man’s previous record.

Actually, this involves a very large quantity of heroin.

The fifth count alleged in the evidence later shown that there were 10 ounces.

10 ounces, allowing for an average addict, would keep 50 addicts satisfied or happy for a month.

That’s quite a lot of heroin.

And a — the minimum sentence for that quantity of heroin is getting off lighter than the average sentence, which sentence is being imposed rightly or wrongly in the Southern District of California.

In addition, this was an instance where Saldana received the lighter sentence by virtue of rushing in to plead before Judge Clark who, I’m informed, does have the reputation of being lenient.

Again, surely, there’s much to be said in defense of Judge Hall’s position that the whole case should be handled by a single judge, and he was insisting on following that practice.

Potter Stewart:

At the time of the first hearing before Judge Hall, Mr. Solicitor General, it was already clear that the co-defendant had flown the coop, wasn’t it?

Archibald Cox:

Not at the time of the first hearing, no.

The — Palomino’s counsel had gone in Judge — before Judge Hall on a motion for a continuance and at that, it was to suit his convenience and neither Judge Hall nor anyone else knew whether Palomino had flown the coop or not.

So, I suppose, in saying that he hadn’t, I’m not quite accurate.

But in any event, not everybody knew it.

And it came out only later on the day that he was — the next hearing before Judge Hall.

Potter Stewart:

But is it — is it then, accurate to say that at the time Judge Hall, on his own motion, set aside these guilty pleas and refused to accept guilty pleas, that — that he thought that both defendants were — that — that both defendants were going to be tried by him?

Archibald Cox:

At the time he ordered the case transferred to him, he thought that one defendant was going to be tried before him and that the other, Saldana, should be brought before him for sentencing.

At the time he vacated the pleas of guilty, it was known that Palomino had flown the coop.

How soon they would catch him was not known, but the qualification Your Honor states should be added to my sentence.

I — but in a sense, Judge Hall was asserting the practice here that when one case had been transferred to him —

Felix Frankfurter:

Since —

Archibald Cox:

— all of them should.

Felix Frankfurter:

— since there’s a break in your argument, may I intervene for a minute to ask you to explain an aspect that you think is in favor of what Judge Hall did, if I understood you, that he’s a believer, as I think rightly, that one judge should dispose of a case.

That would rather indicate that Judge Clark should have pleaded all that.

He began this.

The case originated before him.

Archibald Cox:

But there was never any question of the case being tried before him.

Felix Frankfurter:

No, but the — the general principle, no, but the — I shouldn’t — I don’t think it’s very good practice, speaking with my limited experience, to have pleas of guilty — pleas on some counts before judge 1 and trial of the other counts before judge 2.

That certainly is not, as I —

Archibald Cox:

That’s true.

Perhaps this would be a good moment at which to explain the practice as it now exists in the Southern District of California because whatever the court may say in the way of opinion, I take it will deal with the general question and that the current practice which went into effect in rules promulgated this January and which only came to my attention yesterday, I’m sorry to say, now lay down that the court will find that the rules were promulgated early in January.

The present practice is to have one district judge in the Southern District of California in the Central Division, which is Los Angeles, hold the criminal sessions for a year.

So this eliminates the — which judge choose — much opportunity to choose the judge before you come into.

He handles the docket.

If there is a single defendant, and that defendant pleads guilty, then the judge, in the criminal sessions, pass a sentence.

That’s very easy.

If there are two defendants and two plead guilty, the same way.

If there are two defendants and the first offers to plead guilty, the court does not accept the plea but then, as how the co-defendant pleas.

If the co-defendant pleads not guilty, then the case must be sent out for trial, and I’ll come back to what happened to the plea that’s in limbo here.

The case is sent out for — all cases are sent out for trial.

The judge who is in charge of the criminal session does not try any contested cases.

Felix Frankfurter:

He just takes pleas?

Archibald Cox:

He just takes the pleas, handles preliminary motions, arraignments and such.

Felix Frankfurter:

And not — and — and —

Archibald Cox:

As I understand it, he does not try any of the case.

Felix Frankfurter:

— and routes to petitioner’s trials.

Archibald Cox:

Well, then, there is a mechanism, which I don’t know because no counsel knows exactly what it is, by which the cases are assigned to criminal judges, the other judges in the district by, sometimes, with a system of drawing cards out of an envelope, and no one can tell exactly what judge will get the next case.

It’s by lot with, I take it, some method of seeing that there is an equitable division.

Now, when the case is sent out to another judge where we have one defendant who has offered to plead guilty and one who has pleaded not guilty, the judge to whom the case was sent, not only tries the defendant who pleaded not guilty, but decides whether to accept the plea which was offered of guilty or to — it could be withdrawn and both defendants put on trial.

So, this would mean that from the time the case was sent out, one judge would deal with it entirely.

And up to this point, it seems to me that the difficulty that gave rise to this case has now been corrected.

There is one little wrinkle that I should add.

Archibald Cox:

Sometimes, a situation develops where one defendant offers to plead guilty and the co-defendant is not arraigned at the same time.

In that event, the practice is to enter the plea of guilty.

But if the co-defendant is brought in a week or two weeks later and pleads not guilty, then the plea of guilty is automatically vacated.

This, of course, would not be possible under counsel’s contention.

The plea of guilty is automatically vacated and the one judge handles the entire case.

This is implicit in the rules.

The rule does not spell it out exactly as I have.

I’m relying on what was represented to me by the United States Attorney that I have every confidence that it’s an accurate statement of the present arrangements in the district.

Felix Frankfurter:

Enlighten me.

Why — why in such a situation, one defendant wants to plead guilty and the other want to contest it?

Why shouldn’t there be a severance?

I’m asking to be enlightened.

Archibald Cox:

Well, I can — I can only speculate.

If they are severed, one would have two — there would be two disadvantages.

One would be, he would create the risk that there would be a divergence in the sentences because they went two different places and judges do have their individual practices in sentencing.

Another disadvantage would be that, after all, the judge who does hear the trial will know something more about the crime than one ordinarily knows on a plea of guilty.

Felix Frankfurter:

The sentencing of the — of the plead of guilt would be the — what I call the docket judge and that would be cleaned up in the trial (Inaudible) he might have his own view.

Archibald Cox:

Their views might be different.

You might get — well, not the full trouble we have here, [Laughs] but something like the inconsistencies that we have.

Earl Warren:

Mr. Solicitor General, I’m just wondering, when — when it goes — goes to that trial judge and he vacates the plea, does he arraign him again and ask him what his plea is?

Archibald Cox:

Yes.

Earl Warren:

And suppose he says — he says “I plead guilty again” and the other — the other defendant says “I plead not guilty.”

What happens then?

Archibald Cox:

I believe that the — that the — I’m — I’m drawing an inference.

I wasn’t told [Laughs] directly, but I understand.

I — I draw the inference that —

Earl Warren:

Yes.

Archibald Cox:

— the defendant who chose to stand trial would be tried.

That at the end of the trial, both of them would be sentenced.

Earl Warren:

So — so a man would be deprived sometimes and not — not too seldom either for a period of maybe some months before he’d be permitted to plead guilty and get a second trial.

Archibald Cox:

So, the plea would have been taken but the —

Earl Warren:

I beg your pardon?

Archibald Cox:

— the plea would have been taken but the sentence wouldn’t have been passed.

Earl Warren:

But his judgment — but the sentence wouldn’t be passed and I — I suppose, if his counsel suggested, in the case like — like this, his time wouldn’t start to run until he was sentenced.

Archibald Cox:

That is not — that was true at the time of this trial.

It is not true any longer.

There was enacted in 1960, in the fall, a statute that deals with this problem which provides that in the case of a defendant who is unable to make bail, that when he comes to be sentenced, in passing the minimum sentence, the judge may take into account the time spent in jail —

Earl Warren:

I see.

Archibald Cox:

— so that the problem you must give five years or one year or whatever the mandatory minimum sentence for a particular crime, the problem that created no longer exists because the present statute makes it possible to give him the credit if he couldn’t make that for the time he spent in jail.

Hugo L. Black:

Has this Court ever passed on the question of whether a district judge has power to compel a man to withdraw his plea of guilty?

Archibald Cox:

This Court has never had the question to the best of my knowledge.

Indeed, there are very few cases that we’ve been able to discover in the federal courts at all discussing that question.

There are — there is at least one, I think one or two instances, of where a plea of guilty was vacated by a district judge over the objection of the defendant.

It’s a case cited in our brief, Bielski or something similar to that.

Earl Warren:

That’s not in this Court, is it?

Archibald Cox:

That’s not in this — no, it’s a district court opinion.

John M. Harlan II:

Perhaps I’m anticipating, but it’s implicit in your argument that you think the Court ought to do something about this from the supervisory standpoint.

My question is, if you care to answer, what you think we ought to do?

Archibald Cox:

Well, but I — before answering that, I revert to one further consideration that I think should enter into this Court’s judgment.

I think it’s important to bear it in mind in evaluating these two appraisals of what happened that Judge Hall was there on the spot, that he was the Chief Ju — is and was the Chief Judge in the Southern District of California, that he’s an experienced trial judge and was far more familiar than we, at this distance, can ever be with the problems in the administration of the criminal docket there in the passing of sentence.

Now, the ultimate resolution —

Earl Warren:

Could we —

Archibald Cox:

— of the case —

Earl Warren:

— could we say that he’s more familiar than Judge Clark?

They’re both been there for a number of years.

Archibald Cox:

No, I — I wasn’t seeking to draw any comparison between the two in that respect.

Earl Warren:

Yes.

Archibald Cox:

The ultimate resolution of the case obvious —

Felix Frankfurter:

As Chief — as Chief Judge here, he has more official responsibility for oversight of the district and the other judge can be —

Archibald Cox:

Certainly for the administrative —

Felix Frankfurter:

Yes.

Archibald Cox:

— matters within the district, yes.

Felix Frankfurter:

Could he —

Archibald Cox:

And I presume that would include the transfer of cases among the several judges.

Earl Warren:

But not for — not for the length of sentences.

Archibald Cox:

Each would have an individual —

Earl Warren:

(Voice Overlap) —

Archibald Cox:

Each would have an individual responsibility —

Earl Warren:

Yes.

Archibald Cox:

— with respect to the length of sentences.

I suppose it could be said further on this point that Judge Hall presumably would know, and I’m sure I do not, whether the sentences which he considered proper in narcotics cases were the deviation from the norm or whether Judge Clark’s sentence was the deviation from the norm.

I have no knowledge.

I —

Hugo L. Black:

Does the record show whether this was a first offense?

Archibald Cox:

The record shows, during the trial — during the trial, it was brought out that Saldana had been in trouble with the narcotics laws of California sometime previously.

To the best of my recollection, there is nothing to show that he was ever previously convicted in the federal court.

Hugo L. Black:

Well, did it show he had been convicted in the state courts?

Archibald Cox:

I think it showed a conviction, Your Honor.

It — well, I’m sorry.

I’ll — I don’t want to take the Court’s time to —

Hugo L. Black:

Alright.

Archibald Cox:

— look it up, and I’ve forgotten.

It came out in examination of the — of the federal agent.

And my recollection was that it showed arrests, but I don’t specifically recall a conviction in the state court.

William J. Brennan, Jr.:

Well, I think it — maybe what you’re referring to is at page 56.

I can’t recall offhand but I believe he had been involved a conviction of narcotics for possession of heroin in Los Angeles.

Archibald Cox:

That’s right.

And then, later, but we don’t have it printed here, later, a document was put in the record showing just what his present record was.

It was used to refresh Licuanan’s recollection.

William J. Brennan, Jr.:

That’s at 57, Exhibit Number 5, for identification.

Archibald Cox:

Unhappily, we don’t have that exhibit.

I — I was saying a moment ago that here, what the Court must ultimately do is to determine which is the — of the two competing appraisals I’ve tried to indicate is the more accurate and fairer description of what occurred.

Now, to answer you directly, Justice Harlan, I am not urging the Court to take either course.

I don’t want to entirely equivocate.

I do feel that this is a matter which the Government did not bring about, that the Government’s position was not responsible for its arising and that it does concern the judicial administration rather than the conduct of a trial.

On the other hand, while I don’t urge either course, therefore, if I had the responsibility for a decision, my decision would be to vacate the judgment below and to remand the case to the District Court for further sentencing by still another judge in the light of Judge Clark’s representations and whatever other comments this Court might make or I might make, having the power of decision in my —

William O. Douglas:

I don’t —

Archibald Cox:

— opinion.

William O. Douglas:

— I don’t understand that because of your position in the brief that you tell.

One was dismissed properly —

Acquitted.

William O. Douglas:

— or he was — was he acquitted under count 1?

Archibald Cox:

He was acquitted under count 1.

William O. Douglas:

Count 2, he got a sentence that runs concurrently with 3, 4 and 5 —

Or 3.

William O. Douglas:

— or with one of the — one of the counts.

So, if you’re right on 3, 4, and 5, he — there’s no prejudice under 2.

Archibald Cox:

Well, I —

William O. Douglas:

I don’t understand what you’re saying now in light of what you say in your brief.

Archibald Cox:

Well, I’m trying to — I’m — my point, I think, turns on the distinction that I make between my impression as to what is proper, seemly, would strike the observer as fair in the way that justice ought to be administered.

And I think that so far as that goes, that, as I see it, even though there was no order dismissing 3, 4 and 5 that, while the case was before Judge Clark, the expectation was that however the mechanics were worked out, the maximum sentence would be five years.

And I think this is a fact to which more weight should have been given in the subsequent proceedings.

Charles E. Whittaker:

Can we view in about that though, isn’t that entirely for the trial judge sentence to be imposed?

Archibald Cox:

I take it, it is but it would — and I take it that this Court — and, therefore, I did not include the suggestion that this Court should set the amount of sentence because, except in contempt cases, to the best of my knowledge, this Court has never undertaken to indicate just what sentence should be imposed.

William J. Brennan, Jr.:

But upon what convictions, Mr. Solicitor General, is he to be resentenced?

Archibald Cox:

Well, I suppose he was resentenced on count 2.

He both pleaded guilty to it and was convicted on it.

Surely, he would have no complaint about that.

William J. Brennan, Jr.:

Well, the point is, the rule — if we are to follow this suggestion, we have to make some selection of the convictions upon which he is to be resentenced, in light of this record?

We can’t merely send it back for resentence on 2, 3, 4 and 5, can we?

Archibald Cox:

Well, I would suggest count 2.

Charles E. Whittaker:

Well, he got five-year sentence on count 2.

Does that exceed anything he had a right to expect under his talks with Judge Clark?

Archibald Cox:

No, Your Honor.

No.

Charles E. Whittaker:

It was just exactly what he had a right to expect of that conversation, wasn’t it?

Archibald Cox:

Which suggests that the court might, perhaps, simply set aside the sentences under 3, 4 and 5 and let the rest of it stand without the necessity of remanding it.

Felix Frankfurter:

Is there implicit in your suggestion that the expectation of a five-year sentence was communicated to the defendant through counsel and in reliance thereon, they took action, which otherwise they would not have taken?

Archibald Cox:

I don’t think that it could be said there was any action which they took in reliance on the promise.

Felix Frankfurter:

Well, then, what — what’s the basis of — what’s the basis of fairness?

Disappointed hopes which all of us (Voice Overlap) —

Archibald Cox:

Well — well, it’s — it’s more than that.

It’s — I — I think it’s —

Felix Frankfurter:

Well, I’d like to know.

Archibald Cox:

Yes.

Felix Frankfurter:

I’d like to —

Archibald Cox:

Well, I’d —

Felix Frankfurter:

If it isn’t reliance — if it isn’t reliance, what is it?

Archibald Cox:

Well, I think —

Felix Frankfurter:

There is one judge —

Archibald Cox:

— that we’re a —

Felix Frankfurter:

— one judge having said something and it has — it was not made good on by the outcome, is that it?

Archibald Cox:

I think —

Felix Frankfurter:

That’s if it gets down here.

Archibald Cox:

No, I think it goes beyond that, Your Honor, because it — I think it involves additional elements.

Not only was one judge said something but was not made good on by the other but in addition, there was — there was enacted —

Felix Frankfurter:

There was what?

Archibald Cox:

There was enacted a series of events, transfer of the cause, the vacation of the pleas, the trial and then the sentence.

All of which, I think, the eye — to the eyes of the petitioner and to my eyes, creates a very grave danger that somebody looking at this would say this was just an elaborate ritual for getting rid of what Judge Clark did.

Felix Frankfurter:

Well, what —

Archibald Cox:

And I think that it has — if I might just add one more sentence.

I think to have a serious risk that that is to create the impression of the kind of the — the way justice was administered in this case is a greater danger on the whole and a greater risk on the whole than the risk of setting aside a trial which corrected Judge Clark’s mistake.

I suppose, in the end, perhaps it comes down to the fact that I would rather err on the side of the too light sentence than err on the side of too much severity.

It’s — it’s because I have doubt about that and because it perhaps, in the end, comes down to such a very personal judgment that while I felt an obligation to come here and expose the case, I did not want to make — urge either position on the Court.

But as I said to Justice Harlan, if I had the power of disposition, I would send it back for reconsideration in the light of everything that’s happened.

Felix Frankfurter:

Well, now, may I analyze your answer.

I start out by saying I’m a great disbeliever in severe sentences in any way.

I don’t believe much in the reformative quality or power or heavy sentences.

And I don’t think, either, they are necessary for the protection of society.

Putting that to one side, I am with you.

I — you can’t be too fastidious for me in the comic of a criminal trial by the Government, but we are sitting here as a reviewing court.

We’ve got to review something.

Somebody must have done something he shouldn’t have done, either because the Constitution or the law or a statute or the exercise of his discretion was improper or unseemly, call it what you will.

I don’t see that outside of that, we have any power.

We can’t say it’d be nicer if the criminal — if criminal administration is full of things that are offensive to me, and I can’t say that the exercise of the individual power, I, as a voter on this Court, will say it should be done differently.

So, I would like to have pointed out to me someone specific reprehensible conduct, someone specific misuse of power, someone specific utterance by a court relied upon to the disadvantage of a defendant, someone specific choices open to a judge when he should have, in mercy, taken some other choice, and I don’t mean if he has filed the 20 years that I can say he should have given him only 18 years or pursued only 5 years.

But something else than the operation of the — of the machinery or the processes of the standards of law not directed toward against this individual, but in the sum total operating in a way that I don’t think is good administration.

Am I asking for too much?

Archibald Cox:

The — I’d — I will like to argue in a minute that you are.

But let me address myself in two ways to the question.

First, if Your Honor does feel obliged to focus on two — on a specific item, the two that seem to me to be the best candidates are, first, Judge Hall’s denial of the motion to transfer the case back to Judge Clark, which motion was denied after it had appeared that Palomino had left.

And at that stage, the element of the same man handling both defendants would not have been in the case.

And while I feel surely he had the power to grant or deny that motion, conceivably under all these circumstances, his action could have been said to be an abuse of discretion.

Felix Frankfurter:

Was Judge Clark in the holding of criminal calendar?

Archibald Cox:

Whether he was available for the assignment of criminal cases, I don’t know.

Felix Frankfurter:

But that’s why it’s necessary for — it should be taken into account —

Archibald Cox:

I take it, he could’ve —

Felix Frankfurter:

— of your answer.

Archibald Cox:

I take it, he could’ve made himself available or had been made available.

I take it, also, that the defendant probably would have been glad to wait until he was available.

Archibald Cox:

The second candidate, if one must pinpoint a particular error, comes to a more troublesome question, and that is the problem of sentencing because, normally, this Court does not review, in a criminal case, any exercise of discretion of any public defenders.

Under these unusual circumstances, it would seem to me that the Court certainly should consider whether it was not a reviewable abuse of discretion for Judge Hall to impose a sentence of 20 years, quite clearly taking no account of the promise that Judge Clark had made.

Now, Judge Hall didn’t state that he took no account.

I must acknowledge that that’s an inference.

But in view of what he said at the earlier parts of the record, it seems to me that it is a quite plain inference.

Now, the reason I said, Justice Frankfurter, a moment ago that I thought it wasn’t necessary to point to any particular ruling, my analysis of that is this.

That there can be occasions where each ruling goes to the limit, but is within the limit taken by itself but cumulatively, when you get a whole sequence of them, you just feel this has gone too far that looking at anyone, yes, it was within the judge’s power.

No, we can’t fairly say that was an abuse of discretion.

But when you get a sequence of them, all going to the limit in the same direction, then it would seem to me that it was permissible for the Court to say, “We just think this adds up to something that we can’t let stand.”

Felix Frankfurter:

But your — the gravamen of your difficulties, God knows I am sympathetic with it, I’ve said earlier that I regard these narcotic sentences as outrageous, but the gravamen of your objection goes to the imposition of the sentence judgment.

The fact that he was promised 5 by a holding, he got 20 (Voice Overlap) —

Archibald Cox:

Without that, I would have no difficulty.

Felix Frankfurter:

Alright.

Now, your argument would be perfect, perfect before the English Court of Criminal Appeals with its statutory power to bury the sentence, but this Court has no such power unless there’s some abuse somewhere along the line.

Archibald Cox:

Well, if — if the Court can’t let the whole proceeding and —

Felix Frankfurter:

Well, but —

Archibald Cox:

— if the two things I point out won’t do, then the —

Felix Frankfurter:

Well —

Archibald Cox:

— judgments, so far as this goes, must be affirmed.

Felix Frankfurter:

Of course, if those two do, then they do.

Then, you’ve — you’ve answered — then, you’ve taken care of my —

Archibald Cox:

Well, those are the two best candidates, I think, Your Honor.

Felix Frankfurter:

If those will do, then you’ve taken care of it.

If there’s been an abuse of discretion, then — then I have no difficulty.

Archibald Cox:

My difficulty —

Felix Frankfurter:

Then, if you have no abuse of this question anywhere, if you have no misconduct, no non-allowable choice to the judge you had the responsibility and what weighs with you is the excessive sentence, then I put it to you, I submit with all respect, what you’re doing is asking this Court to bury sentences.

Archibald Cox:

The difference —

Earl Warren:

Mr. Solicitor General, may I — may I suggest this, and — and it’s in keeping with what you have said, but doesn’t it fair on this — on — on your answer to Justice Frankfurter that before these people went into court, the counsel for the defendant spoke to the United States Attorney, and the — the United States Attorney, recognizing that he was willing to plead guilty to some phase of this indictment, said to him or indicated to him that in accordance with the practice in that kind of cases, if he pled guilty to — to two counts of — of an indictment, of a number of more counts, that that was the end of the situation and that pursuant to that agreement, apparently, both of them went into court and this man pled guilty to — to two counts of the indictment and the judge, only after he had pled guilty and with the intention of — of sentencing him at that time, said that the sentence should be five years.

Is – isn’t that about what happened or is that wrong?

If that is wrong —

Archibald Cox:

I would — I would disagree with that, Your Honor.

Earl Warren:

Oh, well —

Archibald Cox:

I do not think it could be said either that Judge Clark passed sentence —

Earl Warren:

No, I —

Archibald Cox:

— or that Judge Clark dismissed counts 3, 4 or 5 of the indictment.

Earl Warren:

There is no such —

Archibald Cox:

I —

Earl Warren:

— implication in what I said.

Archibald Cox:

Perhaps I misunderstood you.

Earl Warren:

No, I — I said, so far as the — the fairness of that is concerned to — to this — this man, isn’t it a fact that he went first to the United States Attorney and — and — the counsel did and told him that his client was willing, under certain circumstances, to — to plead guilty to — to this indictment and he was given to understand by the United States Attorney that in — in accordance with the usual practice in this kind of case, that a plea to two counts of the indictment would take care of the entire indictment and the — the rest would — would be disposed of.

And there was an agreement on 1 and 2.

They went into the court.

He pleaded guilty to 1 and 2.

And the Court, intending to sentence him, let’s say, just on — on 1 — 1 and 2, said — said to him, “I — I propose to give you five years.

That’s about as good as you could expect.”

And — and the man pled guilty under those — under those conditions and of course, he expected to — to get the others dismissed.

I don’t say the judge said anything, did anything or paid any order or anything of — of that kind, but is — is that an unfair way to — to present the — the appearance of the defendant for this Court for sentencing?

Archibald Cox:

I think that’s a fair description of —

Earl Warren:

Yes.

Archibald Cox:

— what took place before Judge Clark.

Earl Warren:

Well, that’s all I wanted to know.

Felix Frankfurter:

Are you — are you —

Archibald Cox:

If I am —

Felix Frankfurter:

— suggesting to us that there’s an agreement between the U.S. Attorney and the judge which was not — which was then frustrated?

Are you suggesting that to us?

Archibald Cox:

No, I didn’t — I didn’t mean —

Felix Frankfurter:

This Court has held again and again such an agreement is — is improper and it has refused to enforce it.

Archibald Cox:

I thought the Chief Justice — I was listening for agreement because of the rule that Your Honor mentions, but I thought the Chief Justice, if he mentioned any agreement, it only had to do with the District Attorney saying that if there was a plea of guilty to the first two counts, he would not press the others.

Earl Warren:

That’s right.

Archibald Cox:

And I take it that that is not the kind of agreement which binds the judge or purports to bind the judge, nor is it the kind of agreement which has always been regarded as invalid.

Felix Frankfurter:

Well — but — but if then this is an agreement between counsels for the defendant, I’m being almost the devil’s advocate but I think we’ve got such a thing as orderly administration of appellate reviews, and I want to know what it is I’m doing when I’m simply asking us to do something out of the goodness of my heart when I’m asked to do a legal act.

They are very different for me.

The agreement between counsel and the U.S. Attorney doesn’t enter into this thing at all, does it?

Not at all.

If then you — then you are driven back to saying it doesn’t enter it except in his own expectations.

And I can — I don’t know how many cases they are in which those expectations are constantly frustrated on the face.

Archibald Cox:

There are certainly many instances where they’re frustrated.

I think that it must be rare for them to be frustrated where they depend in considerable measure on the representations of the trial judge.

Felix Frankfurter:

Now, so that it’s the trial judge’s conduct that is decided here, isn’t it?

Archibald Cox:

Well —

Felix Frankfurter:

And — and if you tell me — if you tell me that you can argue solidly that there was an abuse of discretion not to honor that, later on by Judge Hall, or to frustrate it by having him put on trial, I understand that, but you can tie up the agreement between the U.S. Attorney and counsel for this defendant with the fact that the judge, thereafter, acted on it of his own spontaneity, except you can’t tie those together and get some extra advantage or — or element of unfairness out of it.

Archibald Cox:

I —

Earl Warren:

Yes — is — please, proceed Mr. Solicitor.

Archibald Cox:

I think that the basic difference, Mr. Justice Frankfurter, between your analysis and the source of my closing judgment as to the right result goes to what seems to me to be the final element of, I’ll call it unfairness, unseemliness in this case.

I said earlier in the argument, if Judge Hall had squarely said to the defendant, “I am not going to be bound by any agreements.

Counts 3, 4 and 5 haven’t been dismissed.

There was a very large quantity of heroin.

You can withdraw your plea to counts 1 and 2 if you wish and stand trial on all of them or you may leave it in effect if you wish.

It’s up to you.”

That I would come down on the other side of the fence.

The thing that has troubled me from the beginning, the most, would be a difficult case anyway.

The thing that has troubled me from the beginning is that taking into account the final element of sentence, then when I go back and survey the whole thing, it makes a judicial trial in the federal court.

They looked to some people and they did to me, after a good deal of laboring over it as if it had been a bit of mumbo jumbo to get rid of what Judge Clark had done.

Now, if you take away the sentence, that impression isn’t created.

But I submit to you that it is an impression of the whole thing and that there are times, not just here but Your Honor will think of many more instances than I, where one judges the quality of what occurred by how it ended up.

And there are problems of causation in those effaceable difficulties there, but I think that’s what I’ve been saying to Your Honor.

It may be wrong, but that’s the —

Felix Frankfurter:

You said it very well, but I should say the ultimate reason is that there wasn’t enforced a rule of court such as there is now.

That’s the real reason.

Archibald Cox:

That was the original source of the difficulty here.

Charles E. Whittaker:

Mr. Solicitor, I shall like to ask you, if you’re concerned about the appearance of this one case in the sentence, is it not open to you under the challenge made on count 5 to cut it in half?

Archibald Cox:

I think that count — if I may take a minute of —

Earl Warren:

Yes, you —

Archibald Cox:

— the Court’s time.

Earl Warren:

— you may — you may take this opportunity.

Archibald Cox:

I think that count 5, that the conviction was proper.

Charles E. Whittaker:

Oh, do you?

Archibald Cox:

Yes.

It seems to me that there was evidence from which a jury could find to sail here even on the most strict common law standards.

But certainly, that — this is going to take perhaps more time than I’m entitled to —

Earl Warren:

Alright, take it.

Archibald Cox:

— Your Honor.

Earl Warren:

Take your time.

Archibald Cox:

There was certainly a contract to sell between the federal agent and Saldana resulting, first, from a telephone conversation and later, from a face-to-face conversation where the agent said, “I want 10 pieces,” meaning 10 ounces of heroin.

And Saldana said, “Okay, I’ll get,” or something like that.

At that stage, there was clearly a contract to sell.

Now, the question comes was there — was there evidence from which it could be found that that was transformed into a sale and by a sale, I have in mind the strict common law definition involving a transfer of the property in the goods.

Now, the two things that were required to transfo — that are required to transform a contract to sell into a sale are, first, an appropriation of specific goods to the contract made by either the buyer or the seller, in this case it would be made by the seller, with the ascent of the buyer.

That’s an ascent which may be either expressed or implied, and it’s an ascent which may be given either before or after the appropriation is made.

I won’t take time to read it now but if Your Honor will look in Rule 4 of the Uniform Sales Act, you will find that these points are very clearly laid down.

It’s discussed at more length in Professor Willison’s book on sales at Sections 263 and following.

Now, let’s look at the evidence here.

Charles E. Whittaker:

I wonder if we don’t, as a matter of — if everybody doesn’t know and therefore, judges shouldn’t know that sales of narcotics are probably not handled as commercial transactions are normally are.

Archibald Cox:

Well, it would seem to me, it’s — they are handled in a different way, but I take it that the same requirements were transfer of property would be properly looked to, that is the way the lower courts have generally approached this.

And most specifically, to accomplish a sale in the normal course, neither payment nor delivery, as Your Honor knows, is a prerequisite, provided that the property is transferred.

Well, now, here – here plainly, the petitioner did appropriate a specific 10 ounces of heroin to this contract.

He got up from his place on the sidewalk, where he had been with the narcotics agent, went over to this 1958 Ford that came up and got a bag contending 10 oun — containing 10 ounces of heroin out of it and started back to the federal agent.

And the federal agent said, “Is that the stuff?”

And the Petitioner said, “Yes.”

It’s plain evidence that he had appropriated the goods to the contract.

Archibald Cox:

Now, is there evidence that the federal agent gave his ascent from which the jury could find this?

Because there were no specific instructions on this, none requested, it wasn’t really an issue.

If Your Honor reads the arguments to the jury, there was no argument about it.

Petitioner said, “I made it for sale.”

His counsel said to the jury, “There were for sale.”

And everybody went on to argue the entrapment point.

I would say that the jury could infer the agent’s ascent to this appropriation in —

Hugo L. Black:

To have it thrown at him?

Archibald Cox:

Huh?

Hugo L. Black:

You mean that he ascended to have it thrown at him?

Archibald Cox:

No, I’m not relying on that much, Your Honor.

I agree with you.

[Laughs] I didn’t — no, we put no reliance on that.

[Laughter]

I think that he ascended in advance.

The first two transactions, he made a cursory inspection of the heroin.

The second transaction — the third transaction, he may not.

He simply accepted what petitioner handed to him.

And then, this one, he said, “Have you the stuff?”

He — I think that a jury could find from this that he was willing to have the petitioner make the selection of the goods to appropriate to the contract.

Let me put just one example to indicate why I feel sure that neither sale — neither delivery nor payment should be required.

Suppose that I were to telephone the local druggist and were to say “I’m in desperate need of some morphine.

Have you got a prescription?”

“No, I haven’t, but my wife broke her leg.

She dislocated her knee and she’s in terrible pain and I just must have some morphine to get her through the night.”

And he then said, “Well, I’m going out.

It will be just the boy here.

I’ve got to hurry off,” and I said, “Well, put up the prescription and I’ll be down and get it in a couple of hours.”

And he put up the prescription, marked it “Professor Cox” and put it on the shelf and then the narcotics agent came after him for a search.

I haven’t the slightest doubt that under those circumstances, when neither delivery nor payment, that there were — you would agree that there had been an appropriation of the goods to the contract and that the sale was made.

Archibald Cox:

And indeed, as a matter of commonsense, it should be held to be made.

Now, this one, if one were arguing it to the jury, certainly there are very sound arguments that could be made against my position, but I think that the evidence does permit a finding that there was the necessary ascent by the agent to the petitioner’s prior appropriation and that this made out the necessary elements of the sale.

Hugo L. Black:

Would you mind, Mr. Cox, just stating what are the facts, as briefly as you can, in which the Government says that the jury had to find those facts existing with reference to this sale?

Archibald Cox:

The jury would have had to find that —

Hugo L. Black:

I mean, what — what could they find from the evidence that they had to find?

Archibald Cox:

You mean conclusions?

Hugo L. Black:

I want to know — I want to know just what it was that was done under the evidence as you see it —

Archibald Cox:

Well, under —

Hugo L. Black:

— that brought about the sale.

Felix Frankfurter:

From this (Voice Overlap) —

Archibald Cox:

I think that the petitioner earmarked heroin for the performance of this contract, that’s one element, with —

Hugo L. Black:

You mean for the performance of the executory contract —

Archibald Cox:

Yes.

Hugo L. Black:

— that he made.

Archibald Cox:

With the implied ascent of the agent, and that’s the only other element that is necessary.

Hugo L. Black:

What did he do?

What did each one do?

Archibald Cox:

The petitioner took 10 ounces of heroin, put it in the packages, put it in the paper bag and then came up closer to petitioner, as I read the record, than you are now and said, “This is the stuff.”

Hugo L. Black:

Then what happened?

Archibald Cox:

Then the agent drew his gun.

Hugo L. Black:

Drew his gun?

Archibald Cox:

Yes.

Hugo L. Black:

He had this sack in his hand.

The agent drew his gun on him.

Had the agent paid anything yet?

Archibald Cox:

No.

Hugo L. Black:

These — these (Voice Overlap) —

Archibald Cox:

No.

We contended —

Hugo L. Black:

(Voice Overlap) —

Archibald Cox:

And I think it’s quite true, as matter of —

Hugo L. Black:

By the time they could find it, it was on credit up to that point there.

Archibald Cox:

That it was on — that — well, on credit with the vendor asleep.

[Laughs]

Charles E. Whittaker:

Well, isn’t that somewhat different, too, than leaving the package at the drugstores when you pick up your wine where then, after the agent used the gun, he — petitioner threw the package, as I understand it?

Archibald Cox:

The petitioner threw it and the Ninth Circuit said that perhaps he threw is with the intention of making delivery.

[Laughter] I’m not —

Hugo L. Black:

Suppose —

Archibald Cox:

— I’m not suggesting that, Your Honor.

Hugo L. Black:

Suppose the officer had said —

Archibald Cox:

I —

Hugo L. Black:

Go ahead.

Archibald Cox:

I was just going to say to Justice Whittaker that let’s suppose that the druggist, go back to my telephone conversation, had said, “Well, alright, I’ll set it aside for you, but unless you leave $50, the boy can’t give it to you.

No credit because I don’t want this on my book.”

I would say there still would have been a sale because he had appropriated the morphine, in my example, to the contract.

It’s my morphine.

Charles E. Whittaker:

And that’s a completed sale?

Archibald Cox:

In the ordinary law of sales, yes.

The property and the goods have passed.

The passage of property is not prevented by the retention of a vendor’s lien or the retention of possession or the failure to get paid.

Charles E. Whittaker:

And you expressed — expressly conditioned your hypothesis, however, upon payment, no prejudice involved and yet payment was never made (Voice Overlap) —

Archibald Cox:

The sale — the sale is completed before the payment even though delivery is conditioned upon payment.

Hugo L. Black:

Suppose this, instead of being an officer, had been a robber?

Archibald Cox:

This is not a doctrine I’m inventing for the criminal case.

It’s a little difficult, as Justice Black, I guess, said or perhaps you said, Justice Whittaker, to apply it to a criminal case.

But what I am saying, certainly in general, is, as I’m sure Your Honor recognize, familiar law of sales.

Hugo L. Black:

Suppose this officer, instead of being an officer, had been a robber, and he saw his chance now to get this heroin without paying for it and he just held up his gun and said, “Give it to me.”

Would that have been a completed sale?

Archibald Cox:

I don’t think that anything that happened after the petitioner appropriated some heroin out of a general mass to the performance of this particular contract with the ascent implied here of the buyer has anything to do with whether there was a sale.

Once that was done, there was a sale.

Hugo L. Black:

In other words, if the merchant picks out something and says “This is it” and puts it over one side, would that be a completed sale?

Archibald Cox:

I — Well, I — an example along that line occurred to me when I was thinking about the case.

Suppose that we were dealing not with heroin but a — the sale of infected meat under a statute that makes the sale of it a crime.

Suppose I go into the butcher’s store and say “I want a dozen lamb chops” and the butcher says “Alright, a dollar and a quarter per pound.”

And he goes and starts cutting off the lamb chops and shows them to me.

“This is a cash and carry,” the butcher told.

He says that — and I just nod, and then he puts them in the inner wrapping as they do.

He puts them on his scales and at that point, the neighbor’s dog come and runs off with their chop — with the chops.

They’re my chops that he’s gone off with, not the butcher’s.

Hugo L. Black:

You mean if I go down —

Earl Warren:

It wouldn’t be mine.

Hugo L. Black:

If I go down —

[Laughter]

Earl Warren:

Because I wouldn’t buy them.

Archibald Cox:

Not unless the dog made delivery, Your Honor.

Hugo L. Black:

You mean if I go down and order some steaks and I leave to go home and they cut them and they put them aside there, I’m already — those steaks are already sold —

Archibald Cox:

If you are willing —

Hugo L. Black:

— and I got the paper.

Archibald Cox:

If you have indicated in advance either that you accept these steaks as allocated to the contract or that you are willing to have the butcher set the steaks aside as your steak, then a sale has been made.

Hugo L. Black:

Suppose I haven’t seen them.

Archibald Cox:

If you —

Hugo L. Black:

Maybe I wouldn’t like them when I see them.

Archibald Cox:

If you indicated — but by hypothesis, I stated that you have indicated that you trust this butcher to set them aside.

Hugo L. Black:

But this — this man though hadn’t seen this error.

Archibald Cox:

But we — but we know from —

Hugo L. Black:

He just pulled a sack.

Archibald Cox:

But we know from one of the prior transactions that he was willing to take that man’s word for it because in one of the prior transactions, he did not inspect the heroin before he accepted it as under the contract.

Well, that’s, I think, an interpretation the jury could have made on the facts.

And I submit, Your Honor, that this really is a familiar law Professor Willison, and there’s many examples like this, has treated.

Earl Warren:

Thank you, Mr. Solicitor General.

Earl Warren:

Mr. Reinhardt.

Stephen R. Reinhardt:

May it please the Court.

There is very little I can see to improve on the Solicitor General’s arguments.

And in a large measure, we agree with — with many of them.

If the Court does not find that the sentence of petitioner is totally barred by the circumstances of delay in trial and by the double jeopardy arguments and the other issues raised in our brief, we agree that the five-year sentence imposed on count 2 should be affirmed so long as the sentences on counts 3, 4 and 5 are dismissed and that this would be an orderly method for disposing of this.

This is —

Charles E. Whittaker:

All three?

You have to say something.

We can’t just set them aside.

Well, what did you — what’s the basis?

Stephen R. Reinhardt:

Well, Your Honor, the basis — I’m not suggesting that you just do it without an opinion.

I think that our briefs and arguments suggest numerous basis, including the supervisory power, as well as double jeopardy which may well be applied if it’s necessary to reach that question, as well as an abusive discretion on the lack of power.

Now, as far as a vacation of the pleas on 1 and 2 and ordering the defendant to trial, I think that when Mr. Justice Frankfurter asks what is the abusive discretion in this case, that is clearly where we found it.

When Judge Hall —

Felix Frankfurter:

Was clearly where you what?

I didn’t get the other word.

That’s clearly where you —

Stephen R. Reinhardt:

That’s clearly where we — where we find that abusive discretion.

I — I agree with the Solicitor General that it is found in other places.

But I think in this instance, it is clear.

The judge did — Judge Hall did not just say “Well, we’ll proceed on the trial with counts 3, 4 and 5.”

What he did was vacate an entire disposition.

He said, “Let’s vacate the pleas on count 1 and 2 and send you to trial.”

This, he considered necessary to the trial, not just a trial which could take place, but he felt it necessary to vacate the previous disposition which he believed Judge Clark to have made, and he vacated that entire disposition.

We don’t believe there’s any such power.

If there is a power, we urge this is certainly an abuse of discretion.

The grounds he gave for this do not justify any such vacation that —

Felix Frankfurter:

May I ask you this.

Suppose it’s the other way around.

Suppose — suppose Clark had been Hall and Hall had been Clark, and suppose Clark had given 20 years and then, when it came before Hall, mild Hall not real Hall, mild Hall and he, out of a sense of leniency or sympathy with and disapproval of the heavy offense and said, “Well, if — if we go to trial, we let it go to trial on the whole.”

Felix Frankfurter:

I don’t think you’d be here today, would you?

So, when you talk about power.

Stephen R. Reinhardt:

Well, Your Honor, we do not feel that there is any power to vacate a conviction.

Felix Frankfurter:

And you think there wouldn’t be power — there wouldn’t be power to vacate —

Stephen R. Reinhardt:

If we consent —

Felix Frankfurter:

Pardon me?

Stephen R. Reinhardt:

— certainly.

Felix Frankfurter:

Alright.

But there wouldn’t be power if a judge, out of his sense of fairness, he calls on a plea of guilty misunderstood or misconceived by the defendant as dismissing the others, gave a sentence that he thought was raw and therefore, he wanted to have us the whole disposition before his more compassionate heart —

Stephen R. Reinhardt:

If it were —

Felix Frankfurter:

— if the judge has no such power.

Stephen R. Reinhardt:

Your Honor, if it were in the interest of the defendant, he would not have the problem of having to do it over the objection of the defendant.

This — this —

Felix Frankfurter:

You mean a defendant can play one game or the other, depending how — what the sentence of the prior judge is.

Stephen R. Reinhardt:

No, Your Honor.

When a man is convicted, he may remove the prejudice of — of being submitted to trial again if it’s in his interest by waiving any — any right to that conviction.

Felix Frankfurter:

But your argument implied that if you did — had not consenting, there would be no such power, although the motive, so far as it’s going to motive, of the mild Judge Hall would have been the opposite of the severe Judge Hall.

Stephen R. Reinhardt:

Your Honor, I — we are suggesting that there is no power but — but clearly, it is an abusive discretion.

The grounds given in this case accusing the other judge of having entered into a deal or the appearance of a deal, certainly, there was no basis for the accusation of a deal.

As to the appearance of a deal, we do not believe there’s any — this is a circumstance which warrants a vacation to the prejudice of a defendant.

And let — and let me just make clear that Judge Hall was not the Chief Judge of the District at the time.

Mr. Cox inadvertently suggested that he was and that this might have given him some inference in the sentence.

It was Judge Yankwich at the time.

But the — the purpose is — the purpose was to — to permit the increase in sentence.

This was the reason for the vacation.

This was the reason that he want — sent him to trial on all five counts.

It was in order to increase this sentence and for that reason, we do feel that this be — the sentence becomes a part of this problem.

Now, as to the question of why there was no motion to dismiss, Your Honor pointed out that on counts 3, 4 and 5, all that was said was “hold those”.

Earl Warren:

You may — you may continue.

Stephen R. Reinhardt:

Thank you.

Stephen R. Reinhardt:

It — it is true that there was no motion made.

And that — that the question involves interpretation of the word — words “hold those.”

As Your Honor suggested, under the circumstances of this case, those words could not have meant anything other than that those were to be dismissed at the time of trial.

They — I — I —

Felix Frankfurter:

You make it difficult for me to understand that.

Stephen R. Reinhardt:

Well, I — I don’t —

Felix Frankfurter:

You could have — you could have made that clear by just a few words.

Stephen R. Reinhardt:

I agree —

Felix Frankfurter:

It —

Stephen R. Reinhardt:

— I agree with Your Honor.

It could have been made clear if there was a necessity, and perhaps there was.

Perhaps it should have been made clear that those were held for a dismissal.

But in the District Courts, to my understanding, that is what — what happens when counsel held for dismissal at the time of sentencing.

If they were to be tried, they would have been set for trial.

There was no — nobody ever thought they were set for trial.

Felix Frankfurter:

You mean — you mean it is a practice?

You talk about rituals.

You mean to say that the practice when pleas of guilty are tendered and accepted to counts 1 and 2 and 3, 4 and 5 are to be dismissed.

It’s the practice to make another proceeding of that at some other time?

Stephen R. Reinhardt:

No, Your Honor, not another proceeding.

Felix Frankfurter:

That’s a little too much for me.

Stephen R. Reinhardt:

No, Your Honor.

Let me explain this.

If they are — there’s not a separate proceeding.

They are dismissed when sentence is imposed.

The judge says “Count 1, 5 years, count 2, 5 years, count 3, 4, and 5, dismissed.”

It is the sentencing proceedings at which formal dismissal takes place.

And that’s why they say “hold those.”

They don’t dismiss part of the judgment apart from the sentence.

They are all dismissed as part of one judgment, so that it was the formal dismissal which was delayed by the words “hold those”.

Stephen R. Reinhardt:

It was necessary to do that until the time of sentence when one judgment would be entered.

Charles E. Whittaker:

Then is this your conclusion?

Is it your argument that the Court’s acceptance of petitioner’s plea of guilty on counts 1 and 2 constituted a judgment covering the whole case, including counts 3, 4 and 5?

Stephen R. Reinhardt:

The word “judgment”, I — I cannot say that it constituted a judgment.

I can say it constituted a disposition of the case.

It constituted a court-approved settlement that the guilty plea situation and — somewhere over 80% of the cases in the trial court are disposed of by guilty pleas.

Charles E. Whittaker:

But unless it was a judgment, it wasn’t the action of the Court nor binding on anyone, was it?

Stephen R. Reinhardt:

Yes, Your Honor.

It is binding and it is the action of the Court, just as a jury verdict is binding without a judgment.

The — the defendant has been convicted upon acceptance of his plea of guilty.

He cannot withdraw, except with permission of the Court.

The Court can and should impose sentence upon that — upon that plea and that he’s — he’s removed his discretion.

He — he is subject to imprisonment upon that plea and he — he cannot just change his plea when he wishes.

Charles E. Whittaker:

Then that plea, however, related only to counts 1 and 2.

That’s why I asked you then if it was your contention that his plea of guilty on counts 1 and 2 actually amounts to a judgment covering the whole case.

Stephen R. Reinhardt:

And Your Honor, I don’t — I’m not trying to evade that it’s only the use of the word “judgment” that bothers me.

I don’t want to mislead you by suggesting that we consider this a judgment.

Charles E. Whittaker:

Well, if it’s not a judgment, then I don’t know what it is —

Stephen R. Reinhardt:

Well —

Charles E. Whittaker:

— that would have any effect as of a binding thing.

John M. Harlan II:

It’s a disposition that has the effect to the judgment.

Stephen R. Reinhardt:

Yes, Your Honor, it is a disp —

(Inaudible)

Stephen R. Reinhardt:

Thank you very much.

[Laughter]

Felix Frankfurter:

Mr. Reinhardt —

Stephen R. Reinhardt:

Yes, sir?

Felix Frankfurter:

— would you forgive me — would you forgive me if I point out, if you just used the phrase that rather supports Judge Hall’s saying there was an appearance.

You mean the phrase “court-approved settlement”, that’s just what Judge Hall thought of your court-approved settlement.

Stephen R. Reinhardt:

No, Your Honor.

Stephen R. Reinhardt:

The — the court-approved settlement means on the number of counts.

This is the way —

Felix Frankfurter:

Well —

Stephen R. Reinhardt:

— this is the way guilty pleas are entered —

Felix Frankfurter:

The court-approved — a court-approved settlement is, to me, something different from a court’s own disposition.

Stephen R. Reinhardt:

Well, the court approves the settlement of two counts in lieu of a trial on all five.

The court — that is the court approval of the disposition.

The court —

Felix Frankfurter:

Settlement implies an — never mind.

But all I’m saying is that there’s some basis which Judge Hall is thinking so.

Stephen R. Reinhardt:

No, Your Honor.

Let me just — just say that there was — I want — in case there’s any doubt in the — in Your Honor’s mind —

Felix Frankfurter:

There is the — there’s the — the eternal difference in life between appearance and reality.

You may have been a — a thing may have been as innocent as could be, but the appearance was that there was a — a court, a harmony, the opposite of dissonance between counsel and the court.

Stephen R. Reinhardt:

The — the appearance, we would suggest, only does — if there is such an appearance, which I wish we had time to — there is — there is no such appearance.

I’m sorry to differ with Your Honor.

But we don’t believe there is.

But furthermore, that would not justify —

Felix Frankfurter:

That’s the difference (Voice Overlap) —

Stephen R. Reinhardt:

— vacating a conviction and we’ve considered this was a conviction.

Felix Frankfurter:

Believe me, I followed your argument, and I think that I understand you.

Hugo L. Black:

Is it — is it extra —

Stephen R. Reinhardt:

Thank you very much.

Hugo L. Black:

— is it extraordinary?

I’m — I’m not (Inaudible) this information, the prosecuting attorney and the defendant lawyers get together, go to the judge, and say “Now, we are willing to satisfy — settle this case on the basis of a plea of guilty with a sentence that’s so light.”

Stephen R. Reinhardt:

Yes, Your — Your Honor, I —

Hugo L. Black:

Is that ever done?

Stephen R. Reinhardt:

— I would think that that would be improper.

Hugo L. Black:

You think it’s improper.

Stephen R. Reinhardt:

I would think so.

Stephen R. Reinhardt:

I — I don’t know of any such practice.

And I — it seems to me that the proper practice is for the defendant and the United States Attorney, the two attorneys, to agree on the number of counts which is satisfactory and then an open court, to go in and —

Hugo L. Black:

Well, I’m not talking — I’m talking about an open court.

Stephen R. Reinhardt:

To — well, I think it would be improper because the court is not bound by the U.S. Attorney’s view as to sentence and —

Hugo L. Black:

You wouldn’t be bound by the agreement.

Stephen R. Reinhardt:

No, no, but if — if —

Hugo L. Black:

You wouldn’t be bound by the agreement.

Stephen R. Reinhardt:

But Your Honor, if the plea were based on any promises to sentence, I would think that it — that it would be improper because you would then go — into court and the judge might change the sentence.

Hugo L. Black:

Well, a lot of impropriety is committed in this country.

Felix Frankfurter:

There is.

Stephen R. Reinhardt:

Well —

Felix Frankfurter:

There is, but it’s rebuked constantly from the bench, and this Court has rebuked it from time to time.

Stephen R. Reinhardt:

Well, in that —

Felix Frankfurter:

I don’t think the fact, as I asked you about this —

Stephen R. Reinhardt:

Yes.

I just — I just want to add one fact, Your Honor, to — to refute any implication there might be of impropriety here, as far as the two judges, that this case was put back on the calendar before Judge Clark by the United States Attorney.

This was no effort by the defendant to — to do that.

Felix Frankfurter:

I was remotely suggesting impropriety.

Stephen R. Reinhardt:

Yes.

Felix Frankfurter:

Appearance is not impropriety.

Stephen R. Reinhardt:

Thank you very much.

Earl Warren:

Mr. Reinhardt, on — on behalf of the Court, I would like to express our appreciation to you —

Stephen R. Reinhardt:

Yes.

Earl Warren:

— and — and to your associate, Mr. —

Stephen R. Reinhardt:

Bernhard.

Earl Warren:

Yes, Mr. Bernhard.

I get the name is so alike.

I — I get to be confused.

We always feel comforted when — when lawyers will undertake these — the defense of indigent defendants, such as you have and particularly when they carry them through with the diligence that — that you have.

And we express our deep appreciation to — to both of you.

Earl Warren:

And may I say also, Mr. Solicitor General, that — that we’re deeply comforted also by the very frank, very fair and very generous manner in which — which you have conducted this — in this case.

And I’m sure that the cause of justice will — will never suffer when men will undertake the cause of indigent defendants such as you have here and the Solicitor General will be as fair as he has in this case, so we thank you both.

Stephen R. Reinhardt:

Thank you very much.