Saldana v. United States

PETITIONER:Saldana
RESPONDENT:United States
LOCATION:Eagle Coffee Shoppe

DOCKET NO.: 176
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 365 US 646 (1961)
ARGUED: Mar 20, 1961
DECIDED: Apr 03, 1961

Facts of the case

Question

  • Oral Argument – March 20, 1961 (Part 2)
  • Audio Transcription for Oral Argument – March 20, 1961 (Part 2) in Saldana v. United States

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

    Earl Warren:

    Leonard Saldana, petitioner, versus United States.

    Mr. Reinhardt.

    Stephen R. Reinhardt:

    Mr. Chief Justice and may it please the Court.

    Before commencing the oral argument, I would like to move the admission of Mr. Herbert Bernhard pro hac vice.

    Earl Warren:

    Yes, Mr. Bernhard may be so admitted —

    Stephen R. Reinhardt:

    Thank you.

    Earl Warren:

    — Mr. Reinhardt.

    Stephen R. Reinhardt:

    May it please the Court.

    This case is here on writ of certiorari to the US cir– US Court of Appeals for the Ninth Circuit.

    It involves a criminal conviction of the petitioner.

    The conviction was upheld by the Court of Appeals.

    The facts are as follows.

    On June 16, 1958, the petitioner was arraigned before Judge Thurmond Clark.

    The petitioner, at that time, being indigent, did not have counsel.

    A counsel from the Indigent Defendant Panel was appointed at that time.

    Thereupon, Judge Clark suggested that, in view of the fact that there was a co-defendant in the case who is pleading guilty at the same time, that petitioner plead guilty as to all five counts of the indictment.

    The petitioner then pleaded guilty.

    Following that plea and arraignment, court-appointed counsel —

    Earl Warren:

    Was that a– he pleaded guilty, you say?

    Stephen R. Reinhardt:

    Pleaded not guilty.

    I’m sorry, Your Honor.

    Earl Warren:

    Not guilty, yes, I thought so.

    Stephen R. Reinhardt:

    Petitioner pleaded not guilty to all five counts.

    Following that plea and arraignment, court-appointed counsel, and I was the court-appointed counsel, consulted with petitioner to determine the nature of the offense and what petitioner’s wishes were.

    Following consultation with petitioner, following an investigation of the facts, it was determined that petitioner would plead guilty, petitioner acknowledging that he did commit the offense.

    Thereupon, consulted with the Assistant United States Attorney and inquired as to the disposition which would be acceptable to the United States Attorney’s Office.

    The United States Attorney’s Office advised that, as a matter of course in proceedings of this nature, pleas would be accepted to a lesser number of counts and that the acceptable number in this case would be two.

    Thereupon, it was agreed between the United States Attorney and petitioner’s counsel that a plea of guilty would be entered on two counts.

    John M. Harlan II:

    Where does that appear in the record?

    This is the conference of the United States Attorney, is it not?

    Stephen R. Reinhardt:

    Well, Your Honor, I think they appear in – at — on page 27, I believe, there’s a statement which I made to the court at that time.

    Yes Your Honor, page 27 of the record where I advised the district court of this fact.

    This was before Judge Hall.

    Now, I should state further, in this connection that on June 16th when the arraignment proceedings were held and when petitioner pleaded not guilty, the case was set on the trial calendar for July 15, which was a time at which Judge Peirson Hall would have taken over the trial calendar.

    In the district, the judges serve successive terms, and therefore, the case was placed on the calendar at a time after which Judge Hall would have taken over.

    Now, prior to the time that Judge Hall would have taken over or did take over the trial calendar, following the conference with the United States Attorney, I requested the United States Attorney to place the matter back on the calendar for a change in plea.

    The United States Attorney did this at my request and placed it on the calendar of the tri– of the judge who was then presiding over the criminal calendar, who was Judge Thurmond Clark.

    When this took place on June 26th, at which time, I appeared with petitioner before Judge Clark and moved for a change of plea.

    The plea was changed on counts 1 and 2 and petitioner at that time stated that he wished to plead guilty to counts 1 and 2.

    I, then, requested Judge Clark to impose an immediate sentence.

    Charles E. Whittaker:

    (Inaudible) was that plea accepted by Judge Clark?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    The plea was accepted on ent — on counts 1 and 2.

    I believe that this will appear on either 15 or 16 of the record — on page 15 and 16, and I believe it will appear also in the minute orders, although I’m not sure what page of the record.

    In any event, following the acceptance of the plea by Judge Clark, I asked — requested immediate sentence on the grounds that the petitioner would get no credit for any time that he served while awaiting sentence because there was a mandatory minimum sentence of five years with no possibility of probation and/or parole.

    So, I asked for an immediate sentence.

    Judge Clark, then, responded and said that he would be willing to impose or would impose a sentence of five years to run concurrently on each count and it — that it would take effect immediately.

    William J. Brennan, Jr.:

    Mr. Reinhardt —

    Stephen R. Reinhardt:

    He had–

    William J. Brennan, Jr.:

    — Reinhardt, explain that again.

    What was the reason you wanted an immediate sentence?

    Stephen R. Reinhardt:

    Well, Your Honor, the first reason was that I did not want petitioner to stay in jail, serving time for which he would receive no credit.

    William J. Brennan, Jr.:

    In other words, he was not sentenced until months later and, meanwhile, was in jail, he would not get credit for the time then being served?

    Stephen R. Reinhardt:

    He would not get credit because there was a mandatory minimum of five years and that if —

    William J. Brennan, Jr.:

    And that they had a date from the actual date of sentence, is that it?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    Is that the fact that’s here?

    Is that as so interpreted?

    That–

    Stephen R. Reinhardt:

    Well, that was where I understood the practice to be, that the — that the sentence would be four to five years and that it would be effective as of the date of sentence.

    Stephen R. Reinhardt:

    Now, it is possible that the court might, under some circumstances, I don’t know, be able to enter a retroactive sentence.

    But, the reason I gave at that time, and this was the reason that I had, was that I felt that he should not serve dead time and that, ordinarily, credit is not given for dead time.

    So, I — in that — upon my request for an immediate sentence, the court, as I indicated, announced that the sentence would be five years, concurrent on each count.

    At that point, the Assistant US States Attorney objected.

    His objection, as he stated, was not as to the length of the sentence, but as he said, policy-wise, he objected to the imposition of the sentence on a man when there was a co-defendant who had not yet been tried.

    Judge Clark explained his objection by stating that the Government was afraid that if the petitioner was sentenced, then he would be free at the trial of the co-defendant to take the stand and testify for the co-defendant and, the Government wanted to avoid this.

    I replied to Judge Clark that I felt that this was not a valid reason to delay the sentence.

    That, in the event that petitioner perjured himself at a subsequent trial, that the solution to that was to try him for perjury, but that it was not a proper practice to keep a man in jail awaiting sentence in order to ensure his testimony at a subsequent trial.

    That, in fact, this was inconsistent with the administration of justice because it did not encourage truthful testimony, but it kept a club hanging over the head of a man who was awaiting sentence, and that sentence should not be delayed for this purpose.

    In response to my argument, Judge Clark said “well, you don’t have to worry about your defendant because I have given you my word, and I give you my word now, he will be returned here after the trial of the co-defendant and he will be sentenced to five years.

    I give you my word on that.”

    The next event that took place and this does not appear in the record, but it is my way of explanation, is that I received a telephone call from the clerk that the — that Judge Hall had taken jurisdiction over the petitioner.

    Now, the record shows that, on July 9th, the co-defendant, Palomino, who was set for trial before Judge Hall moved for a continuance.

    Judge Hall granted the continuance of the trial until July 29th, a delay of two weeks, and that the record shows that this was ex parte.

    It was an ex parte hearing that the petitioner was not there, petitioner’s counsel was not there, and it is unclear, although I do not believe, the United States Attorney was there either.

    At this proceeding concerned with Palomino alone, Judge Hall ordered petitioner transferred before him for sentencing.

    As the record later reveals, the reason that Judge Hall —

    Earl Warren:

    Was that at the time that he granted the continuance of two weeks to Palomino?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    Earl Warren:

    And that was without the presence of any of the parties to your case?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    As I stated, I was advised of this by phone and, prior to the date at which petitioner’s next hearing was scheduled, which was July 21st, the date that he would ord — that he was set for sentencing, I spoke to Judge Hall with the Assistant United States Attorney and was advised that it would be unnecessary to appear until July 29th in view of the continuance.

    Now, the record is somewhat unclear as to this, except that the United — Assistant United States Attorney’s statement is set forth at pages 19-20 of the record, I believe, yes, Your Honors, it’s at page — pages 19-20 where the United States Attorney explains this.

    In any event, the proceedings were held by Judge Hall with respect to — on July 21st and 22nd, but petitioner’s counsel was not there because Judge Hall had stated that he would not sentence until July 29th since he had continued the trial.

    Now, on July 29th was the next time that petitioner’s counsel appeared in court, and this was before Judge Hall pursuant to the advice I had received that the case had been transferred to him.

    On July 29th, the court was advised that Palomino had skipped bail.

    Now, as I’ve indicated, the explanation that Judge Hall had given as to why he transferred petitioner was that he didn’t want to take a half of a case.

    He believed that if he were going to try one defendant, he should also sentence the co-defendant.

    Now, Palomino, having disappeared, there was no trial pending for him and all that was left before Judge Hall now was the petitioner.

    When the clerk announced that petitioner was here and was here for sentencing, Judge Hall said “well, I’m not going to sentence him now.”

    Stephen R. Reinhardt:

    At that point, I stated to Judge Hall, began to explain the circumstances of the case and how petitioner had appeared before him, and began to make a motion to transfer the case back to Judge Clark.

    Judge Hall, before I completed my entire explanation, came to the conclusion that this apparently smacks too much of having the appearance of a burden.

    That if petitioner would plead guilty, he would get five years.

    Now, this conclusion is wholly without support in the record or in fact.

    This is a conclusion of Judge Hall’s, for which there may be explanations with relation to the problems that may exist in the District Court in Southern California, but as to which petitioner was wholly innocent.

    There was nothing that would justify the smacking of the appearance of a deal in Judge Hall’s court and Judge Hall’s words, and he made no inquiry or no attempt to find out any facts or to explore any facts which might support this conclusion of his.

    Rather, he said that, because it might have the appearance of a deal, he would vacate the pleas and order the defendant to trial.

    Despite petitioner’s objections, Judge Hall did, in fact, vacate the pleas of guilty and set the entire case for trial approximately 10 days later.

    Now, on August —

    Charles E. Whittaker:

    Pardon the interruption.

    Stephen R. Reinhardt:

    Yes.

    Charles E. Whittaker:

    But, had there been any order at all with respect to the three counts, 3, 4, and 5?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    I’m glad you asked that.

    I should have mentioned counts 3, 4, and 5 at the time I described the change of plea.

    At the time of the change of plea, when the guilty pleas were accepted on counts 1 and 2, the clerk of the court said “we have counts 3, 4, and 5.”

    The Assistant United States Attorney then said “hold those,” and the court said “yes, hold those.”

    Now, there is no doubt in the record that the intention of all of the parties in — the court, the United States Attorney, and the petitioner was that these counts would not, thereafter, be subject to trial.

    Charles E. Whittaker:

    Had there been agreement of that kind?

    Is that what Judge Hall was referring to when he said this looked like a deal?

    Stephen R. Reinhardt:

    No Your Honor, I don’t believe.

    If that’s what he was referring to, I think it’s an appropriate in the proper deal.

    I don’t think that’s what he meant because he said “a deal that if he would plead guilty, he would get five years” and, this sort of a deal there never was.

    There was no discussion with the United States Attorney about this, never any suggestion that there would be — no mention of sentence at all until Judge Clark, in open court, announced the sentence.

    However, the status of 3, 4, and 5 was discussed with the Assistant United States Attorney and it was agreed that the acceptance of a plea to 2 would be a disposition of the entire case, and I think that the record shows that the — there can’t be any question that this was the intent of everybody.

    One illustration, I believe, is the fact that the Assistant United States Attorney wanted counts 1 and 2, the sentences on those counts, held in order to ensure the testimony.

    And —

    Charles E. Whittaker:

    When you say everybody, do you include the judge —

    Stephen R. Reinhardt:

    I —

    Charles E. Whittaker:

    — would you?

    Stephen R. Reinhardt:

    Yes, Your Honor, I include Judge Clark.

    The pact that’s in the district court has been, and I know it is a pact that’s in the District Court in Washington, has been that pleas — when a guilty plea is entered to a lesser number of counts that, at the time of sentence, the remaining pleas are dismissed.

    Now, had the plea been accepted on one day in sentencing schedule for several weeks later, they would have been dismissed there.

    However, the important fact here is that sentence was about to be imposed on this very day when the guilty pleas were entered and on this very day, those pleas would have been dismissed under ordinary circumstances, but for the objection of the Government that they wanted this Defendant held and not sentenced until after the trial of a co-defendant.

    Felix Frankfurter:

    When you say the practice is to dismiss after pleading guilty to part of the multiple-count indictment, is it equally a common place for defendants to plead guilty to some count and go to trial on others?

    Stephen R. Reinhardt:

    No, Your Honor.

    I can only answer in the basis —

    Felix Frankfurter:

    Do you mean this is a rule of — some kind of a rule of practice that if you’ve got five counts and they’re ready to plead to count 1 or 2, but want contest the other counts?

    That’s automatically a dismissal?

    Stephen R. Reinhardt:

    No–

    Felix Frankfurter:

    Are you contesting that?

    Stephen R. Reinhardt:

    No Your Honor, I’m not suggesting automatically.

    I’m suggesting that, as a general practice, when a petitioner pleads to a lesser number of counts that this is the usual arrangement and this is the usual purpose of the plea, that there are cases in which a petitioner pleads because he does not want to face trial on those counts.

    Felix Frankfurter:

    Well, it all depends.

    Of course, if the five counts are variants of the same offense, that would be true.

    If there are five counts or four counts or whatever the multiple may be and the district attorney has a non-committing because he can’t commit himself to talk with defendant’s counsel.

    I can understand that, but I’m a little jolted when you say the practice is that if you have five counts and if you plead guilty to some, you thereby, normally dismiss the others.

    I’m just a little jolted.

    It may be so, but it strikes me as odd.

    Stephen R. Reinhardt:

    Well, Your Honor, I would say that —

    Felix Frankfurter:

    I don’t mean to say it doesn’t often take place.

    I’ve given the indic– the instances or the formats under which it takes place.

    But, if you’ve got one count for one thing and another count for an unrelated offense, triable at the same time, I should think if one dug out the cases, you’d find as many non-practices as the practice you gave.

    Stephen R. Reinhardt:

    Well, may I suggest, Your Honor, that the counts in this case show that this case falls within the type where you suggest this is the purpose, namely that there was a conspiracy count and one substantive count of sale and the remaining counts were to be dismissed with three further acts of sale.

    They were all sales to the same government agent in — under the same conspiracy.

    Felix Frankfurter:

    Which were pled to, the substantive?

    Stephen R. Reinhardt:

    One conspiracy and one of the th– one of the four substantive.

    Felix Frankfurter:

    It may be some kind of a substantive over different periods or —

    Stephen R. Reinhardt:

    No, Your —

    Felix Frankfurter:

    I’m not saying this is it.

    Felix Frankfurter:

    I’m just bothered by your general statement.

    Stephen R. Reinhardt:

    In any event, I think there was no doubt that this — that under the facts of this case, the purpose of the plea in the understanding of all the parties was that there would be a dismissal of the remaining three counts and that there was never any intention to have a trial on the other three.

    And, there are numerous indications in the record, such as the fact that he was scheduled for sentencing before Judge Hall, not for trial, that at several points in the record, it says that the purpose was for sentencing, that Judge Hall transferred for that purpose.

    That when Judge Hall asked what the purpose of having the petitioner there for, the response given by the clerk or by the US Attorney was “he is here for his sentencing.”

    That, as I started to explain before, that the United States Attorney felt that it was necessary to delay sentence because he wanted to hold these two counts in abeyance, the sentence on these counts in order to ensure the testimony at the trial that had there been any intent to continue the trial with 3, 4, and 5, holding those counts would have been sufficient.

    But, he felt it was necessary to delay the sentence because those were the only two counts on which the Government ever had any intention of continuing the prosecution and that in the arrangement which was sanctioned by Judge Clark when he accepted the pleas, that this was a disposition of this entire crime and was always intended to be a disposition and I don’t think that the Government now denies that that was intended to be a disposition.

    Charles E. Whittaker:

    May I ask you, do you contend that (Inaudible) pleas are not going to (Inaudible) not the judge’s contention and that you could not be asked to describe on counts 1 and 2–

    Stephen R. Reinhardt:

    Well, Your Honor, I contend —

    Charles E. Whittaker:

    Other than to say “he couldn’t be tried (Inaudible) on any count”?

    Stephen R. Reinhardt:

    Yes Your Honor, this — the acceptance of the plea on counts 1 and 2 amounts to a conviction.

    A plea of guilty accepted by the court is a conviction just like a verdict of the jury.

    The — there are — the Kercheval case of this Court says that a conviction by the — that the plea is the conviction.

    This is, in all respects, like a jury verdict.

    The man is convicted.

    There is nothing left for the court to do but to sentence him.

    John M. Harlan II:

    Supposing —

    Charles E. Whittaker:

    If that’s it, that it would be inadmissible (Inaudible)

    Stephen R. Reinhardt:

    Very well, Your Honor.

    There — we have different problems with count 3, 4, and 5.

    Now, with respect to —

    John M. Harlan II:

    May I ask you a question?

    Stephen R. Reinhardt:

    Yes, sir.

    John M. Harlan II:

    Mr. Tener remained throughout before Judge Clark and, there, you have the single appearance presented to the judge sentencing further requesting, “I think I will not undertake it.”

    Does he have that power?

    Stephen R. Reinhardt:

    Would he have that power to vacate the plea on counts 1 and 2?

    John M. Harlan II:

    Sua sponte.

    Stephen R. Reinhardt:

    Yes.

    We do not believe that he would have had the power to vacate the pleas sua sponte.

    In the first place, we think that this is a conviction which cannot be vacated except upon motion of the Defendant.

    Now, the —

    John M. Harlan II:

    Does he have any power (Inaudible)

    Stephen R. Reinhardt:

    Well, Your Honor, in the case of Smith versus the United States which is cited in the Government’s brief and in our reply briefs, this Court said, with respect to a question whether a trial court could vacate a trial, could — in other words, could sua sponte grant a motion for a new trial after the time at which the defendant could have moved for a new trial?

    This Court said that it would not reach the question whether the court’s power extended beyond the defendant’s power because to do so would raise a serious question with respect to double jeopardy and that this question should be avoided.

    And, they said that the reason that the question of double jeopardy exists is because what avoids double jeopardy is the fact of the defendant’s motion, that — and we feel that this same principle is applicable here.

    Now, the — historically, we feel there has never been any power to vacate pleas of guilty.

    We’ve seen those citations and no authority in which this power exists.

    Charles E. Whittaker:

    But, if that’s the rule, assuming that’s true, could not the clerk have, as Justice Harlan’s question, that in all (Inaudible) counts 3, 4, and 5 and (Inaudible)?

    Stephen R. Reinhardt:

    Well, we feel that, in the first place, there are several things involved here.

    Perhaps the place to start is where the Government starts.

    The Government suggests in its brief, at page 31, that even if all the legal issues were decided in their favor, there is a question whether, under the supervisory power of this Court, this Court should enforce the word of the district court in order to uphold the principles of administration of the court.

    There’s a case in the circuit court, the Franco case cited in our briefs, where a judge announced an intention to dispo — to give a particular sentence and the circuit court said even to the most venial of its subjects, the word of the court must be kept.

    Now, the word of the court here includes not only counts 1 and 2, but counts 3, 4, and 5.

    The question is vacating an entire disposition.

    The counts — the guilty pleas on 1 and 2 cannot be separated from the dismissals on 3, 4, and 5.

    This is one integrated settlement of a case and, if you decide or if this Court decides that 1 and 2 can be vacated properly, then there’s no problem with 3, 4, and 5, but you cannot separate 3, 4, and 5 from 1 and 2.

    This was a solution, a disposition, and a judicially approved agreement of an entire matter.

    And, as the Government also suggests, it would be unfair to try this man on counts 3, 4, and 5 while keeping his guilty pleas on count 1 and 2.

    John M. Harlan II:

    Well, you can stand (Inaudible) never did at your —

    Stephen R. Reinhardt:

    Yes, Your Honor.

    Now, to return to Justice Whittaker’s question about — what about 3, 4, and 5, as I’ve started to answer, we, first, believe that, in any event under the supervisory power of this Court, 3, 4, and 5 should not, under any circumstances, be tried because it repudiates the good faith and good word of the district court.

    Secondly, we think that the failure to dismiss in — on a written form that this is a technical objection to which the answer is that it was tantamount to a dismissal, that there was everything done by the formal entry of the dismissal.

    Thirdly, we say that this, again, raises the question of double jeopardy on counts 3, 4, and 5.

    Now, here, I would like to explain in per — possibly partly in view of some of the previous opinions we’ve heard today.

    What our point here is — relates to breaking the prosecution into two separate parts.

    We do not contend that petitioner could not have been tried on all five counts at one proceeding.

    Felix Frankfurter:

    Could you — would you mind to put parenthetically what sentences could have been imposed, provided he’d been tried on all five and a general verdict had been brought in or if you plead that the wri — a particularized guilty on each of the five counts?

    Stephen R. Reinhardt:

    Well, if a guilty —

    Felix Frankfurter:

    I’m not suggesting the question has anything to do with your argument.

    Stephen R. Reinhardt:

    No.

    Felix Frankfurter:

    I’d just like to know.

    Stephen R. Reinhardt:

    If a guilty verdict had been brought in on all five counts, he could have received separate consecutive sentences in 20 years and he —

    Felix Frankfurter:

    Accumulated?

    Stephen R. Reinhardt:

    Yes, consecutive sentences–

    Felix Frankfurter:

    On all the counts?

    Stephen R. Reinhardt:

    On each count.

    William J. Brennan, Jr.:

    You mean 100 years total?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    Is it 20 years (Inaudible)

    Stephen R. Reinhardt:

    Yes, Your Honor.

    This is part of the same statute, the —

    Charles E. Whittaker:

    Has he testified on all five counts (Inaudible)

    Stephen R. Reinhardt:

    On all five counts, yes, sir.

    Charles E. Whittaker:

    What was the verdict?

    Stephen R. Reinhardt:

    The —

    Charles E. Whittaker:

    He was acquitted on count 1, was he not?

    Stephen R. Reinhardt:

    He was acquitted on count 1 because the Government failed to prove the conspiracy because the co-defendant had fled to Mexico.

    Charles E. Whittaker:

    But he was convicted on count 2.

    Stephen R. Reinhardt:

    He was convicted on count 2.

    Charles E. Whittaker:

    But that sentence was made to run concurrently with the sentence on count 3, wasn’t it?

    Stephen R. Reinhardt:

    That’s correct.

    Charles E. Whittaker:

    Now, then how were you hurt?

    Stephen R. Reinhardt:

    Well, Your Honor, we were hurt by the fact that there was a trial at all.

    We feel that there was a disposition of this case by plea.

    This was a disposition under which a man was convicted and a conviction which cannot just be vacated just as the Government or the court could not vacate a conviction after trial merely because it might be better to try the man over again under a different theory or where there could be a greater penalty imposed.

    Once a man is convicted, he is convicted whether by plea or by verdict, and we feel we were prejudiced by being subjected to a second trial following the conviction.

    When I say second trial, I mean a trial following a conviction.

    Felix Frankfurter:

    Do you say that what you said earlier applies to whatever may be the generality?

    Are you saying that the tendering of the plea of guilty and its acceptance by the judge was an implied dismissal for all practical purposes of the other three counts?

    Are you saying that?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    Stephen R. Reinhardt:

    I’m saying that it was a dismissal in — that this was the intent of the parties and that —

    Felix Frankfurter:

    I’m not — but, legally, the legal result, the legal proposition you’re tendering is in the context of what —

    Stephen R. Reinhardt:

    Is an impo —

    Felix Frankfurter:

    In the context of what took place the acceptance of the plea on 1 and 2 was a dismissal of 3, 4, and 5.

    Stephen R. Reinhardt:

    Yes, Your Honor.

    Felix Frankfurter:

    That’s your position.

    Stephen R. Reinhardt:

    Now, beyond that point, beyond that point, we say that, in fairness, it must be treated as such and, furthermore, that if it is not treated as such, it raises serious questions with respect to separation of the trial and the fairness.

    The Government concedes it would be unfair to try him separately on 3, 4, and 5 after having accepted the convictions on 1 and 2.

    The Government, in its brief, says that it’s necessary to vacate 1 and 2 out of fairness to the defendant because he would have been prejudiced on his trial on 3, 4, and 5.

    Now —

    Felix Frankfurter:

    I don’t follow that but that as the Solicitor General explained it.

    Stephen R. Reinhardt:

    Well, I — furthermore, we rely here on the concept that not only in the single indictment must these offenses be tried, but that they must be tried at a single time that an indictment cannot be brought forth charging a number of offenses, some tried separately and some tried by plea and then some by trial, unless this is the express understanding at the time of the entrance of the pleas.

    That here, in effect, there were two prosecutions.

    There was a prosecution by plea of guilty and then, further, there was a separate prosecution by trial.

    That, the rule here that should be applied is the rule set forth in the Model Penal Code and the rule that suggested, in effect, in the separate opinion in the Abertay case in which it was suggested that, although separate offenses may be tried and separate punishments may be imposed for separate offenses at one trial, that these separate — that these offenses may not be separated for a trial, that this subjects the defendant to the harassment of successive trials under the Green case.

    That it’s not the fact that all of these things couldn’t be tried in one indictment, but that they could not be separated by the Government which would take pleas on one and then try them on the others.

    William J. Brennan, Jr.:

    Whether — what sentences were finally imposed?

    Stephen R. Reinhardt:

    The sentences which were finally imposed cumulated 20 years.

    It, in effect, was — there was 10 years on count 5, 5 on 4, 5 on 3, and 5 concurrent on 2.

    And —

    William J. Brennan, Jr.:

    Was there originally a 5 — was the original sentence on 2, that is after the trial, was that concurrent to —

    Stephen R. Reinhardt:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    — sentence on the other counts?

    Stephen R. Reinhardt:

    Yes.

    William J. Brennan, Jr.:

    Wasn’t there a correction here of some kind?

    Stephen R. Reinhardt:

    Yes, Your Honor.

    The court originally tried to put him on probation on 2 and that was corrected due to our — the intervention suggesting that it should be corrected.

    But, in effect, the petitioner was, in this case, subjected to a quadruple sentence over that which had been announced by the court originally over that and with which he had left the courtroom, spent a month in jail being held in jail, again, without credit.

    And, in answer to the earlier question, we concede that in this case, when he was eventually sentenced to 20 years, he was given no credit.

    There was no retroactive sentence.

    Stephen R. Reinhardt:

    So, he was – he left the courtroom, spent a month in jail under the impression that he was — had been promised and that it had been announced to five-year sentence, then because of the delay requested by the Government to ensure what his testimony would be at another trial, he was subsequently transferred sua sponte by Judge Hall and then submitted — subjected to a trial and convicted for a period of 20 years.

    And, we believe with the Government that, aside from the legal issues involved in this case, a serious question arises under the ad — supervisory power of the court and not just, as the Government suggests, is that the fact of a quadruple sentence that requires the exercise of this power, but it’s the fact of a quadruple sentence resulting from, one, the postponement for an improper purpose, two, the vacation of a plea that had been adopted and accepted by the court and the subjection of a man to trial for absolutely no reason.

    There was no justification for the trial at all.

    That, in view of all of these factors that, certainly, this Court under its supervisory power, should try to extricate this man from the quadruple sentence imposed because one judge suspected the actions and motives of another United States District Judge.

    William J. Brennan, Jr.:

    Well, what do you want us to do?

    Stephen R. Reinhardt:

    Well, Your Honor, the– our first suggestion with respect to both the sentencing questions and the double jeopardy questions is that the man is entitled to complete release.

    Under the sentencing section, we believe that there was an unreasonable delay in sentencing.

    I have not had an opportunity to discuss this, but I think our briefs do adequately.

    The — we believe there was an improper delay in sentencing.

    This comes under Rule 32 and the Sixth Amendment.

    And, that due to the improper delay and the deprivation of a speedy trial because of the purpose here, and this is what makes it improper, the purpose of the delay that he cannot be tried at all and he should be released, barring that, however, our next suggestion is that he should at least be relieved of all prejudice resulting from this unlawful delay in sentencing.

    In other words, he should be returned to where he would have been had this delay not occurred.

    Felix Frankfurter:

    Which means five years?

    Stephen R. Reinhardt:

    Which means five years, yes Your Honor.

    Felix Frankfurter:

    Since you invoked the supervisory power of this Court and as does the Solicitor General, I’d like to ask you, and I hope you may care to make comment, this question.

    That means — the supervisory power means we should tell lower courts what is right and seemly, that’s the essence of it, isn’t it?

    Stephen R. Reinhardt:

    No Your Honor, I don’t think so.

    Felix Frankfurter:

    Well, isn’t — it isn’t — if it’s super — if it’s supervisory merely, it isn’t compelled by the constitution by a statute.

    Stephen R. Reinhardt:

    Well, as I —

    Felix Frankfurter:

    It’s in this room, the space that is left, in which this Court, as the apex of a court of lower courts, has therefore has some playground, some direction over them thereby — that’s what I meant by right and seemly or —

    Stephen R. Reinhardt:

    Yes.

    Felix Frankfurter:

    Fair, whatever you call it.

    Stephen R. Reinhardt:

    Yes, fair.

    It is less than a constitutional requirement.

    Felix Frankfurter:

    It’s the constitution.

    It’s not a statute.

    If — in fact, you don’t have to do anything.

    You just accept the written word.

    Stephen R. Reinhardt:

    That is —

    Felix Frankfurter:

    Now, that’s the fact.

    Stephen R. Reinhardt:

    Yes, Your Honor.

    Felix Frankfurter:

    Now, since you — both of you appeal to that, I’d like to ask you this question.

    What do you say, not that I expect you for a word from the Solicitor General, what do you say to the propriety, I use the word “propriety,” the propriety of a trial judge announcing before he announces sentence what he plans to do?

    What do you think of that?

    Stephen R. Reinhardt:

    Well, Your Honor, I believe this was, in effect, the tom —

    Felix Frankfurter:

    I’m not talking about this case.

    I’m just–

    Stephen R. Reinhardt:

    No.

    Felix Frankfurter:

    Just to get light.

    If you’re going to — if we’re going to be generally overseeing it at the lower courts, for me, that is a problem.

    Stephen R. Reinhardt:

    Well, I — the reason I hesitate to answer this is because if you are distinguishing this case in which the announcement came at the moment of the sentence, it was merely a couple of words before, he was about to impose sentence.

    Felix Frankfurter:

    Well if it’s part of the sentence then I don’t have no fight with it.

    Stephen R. Reinhardt:

    Then, there is no problem.

    Felix Frankfurter:

    But —

    Stephen R. Reinhardt:

    But, the problem —

    Felix Frankfurter:

    If it was unders — if it was understood, and he — well, assume the facts would warrant my question.

    Your —

    Stephen R. Reinhardt:

    Well, it’s —

    Felix Frankfurter:

    What will you say?

    Stephen R. Reinhardt:

    I would say that und — in a case — in an ordinary case, there is no reason or no justification for a court announcing sentence —

    Felix Frankfurter:

    My question was propriety.

    Stephen R. Reinhardt:

    Well, I would perhaps —

    Felix Frankfurter:

    This is not an idle question on my part.

    This —

    Stephen R. Reinhardt:

    There’s a —

    Felix Frankfurter:

    This is a good reality.

    Stephen R. Reinhardt:

    Yes.

    Well, I am somewhat at a loss to answer because I don’t know what circumstances Your Honor really has in mind.

    I would say, as a gener —

    Felix Frankfurter:

    If ever a trial judge should announce “I’m going to give five years or two years or if it — he ought ever to announce, considering the fact that a trial judge has to get a parole report — has to get a report from his social agencies, how does he know —

    Stephen R. Reinhardt:

    Well, Your Honor —

    Felix Frankfurter:

    What it did?

    Stephen R. Reinhardt:

    Let me say this.

    If a trial judge intends to get a parole report, he should not announce his sentence in advance —

    Felix Frankfurter:

    Was it va — isn’t that — shouldn’t that be the normal course?

    Stephen R. Reinhardt:

    No, Your Honor, that is not required.

    That is only permissive under the rules.

    Felix Frankfurter:

    As I understand the two, but I’m talking — we’re not in the realm of supervisory power, namely, how a trial judge should conduct himself.

    Stephen R. Reinhardt:

    Well —

    Felix Frankfurter:

    I should think that most trial judges should — I should think if this Court had a chance to indicate in an appropriate case, it should indicate that we’ve got that system so that they should inform themselves.

    Stephen R. Reinhardt:

    Well, perhaps the solution might be that the requirement should be mandatory that trial judges should be required to get these reports.

    William J. Brennan, Jr.:

    Well, what was the waiver?

    There was a waiver or something like a waiver of evasion —

    Stephen R. Reinhardt:

    Well, the courts in — this is really up to the court.

    The court indicated it did not want one and the waiver was just agreement with it.

    I said that we had no objection.

    William J. Brennan, Jr.:

    Well, am I correct?

    Was the word “waiver” used?

    Stephen R. Reinhardt:

    Yes, the word “waiver” was used, but this was not actually the act that avoided the report.

    The act was the trial judge saying we don’t need it.

    And, the reason that, again is obvious is the severity of the sentences here.

    He knew he had a mandatory minimum of five years and he was satisfied that a mandatory minimum of five years is a substantial sentence and he saw no reason to get a probation report.

    Charles E. Whittaker:

    (Inaudible)

    Stephen R. Reinhardt:

    No, Your Honor, there is no such rule.

    Charles E. Whittaker:

    (Inaudible)

    Stephen R. Reinhardt:

    No, Your Honor.

    The word “wavier” was just an affirmation of agreement with the court’s action and not requiring a probation report.

    The word “waiver” is really not —

    Felix Frankfurter:

    Did you make that point?

    Stephen R. Reinhardt:

    Not the correct word.

    Stephen R. Reinhardt:

    The word “waiver” appears in the record.

    When the judge said that he would not get a probation report, I just said “fine, we’ll waive any such report,” meaning, that if there were any kind of requirement, which there isn’t —

    Charles E. Whittaker:

    The requirement (Inaudible)

    Stephen R. Reinhardt:

    Yes, Your Honor.

    I have my co-counsel here who will continue with the trial errors.

    Thank you.

    Earl Warren:

    Mr. Bernhard.

    Herbert A. Bernhard:

    Mr. Chief Justice and may it please the Court.

    As Mr. Reinhardt has announced, I will discuss the trial errors.

    Our basic proposition here is that if you’re going to force a man into a trial which he has tried to avoid, which he never wanted, which he’s been fighting several years to avoid the effects of, that the very least that can be done is that he’d be entitled to a full and a fair and a proper trial.

    And, we contend that petitioner did not get such a full and fair and proper trial in this case in at least three major areas.

    The first is with reference to the fifth count of the indictment.

    The fifth count of the indictment as did the prior three, charged sale.

    The first count was a conspiracy count.

    The other four were sales.

    This is a particular importance to petitioner here because any error in this count was certainly prejudicial.

    His sentence on that count was 10 years consecutive to the other counts.

    Now, the error which we allege with respect to the fifth count is very simply that our timely motions for judgment of acquittal should have been granted on this count.

    In essence, our contention is that the corpus delicti of the crime was not proven.

    The facts are very simply these.

    In the first three sales, the arrangements had been made to transfer the narcotics.

    The petitioner brought the narcotics to his buyer, unbeknownst to him, a Government Agent Licuanan.

    He handed the narcotics to Licuanan.

    Licuanan, in the first two cases, examined the narcotics, smelled it to see that it seemed to be narcotic, and then paid over the money.

    When we get to the fourth sale, the fifth count, we have a somewhat different circumstance and we say that this is decisive.

    What happened here was that, at the instance that petitioner got — first got possession of these drugs, the government agent came over, and this is all based on the testimony of the government agents and there is no dispute as to this testimony, the government agent came over while petitioner still had the narcotics in his hands and pulls his gun and placed petitioner under arrest.

    At that point, the petitioner threw the bag at the narcotics agent and ran away, obviously trying to escape.

    He didn’t make it.

    Other agents captured him and that’s how we stand.

    Now petitioner contends that this was perhaps, a contract of sale, perhaps it was an attempt to sell, but it was no sale because no sale ever took place.

    Potter Stewart:

    You mean no delivery was made.

    Herbert A. Bernhard:

    No delivery but, of course, the statute on the indictment refer to sale.

    We say that, without delivery at the very least, perhaps even the transfer of the money was necessary, but without delivery, there certainly was no accomplished sale.

    Earl Warren:

    There had been no transfer of the money.

    Herbert A. Bernhard:

    There had been no transfer of the money, Your Honor, and the course of conduct showed that the money was always transferred after the actual delivery of the narcotics.

    And, I must say, the Government, on page 37 of its brief where it’s talking about the conspiracy aspect of this case, concedes that deliveries are elements of sale and it concedes it with reference to these deliveries and these sales.

    Now, there is just no doubt that there was no delivery in this case.

    I — the sale is something which is not a continuing course of conduct.

    It either takes place or it doesn’t.

    And, if you’re going to have a seller, you must, at the same time, determine that you had a buyer.

    You have got to find some instant at — of time at which this sale took place.

    Now, there is no basis that we can see for saying that the mere making of a contract was the conduct which was proscribed by Congress when it forbad the making of sales.

    This is, as was pointed out in answer to questions, is a very serious statute containing very serious penalties.

    It runs from 5 to 20 years as an absolute minimum without possibility of parole.

    The cannons of construction for construing criminal statutes recognizing that you are depriving a man of fundamental rights here, and his right to life and liberty.

    It has always been the rule of this Court that these statutes are to be narrowly construed.

    The gaps are not filled in by the judiciary.

    The gaps have to be filled in by the Congress, if there are any.

    And, I may point out that this statute has been in existence for over 50 years in this particular and that, notwithstanding all the steps that the Congress has taken to change the law, to make greater penalties, or to proscribe other conduct, they have never indicated that a mere executory contract of sale would be a sale.

    It is not under ordinary sales law.

    It is not, even if you add the fact of appropriation which the Government mentions in its brief, it simply does not constitute a sale either under ordinary sales law or under the policy which we contend this Court should announce.

    I think the Court should consider that this is not ordinary property in the ordinary sense.

    This is something where there really is no title interest.

    You can’t give a bill of sale for narcotics and have it enforced in the courts.

    The only real interest that you have in a narcotic is the possessory interest and until you transfer this possessory interest, you’ve transferred nothing.

    And, I think that this is the way it should be as a matter of construction of this law because if you were to take the Government’s position that a mere executory contract of sale is enough, then you have characterized not only a seller, but a buyer at a point where they merely have the intent, perhaps, to go ahead and subsequently transfer narcotics and you have then said that both of these people can be tried and sentenced to a minimum of five years without possibility of parole.

    We simply say that, on the facts here, there was no delivery and without delivery in this case, there was not the crime comprehended by the (Inaudible).

    John M. Harlan II:

    What exactly is your theory as to count 5 of the request?

    Herbert A. Bernhard:

    There was no specific request with respect to count 5, Your Honor — there — with respect to the sale aspect.

    John M. Harlan II:

    A request —

    Herbert A. Bernhard:

    For a specific instruction.

    I might add that the lower federal courts, in the case of Affronti versus United States which is cited in our brief, has held that a defendant was not entitled to an instruction on the sale point, that this was obviously used in narcotic statutes in the ordinary and popular meaning.

    I should clear the record, the Affronti case did not deal with this particular statute.

    It dealt with a different Narcotics Act, but our point here is that, under the evidence which was submitted to the jury, there was another —

    Charles E. Whittaker:

    (Inaudible)

    Herbert A. Bernhard:

    It would be immaterial what instructions we were requesting or not.

    This simply was not the corpus delicti.

    Charles E. Whittaker:

    (Inaudible)

    Herbert A. Bernhard:

    Yes, Your Honor.

    There were two, one at the close of the Government’s evidence and one at the close of the Government’s — of the entire case, yes, Your Honor.

    Hugo L. Black:

    (Inaudible) both counts separately?

    Herbert A. Bernhard:

    I’m sorry, sir?

    Hugo L. Black:

    Was the request directed to that particular count?

    Herbert A. Bernhard:

    Yes, the second one specifically said, and I believe you will find that on page 114 of the record, 113, the motion starts and then Mr. Reinhardt says “that is correct, Your Honor,” meaning, that’s his motion particularly as to count 5 where the evidence does not show there was a sale.

    That’s 114 of the record, Your Honor, in the supplementary record which was printed.

    Turning to the other areas of error, one major area is the treatment with respect to the informer in this case, Mr. Singh.

    Now, to back somewhat on the facts, this was a typical entrapment situation.

    I don’t mean by that that entrapment was proven but what I mean is that the inducement was there.

    Mr. Singh, who was the informer, Mr. Licuanan who was the agent in the case approached petitioner.

    They bore a note from petitioner’s cousin who was in jail who asked– the note was addressed to petitioner and had asked petitioner to help these two people to get some money from narcotics so that they might use part of this money in order to help the cousin get bail and get out of jail.

    The entrapment, if there was any, arises out of this initial conversation between the agent, the informer, and the petitioner.

    In the case for the United States, the United States simply put on the agent but it did not call the informer.

    At first, when Mr. Reinhardt tried to find out the name of the informer, this was refused to him.

    When he cited the Rivero case of this Court, the United States changed its position and gave him the name and they promised that, the following morning, the man would be in court.

    Of course, this was in a trial situation and he had to — when Singh appeared in court, Mr. Reinhardt was conducting the trial.

    There was some discussion between the court and Mr. Reinhardt as to what sort of instruction would be given because of the Government’s failure to call Mr. Singh as a witness, and the court said “I will not instruct that this man was a material witness to the Government and that his testimony should be presumed to be adverse to the Government.

    The court then went on to say, when Mr. Reinhardt said “well, we’re raising the issue of entrapment,” the court then went on to say “well, if he’s material to your case, I’ll give an instruction against you if the Government requests it.”

    So, at this point, petitioner is faced with the fact that he is irrevocably bound to this Government informer, a man who is acknowledged to be a special employee of the government who, it later turns out, is under – has — is an admitted narcotics user and has not been prosecuted for that.

    So, the Government has this over his head and, yet, all of the sudden, he becomes our man, sort of.

    Mr. Reinhardt, during lunch time, tries to talk to Mr. Singh and finds that he has been frustrated in that.

    Herbert A. Bernhard:

    The United States Attorney has advised Mr. Singh that he doesn’t have to talk to Mr. Reinhardt.

    So, Mr. Reinhardt knows nothing now.

    He gets no information from Mr. Singh.

    This is in the face of the Rivero case of this Court where this Court has said the question of determining whether or not the informer should be interrogated, whether his story should be put on the stand is for the accused, not the Government, to decide.

    And then, when Mr. Singh is finally put on the stand, the court refuses to allow Mr. Reinhardt to treat him as a witness hostile ab initio.

    And, I point out to the Court that this was the only other witness to the entrapment conversations and this was a man who was bound to the Government not only because of the US advising him that he didn’t have to talk to Mr. Reinhardt, but just because of the circumstances that the United States had even indicated that if they gave his name, his life might be in jeopardy.

    And, that was of — the implication was only from petitioner and, yet, all throughout here, we are not allowed to treat him as a witness adverse to us.

    We are bound by his testimony if we call him and, if we don’t call him, then we’re going to get an instruction that his testimony would have been adverse to us.

    And, we say, if you look at the questions that were asked, some of them were valid, whether he’s a hostile witness or not.

    We questioned, “Are you an employee of the United States Government?”

    There’s certainly nothing wrong with that question.

    In the Sherman case and as well as in Sorrow, this Court has recognized that you are allowed to get into the question of the conduct of the government agents.

    The same thing with the other questions, they were proper and they were particularly proper in this circumstance and, in effect, here was an entire frustration of an attempt to interrogate and bring before the court this essential witness.

    Charles E. Whittaker:

    What was, if I may ask you —

    Herbert A. Bernhard:

    Yes, sir.

    Charles E. Whittaker:

    — what your theory or entrapment that was supported by your client and which if you only could cross-examine this witness about, what would you claim is constant in the entrapment?

    Herbert A. Bernhard:

    The entrapment was that our client had no predisposition to engage in any course of narcotic activities, that there was no intent on his part that he is sitting in his own home, he is approached by two people, one is a government informer and the other is a government agent.

    They come up with a very compelling story that the cousin is in jail and that he can do something for his cousin, and the — excuse me.

    They, in effect, asked him for help.

    Now, there is a lot of conflict in the record as to — there’s no dispute as to what help was requested but as to why he gave help.

    But, our theory of entrapment is that there was no prior disposition on his part except, of course, if you believe some of the statements which Mr. Licuanan made in his testimony and which could have been rebutted by the informer.

    The case really went, Mr. Licuanan said that petitioner had boasted that he sold narcotics the day before.

    This would go to his predisposition.

    Petitioner denied this.

    This was supposed to have taken place in a conversation which Mr. Singh was present and it is this sort of thing that we tried to get from Mr. Singh.

    I believe we would like to save some time for rebuttal —

    Earl Warren:

    You may —

    Herbert A. Bernhard:

    — if it may please the Court.

    Earl Warren:

    You may do so.

    Mr. Solicitor General.

    Archibald Cox:

    Mr. Chief Justice and may it please the Court.

    This is a case which has given me very grave concern.

    I find it a difficult and troublesome case because it seems to turn on a delicate question of judicial administration, including two district judges, one, the chief judge of his district, on questions which certainly affect confidence in the fairness and rationality of the administration of criminal justice.

    We think, I would like to say at the start, that the case may well call for some modification of the judgment below under — in an exercise of the supervisory power of this Court.

    But, at the same time, our view of the case is quite different from that expressed on behalf of the petitioner.

    I can summarize the Government’s position best in three propositions.

    First, it seems to us that each of the rulings in the district court viewed by itself whether before a trial, during the trial, or upon sentencing was well within the power of the court.

    And that, indeed, none of the rulings inv — looked at by themselves involved any error of law and I will tell in a few instances, the questions may be closer.

    We also think that there was no abuse of discretion involved in any single ruling.

    Our trouble comes, second, when we look at the case as a whole.

    It seems to me — it seems to us that there was much more doubt about the net effect of all the rulings and if viewed as a whole, beginning with Judge Clark’s promise of a 5-year-sentence and ending with Judge Hall’s imposition of a 20-year-sentence, the proceeding may not meet those standards of fairness and rationality which ought to characterize the administration of criminal justice.

    Third, we point out that the difficulties arose from differences in sentencing practice and in the administration of the criminal calendar in the District Court for the Southern District of California, a matter, which I will point out later, has now been corrected.

    They are not mistakes, if they were mistakes, which resulted from the Government’s position or, indeed, later when they urged upon the Court by it.

    Under these circumstances, we think that our function is discharged when we disclose the problem fairly to the Court and address ourselves to the considerations on either side because we do think that there are considerations on either side.

    Now, in the course of my argument, I want, first, to talk — address myself to the general cha — question whether the character of the proceeding was consistent with fairness and rationality, and I postpone for the moment the specific questions of law and the specific questions of the power of the judge’s to make these individual rulings.

    I will deal with them at the close of the argument.

    We can best approach the general question by taking a bird’s eye view of the stream of events even though this does involve some repetition of what’s already been said.

    There were two defendants, Palomino and Saldana, the petitioner here, who were indicted for narcotics violations in five counts.

    The first was a conspiracy count and the other four dealt with sales of narcotics, each coming about a week after the other.

    On June 16, both defendants were arraigned before Judge Clark.

    At that time, we get the first intimation of one of the causes of the difficulty in this case.

    At page 14 of the record, you will find that Palomino’s lawyer was very anxious to keep the case from being transferred to Judge Hall’s calendar.

    At that time, Judge Clark was in-charge of the criminal calendar in the Southern District.

    His period was about to run out on June 30 and Judge Hall would come in as the criminal judge beginning jud — July 1 and Mr. Tener, representing Palomino, says “Your Honor, may I also be heard briefly as to whether this matter of necessity must be transferred to Judge Hall.”

    I think it’s fair to say that the bar in that area, rightly or wrongly, regards Judge Clark as lenient in narcotics cases and Judge Hall as being a good deal more severe.

    About 12 days later, on June 26, it was now getting close to June 30, petitioner came in with his counsel before Judge Clark and pleaded guilty on two counts.

    I think counsel is — speaks fairly when he says that it was anticipated that if the plea of guilty were accepted on the two counts that, then, the remaining counts would be dismissed.

    The two counts might cover a sentence of 40 years and if there was a plea of guilty to those two counts, there was really no need from anybody’s point of view of going to trial on the remaining counts so far as the severity of the sentence might be concerned.

    The defendant came in and then asked for immediate sentence.

    As one reads the record, as it appears on page 16 and 17, it’s quite clear that the Defendant must have carried away two impressions, one that he would be sentenced before Judge Clark and, second, that Judge Clark would give him the minimum sentence of five years to run concurrently on each of the first two counts.

    Archibald Cox:

    I think it might also be said now, although it becomes important later, that it is fairly plain that everyone had forgotten about counts 3, 4, and 5.

    If you’ll note, on page 17 of the record, they’ve been talking about counts 1 and 2.

    Then, the court said that he didn’t want a probation report because he was going to give the minimum anyway, then, there was — counsel said “we will waive the probation report.”

    The court, “alright,” a short intermission.

    Then, the —

    Felix Frankfurter:

    Forgive me for interrupting you, Mr. Solicitor.

    Is the probation report merely for purpose of deciding whether there should be probation?

    Archibald Cox:

    Well, I would suppose that it was for a broader purpose that dealt with what sentence should be imposed and not simply whether there should be probation.

    Felix Frankfurter:

    I ask in order — because I had assumed that that was so.

    Archibald Cox:

    I had always understood that to be so, Your Honor.

    Potter Stewart:

    It’s a presentence investigation, rather than a probation report.

    Archibald Cox:

    In effect, what happened here was that Judge Clark promised the minimum sentence without finding out about the trial, without taking into account, I think, the very large quantity of narcotics involved, especially in the final sale, and without looking into Saldana’s background.

    Potter Stewart:

    Well, as explained by counsel, he knew that he could not impose any sentence less than five years.

    Archibald Cox:

    Yes.

    Potter Stewart:

    And he apparently thought that he did not want to impose any greater sentence, so under those circumstances, assuming the validity of his judgment, there would be no —

    Archibald Cox:

    There would be no —

    Potter Stewart:

    — not much to consider.

    Archibald Cox:

    — there would be no sense to it if he had made up his mind to impose the minimum sentence.

    Potter Stewart:

    Yes.

    Archibald Cox:

    Well, I was simply speaking the point that this promise was made without a very, shall I say, deep investigation of the circumstances.

    Felix Frankfurter:

    And on the ground on which he put it was easy, but it’s useful only for purposes of probation.

    As Justice Stewart said, it’s a presentence aid, isn’t it?

    Archibald Cox:

    Yes.

    The par–

    Charles E. Whittaker:

    On a point of view of technical about it, I suppose, there’s a distinction between a presentence report and the probation report that actually affects it I suppose.

    What the court has asked you is not a probation report.

    He said no because he couldn’t have probation anyway.

    Archibald Cox:

    The rule, of course, doesn’t speak of a probation report.

    It speaks strictly of a presentence investigation and making a report to court.

    So that this is a colloquialism in either event and I think you’re quite right that Judge Clark was thinking of it as showing whether this man deserved probation.

    Archibald Cox:

    The point I was seeking to make was to call attention to the fact that so far as counts 3, 4, and 5 were concerned, I think it’s fair to say that the expectation was that they would be dismissed.

    The fact is that apparently the district judge was not aware of them.

    It was the clerk who said, as counsel were about to leave the room, “just a minute Mr. Sheraton, Mr. Saldana is charged with counts 3, 4, and 5.”

    That was the first time they were mentioned and, the disposition was hold those.

    There was clearly no ruling about that.

    Now, at this point, it’s necessary for me to leave the facts of this case for a moment and explain the practice in handling criminal cases in the Southern District of California.

    As it existed at the time of this case, I’ll explain the changes later, it’s important to understand what it was at the time of this case now, if a defendant was indicted as the single defendant and came in, before he was arraigned, before the judge who had the criminal documents, and if he pleaded guilty, that judge would then pass sentence upon him.

    If he pleaded not guilty, the case might be tried by the judge who was handling the criminal document or it might be sent out to another judge.

    If there were two defendants and one pleaded guilty and the other was to be tried, then the practice of some of the judges in the Southern District of California was to have sentence imposed by the judge who conducted the trial of the defendant who pleaded not guilty.

    This has obvious fairness and sense in it.

    It enables the man who passed sentence to have heard something about the trial.

    It’s a way of not breaking off two men who joined together in defense and bringing them before different judges, one of whom would almost surely pass sentence without regard to what might be done by the other.

    Now, District Judge Hall, the Chief Judge I am informed, uniformly followed this practice that when the case was sent out to a judge to try it, then any co-defendant who pleaded guilty went out with the judge and, of course, that’s reflected in what happened later.

    That was not, however, the practice of all the district judges in the Southern District of California at this time and I infer that it was not Judge Clark’s practice, although I have no specific knowledge upon that point.

    The practice was reflected when, somewhat later, on July 9, we find a minute entry transferring Saldana’s case from Judge Clark’s docket before Judge Hall who was to try Palomino, the co-defendant.

    It was done when Palomino’s counsel came in and asked for a continuance.

    Judge Hall apparently noticed that it was a co-defendant and said “have him transferred here.

    When I take a case, I take the whole case” and notify his counsel accordingly and that was done.

    Then, the case came on, after continuances, before Judge Hall on July 29.

    This quite clearly defeated Saldana’s expectation that he would be sentenced before Judge Clark.

    It also, when Judge Hall vacated the guilty pleas to the first count — first two counts, of course set in train a series of events that defeated his expectations on the first two counts.

    These rulings were reaffirmed on August 1st and the case against Saldana, Palomino having jumped bail, came on for trial at that time.

    I think it’s worth noting the grounds that Judge Hall gave for his action, as I discern them from pages 24 and 25 and then again 28 and 29 of the record at first — I’ll take those up after the recess.

    Earl Warren:

    Oh!

    Yes, yes.