Smith v. United States

PETITIONER:Smith
RESPONDENT:United States
LOCATION:Youngstown Sheet and Tube Co.

DOCKET NO.: 90
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 360 US 1 (1959)
ARGUED: Jan 21, 1959
DECIDED: Jun 08, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – January 21, 1959 in Smith v. United States

Earl Warren:

Number 90, Johnny Ray Smith, Petitioner, versus United States of America.

Mr. Moore, you may proceed.

William B. Moore, Jr.:

Mr. Chief Justice, Honorable Associate Justices, if it please the Court.

This is a criminal case which has been in the federal courts throughout its entire life.

In November 1949, Johnny Ray Smith was apprehended under the Osceola Hotel in Geneva, Alabama by the FBI.

He and two others, who later became his codefendants, were carried to Dothan where they were arraigned and incarcerated.

They — this was on a Friday.

They were questioned that night in Saturday and Sunday, and right in the early Monday morning, the 21st day of November, 1949, they were carried to Montgomery.

There, they had a conference with the Assistant United States Attorney.

And during that time or some time during the morning while they were in the United States Attorney’s Office, FBI agent John Lill went to the chambers of Judge Charles Kennamer, presiding judge, and had a conference with him about this matter.

Shortly thereafter, Judge Kennamer went on the bench, Johnny Ray Smith and his two defendants — codefendants, who were two 17-year-old boys, Johnny Ray was 26, went into the courtroom.

And in the words of the Fifth Circuit after a few didactic questions, all three defendants pled guilty.

Whereupon, the judge says, “I have discussed this matter with Mr. Lill,” meaning the FBI agent and immediately proceeded to pronounce sentences, 30 years to Johnny Ray and 15 years to each of the two 17-year-old boys.

Now, Smith was incarcerated in the federal prison system and finally was sent to California to Alcatraz.

He there initiated a petition, a — a petition for writ of habeas corpus, and it got to the Ninth Circuit Court of Appeals there.

They told him he had the wrong remedy, that he should be proceeding under 2255.

Thereupon, he filed in the Fifth Circuit in Alabama after making due motions to Judge Kennamer.

The Fifth Circuit of Alabama of the Fifth — not of Alabama but the United States Court of Appeals Circuit, granted him this relief under 2255 and ordered a hearing.

At that stage, I was fortunate enough to be appointed by the Court to come in to defend the man’s rights.

We had a full hearing with the petitioner being brought from Alcatraz and then the presiding District Judge decided we were entitled to no relief so we went to the — back to the Fifth Circuit Court of Appeals.

And in 238 F. 2d 925, they issued another opinion.

We thought we had won our lawsuit at that point.

They decided that when it comes to the controlling question whether or not the waivers and the plea was taken in violation of due process, that it was.

And in the opinion they set out a number of reasons why they thought it was.

Then the judgment is reversed, the cause is remanded with directions to grant the motion to set aside the conviction and sentence and to proceed further and not inconsistently, herewith.

The United States Attorney saw fit to file for rehearing.

The rehearing was refused but the Court added a further sentence in addition to what I just read, including if the District Judge is of the opinion that the ends of justice required it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty, and to stand trial.

We went back to the Fifth Circuit Court again — to the Fifth Circuit Court of Appeals again, and pointed out that we thought it was quite inconsistent in the body of the opinion to say, the due — due process has not been granted because of the waivers and these other matters which I’m going to bring up that we thought we were entitled to more relief but we didn’t get it.

Hence, we are here.

Now, what our District did — Judge did, when the case was sent back to him with these instructions, was the following.

William B. Moore, Jr.:

When the case was called we appeared and he did remove — he followed the Court in removing the conviction and the sentence.

As the man stood before the Court, with the conviction and sentence removed, we asked for a writ of habeas corpus, which was refused.

We then asked to withdraw our plea of guilty, which was refused.

Then we asked to withdraw the waivers of indictment of counsel and venue which was refused.

Then as he stood before the Court, based on this plea he had made in 1949, the Court sentenced him to 10 additional years.

The man had been in jail eight years at that time.

Hugo L. Black:

Is that the same judge?

William B. Moore, Jr.:

No, sir.

Judge Frank Johnson was appointed and this is his first case that he had heard since he went on the bench.

And he had heard the entire 2255.

When it came back to him, he reduced the sentence on the fact we had a 30-year sentence to start with.

The man had served eight years.

The judge took cognizance of eight years and resentenced the man to an additional 10 years from that date, which he is serving at this time.

Felix Frankfurter:

Why — may I ask, following up the question of my Brother Black.

William B. Moore, Jr.:

Yes, sir.

Felix Frankfurter:

Why didn’t the — the matter go to the sentence — original sentencing judge?

William B. Moore, Jr.:

He did.

Felix Frankfurter:

Oh, that’s a good answer.

I didn’t realize it.

William B. Moore, Jr.:

Judge Kennamer passed on —

Felix Frankfurter:

I see.

That’s right.

William B. Moore, Jr.:

— and Judge Frank Johnson was appointed.

Hugo L. Black:

If you win, what do you get?

What happens?

What — what is the contention between you, you just get a new trial, is that all you’re asking for?

William B. Moore, Jr.:

No, sir.

I’m — I’m going to get into that right now.

There’s — that there’s a —

Hugo L. Black:

Do you claim that you’re entitled to be turned — he’s entitled to be turned loose or he’s entitled to withdraw his plea of guilt and have a new trial?

Hugo L. Black:

Which do you claim?

William B. Moore, Jr.:

Well I claim some other things other than that if it please the Court and which I want to get to right now if I may.

And I — I want quite fully.

In the first place, I say that this Court, under the proceeding that they had, did not have jurisdiction.

The reasons to these.

This case is a kidnapping case and it’s — it’s a federal law.

It’s the Lindbergh Law, Section 1201.

And under that case the man is accused of a capital crime.

Now —

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

Well, he is accused, if it please the Court, whether or not it proved or not, it’s unless.

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

No, sir.

I do not.

Under the Parrino case if it does not specify whether the man did or did not release the victim unharmed, he can be found guilty of a capital crime.

(Voice Overlap) —

Felix Frankfurter:

Are you saying, Mr. Moore that if the indictment itself alleges that in fact the victim was unharmed, there could by no possibility be a capital sentence?

William B. Moore, Jr.:

That is correct, sir.

Felix Frankfurter:

But if it doesn’t say so, there may be a capital sentence although the victim in fact was unharmed.

William B. Moore, Jr.:

Yes, sir.

That’s a jury question of a fact where he was or was not released unharmed.

Felix Frankfurter:

Well I mean if — if in fact the indictment, there may be a prosecution for and a conviction of the Lindbergh offense and the imposition of a death sentence, although the indictment says nothing about what happened to the victim.

William B. Moore, Jr.:

Yes, that’s what the Parrino case holds —

Felix Frankfurter:

Yes.

William B. Moore, Jr.:

— exactly.

Felix Frankfurter:

And therefore — but if the indictment itself qualifies it by saying that the victim was unharmed, then there couldn’t be a capital sentence.

William B. Moore, Jr.:

That is exactly our contention, sir.

Yes, sir.

William J. Brennan, Jr.:

So I gather from the fact here, an information that was not an indictment, that’s the point upon which you rest your challenge to jurisdiction that this should have —

William B. Moore, Jr.:

That’s right.

William J. Brennan, Jr.:

— been an —

William B. Moore, Jr.:

And I’m — and I’m going to tell you —

William J. Brennan, Jr.:

He should have been indicted.

William B. Moore, Jr.:

— why, if I may.

William J. Brennan, Jr.:

That is your point, isn’t it?

William B. Moore, Jr.:

Yes.

It — it was an affirmation in this case and I say that the United States Attorney has no authority by which he can bring in information.

William J. Brennan, Jr.:

Because it’s a capital offense.

William B. Moore, Jr.:

Because it’s a capital offense and the only —

Felix Frankfurter:

But you prove it — but you prove it because of what you and I went through of what happens if an indictment is brought.

If an indictment is brought which merely says there was a kidnapping, period.

He may be sentenced to death on a showing that in fact the victim was hurt.

William B. Moore, Jr.:

That’s right, I know.

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

No, sir.

And the rule — Rule 7 (b) of the Federal Criminal Rules, only allows an information where the offense is not capital.

I hadn’t answered your question yet, and I realized it.

But as the first step in this, in — in our contention, it — if this is in fact a capital case, then there is no way by which the United States Attorney can start this by an information.

And I — I’ve got to convince you of that first, at least I mean I’ve got to make that point.

That this is a capital case or can be a capital case, because by the very nature of things the man can be found guilty — is this what he’s charged with, doesn’t necessarily mean that’s what he did, even though it was by an information.

Then the judge can ask for a jury, and the jury can find that the victim was not released unharmed.

(Inaudible)

William B. Moore, Jr.:

Yes.

(Inaudible)

William B. Moore, Jr.:

Yes, that’s —

Earl Warren:

I suppose, Mr. Moore, it would be analogous — somewhat analogous would it not to situation where a man is — is charged with murder but was by an information under which, of course, he could be executed.

William B. Moore, Jr.:

Yes, sir.

Earl Warren:

But as a matter of fact he was — he was convicted of second degree murder.

Earl Warren:

Your position would be of course that — that the information would be invalid because he might have been convicted of first degree murder instead of second degree murder.

William B. Moore, Jr.:

I doubt, of course, if it please the Court.

He might have even been home in bed —

Earl Warren:

Yes.

William B. Moore, Jr.:

— and not —

Earl Warren:

Yes.

William B. Moore, Jr.:

(Voice Overlap) and — and then —

Earl Warren:

Yes.

William B. Moore, Jr.:

— complete the answer.

Felix Frankfurter:

Now, are — are you saying in effect that you can’t prove that the information that you can’t establish that the charge may be made by information, by — or the fact that an information was filed?

William B. Moore, Jr.:

No, sir.

Any information is just like the indictment.

It’s got —

Felix Frankfurter:

Well, I mean you can’t — that’s the Rule 7 says, “An offense which may be punished by death shall be prosecuted by indictment.”

William B. Moore, Jr.:

Yes, sir.

Felix Frankfurter:

So the question is, what is the nature of the — of the offense that’s charged, not until you prove it’s an allowable information prosecution because you brought and information?

William B. Moore, Jr.:

That’s right.

Felix Frankfurter:

That would be begging the whole question.

William B. Moore, Jr.:

That’s right.

John M. Harlan:

There’s — there’s no dispute in this case if you haven’t — whatever the validity of your position is —

William B. Moore, Jr.:

Yes, sir.

John M. Harlan:

— under no circumstances no matter what this indictment is charged could this man have been sentenced to death, thus the victim was unharmed.

William B. Moore, Jr.:

If it please the Court —

John M. Harlan:

Is that right?

William B. Moore, Jr.:

If it please the Court, I contest that violently in that that this man has never been tried.

Under the Parker case you could take evidence to see what sort of punishment he’s going to get —

John M. Harlan:

No.

William B. Moore, Jr.:

— but —

John M. Harlan:

But there’s no dispute here that this man — this victim of the kidnapping was released unharmed, is there?

William B. Moore, Jr.:

It never — I don’t think it —

John M. Harlan:

Is there any dispute?

William B. Moore, Jr.:

— could ever come before the Court to be determined properly.

John M. Harlan:

I’m just asking you what the fact is.

Is there any dispute on that fact?

William B. Moore, Jr.:

There were no physical marks on the man.

Whether he received —

John M. Harlan:

And therefore —

William B. Moore, Jr.:

— a mental trauma, I —

John M. Harlan:

— the fact —

William B. Moore, Jr.:

— don’t know.

John M. Harlan:

— the actual facts are that no matter what this indictment has alleged or the information it alleged, this man could not have been given a capital sentence.

William B. Moore, Jr.:

Unless the jury had disagreed with the findings in this case and thought that his — by being frightened he was harmed and had seen fit to recommend the death penalty, which is entirely within the realm of possibility if it please the Court.

William J. Brennan, Jr.:

The only — the only evidence as to injury is that there was an absence of any signs of physical injury, is that it?

But the way you suggest of then other kinds of injury at least the jury could have so found that it’s gone to trial.

William B. Moore, Jr.:

If it please the Court, yes, sir.

On this 2255, I raised a point on Page 66 of the transcript that we should not have gone into the evidence of the kidnapping in this 2255 it — it was not proper at that time.

We have taken evidence, so to speak, which should have been presented in the trial, and if we’d had a trial we’d try the case a different way.

So —

Felix Frankfurter:

In your short answer to Justice — is it your — doesn’t your position require you to say, or make it appropriate for you to say, in answer to the question of Brother Harlan that what the facts are, are immaterial.

William B. Moore, Jr.:

That’s right.

Felix Frankfurter:

The question is what kind of an offense —

William B. Moore, Jr.:

What is he charged for?

Felix Frankfurter:

— if protection —

William B. Moore, Jr.:

Yes.

Felix Frankfurter:

— is charged?

William B. Moore, Jr.:

Yes, that’s right.

Earl Warren:

Well, I suppose you could also say that unless —

John M. Harlan:

Well that’s the — that’s the — the issue.

Earl Warren:

I suppose you could also say that in — in the posture of this case you’re not even chargeable with notice of what the prosecution might have — might have attempted to prove against you.

William B. Moore, Jr.:

No, sir.

William B. Moore, Jr.:

I don’t think we have to.

That’s right, if you start relying on what the attorney is going to charge your client with the opposing attorney well you– certainly weaken your position.

That’s one issue in — this — that’s the first issue in this case.

The second issue —

William J. Brennan, Jr.:

Well if you prevail in that issue that’s the end of your appeal.

William B. Moore, Jr.:

Yes, and the Judge Rives, in the lower court in the minority opinion adopted that position all the way through.

Felix Frankfurter:

What do you say to the suggestion of Justice Harlan by which he replied that that’s the issue?

Whether you determine or whether the question of filing a charge by information rather than requiring an indictment to say that that is the requirement of the rule is the very issue.

What do you say to that?

That it begs the question to say that you’re limited to the potential charge and not what the fact in a particular record as that.

William B. Moore, Jr.:

I don’t think that you have to try your lawsuit to — to see what your choice is with and that’s what it makes us do.

John M. Harlan:

Well in this case the sentencing judge, Judge Kennemar —

William B. Moore, Jr.:

He was the original sentencing judge, Judge Kennemar.

John M. Harlan:

Oh, I beg your pardon.

Judge Johnson.

William B. Moore, Jr.:

Yes, sir.

John M. Harlan:

There’s no question in the record that he was (Voice Overlap) that a capital sentence could not be imposed here.

He said the maximum sentence and you realize (Voice Overlap) is it not?

William B. Moore, Jr.:

Yes.

John M. Harlan:

So that really the nub of the situation between you and the Government is, whether this requirement of Rule 7 is to be judged in terms of the actual facts in a particular case as to whether a death sentence could have been given, or in terms, as you claim, as to what the or what the information charges.

William B. Moore, Jr.:

Yes.

John M. Harlan:

And your position —

William B. Moore, Jr.:

That’s that’s what —

John M. Harlan:

— would have to be, I take it, that in any situation where there was no dispute, no dispute whatever, that a death sentence could not be imposed still, the District Attorney if he wants to proceed by information in order to get a waiver of the indictment has got to allege in the indictment — in the information as the man was unharmed.

William B. Moore, Jr.:

That’s right.

That’s the position and that’s point number one.

Point number two, if I may go into it, sir is the fact that an FBI agent acting in line and scope of his duty as an FBI agent and in no other capacity, and of the chambers of the judge who was later the sentencing judge, and the record will reveal that he had a good bit to say about — about this man, about his alleged confession, about this crime, about other crimes, information he got from another FBI agent, and a rather full report.

Now, the record would also show that Mr. Lill went to California when the habeas corpus was held and had a good bit to say at that time about this and gave testimony our there.

At that time there was some talk about a presentence report and the Government has made quite a point out of the fact that what difference does it make if this information was given before instead of after.

Our answer to that is this.

William B. Moore, Jr.:

Mr. Lill was never giving information in the form of a presentence report.

Mr. Lill admitted, off on my examination in Montgomery that we had a probation service there.

He knew the probation officers by name.

We didn’t have to — the Court didn’t have to go to an FBI agent to — to get a presentence report.

Mr. Lill never left his job as an FBI agent as this Court held in Von Moltke case.

It’s laudable for a — a government agent to be a government agent but at the same time, he can’t work for both sides of the street.

Williams case was brought out this morning and there a probation officer and the probation report is certainly supposed to be giving the full truth, picture and possibly be the man’s protector if, possible.

Potter Stewart:

Mr. Moore, haven’t you already run — won in that aspect of the case in the Court of Appeals?

They — they agreed with you.

They said that this procedure impacted the validity of the sentence imposed by the deceased judge.

William B. Moore, Jr.:

It was —

Potter Stewart:

And the sentence has been set aside and this man has now been resentenced, too, with a shorter sentence by a judge who was not subjected to that kind of misleading and perhaps improper information.

William B. Moore, Jr.:

It wasn’t —

Potter Stewart:

So is that — is that before us now?

William B. Moore, Jr.:

Yes, it is.

Potter Stewart:

Would you tell us why?

William B. Moore, Jr.:

Yes, sir.

That was a — a big victory to say the least and —

Potter Stewart:

What appears —

William B. Moore, Jr.:

— what it —

Potter Stewart:

— they are 12 years in prison —

William B. Moore, Jr.:

Well —

Potter Stewart:

— not counting the sentence.

William B. Moore, Jr.:

Yes.

That’s — it — that — yes, sir, that — frankly.

The reason I say that is a conviction and the plea as Judge Rives has pointed out in — in some of his opinions — in one of these other opinions he gave, are — are all tied together.

And I think if I go in to my third point in some detail, it will answer your question.

My point — my third point is that, as of right now, it’s a law of the land as given by the Fifth Circuit that this man was deprived of due process in the taking of all these waivers and the plea and this sentence.

And it’s all tied up in one package.

And you can’t just set aside a conviction and turn around and give him a new sentence.

William B. Moore, Jr.:

It’s all part of the same thing.

Potter Stewart:

Well, since you divided it in — into three points, let me continue for a moment —

William B. Moore, Jr.:

All right.

Potter Stewart:

— at least — to do the same thing.

And on the second point which involves the information or perhaps misinformation given to the sentencing judge by the FBI agent.

William B. Moore, Jr.:

Yes, sir.

Potter Stewart:

How could that have affected or infected anything else but the — but the sentence imposed?

William B. Moore, Jr.:

Well, of course —

Potter Stewart:

That had nothing else to do with this waiver of an indictment or of his plea of guilty or of his waiver of counsel, didn’t it or did it?

William B. Moore, Jr.:

Well —

John M. Harlan:

The effect of the sentence (Inaudible) because under the rule itself with that type of information would have (Inaudible)

Potter Stewart:

But at that time is, this was misinformation now, isn’t it?

William B. Moore, Jr.:

We don’t even know what information was given.

For example, that this FBI agent didn’t remember bringing the man from Dothan to Montgomery in —

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

I think it’s right.

Yes.

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

There — there are some indication that the conferences that they had had, with these two younger boys thought they were going on the Juvenile Act and get 10 years and they were advised later that they weren’t, but they still are going to the court of — the lower court could have been holding to talks and promises based on that which was unsaid or rather as to which was said.

Charles E. Whittaker:

(Inaudible)

William B. Moore, Jr.:

Well the Court of Appeals, if it please Your Honor, in 230 F. 2d 925, the first opinion that they ruled after we raised these various questions in there, didn’t divide them at all, didn’t divide them apart at all and –and I read there briefly from what they said.

“When it comes to the controlling question however, which the motion presents whether under the undisputed facts, the defendant was denied due process in the taking of his waivers in plea, the matter stands quite differently.

And because it is clear that it was not accorded to him, the judgment must be reversed.

This is so because considering the inordinate haste, the inordinate speed, they encountered haste with which the defendants were brought up for hearing, the trial moved to face the fact that the government prosecuting agent and the District Judge before the defendant had made any waiver or pleaded, indicate in the course, conferred privately in chambers with the prosecuting agent with regard to defendant’s guilt and the punishment to be imposed therefore in connection with both what was said and done and what was left unsaid and undone by the judge in taking the waivers and the plea and the sentencing the defendant.

We are left in no doubt that the move was not accorded but was denied due process and the judgment and sentence may not stand.So it’s all tied in together.

Charles E. Whittaker:

(Inaudible) the conference of making clear with the court.

William B. Moore, Jr.:

Yes, I recognize what you’re saying and –and I can’t answer it separately without taking what the Fifth Circuit did and say that all came out together based on this thing.

Felix Frankfurter:

Well, it makes a lot of difference whether his plea of guilty may be set aside and he needs to plead not guilty in going to the trial, rather than merely have his sentence readjusted.

William B. Moore, Jr.:

Yes it makes an awful lot of difference.

William J. Brennan, Jr.:

Well, Mr. Moore —

William B. Moore, Jr.:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible) hasn’t been that accurate.

Your real complaint, is it not, is with what was appended to the judgment on motion for rehearing.

In effect aren’t you saying that in light of the finding of a sentence obtained for lack of due process, it was utterly void, of no effect and therefore that we had to start of — the Government had to start all over again.

William B. Moore, Jr.:

That’s right.

William J. Brennan, Jr.:

And that when the Court of Appeals appended this discretion to the District Judge the ends of — now, that justice may require, whatever that language was, to permit or not to permit the defendant to withdraw his waiver of counsel.

They added something which on the premise of their judgment they had no jurisdiction assigned here.

William B. Moore, Jr.:

And as Judge Rives took issue with that and he said the position is incompatible and — and it’s beyond comprehension, how you can say in the body of the opinion these things violate due process.

William J. Brennan, Jr.:

Well it might — why do you emphasize then this discussion between the trial judge and the FBI agent in what significance there is.

If you’re right that this in effect was the — the finding of lack of jurisdiction in the sense that it’s sole purpose in effect —

William B. Moore, Jr.:

If I’m right —

William J. Brennan, Jr.:

— in the plea of guilty at all is still outstanding.

William B. Moore, Jr.:

If I am right on that —

William J. Brennan, Jr.:

Therefore that was added is —

William B. Moore, Jr.:

Yes, it’s time to quit then but I’ve —

Potter Stewart:

Yes.

(Voice Overlap) —

William J. Brennan, Jr.:

So, why do you emphasize the — why do you emphasize the interview?

Potter Stewart:

(Inaudible)

Felix Frankfurter:

And why do you — if I may ask, why do you rest on due process?

Why do you have to go that far?

What about Rule 32 (c) (1)?

William B. Moore, Jr.:

Well, of course that’s a — well the presentence report is what you’re — you’re —

Felix Frankfurter:

In other words —

William B. Moore, Jr.:

— talking about.

Felix Frankfurter:

— that this conference has had, was this submission to the Court in chamber.

There’s a judge in chambers, was outside of the limitation of that Rule, presents his investigation when made, the report shall not be submitted to the Court where its contents disclosed 31 unless the defendant has pleaded guilty or has been found guilty and all that took place here (Inaudible) FBI man assuming he’s part of the probation service preceded all of that, didn’t it?

William B. Moore, Jr.:

Yes, but that the FBI man is certainly not a part of the probation service.

Felix Frankfurter:

Well, he’s certainly not in a better position.

William B. Moore, Jr.:

That’s right.

Charles E. Whittaker:

And I wonder if that is applied to your argument (Inaudible)

These three errors were sufficiently used (Inaudible)

William B. Moore, Jr.:

Yes, sir.

That’s quite the probation.

If it please the Court, I would like to save the remaining time for rebuttal if I may.

Earl Warren:

Mr. Silverman.

Leon Silverman:

Mr. Chief Justice, Honorable Associate Justices, may it please the Court.

My adversary has touched on three points that he wishes to urge and I will deal with him if I may in the same order that he dealt with them.

In the first place, there was here a waiver of indictment, the filing of an information.

The information charged the violation of the kidnapping statute and the question is then presented, was the offense involved in this entire transaction, one that was punishable by death?

And our answer to that question is that it was not.

In the first place —

William J. Brennan, Jr.:

Well if this is the information that have been in the form of an indictment and is not on the trial (Inaudible)

Leon Silverman:

If Your Honor please.

Justice — that Judge Hand in the Parrino case, in a case which was not like the one we are dealing with, said that the allegation as to whether the man was released harmed or unharmed is not — is not a part of the offense.

And if one may look to the entire circumstances of the case and one may then decide whether or not the man was harmed or unharmed, and then that will determine whether this was a capital offense.

William J. Brennan, Jr.:

Well then aren’t you (Inaudible)

Leon Silverman:

I’m saying, sir, that if —

William J. Brennan, Jr.:

If it were under such an indictment shows no harm or (Inaudible) and it might be that —

Leon Silverman:

I would say that if Judge Hand’s dictum in that case is right, then the Government is ahead on that point because in the entire case, it is undisputed and that was found both by the lower court and the Court of Appeals that the victim here was released unharmed and there has never been the slightest question as to that.

But if Judge Hand may not — is not right and I needn’t argue whether he is or he’s not at the moment, then the question as to what it is that must be alleged, we submit, is not that the victim was released unharmed in order to proceed by information.

The necessary allegation is, if it is necessary that the man was released harmed in order to seek the death penalty.

Consequently, our position is that if Judge Hand is right, then the information was proper.

And if Judge Hand was wrong, then we proceeded in a manner here which lends itself to the filing of an information because this was not a capital crime.

Earl Warren:

Now suppose Mr. Silverman, he was charged with murder and the Government had no intention of proving anything except a second degree murder because you couldn’t prove actual intent and the — and the fact showed that, could you convict the man on an information rather than an indictment?

Leon Silverman:

I would say that if the crime of murder is based on premeditation, one would have to allege —

Earl Warren:

No, no —

Leon Silverman:

In that —

Earl Warren:

— you —

Leon Silverman:

— sir.

Earl Warren:

— you — you just charge him with murder.

Leon Silverman:

I would say that in order to proceed for the —

Earl Warren:

(Voice Overlap) —

Leon Silverman:

(Voice Overlap) for the more — for the more serious penalty —

Earl Warren:

Yes.

Leon Silverman:

— one should allege the aggravating circumstances surrounding the crime.

Earl Warren:

Yes.

Well, now let’s put it this way.

You charge him with — you charge with murder in a manner under which he could be convicted of either first degree murder or second degree murder.

And the Government made no attempt to prove a first degree murder but proved a second degree murder.

And it had been done by the — by information rather than an indictment, would that have been good?

Leon Silverman:

If I may rephrase my understanding of what you have said before I concede too much.

If the supposition is that a –a pleading was acceptable of two kinds of proof, one which would subject the accused to a greater penalty and one to a lesser, and if the Government never had any intention and indeed had no reason to believe that the greater offense had been committed.

Under those circumstances I would say that by not alleging greater circumstances or surrounding or aggravating circumstances, the Government would not seek the capital punishment.

Earl Warren:

Well let me put it this way.

This might be a little more what I’m — what I’m thinking.

The Government charges a –a person with the crime of murder in terms that would justify his conviction of either first degree murder or second degree murder, and then the — the Government goes into court and says to the — to the court, “Your Honor, we have no intention of trying to establish a capital offense here.

We are — we are satisfied that the defendant only committed a second degree murder.”

And the defendant then says, “In those circumstances, I will plead guilty to the — to second degree murder under the information.”

Would that be right going and –and could he then waive in that manner the right to be charged by an indictment rather than an information?

Leon Silverman:

I have not read the cases but my offhand reaction would be that you could proceed —

Earl Warren:

You could proceed.

Leon Silverman:

— in that fashion and that was in my reaction to your question.

Earl Warren:

I just want — and then get your position.

Hugo L. Black:

There’s no position here.

I think understand.

But I’m not sure I can.

That an indictment or an information to charge with capital offense but show not merely of kidnapping but a harming of the kidnapped person.

Leon Silverman:

I would say, yes sir except the fact allegation could not be in an information because if you allege the —

Hugo L. Black:

That’s right.

Leon Silverman:

— capital nature of the crime, it could only be by indictment.

Hugo L. Black:

That’s right.

If you mean the information would be bad as it alleged there because it would show that it was a capital judge.

Leon Silverman:

I would think so, sir.

Hugo L. Black:

But as I understand you, your argument is that or your position is that if it does not judge a capital offense, unless it shows all the ingredients one of which is that the person is released, no person was harmed.

Leon Silverman:

That is the second string to my bow if it please, the Court.

The first string is the argument of Mr — or of Judge Hand in the Parrino case.

None of these is necessarily alleged but that you may determine the capital nature of the offense from everything that you know about the case, and that found it’s echo in the Parker case, a very similar — to the Parrino case involving a — the — this kidnapping statute in which the issue was whether the accused should have been given a list of (Inaudible) man and list of witnesses.

If this were a capital crime he would have been entitled to that.

He was not furnished that.

And the Court then at the conclusion of the case said, “This is no grounds for throwing this case out.”

In that case, no death penalty had been recommended by the — by the jury.

If — and there’s no question if the man was not released harmed and that means that this is not a capital case.

And indeed Judge Hand’s decision is — is a very similar one.

It was a statute of limitations problem.

The question was whether the statute was told if this were a capital offense.

In that case, that the jury returned a recommendation of no death penalty.

That didn’t satisfy Judge Hand.

What he said was that you really can’t make this a capital case by the mere allegation.

In order to make this a capital case, you must in fact determine whether the man was released harmed or unharmed and the jury’s recommendation that there should not be a death penalty here, was not conclusive because they may have decided not to recommend the death penalty for all kinds of reasons, none of which may have had anything to do with the harmed or unharmed condition of the victim.

And so he sends it back, remands it for a trial and presumably for a finding on the specific question as to whether or not the man was harmed or unharmed because it is — it is that which make it a capital offense.

Hugo L. Black:

Your first position then is that a man can be convicted and sentenced to death on an indictment although he’s not charged if the person was harmed.

Leon Silverman:

My first position is that that is not a necessary Allegation.

My second position is that if it is, it is necessary to charge that he was harmed.

That you — it — that it is not fair to say that the Government must give notice of the lesser crime and this is really, I — I submit, a notice problem.

We are interested in having the accused I — I should think, aware of what it is that he is facing.

And it —

Potter Stewart:

Along that the lines of your — what you’re just arguing have you a third string to your bow?

To the effect that the very fact that the Government proceeded by information rather than by indictment gave notice to this defendant that this was not an offense punishable by death?

Leon Silverman:

Yes, Sir.

Leon Silverman:

That is — but after that —

Felix Frankfurter:

Why do you say — why do you say — or do you would think that the argument is concluded by saying, this is notice problem.

There may be other considerations.

Leon Silverman:

Oh —

Felix Frankfurter:

Namely —

Leon Silverman:

— I did not mean to say that the argument was concluded.

Felix Frankfurter:

No, no but that — is that — that —

Leon Silverman:

That my feeling is —

Felix Frankfurter:

(Voice Overlap)

Leon Silverman:

— that — my feeling is that sense to a defendant would seem to indicate that one should inform him of the capital nature of the crime without the necessity for —

Felix Frankfurter:

There maybe —

Leon Silverman:

— speculation.

Felix Frankfurter:

— other considerations particular in the federal — in the federal penal system namely, the role that is expected to be played by — by the process or the procedure with indictment.

But if the thing has contingency that seriously, was such a nature, that they may result either in the capital sentence or beyond infamous crime meaning a year or on a day, whatever it is, that then you need the intervention of a grand jury as the charging body.

And I shouldn’t think — I shouldn’t think to take the constitutional provision requiring indictment for capital or other infamous offenses — crimes, whatever it is — infamous crime that if Congress passed a statute saying, outlawing, had given Congress to say, “If it’s the first offense, it should be punished by six months.

If it’s the second offense, then it should be punished by not less than two years.”

I should think the indictment clearly wouldn’t have to set forth what it is to impose one or the other sentence.

But —

Leon Silverman:

Would or would not, I’m sorry, sir.

Felix Frankfurter:

Would not.

The second thing, the consequences of the offense is not part of the offense charge, It’s relevant to the punishment.

And therefore if the potentiality is more than a year becomes an infamous crime and I don’t think the government could argue.

You don’t have to indict putting labor to one side because as a matter of fact it is conceded in the case that he was only a first offender.

And I don’t see why the same argument assuming I’m right about the constitutional construction, doesn’t apply to the federal rule namely, it’s not merely a concern of notice to the defendant but also the kind of safeguard, the kind of conservative safeguard, in all whole process of prosecution that are deemed relevant to a crime that may be, on the fact, not going in through in advance but at the end of the prosecution.

That maybe, that may end in death.

Leon Silverman:

If Your Honor please, I — I certainly agree here that notice is not the only consideration, and that indeed a grand jury certainly if the federal rules have not been adopted one would have serious questions to whether there could ever be a waiver not on a constitutional level because the Gill case get away with that but on the authority of the Government to proceed in a manner other than by indictment.

But the federal rules have made it quite clear that this may be waived except in a capital crime.

Felix Frankfurter:

So, we have a problem of construction in the light of the whole tradition of history of prosecutions in the federal system?

Leon Silverman:

I would say sir that I — I should like to comment at least on one aspect of the formulation that you made.

And that is the second offender situation.

Leon Silverman:

That has been distinguished from the kind of thing that I am talking about.

And that is the aggravating circumstances of crime.

It’s been distinguished in the case of Myers against the United States in the Fifth Circuit.

And in the subsequent case of Jordan against the United States District Court of the District of Columbia in the Circuit Court in the district.

And in the Jordan case, the Court distinguished the second offender situation in these words.

It said, “In the second offender situation, however, the criminal act which is proscribed is the same regardless of the background of the criminal.

The previous offense is merely out of historical fact.

As a result of which, the penalty may appropriately be made more severe because of the demonstrated contributings of the defendant.

On the other hand, where the aggravation arises from the manner in which the crime was committed, in substance, a different aspect of the offense is sought to be punished.

Accordingly, we think is the — the Fifth Circuit in the Myers case, that the facts and aggravation must be charged in the indictment and found to be true by the jury.

And I submit, sir, that was —

Felix Frankfurter:

That — that raises the whole — of course if you’re right, that an indictment charging what this information did could not eventually lead in death that it’s the necessary part of the charge.

If — if that is so, if that were established, but if we could agree on that or conclude that — that’s one thing.

But if you don’t, it’s a very different thing and the nice distinction that you’ve just quoted, doesn’t seem to me to be very convincing.

Leon Silverman:

Well sir, I — I must repeat again the two of possible three-string argument and I don’t mean to be unnecessarily persistent about this.

And, that is, that I am not in a position to say that Judge Hand was right or wrong about the necessity for alleging.

But if he is right, then he and indeed the judge in the Parker case said that one could determine whether the victim was released unharmed from circumstances outside the specific pleading.

And that’s what —

Felix Frankfurter:

And that statute is — just reading your statute, I’m inclined to find the convicting proof leading to that conclusion.

Leon Silverman:

If that is right sir, then I submit that in this case there is unquestioned and undoubted evidence or undisputed evidence.

The fact was the fact.

If I need go further and I do not want to be driven to — to go further, but I present this because I think that a full discussion of what is perhaps a matter of first instance, in this Court, ought to be developed.

If I need go further then I would take the position that I have outlined as the second string to my bow and would cite in support of that.

This Court’s decision in the Cordell case where in a footnote, the Court says that in effect, you may proceed for the lesser of the two aspects of the offense by information.

Unless I convey the impression that that was not a thought — a well thought-out part of the Cordell case, I hasten to add that it was thoroughly briefed by both sides that was appealed from that case.

Felix Frankfurter:

I — I’m —

Leon Silverman:

Sir?

Felix Frankfurter:

— very low to go beyond the necessities of the case usually but it strikes me as it’d be highly undesirable to have this case go off just on the facts in this case and leave up in the air whether informations may be filed in these cases.

So, there’s a general question presented here.

Leon Silverman:

That’s perfectly true, sir.

Felix Frankfurter:

(A) — (a) is it necessary to be charged and if it’s included in his deed that it was not necessary to be charged, then is the offense, that which kidnapping with all the possible consequences and therefore not is a measure of punishment and not part of the offense.

Leon Silverman:

Well if you all please — if as I believe your — your remarks suggest, the Court may become interested in the broader problem here presented.

I would ask the Court to consider the material at the end of our brief which I think rather, persuasively, talks about the policy considerations with respect to the waiver of the indictment.

And I need not belabor you the point except to say that it would be a most serious decision from the point of view of those prisoners who may have to languish in jail for months awaiting the action of a grand jury which does not meet as frequently as it does in our larger Metropolitan areas.

Waiting only for the formality of an indictment when he knows, and I must assume for these purposes, that he is guilty of the crime, and wants to plead to the crime having released the man unharmed he —

Potter Stewart:

But where is the hardship there really?It’s just a difference of whether he’s languishing in jail or languishing in prison isn’t it?

Leon Silverman:

Well, the — the hardship here, Mr. Justice Stewart, but a man gets no credit for time in the federal system, prior to his sentence.

And so every moment that he spends in jail prior to the judge giving him a term of his is, is granted and sir, I may suggest and if I may be permitted at least from my personal experience in the United States Attorney’s Office, I — I — it has happened so very often that a man apprehended in the course of a crime, comes in and says, “Now, look, let’s — let’s get this show on the road.

I’m — I’m — you — you got me.”

Now, how can I most quickly get this — start to do the time that I’m going to get?

And there’s no nonsense about the fact that the man knows that he’s going to get time.

If in — if in New York, that happened, I — I suggest there’s a grand jury in session, at least everyday, and indeed many grand juries who are in session concurrently.

But if you go to the more rural areas of our country, it maybe months and —

Potter Stewart:

(Voice Overlap) —

Leon Silverman:

— the notes of the —

Potter Stewart:

— districts where the grand jury meets maybe twice a year.

Leon Silverman:

Exactly sir and that was pointed out as the reason for rule set that.

Potter Stewart:

That is right now.

Leon Silverman:

— is permitting the waiver.

Potter Stewart:

That now as the Rule 7 also expressed that considered public policy that in cases where the punishment might be execution, that this inconvenience and this hardship of being in jail as long as five or six months is countered — more than counter-balanced by the importance and necessity of having a man charged with an offense as serious as that only by action of the — of the grand jury and — almost weighing the — the gravity of the eventual punishment against the — a few months in jail as a — as a de minimis situation in that kind of an offense.

Leon Silverman:

Mr. Justice, having formulated the proposition in those terms, I can’t but agree but I believe that you would perhaps assume the — the conclusion in the formulation.

The question here is if it’s a capital offense and I am positing my argument on the assumption that the victim was released unharmed.

Hugo L. Black:

May I ask you please?

Leon Silverman:

Sir?

Hugo L. Black:

As far as the policy is concerned, do you think anything in your argument that would make it wrong for the Government to have the information of this (Inaudible) to say that the — the victim was released unharmed and with the Government be bound by that if it said it that’s how he’d be guilty and guilty too if that’s what was said.

If —

Leon Silverman:

(Voice Overlap)

Hugo L. Black:

(Voice Overlap) why wouldn’t that be a better way of preserving the rights of the party that you’re talking on the present policy?

Leon Silverman:

I would say that the necessity for letting — for — for alleging the lesser of the two possible aspects of the crime is at least to my untutored ear not a — the — the best way to approach the problem of the giving of — telling a man what it is he is charged with.

I think it’s much more direct to do it —

Hugo L. Black:

But —

Leon Silverman:

— in terms of, you are charged with the greater crime.

Hugo L. Black:

In my untutored mind, I can think of nothing better than charging a man in information with that but he’s charged with namely kidnapping somebody and turned him loose without harming him —

Leon Silverman:

I —

Hugo L. Black:

— unless the law some — unless there’s something in the law to make such surpluses to such an extent that the Government wouldn’t be bound by the limitations of its charge in the information.

Leon Silverman:

I would suggest that if — I — I can only go back again to the Parrino case with Judge Hand speaking for the Second Circuit.

Hugo L. Black:

I’ve just read it.

It’s there?

Leon Silverman:

It is indeed, sir.

And I would ask this Court to note that although Judge Hand uses very broad language about the necessity for making an allegation of all of the aspects of the offense and he finds that this is not an aspect of the offense, but he is using this language in a case which is very peculiar because it is a statute of limitations case and as I read it, and perhaps I am reading it with more intuition than understanding but as I read it, I have the feeling that what Judge Hand was there saying that it isn’t good enough for the prosecutor to charge that the man was released harmed to convert it into a capital case because that gives the prosecutor free play.

Hugo L. Black:

Wouldn’t it be enough on the other way (Inaudible) to allege that he was released unharmed to — to his defense?

Leon Silverman:

Well, —

Hugo L. Black:

Or would —

Leon Silverman:

logically, what I would say that if he — if it were alleged that the victim was released unharmed under those circumstances, I am not convinced that it would be simple variance for example, to put in evidence of the fact that the man was released harmed —

Felix Frankfurter:

But why do you say that —

Leon Silverman:

I do think that you would be bound by — I’m sorry sir.

Felix Frankfurter:

Do you say you would not be bound by it?

Leon Silverman:

I — I think you — I think the Government probably would, which is to — to make the allegation, that is I think we are bound to a point where in the — the real question seems to be what is the best procedure —

Felix Frankfurter:

(Inaudible)

Leon Silverman:

–for —

Felix Frankfurter:

If the Government would be bound by — and what — what is the countervailing consideration of putting it into information as Justice Black suggests, what — what burden or inconvenience does that cast if I’m the pleader?

And if it is, if he be harmed — bound by it, then we — we —

Leon Silverman:

Well —

Felix Frankfurter:

— we already began.

Leon Silverman:

No, sir.

I think that probably he would be bound by it and I must, of course, say that if I were the Assistant United States Attorney and the United States Attorney drawing up an information or an indictment as the case may be, it would not be terribly difficult to put these words into —

Felix Frankfurter:

Now, put yourself in the situation of a U.S. Attorney, who doesn’t seem like you do.

What kind of feelings would prompt the U.S. Attorney to fix about it, not putting it in?

What embarrassment to make that as a necessary consequence of a decision that if you don’t put it in, then there’s the potentiality of a capital offense?

Leon Silverman:

Then I would go — I — I would have to take your argument, sir, and take it one step forward.

Leon Silverman:

And that is, the poor fellow who may be caught and says, I want out.

I want to start to do my time.

And the United States Attorney under those circumstances, well, I suppose there he could charge him with an information.

I’m sorry if I missed — I — I misdirected my remarks to you.

Hugo L. Black:

(Inaudible)

Leon Silverman:

He could, sir.

But I really think that the problem is one, of where a man has been released harmed.

It seems to me that that is the allegation that perhaps ought to be made to put the man who is now being charged, on notice of the fact that this is a — this is the capital offense.

The harming of a man during a kidnapping, that is the thing that leads to the capital offense.

And I say I find support for this position in the cases that I have read and I — I have found no support for the alternative position.

Hugo L. Black:

So that would be another fact to the method of needing here, I guess I should say —

Leon Silverman:

I would say, yes.

That that the —

Hugo L. Black:

If he didn’t allege — have the allegation he’s harmed.

No, but it wasn’t capital and if it did say he were harmed say it was a capital.

Leon Silverman:

That’s right.

It’s just as practical one way —

Hugo L. Black:

Or you —

Leon Silverman:

— or the other.

Hugo L. Black:

Or you can get it the other way.

And when you value information —

Leon Silverman:

I — I —

Hugo L. Black:

— but it’s not charged, it’s not there.

Charles E. Whittaker:

(Inaudible)

No.

Charles E. Whittaker:

(Inaudible)

Leon Silverman:

Well, sir, the — the [Laughs] —

Felix Frankfurter:

It is.

Leon Silverman:

— my second argument is that the Government should and I should say that I have asked that the records of the department be searched because I thought this would be of some interest to the Court.

And I find that, at least from the research, that we have done, we have never proceeded against a kidnapper who has released his victim harmed except by making the allegation that he wants —

Hugo L. Black:

In other words —

Leon Silverman:

— to be —

Hugo L. Black:

(Voice Overlap)

Leon Silverman:

— harmed.

Hugo L. Black:

The only case.

Leon Silverman:

Now, I — I am facing to qualify, Justice —

Hugo L. Black:

Yes.

Leon Silverman:

— Black, but my research which I personally didn’t adapt to but which I asked to be done and I asked that it be done several days ago during the preparation of this argument.

Felix Frankfurter:

Well, there’s one that the —

Leon Silverman:

— that the answer came back that in all of the cases and those people who’d been in the department for donkey’s years in this section of the department that we seek the capital offense only after an allegation that the victim has been released harmed.

Felix Frankfurter:

But isn’t that a practical or does one have — does one go on with his imagination?

I know nothing about the records in this cases but it seems to be not too imaginative to assume that there are kidnapping cases in which an indictment for one reason or another but partly for the reason that you give is sought to be secured very promptly.

And the state of the victim is not yet determined at the time that the indictment is brought.

He may have been slightly bruised.

It may turn out to be one of the mysterious things, that later, results in death or so that — and that is left open and I take it to statute.

And I take it.

I can argue.

I can read the statute as dealing with that probability that you wait until the end to find out what kind of punishment should be imposed —

Leon Silverman:

Which is the —

Felix Frankfurter:

— because the fate of the victim may not be unambiguous at the time of the prosecution.

Leon Silverman:

In which case, sir, I — I would suggest that if one may wait to the end of the — of the proceedings before one makes a determination, then in this case, there can be no question that the victim was released unharmed —

Felix Frankfurter:

Well —

Leon Silverman:

— and that therefore this is not —

Felix Frankfurter:

Oh, no —

Leon Silverman:

— a capital offense.

Earl Warren:

Mr. Silverman —

Felix Frankfurter:

But then the purpose of my — my remark is [laughs]

Earl Warren:

Mr. Silverman, suppose this information had been filed after the time limit for the filing of — of an information of indictment in a normal felony case, not a capital case, would the statute of limitations be open to the defendant in this case?

Leon Silverman:

I would say — if you say in a felony, in — in a normal felony case.

Earl Warren:

Probably a felony case.

Earl Warren:

Yes, that was — well, just an ordinary felony case.

Leon Silverman:

And the indictment here in that —

Earl Warren:

Had this information had been filed beyond that time limit?

Would the statute limitations be — the defense be open to the man in this case with this kind of an information?

Leon Silverman:

I would say it would be open to in that.

Earl Warren:

You’d say it would be open, right.

Why?

Because under no circumstances —

Leon Silverman:

Would this then be —

Earl Warren:

— could be, because under no circumstances, could he be convicted of a capital offense.

Leon Silverman:

That’s right, sir.

Earl Warren:

Now, I didn’t understand to say before that — that you thought under no circumstances could he have been convicted of a capital offense under this kind of an information.

Leon Silverman:

That was, if I may go back to my former — my — my prior formulation, that was the second string.

Earl Warren:

See my trouble — my trouble is that it seems to me you both — you both embrace at the same time reject the language of — of Judge Hand when he said this Court within petitioner’s brief, we agree that the indictment stated all the essentials of the crime as charged, and that it was not necessary to allege that the victim was not released unharmed in order that the jury might recommend the death penalty.

We, too, think that the indictment need not allege whether the victim had been released unharmed.

So —

Leon Silverman:

My — my — you’re absolutely right, sir that my opponent and I point to the same case and — and indeed almost the language and draw different conclusions from it.

Earl Warren:

Well —

Leon Silverman:

If I go through that, however —

Earl Warren:

Well I — I wish you would if could in a — in few words, tell me how you construe this language to — to support this information.

Leon Silverman:

If it is not a necessary element of the offense to allege whether a victim has been released harmed or unharmed, and I must then seek refuge in the — in — in the other thing that Judge Hand says.

And if you may look to the entire proceedings to make that determination, then I say, in this case if it was not necessary to make the allegation and if we do look to the other — to the remaining part of this proceeding, we come to the undeniable conclusion that the victim was released unharmed.

Therefore I say that if Judge Hand was right, then this is not a capital offense.

Now, I — I — so this is obviously an inability on my part to communicate the thought that I’m trying to express but I’m not sure that I —

Felix Frankfurter:

Therefore —

Leon Silverman:

— can differ with that.

Earl Warren:

But it was — if the least language is, that the information did not say that he was unharmed.

And Judge Hand said that regardless of the fact that it did not say that he was unharmed, the jury had the right to find him guilty of a capital offense.

Am I wrong in that?

Leon Silverman:

If the remaining evidence showed that in —

Earl Warren:

No —

Leon Silverman:

— fact he was released —

Felix Frankfurter:

Would that —

Leon Silverman:

— harmed.

Earl Warren:

But that is within this language.

Now if he — because he goes on to say, “We too think that the indictment need not allege whether the victim had been released unharmed,” now it may be there are other language in there and if you say that there’s language that qualifies this, I won’t trouble you to read it because I’ll read it myself.

But I would talk to you about this language that was quoted in the petitioner’s brief.

Leon Silverman:

And I will go further and ask Your Honor to again to — to read the Parker case which is hand in hand with Parrino.

Earl Warren:

Yes, but I was trying to — I was trying to confine it to Parrino for the moment.

Maybe we get to this point.

But if you say there’s other language in there that qualifies that out, I’ll —

Leon Silverman:

Right.

Earl Warren:

I’ll get it for you.

Leon Silverman:

Yes sir, I’m — I’m —

Earl Warren:

Yes.

Leon Silverman:

I’m certain that you will find in the Parrino case.

Earl Warren:

Yes, don’t take your time.

Leon Silverman:

All right, sir.

Hugo L. Black:

I don’t know if I’ll be taking to your time but I would like to ask you this question to get my — your view on this.

Leon Silverman:

Yes sir.

Hugo L. Black:

As I understand that your first position is that this should be left open for it to be determined by one might say extrinsic evidence extrinsic.

It doesn’t have to appear in the indictment or information.

Leon Silverman:

Yes.

Hugo L. Black:

Must — it — it’s left up in the air.

Then you have two other elements as I see it.

One of them is that the indictment should always charge it on the information so you’d know.

The other one is that an information should charge that the — it’s in an information that should charge if it’s not — if he was not harmed, when he was released.

Leon Silverman:

No.

Hugo L. Black:

From the practical standpoint of the Government, if we are going to have to adopt one of those rules, and one didn’t want to take your first rule, your first proposal.

Leon Silverman:

Well —

Hugo L. Black:

Which are the other two?

Leon Silverman:

The other two are, if there is an allegation that is necessary, it must come in terms of the aggravated circumstances of the crime that absent the aggravated circumstances charged.

One may go only — that one must assume that, on capital nature of it.

If you want to make it a capital crime, you must charge in undeniable language that the man was released harmed.

That would —

Hugo L. Black:

Why?

Leon Silverman:

— be the second string to the bow.

And the third string is the one that Mr. Justice Stewart referred to and that is having proceeded by information.

This was certainly — this was certainly a notice to the — the defendant that the Government here did not consider it and it could not be a capital offense.

Hugo L. Black:

Well I — if that is to be it, why wouldn’t it be just as well, if there’s a — we got a rule generally, just to say that when it doesn’t, information should say, should show on its face that it’s not capital because would that harm the Government?

Leon Silverman:

Well, when you say “harm” sir —

Hugo L. Black:

Well, I mean that the information on its face should show that the man was released unharmed.

What injury would that do to the Government in the practical affair that’s enforcing the law?

Leon Silverman:

From here on in, I should say it would do no more injury than requiring the Government to —

Hugo L. Black:

But it is —

Leon Silverman:

— allege the greater in an indictment.

Hugo L. Black:

Anything back behind except this man’s case so far as you know of, it would do the government any injury and the cases that have been tried.

Leon Silverman:

Well, I cannot speak of my own knowledge.

I do not know whether it would do further injury.

I — I do not know.

I cannot at this moment stand in the point.

Hugo L. Black:

You don’t know how many cases would be affected by this.

Leon Silverman:

I would say that what would be affected is a long and — so far as I know, unquestioned line of authority that this Court and the lower courts have held and that is where it is the greater aspect of the offense, you do charge the greater crime.

Hugo L. Black:

I’m not talking about the line of authority.

I’m talking about the practical effect —

Leon Silverman:

I — I —

Hugo L. Black:

— of some kind of rule that if we have the document, if we have to construe it then in connection with the rule.

Leon Silverman:

I cannot now tell you sir because my — because I am not — I do not work intimately in this field what the other practical effects of this would be.

I would have to rely on the three strings in my bow.

Felix Frankfurter:

And the third string amounts to — the third string amounts to saying that the information must be right because it couldn’t be wrong.

Leon Silverman:

One could — when you say that the information must be right because it couldn’t be wrong is perhaps to state it as its simplest then that makes it the third string to our bow.

I — I suggest that the other two are far more compelling.

Earl Warren:

Where in your — where in your brief do you argue that third — that third string?

Leon Silverman:

The filing of the information alone?

Earl Warren:

Yes, And that manner would — would prevent a — a capital verdict.

Leon Silverman:

I will find it for just — in just a second, sir.

Earl Warren:

I — I saw only two.

Leon Silverman:

Well I — the one that’s been — sir.

Earl Warren:

I saw only two issues here.

One of them is that permission to withdraw petitioner’s waivers of his procedural rights, his plea of guilty voluntarily and intelligently made was properly refused.

And the second part is that the Court had jurisdiction to proceed by information under the facts of this case.

Now, I’d — I’d just like to know where your third string is that, namely, that if they did proceed this way, that under no circumstances could be — he be convicted of a capital offense.

Leon Silverman:

I would say —

Potter Stewart:

It’s on page 36, isn’t it?

Is that one on the page here in the view of this present —

Leon Silverman:

The petitioner could not have been given the death penalty on his plea on this case.

Rule 7 is explicit on the point.

No person charged by information could suffer the death penalty.

The information would not support a sentence more severe than life imprisonment so that the third is mentioned, sir, on 36 of our brief sir.

I would say that the argument with respect to the line of cases starting — which I’ve started with Cordel and which deal with — with the National Prohibition Act for example, the — the two aspects of an offense or the bank robbery or mail theft do not appear in our brief because these were developed as I was preparing this case for argument and I’m as — I — I have developed these points more fully than I normally would only because they do not —

Felix Frankfurter:

They did not go to different statutes.

Leon Silverman:

Yes sir.

Felix Frankfurter:

And one would have to read the statute to see whether the punishment provision as it were an ingredient of the offense or in the next post statute determination for the Court in sentencing.

Leon Silverman:

I would say that one would but they are sufficiently similar.

Felix Frankfurter:

You should do that.

Leon Silverman:

There’s no case just like this that we have found.

Now, if I may direct myself for just — for my remaining time to the due process argument that has been made by my adversary.

Earl Warren:

To the what?

Leon Silverman:

I would like to direct my time to the due process (Voice Overlap)

Earl Warren:

Oh due process, yes.

Leon Silverman:

That my adversary referred to.

I really think that this —

Felix Frankfurter:

I don’t want to interrupt you again but before you get through with that aspect what — what you call the due process.

I hope you will find time to comment on my view one doesn’t have to go to due process to deal with the problem.

If one found in propriety they use that including term in the FBI man seeing the judge in the chambers, ex-party before the judge knew what kind of plea the defendant would make.

That’s — that’s part of our supervisory function in dealing with the conduct of lower courts in connection with the rule as the probation officer, one doesn’t have to go as far as due process to find impropriety here.

Leon Silverman:

On the other hand sir, although one may find the impropriety and certainly, the Government does not state that the conduct of the judge in entertaining Mr. Lill in his chambers prior to accepting the plea is one that can be commended.I am not at all sure that the simple impropriety unless it had some effect on the rights of the accused.

Felix Frankfurter:

How do we know?

How do we know and the whole purport of the federal rule is that he shouldn’t be influenced by knowledge about the kind of a federal appeared before him in deciding whether to accept this plea of guilty or not?

Leon Silverman:

Well, sir, I suggest that the — the per quod of the federal rules have never gone to the point where a judge who has tried a man and has had — and has imposed sentence, and for one reason or another, has had that sentence in trial reversed by an appellant court, I know of no reason why that judge is ever precluded from retrying the same man yet that is — isn’t that in the same spirit?

Here is a judge who has gotten information about the man’s criminal background one thing and another but we had so far as I know, never ruled a judge out of a second —

Felix Frankfurter:

No, but because we have assumed that judges who are reversed by Courts of Appeals are sufficiently disciplined to at least beyond the alert in regard to their conduct where the case is retried.

Leon Silverman:

That —

Felix Frankfurter:

And the part which is a very important element from my point of view in considering the conduct of the kind of man who ought to be and presumably normally are under federal courts, our own profession and particular judge’s profession train them in that kind of discipline.

But that’s a very different thing from a judge having listened to a report that evil conduct and mischievousness but a fellow who then has appearing before him in an independent role in deciding what to do with him.

Leon Silverman:

Well sir, whether it’d be due process or whether it’d be the power of this Court to supervise the administration of the criminal law that is no longer in this case.

Whatever the grounds were, the Court of Appeals saw to it that this man was brought up for sentence by a judge who had not engaged in that practice, Judge Kennamer —

William J. Brennan, Jr.:

But before you go —

Leon Silverman:

having died —

William J. Brennan, Jr.:

— to that Mr. Silverman, don’t you have to meet this argument though that Mr. Moore made?

That when you read what it was that was said by the Court of Appeals before the judgment was amended, in effect what was said was, the conviction had a constitutional infirmity in it for the many reasons stated which had the consequence of making it utterly void.

And that the fact was the fact, this discretion of the trial judge to resentance on a — in respect to a void conviction, it’s just something that the Court of Appeals could not have allowed the District Court to do.

Leon Silverman:

May be sir that you’re operating on an erroneous impression, I — I believe you are all right?

William J. Brennan, Jr.:

Well maybe I am.

Leon Silverman:

What happened in the first —

William J. Brennan, Jr.:

One of the arguments that was said, that’s the argument that was said.

Leon Silverman:

No, I’m — I’m not sure if that is my opponent’s argument.

William J. Brennan, Jr.:

All right.

Leon Silverman:

But let me just explain what did happen here.

The Court of Appeals did use the language in the first time that it considered the merits after the 2255 hearing before Judge — before Judge Johnson.

Leon Silverman:

They did use the language that my adversary cited to the Court.

And they concluded their opinion and indeed their mandate originally prepared contained the language.

The judgment is reversed and the cause is remanded with directions to grant the motion to satisfy the conviction and sentence, and to proceed further and not inconsistently herewith.

However, the United States —

Where is that here?

Leon Silverman:

It is in the reported case which is not in our transcript.

William J. Brennan, Jr.:

That was page 268 of the record.

Felix Frankfurter:

But what case?

Leon Silverman:

The remand is on —

William J. Brennan, Jr.:

Page 268 of the record.

Is that it or —

Leon Silverman:

Forgive me.

Justice Brennan called my attention to page 268 of the record.

William J. Brennan, Jr.:

Well, it’s in the footnote?

Leon Silverman:

However it said, immediately the United States turned to move for reargument before rehearing.

And the Court, while it’s opinion was fresh in its mind and when it had a chance to see what the implications of this language were, then changed its mandate.

And its mandate then with, that is it added to what appears, the language, instead of putting a period after herewith, they put a comma there and they then went on “including if the District Court is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty and to stand trial.”

Now that’s the very addition to which Judge Rives addressed himself they’re valuing what Judge Rives said.

He said that that was utterly incompetent.

That was for the reason that the Court already knows that this was another void condition.

Leon Silverman:

Now I say —

Is that what he said?

Leon Silverman:

That is what he said but Judge Rives’ position in this case is a very interesting one.

In the first place, he said when this first came up, when there was no 2255 here —

And this is issue is before us for a decision.

Leon Silverman:

What he said was that —

I say this issue is before us for a decision.

Leon Silverman:

As to whether or not the — the Court — what the Court meant by using the language that it did, of course.

And I would say to you that the Court has interpreted what it meant on two separate occasions.

One on the rehearing, when it amended its mandate, and the second time on the appeal from the new sentence when it found specifically that the district George — judge had meticulously carried out the mandate.

Leon Silverman:

And that appears in the — in the record on page 267 of the record by suitable language in the opinion itself and by similar precise terms in the mandate, we sought on rehearing to make it plain that the sentence of conviction of 30 years imprisonment was alone mandatorily to be set aside.

And that is to the plea of guilty in waivers the District Court was free to allow such of these as the interest of justice might require.

The District Court finding expressly that the interest of justice did not so require, paid scrupulous heed to and carried out the precise terms of our mandate.

So that the Court of Appeals who knew best what it meant, said that it did not mean that this denial of due process or Justice Frankfurter’s lesser formulation of — of the — of the problem, it — it did not say that this vitiated the proceedings at all.

It vitiated the sentence and the sentence was then re-imposed.

The — the trial judge made very, very specific findings with respect to what have taken place before Judge Kennamer and found that the pleas and the waivers were all quite voluntarily made.

Charles E. Whittaker:

What is the (Inaudible)

Leon Silverman:

I’m sorry, sir.

Charles E. Whittaker:

What was (Inaudible)

Leon Silverman:

I would say the conversation between Agent Lill and Judge Kennamer prior to the court appearance.

Charles E. Whittaker:

And nothing more.

Leon Silverman:

And nothing more.

I will say in — in all fairness because the Court does use the language, the incontinent speed and inordinate haste of the proceedings, I would only add — I — I would say that at first the Court said that but if we are to find out what it meant, we must look to its mandate and its subsequent opinion.

And secondly, this Court may inspect the transcript of what took place before Judge Kennamer.

And I am thoroughly convinced that this Court will find that the defendant here involved, who when he came before Judge Kennamer was no stranger to the criminal law to use the phrase that the cases used.

(Inaudible)

Leon Silverman:

I beg your pardon sir?

(Inaudible)

Leon Silverman:

Well I can — I can tell you his familiarity with the criminal law because that is a part of this record.

And Judge Johnson elicited the information from this man.

He had been convicted of two prior direct offenses.

He escaped from Chillicothe Institute.

He stole a car.

He then had it on robbery.

He was sentenced for that.

I can go on and on, sir and — and indicate to you that this man knew very well what it is that he was charged with and what it is that he was doing and that the record is replete.

And if I — if I may I can — I can deal with any one of these things and point out where in the record.

This man was informed of his rights to counsel.

This happened time and time again from the moment he came before the Commissioner on arraignment until the — the time that he was sentenced by the Court.

He was told by the Commissioner, he was told by the FBI agent, he was told by the United States Attorney and his codefendant even protested that, “Don’t bother us now, we — we’d had enough of this.

Leon Silverman:

We don’t want counsel.”

And he was told by the judge — he was told by the judge on several occasions in — during the course of the hearing.

So that the – the talk about his — his waiver of counsel I suggest is not substantiated by the record but in fact the record points out that this man knew, had adequate advice with respect to his right to counsel.

John M. Harlan:

Was there any — was there any showing one way or the other that what Lill said to Judge Kennamer was true or untrue?

Leon Silverman:

Yes, sir there was.

And the —

John M. Harlan:

(Inaudible)

Leon Silverman:

Yes, sir.

The judge found — Judge Johnson found that whatever Mr. Lill told Judge Kennamer was not full and that finding was approved by both three Circuit Court Judges.

John M. Harlan:

No, I don’t quite understand why you said that the — Lill conversation (Inaudible) sentence when under the rule, if complied with, Judge Kennamer could have — if this conversation had taken place ex parte, after the plea but before a sentence, there would be no violation of the rule.

Leon Silverman:

I would say that the Court of Appeals held that it vitiated the sentence.

John M. Harlan:

Well, is that —

Leon Silverman:

I do not now try to —

John M. Harlan:

Does that make any sense, I mean what sense does that make?

Leon Silverman:

At most, though we’re in that posture before this Court, I think that I would be arguing that this was at most a technical violation of the — of the rule that is that the Judge heard it before rather than after sentence.

John M. Harlan:

Well, if the rule that was violated and the rule that’s entitled to have a sanction irrespective of prejudice and non prejudice, it seems to me the consequence is that this whole thing has to be swept out and — and start all over again, that — that it doesn’t provide any sanction if the rule is to say we’ll wipe out the sentence and leave the plea on the — standing.

Leon Silverman:

Well, I submit sir that what happened here and what offended perhaps the — the Circuit Court was the — not the untruth of whatever Mr. Lill may have told the –the trial — the trial judge because that was all true.

And Judge Johnson developed it on his own before the resentence that admissions from the defendant.

But that there was something wrong about a man imposing sentence having gained information in — in a way that the rule did not contemplate.

And that the Court of Appeals felt that if there was any injury to this defendant, the injury was occasioned only in the sentence.

And in the next sets of caution perhaps it said, “We will do away with the injury that may have been caused here.

And we will have this man go back and be resentenced.”

And indeed that is what happened that is — it was pointed out.

12 years was taken from the sentence.

John M. Harlan:

The impression that you get from reading the earlier Court of Appeals is taking at least the one that I got.

Was it what outraged him so much was the fact that they thought that Judge Kennamer had rushed this fellow into a plea.

And if you stop with that one opinion of the Court, why — that’s I would have supposes that they would set aside the whole thing.

It’s only when you get this surprise move — the surprise clarification in the rehearing, the Government’s petition for rehearing that the — that the —

Leon Silverman:

But Justice — Justice Harlan I would say —

John M. Harlan:

Basis that this — the basis, the final basis this is left was, seems to me to disappear and to (Inaudible) I don’t understand that at all.

Leon Silverman:

Well I would say that although the Court used that language, what they meant was clear from what they did.

And they could not have meant the literal word that they used.

But whether they had or no, I think that this Court may inspect the transcript and find that — and I believe will find that what happened before Judge Kennamer at the time of the sentence was not wholly appropriate and proper under the circumstances.

Charles E. Whittaker:

At the time of the sentence (Inaudible)

Leon Silverman:

I beg your pardon, at the time of the taking of the plea and sentence —

Charles E. Whittaker:

(Inaudible)

Leon Silverman:

— on a Monday morning.

Charles E. Whittaker:

That is to plea in the — the waiver of indictment and the —

Leon Silverman:

The waiver of indictment, the waiver of counsel, the plea and the sentence.

I’m sure this — when I say I’m sure I’m over speaking.

I — I submit to this Court that an inspection of that record will convince this court on its own whatever that the Circuit Court may have done.

But this was all together fair.

And what —

Hugo L. Black:

(Voice Overlap) —

Leon Silverman:

Sir?

Hugo L. Black:

(Voice Overlap) you’re wrong, you’re not — I don’t want to stop you here you can go right on but I would like to (Inaudible) before you sit down, in what — in your judgment would be the consequence (Voice Overlap) it should be held that it was an error not permit him to withdraw his plea of guilty.

Leon Silverman:

I would suppose that this Court would then send it back.

The man would withdraw his plea of guilty and stand trial.

Hugo L. Black:

Well that’s the first question I asked the counsel —

Leon Silverman:

Yes sir, I — I don’t know what else —

Hugo L. Black:

— whether or not (Voice Overlap) —

Leon Silverman:

— this Court would do.

Hugo L. Black:

— that he took any other.

I —

Leon Silverman:

I would suggest —

Hugo L. Black:

— I can gather from him that he was asking that very strongly but he was asking what would happen and (Voice Overlap) —

Leon Silverman:

That is what I submit to the Court would happen.

I — I can’t predict what form of the order would take but I think that that would proper to (Voice Overlap) —

William J. Brennan, Jr.:

But under those circum — under those circumstances, I presume, is the information amendable?

Leon Silverman:

We then raise the problem which I have not found an answer to, and that is the question of whether or not if this information is dismissed for a defect for example.

Leon Silverman:

Clearly, whether or not one can re-indict because the rule states or that the statute states that an indictment dismissed for a — an irregularity would sustain a — a subsequent indictment within the next successive term of — of the grand jury.

The rule is of the silence as to what would happen to an information that was dismissed on that ground, I have found no enlightenment –.

Hugo L. Black:

What provided with reference to amendments to information (Inaudible)

Leon Silverman:

I’m sorry but I can’t answer the question.

I — I don’t know.

I — I have not looked that up.

I would then sum up my argument in — in this way.

But first, due process was accorded to this defendant.

It was accorded to him that when the District Judge, Judge Johnson resentenced him taking care of whatever may have been the ill effects of the conversation between agent Lill and Judge Kennamer, every other part of the proceeding, we submit, was absolutely proper and fully accorded to the defendant his rights with respect to whether or not the Government could proceed by information, I think I would be laboring the obvious if I repeated the three arguments that I made before.

I would submit that the Government has proceeded in this case with perfect propriety that the defendant has nothing to complain of in terms of what rights were given him or denied him and that the judgment of the Court of Appeals should be affirmed.

Earl Warren:

Mr. Moore, you may proceed.

William B. Moore, Jr.:

Please this Honorable Court.

(Inaudible) brief rebuttal —

Earl Warren:

Mr. Moore, our adjournment time is 4:30 but we realize that you are — you are here without any compensation that you’re representing this indigent defendant and if it would accommodate you to — to conclude tonight even though it takes us somewhat after 4:30, we’d be glad to accommodate you.

William B. Moore, Jr.:

I’m very — very much appreciate, sir.

I don’t intend to go beyond 4:30.

I think just a brief summation of my points and then I’ll answer that.

Earl Warren:

Very well.

William B. Moore, Jr.:

In answer to the Government position or notice, he said that it would — we would — that’s give us notice.

The first thing before we got that notice, we’d have to have a waiver of indictment.

And when the indictment was waived, that doesn’t mean that we know what the United States Attorney is going through.

I think Judge Rives does it very nicely here with Rule 7.

While Rule 7 vests a wide discretion in the United States Attorney and frees him from the necessity of obtaining leave of the court in case it’s properly prosecuted by information, its language leaves no doubt that such uncontrolled discretion does not include the right to preclude the imposition of the death penalty in any case which might possibly be so punished.

A discretion which could therefore be finally exercised by no one man alone, in other words, the whole proposition there is jurisdiction above all other matters.

Most exist from the beginning and should affirmatively appear of record.

And I might further add that if that jurisdiction did not exist, then the case falls on its face and an answer to what you Justice Black the point your raise as to what could be the possible consequences of this matter.

I think we would first ask this Honorable Court to determine that there was no jurisdiction about which this information could be brought or no — no way why that — by which this information could be brought.

Therefore there was no jurisdiction.

We think that I will not go back into the Parrino case in any detail because I’m sure the Court will make a determination and that case would either stand or fall on one of our interpretations.

We think the statute of limitations that — that the Honorable Chief Justice, the question he raised there they have to discuss by Judge Hand in that particular case.

William B. Moore, Jr.:

Therefore we would ask this Honorable Court that it’d be determined that the United States Attorney have no way and since this is a capital case, since a man could be punished by death, to commence his action.

If he had no way to commence the action, there was no jurisdiction within the Court.

Secondly, we would — in the event that we did not prevail in that position, we would like to urge that the lower court was quite right in determining that this man had not properly waived his right to counsel, venue and jurisdiction.

And that therefore these other two things which followed in consequence his plea, I think you — we can put them all in one package and follow 1, 2, 3, 4, 5 — 10 pins practically.

Then that plea as well as the conviction must be set aside.

And that that is defining and is the law as announced by the Fifth Circuit at this time.

Therefore if we do not prevail (Inaudible) to jurisdiction, we would think that the lower court could not — it had a situation that was impossible to follow.

The Court of Appeals said, “These things were taken in violation of due process.”

Then they said — set aside the sentence and proceed not inconsistent therewith.

Well, it is certainly inconsistent to find that a man has been deprived of due process by certain things he’s done, namely, these waivers and not to follow through and say that all the waivers and the plea and the convictions should all be set aside.

That would be our second request.

If the Court got that far that all the pleas and the waivers be set aside for a violation of due process and, of course, this Court has made many other which is on due process —

John M. Harlan:

Is there any statue of limitations from his — supposedly, we went you on this indictment business and you — and — could the Government indict him again on the assumption that this is a non-capital offense?

William B. Moore, Jr.:

Sir, we have discussed that many times and — and I don’t know and the United States Attorney doesn’t know himself.

John M. Harlan:

You don’t know whether there’s any statute of limitations?

William B. Moore, Jr.:

Well, there is — there is a statute of limitation on a non-capital case, that’s correct.

It’s just like in a non-capital —

John M. Harlan:

Would that have run —

William B. Moore, Jr.:

(Voice Overlap) —

John M. Harlan:

— in this case?

William B. Moore, Jr.:

Sir?

John M. Harlan:

Would that have run —

William B. Moore, Jr.:

Yes, sir.

John M. Harlan:

— against new indictment?

William B. Moore, Jr.:

The five years has expired —

John M. Harlan:

It expired.

William B. Moore, Jr.:

— since that time.

Charles E. Whittaker:

But —

William B. Moore, Jr.:

So that it’s (Inaudible)

Charles E. Whittaker:

But if the information is held it would but yet the Court of Appeals holding that due process has been denied by the haste that that were the taking of the waiver and the indictment and the plea, then you’d simply have a new trial on this information, wouldn’t you?

William B. Moore, Jr.:

Well, if the plea — and if — well, by this I will — I would say that his waiver of — of indictment has to fall within the same basket because his waiver of indictment, his waiver of venue, his waiver of counsel and the plea all go together.

John M. Harlan:

But there’s a big difference between your two positions.

William B. Moore, Jr.:

Yes sir.

John M. Harlan:

The consequences.

The consequence to your first position is if you’re right on the waiver business of the indictment, then the facts being, assuming to be — admittedly being that this was none — the — the victim was unharmed, you — you got sprung your man, hadn’t you?

William B. Moore, Jr.:

Well, I —

John M. Harlan:

Whereas —

William B. Moore, Jr.:

— I have.

John M. Harlan:

— in the other case, you got —

William B. Moore, Jr.:

— I have —

John M. Harlan:

— a new trial.

William B. Moore, Jr.:

— seen him maybe from — from California to Florida.

He’s got —

John M. Harlan:

Yes.

William B. Moore, Jr.:

— 45-year sentence —

John M. Harlan:

Yes.

I understood.

William B. Moore, Jr.:

— before going down there.

John M. Harlan:

Yes.

William B. Moore, Jr.:

But —

Felix Frankfurter:

Well, is that so.

Is — is that so —

William B. Moore, Jr.:

Sir?

Felix Frankfurter:

— because if — if the Court goes with you that the information — some information couldn’t have been filed here, that was all without jurisdiction under the rule —

William B. Moore, Jr.:

Yes, sir.

Felix Frankfurter:

— and an indictment is broad and you follow at least what is called the dictum of Judge Hand that the offense was charged by simply saying he — he kidnapped which potentially allowed the death penalty, the Government wouldn’t be as estopped from now proving that there was harm or — so that I don’t think that in his (Inaudible)

William B. Moore, Jr.:

No —

Felix Frankfurter:

— the statute of limitations.

William B. Moore, Jr.:

That’s right.

He could — he could still be —

Felix Frankfurter:

He could be prosecuted.

William B. Moore, Jr.:

He could be —

Felix Frankfurter:

(Voice Overlap) —

William B. Moore, Jr.:

— indicted for a capital offense and be tried for a capital offense.

Felix Frankfurter:

And he may not be able to get a death sentence but non consent that the crime has evaporated because it was five years (Inaudible)

William B. Moore, Jr.:

Well, I conceive that he could also — he could get a death sentence.

William J. Brennan, Jr.:

(Inaudible)

William B. Moore, Jr.:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

William B. Moore, Jr.:

Yes sir, that’s — that’s correct sir.

William J. Brennan, Jr.:

(Inaudible)

William B. Moore, Jr.:

That’s right, because all those waivers and the plea go together in that particular ground to the —

William J. Brennan, Jr.:

(Inaudible)

William B. Moore, Jr.:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

William B. Moore, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Is that right?

William B. Moore, Jr.:

Yes, that’s my whole position.

If it please the Court, I think I have stated everything I have to say.

If there are further questions I’ll try to answer them, otherwise I thank you for your indulgence.

Earl Warren:

Well, Mr. Moore, I have no questions.

But I would like to say that the Court appreciates very much the service that you’ve rendered to this indigent defendant.

You had a long, hard struggle and those have been a great sacrifice to you.

And we always feel comforted by the fact that lawyers are willing to do that.

I may say to you that we’re comforted by the fact that for the last 10 days that we’ve been hearing arguments and had possibly a dozen criminal cases, and you attend to them, lawyers from all parts of the country are coming to represent defendants as you have because they were poor and that’s a great contribute, it seems to us, to the administration of justice in this country.

So, without regard to the outcome of your case, we appreciate your services.

William B. Moore, Jr.:

Thank you very much.

Earl Warren:

And Mr. Silverman, we of course appreciate the very earnest representation that you have made on behalf of (Inaudible) of the United States.

We’ll adjourn.