United States v. Ewell

PETITIONER:United States
RESPONDENT:Clarence Ewell and Ronald K. Dennis
LOCATION: U.S. District Court for the Southern District of Indiana, Indianapolis Division

DOCKET NO.: 29
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 383 US 116 (1966)
ARGUED: Nov 18, 1965
DECIDED: Feb 23, 1966

ADVOCATES:
David B. Lockton – by appointment of the Court, 382 U.S. 802, argued the cause for appellee Ewell.
Ralph S. Spritzer – For the United States

Facts of the case

Clarence Ewell and Ronald K. Dennis were indicted on federal narcotics charges in the U.S. District Court for the Southern District of Indiana. The men pleaded guilty and were sentenced, but the court vacated the convictions based on an unrelated Seventh Circuit decision that held that an indictment that does not allege the drug purchasers name is invalid. A few months later Ewell and Dennis were rearrested and reindicted on new complaints. The complaints contained the same allegations from the original indictment, but named the drug purchasers. Ewell and Dennis moved to dismiss, arguing that their Sixth Amendment right to a speedy trial and their Fifth Amendment protection against double jeopardy were violated. The district court rejected the double jeopardy argument, but granted dismissal based on the Sixth Amendment. The Supreme Court heard this case on direct appeal.

Question

Does the Sixth Amendment’s right to a speedy trial require dismissal of the new indictments?

Earl Warren:

Number 29, United States, Appellant, versus Clarence Ewell and Ronald K. Dennis.

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, Your Honors.

This is a direct appeal by the United States from two judgments of the District Court for the Southern district to Indiana entered in two criminal cases.

The cases are consolidated in this Court.

To begin with the relevant prior proceedings, in December of 1962, each of the appellees pleaded guilty to a narcotics violation, an offense under Section 4705 of the Revenue Code, the written order formed provision.

Each received at that time the minimum sentence permitted by the statute.

That was 10 years in the case of Ewell and he was a second offender and five years in Dennis’ case.

Some seven months after this conviction in an unrelated case, Lauer against the United States, the Seventh Circuit ruled that an indictment under Section 4705 was defective if it failed to name the purchaser of the narcotics and it held moreover that this defect was cognizable on collateral attack.

Relying upon that decision, Ewell several months after initiated proceedings of his own under Section 2255 and Dennis followed suit.

These motions were promptly heard.

They were granted by the District Court for force on the authority of the Lauer decision and the government at the first grand jury session thereafter procured new indictments against both of the appellees.

Appellees thereupon moved to dismiss these new indictments and on two grounds; one a claim of prior jeopardy and two, a claim that to retry them would deny them a right of speedy trial.

The District Court rejected the claim of prior jeopardy, but it dismissed the indictments on the Sixth Amendment ground and since the orders were based upon a plea in bar the appeal comes directly here.

At no point in the processing of these cases was there any protracted delay.

For convenience, I’ve asked the clerk to distribute a chart which gives the Court the essential chronology and though I will not take the time to go over the dates here, I think Your Honors will observe that these cases did move with dispatch.

The District Court’s opinion, in fact, affirmatively states and I use its language that this is not a case for charges of neglect against the government or the defendant.

The District Court recognized also that the original indictment was sufficient under the law as it stood at the time the indictment was drawn.

Also, I might say parenthetically that it would be sufficient today.

Lauer has been uniformly rejected in all of the other circuits in which the point has been raised and only recently, the Seventh Circuit itself overruled the Lauer position, but what if we assume that there was error as distinguished from oppressive fault of any kind in the government’s drafting of the first indictment.

Presumably there is error of some kind in every case in which a judgment of conviction is set aside whether on direct appeal or on collateral attack.

Yet it has never been the law in this country that the correction of error on the defendant’s appeal bars a retrial.

By speaking the correction, the defendant is deemed to have waived any claim of prior jeopardy and only recently in the Tateo case, the Court will recall the opinion of the Court observed that this rule serves the interest of defendants generally as well as of the public for otherwise it seems doubtful that appellate courts would be so ready to find error at least in cases where the evidence of guilt was compelling.

Cases like Tateo and many others which we might cite stand equally for the proposition that a retrial does not violate the provisions of the Sixth Amendment.

Time —

Earl Warren:

Are those — are those cases limited to the identical issue?

Ralph S. Spritzer:

Well in Tateo itself, Your Honor, I think some five years had elapsed between the date of conviction and the date when the Section 2255 case was instituted.

I don’t go so far as to suggest or to argue in this case that there could never be circumstances in which a retrial would present a problem under the Sixth Amendment.

Time —

Earl Warren:

I think I probably didn’t — didn’t speak correctly.

Earl Warren:

What I wanted to know was are those cases that you mentioned limited to a retrial of the same issue?

Ralph S. Spritzer:

Yes.

Earl Warren:

That they’re originally tried for.

Ralph S. Spritzer:

Yes, and I’m going to get separately to the question whether we have a differentiating circumstance in this case —

Earl Warren:

Yes.

Ralph S. Spritzer:

– because the reindictment set out three offenses here.

The District Court’s decision, Your Honor will recall was they’d simply upon the proposition that a retrial could not occur here because of the passage of time.

The Court said that the necessity for setting aside the conviction was the result of an inconsistency in the developing law and that the defendant should not be tax with the consequence of that inconsistency in the law.

And that reasoning would apply, had we brought the new indictment under precisely the same charge as well as to the situation as it comes to the Court where the US attorney brought the same charge and additional charges.

Now there is a strong suggestion in the opinion and I think that explains the result perhaps that the District Court was motivated by a concern as to the sentence which it would have to adjudge in the event of a re-conviction.

It pointed out that the narcotics statutes contain a provision for a minimum sentence and the minimum penalties had in fact been imposed at the first conviction of these appellees.

The Court also noted that the narcotic statutes prohibit the suspension of sentence or the suspension of the imposition of sentence and that they do not allow for probation.

And the judge concluded from this that if the appellees were convicted anew, they could not be credited with the time that they had already served some 19 months under the invalidated conviction.

We doubt that the District Court was correct in this analysis.

The narcotic statutes do indeed prescribe a minimum sentence which cannot be suspended, but it does not seem to me to follow necessarily from this; that the Court could not credit time already served under an invalidated conviction resting upon the identical transaction.

I suggest that it could impose the minimum term less the time already served.

William J. Brennan, Jr.:

But — but it would not have to?

Ralph S. Spritzer:

Unless there were some constitutional requirement, it would not have to.

William J. Brennan, Jr.:

Yes.

Abe Fortas:

Is there any authority to that you know whether that has been done, Mr. Spritzer?

Ralph S. Spritzer:

We have found no cases one way or the other casting upon on the question.

Abe Fortas:

You’re [Inaudible] — right to this law.

Is there any pressman in the actual practice of the District Courts?

Ralph S. Spritzer:

Well I can tell, Your Honor something about the practice which the District Court in Indiana where this case comes from has followed in an identical group of cases which followed the Lauer decision.

In all of those cases, the government did what it did here.

In addition to indicting under the Section 4705 offense which I mentioned earlier, it charged other offenses based on the same transaction.

Your Honor, will find the three statutes on this little chart we’ve submitted.

In all of those cases which have been disposed off to date, the Court passed sentence under Section 4704 which carries a lesser penalty.

The government agreed to a dismissal of the offenses involving the heavier charge and the District Court then imposed a sentence less than the original sentence imposed and one which in effect therefore gave credit for the time already served.

Now —

Earl Warren:

Even though he was not charged with a violation of 3704?

Ralph S. Spritzer:

In the original indictment?

Hugo L. Black:

Yes.

Ralph S. Spritzer:

Certainly I’m sure that was true in some of the cases.

Whether it was true in all, I cannot say, I would have to check the records of those separate cases.

They had a group of 10 or perhaps 15 cases in which collateral proceedings were brought in the wake of this Lauer decision because it apparently in the regular practice of the US Attorney in this district to charge 4705 without naming the purchaser and they had a group of these cases come forward.

And I understand that those that – that have been disposed off to date have been disposed off in the way I’ve indicated, but I have not read the original indictments and the reindictments in each of those cases, Your Honor.

Earl Warren:

I see.

Abe Fortas:

So what you’re saying of [Inaudible], you know of no precedent whether in a reported case or in the practice of district courts for allowing credit under a — in a narcotic act conviction where time already served.

Ralph S. Spritzer:

No, and I know of no opinion which discusses the question of the power of the Court to do what I’ve suggested.

It does seem to me that it is consistent with the language of the statute and if it be true as appellees contest, that there would be a constitutional doubt if a sentence which did not give credit were imposed upon a retrial that would reinforce I think the thought that the statute might be construed to permit that limit.

Now there are cases, I’m not talking about the cases involving the Lauer problem or narcotic cases in particular where the Courts had re — had imposed a heavier sentence on a retrial.

Cases of this Court have had set aside convictions later resulted in heavier penalty and that’s not rare event, but insofar as there should be any constitutional problem which might arise in circumstances where it might be thought that a Court was discouraging resort to legal process by imposing a heavier sentence in the event of a re-conviction to the extent of that might present a problem, I say it isn’t presented here and for two reasons.

In the first place, even in the event of a re-conviction under all of the charges which were brought on the second indictment, the judge could impose concurrent sentences and I think could give credit for time already served.

Beyond that, we have attempted to remove that problem from this case altogether.

The United States Attorney advised the district judge when the government petitioned for rehearing of his order dismissing the indictment; that if the defendants here were found guilty under the 4704 charge which carries the lesser penalty, that the government proposed to dismiss the other charges.

Moreover in taking our appeal to this Court in order to emphasize that we were seeking to avoid any problem as any sentencing problem, we purposely confined ourselves to an appeal from that portion of the order dismissing the indictment which related to the dismissal of the 4704 charge and that is all that is in the case as it comes to this Court.

Earl Warren:

Suppose the Court — trial court refuse to follow the district attorney and the man was convicted of all three times and he then gave him 10 years under the — one of the other counts, what would your position be?

Ralph S. Spritzer:

I would say, Your Honor, that that problem could only arise if the judge gave a heavier sentence or a sentence which failed to credit and that it is not presented at least until the sentencing stage is reached in a case and —

Earl Warren:

But he is tried for it?

Ralph S. Spritzer:

Pardon?

Earl Warren:

He’s tried for it, isn’t he?

Ralph S. Spritzer:

Yes, Your Honor.

Earl Warren:

He should be tried for all three?

Ralph S. Spritzer:

Yes, and I would say that no constitutional problem could arise in relation to the problem of an increased sentence or would arise unless and until an increased sentence was in fact imposed.

Let me take a —

Earl Warren:

Let’s just take — let’s just take the — the simple case.

Suppose this man was all back and he’s retried —

Ralph S. Spritzer:

Yes.

Earl Warren:

And he is convicted for the identical offense that he was first charged for it —

Ralph S. Spritzer:

Yes, Your Honor.

Earl Warren:

And maybe also this count 2 that your — that you’ve added on the second indictment —

Ralph S. Spritzer:

Right.

Earl Warren:

And suppose the judge said, “Well, I’m not going to follow the district attorney in dismissing this count 1.

I’m — I’m going to sentence him under that count and he does sentence him under that count.

What does you — whether he gives him a — the sentence on the other to run concurrently or consecutively would make little difference in my question?

What will you say then?

Ralph S. Spritzer:

If he sat and steam on the other charge but gave full credit for time already served —

Earl Warren:

No oh no, no, no, no.

That’s — let’s — let — let just take it the way it is.

He gave them — he gave them the sentence, any sentence under that section which is would be greater than the sentence that he could have gotten — he could get under this one you want now wanting to be convicted under?

Ralph S. Spritzer:

Well I’m — I’m not sure that I’ve communicated fully because the additional — neither of the additional charges which had been made carries a heavier penalty than the charge which was originally made.

Did I make that clear, Your Honor?

Earl Warren:

Well it’s — it’s heavier in the sense that at least it’s arguable that the court cannot mean time off for the time he has already served.

Ralph S. Spritzer:

Well that would be true under the original charge also if that argument were — were the correct conclusion.

Earl Warren:

Well but it wasn’t before him on the original charge.

he didn’t have any time served.

Ralph S. Spritzer:

Well the — the original charge is again before the judge and two additional charges.

Now however one looks at it whether the new indictment was on the 4705 count again or whether that was — were on that count and two others.

The problem would be there, can we give credit for time already served?

If he were tried again under the original charge, 4705, the minimum sentence for Dennis would be five years and for Ewell would be 10 years.

And the question whether credit can be given would be there if you were being tried today under the identical charge and that charge alone.

Earl Warren:

Alright.

I suppose it’s because of the constitutional doubts that you have that you state to the trial judge that you will not ask him to sentence him under the original charge or one of the other counts but you will char — you will ask him to sentence him only on this count where it is very clear that he can have his sentence reduce by the amount of time that he spent in the — in the penitentiary under the original charge.

Is that right?

Ralph S. Spritzer:

That is right.

I wouldn’t restrict it to the question of constitutional doubts.

We think we want to give the judge the flexibility as a matter of — of good criminal procedure as quite apart from any constitutional rights and conduct.

Earl Warren:

Well does the district attorney give the judge that flexibility or does the law give it to him?

Ralph S. Spritzer:

Well I think the law would permit him to credit time as I’ve indicated even if we brought the charge only under the original charge by bringing the lesser charge as well —

Earl Warren:

Yes.

Ralph S. Spritzer:

— base upon the same transaction.

Any possible doubt as to whether the statute permits accrediting of time is removed and we have sought to avoid that doubt because we are — have no quarrel — quarrel with the district judge’s concern that he should not be obliged to ignore that time already served.

Earl Warren:

But as I understand you, you urge upon the Court that even though you have doubts as to validity of any conviction that might be held under count one and three that you ask is to send the case back so that he can be tried under one and three as well as two.

Ralph S. Spritzer:

We have asked the Court to send the case back for trial only on a single count.

That is all we brought here on our appeal and that single account is an a count which carries the least penalty, a lesser penalty within the count which was originally charged.

Earl Warren:

And what authority do you want us to use in saying that he cannot be tried on the other counts.

It’s not constituted —

Ralph S. Spritzer:

I don’t and I don’t – whether he can be tried on the other counts is not something Your Honors need to decide because we haven’t appealed from the dismissal of the other counts, Your Honor.

The only question we have presented is whether the judge correctly threw out the entire indictment and whether we are permitted to go to trial.

Earl Warren:

I see.

Ralph S. Spritzer:

And in or — in order to avoid any sentencing problem, we’re only asking to go to trial on one count.

Abe Fortas:

Have you briefed your point that the judge could give credit for the prior conviction.

I don’t remember it in your brief.

Perhaps, I’ve just forgotten it.

Ralph S. Spritzer:

We do discuss it very briefly.

We don’t have any citations of authority on the point because the point has — has not been discussed in any opinion that we are aware of.

It’s rather unusual that it comes up in this precise context because here you have a statute which provides a minimum penalty.

Most of our criminal laws that they do provide minimum penalties don’t provide such stringent penalties as do the narcotic statutes.

Abe Fortas:

Do you know of any other statute in which the same problem would exist under any of federal statute in which the same problem would exist where this is peculiar to the narcotics and that is to say that statute has mandatory minimum coupled with the prohibition of probation?

Ralph S. Spritzer:

There are very few statutes and I don’t immediately call to mind any others which prohibit the suspension of the sentence or probation.

Your Honor is aware that Congress became greatly concerned about narcotics traffic and that there was a strong push to make the penalties more stringent several years ago.

This was one of the consequences of that.

It is not generally true in —

Earl Warren:

[Inaudible] discussion as to over these sections that are involved here to the effect that the judge one of the faults of the — of the statutes are that the judge has no discretion at all and therefore it is too rigid.

Ralph S. Spritzer:

I’m sorry I didn’t understand the beginning of Your Honors question.

I heard the last of it.

Earl Warren:

Well, the — you say that the judge does has some discretion now to — to grant time off for — for time served in this situation.

Ralph S. Spritzer:

Yes.

Earl Warren:

And I said hasn’t there been considerable discussion of the statutes that are involved to the effect that they are — are too rigid because the judge does not have any discretion of any kind that he must automatically sentence him to the term prescribed by the law.

Ralph S. Spritzer:

Oh yes, there’s been considerable criticism, I think of the statutes.

I’m not suggesting that the statute can be read to give any general discretion.

What I’m suggesting is rather that the prohibition on suspension of sentence need not be read prohibit — the word suspension or prohibition of suspension of sentence need not be read to preclude giving credit for time already served.

I would say that’s not a suspending sentence and I think consistently with the statute rigid though it maybe in its general application, credit might be given for time already served for that transaction.

The appellees make a suggestion they cast it in jurisdictional terms and I’d like to take a moment to — to answer it.

They suggest that the District Court’s opinion can be read as resting on two holdings under the Sixth Amendment.

They say that the Court held not only that the right of speedy trial was denied but also held that the right to be informed of the charges was denied.

And they base that from the fact that the District Court in setting out the Sixth Amendment in its opinion referred not only — quoted “not only the language shall enjoy the right to a speedy and public trial” but went on to spoke proportion and to be informed of the nature and cause of the accusation.

As I think I’ve earlier indicated the reasoning of the court is entirely directed to the question whether delays occurred, the law’s delays which preclude a retrial, there is no suggestion that the indictment doesn’t inform.

Indeed the present indictment is most specific and it seems to us perfectly clear that the requirement — the informing requirement have to be met in advance of trial and that it doesn’t relate to whatever delays there may have been between the time of the offense and the time of the indictment.

It is the function of the speedy trial requirement to assure that a case is processed with reasonable dispatch.

However appellees cast this argument in the jurisdictional frame.

They say this was beholding of the Court and the government’s notice of appeal was restricted to the question whether there was a denial of the right of speedy trial.

I don’t think that claim does stand up.

Your Honors will note that the motions to dismiss the indictments in these cases were based on two grounds and two only, one, prior jeopardy, two, denial of the right of speedy trial.

No reference was made to any claim that the indictment as presently drawn, did not sufficiently inform.

Moreover, the opinion, the dispositive part of the opinion, is fortunately unusually clear in this case.

Your Honors, will note at page 26 of the record, “the court now grants,” this is the District Court’s order, “the amended motion to dismiss the indictment base on ground two and denies the motion as based on ground one.”

As I’ve indicated the motions made no reference to any other kind of Sixth Amendment claim.

The order in the companion case is precisely the same and so I think there is no question before the Court other than the question whether the attempt to retry the case results in the denial of a speedy trial.

We think that here clearly it is not and that the ordinary practice which prevails after a successful appeal or a successful collateral attack does permit retrial as the indictment here.

Abe Fortas:

Mr. Spritzer, I’m concerned about — about this aspect of the case as I understand it the original indictment was for one offense on the 4705 —

Ralph S. Spritzer:

Yes, Your Honor.

Abe Fortas:

Is that right?

Ralph S. Spritzer:

Quite right.

Abe Fortas:

Now the subsequent indictment after the Lauer case was for three offenses.

Ralph S. Spritzer:

Correct.

Abe Fortas:

Two of them being under different provisions of the statute.

Now is that in your — as you view this case present us with a different problem with respect to a speedy trial that is to say at what — respect to the other two sections of the statute, these respondents were not put on trial until the time of the second — until after the second indictment and as a matter of fact, the Lauer case concerned only 4705 —

Ralph S. Spritzer:

Right.

Abe Fortas:

— but apart from that, these respondents were put on trial for the first time and on the basis of the second indictment and not the first indictment and the second indictment as I understand it was based upon the same transaction as the first indictment.

My question is whether, to your mind, that makes any difference with respect to the — at least the issue of a speedy trial perhaps also although I’m not clear about this at all, perhaps also the question of prior jeopardy.

Ralph S. Spritzer:

Let me take the prior jeopardy first because I think we — there, the answer to that is perhaps quickly made.

The cases make perfectly and unbroken line of decision to this Court that these appellees could be tried under the original indictment if under the charge contained in the original indictment, if that — if retrial on the same charge, does not involve prior jeopardy.

I don’t think that retrial on a different charge could involve any question of double jeopardy.

Abe Fortas:

Well perhaps —

Ralph S. Spritzer:

So I think it is a question of speedy trial and thought —

Abe Fortas:

Perhaps you can say that what I’m concerned about is that the reasoning of the holding in Lauer is addressed only to 4705 and I won’t burden you with that you go ahead with the speedy trial point?

Ralph S. Spritzer:

Yes but going to the first part of Your Honor’s question, the reindictments in this case were within two years of the original transactions and we are operating here under a five-year statute of limitations.

So I think the fact that the charges are cast in different form on the second indictment could present a problem under the speedy trial decisions of this Court only if that delay were in some way purposeful or oppressive as the Court has put in.

A two year delay is not in of itself a denial of right of speedy trial.

The Court normally takes the view that the measure of time for bringing in an indictment is the statute of limitations unless some specific prejudice results from a delay in bringing in the indictment.

Abe Fortas:

Well maybe — maybe there is some prejudice here if it — if the government have to confine itself to the same count that was in the original indictment I take it from your argument that there would have been some legal problems which you think maybe obligated by the availability of the 4704 count.

Ralph S. Spritzer:

I would not —

Abe Fortas:

In other words, the government entered these two counts for some purpose I suppose —

Ralph S. Spritzer:

I think —

Abe Fortas:

— to subsequent indictment.

Ralph S. Spritzer:

Yes, it did.

I think one of the purposes that I’ve been talking about to remove any question as to the flexibility of the judge’s sentencing powers is certainly not an oppressive one and the kind of prejudice to which I refer when I say prejudice from delay in bringing the indictment and I think the kind of prejudice to which the cases refer is prejudice in terms of ability to defend against the charge.

Now there has been no claim and there is no much less a demonstration that there will be any prejudice in defending against 4704 as distinguished from 4705 in terms of ability to defend against the charge.

The proof —

Abe Fortas:

I don’t — I don’t want to take anymore of your time.

The problem that bothers me is with respect to the delay under 4705.

the government has searched that you have the reason of the intervening Lauer case.

Ralph S. Spritzer:

Yes.

Abe Fortas:

Now if you consider 4704 and the other count of the indictment, well it is a question in my mind as to whether the government had a legal — legally permissible reason for the delay, that’s –

Ralph S. Spritzer:

I — I understand Your Honors point and our answer is that the decisions applying the speedy trial concept have said that the Court must look to see whether the proceeding as it has gone forward involves any purposefully damaging or oppressive conduct on the part of the government.

And we say there is a sound and a fair explanation of the decision to reindict the defendants here in the manner that was done and one which has not been shown to work any specific prejudice in terms of their ability to defend against the charge.

Earl Warren:

Mr. Spritzer, I’m concerned about the same matter that Justice Fortas is, I’d like to ask you this.

Now this man was charged originally with a sale, simple sale of narcotics.

Ralph S. Spritzer:

Without a written order form yes.

Earl Warren:

Yes, the original order, that’s all he’s charged with.

Ralph S. Spritzer:

That’s correct.

Earl Warren:

Now incident to that and as a part of that transaction, he could also have been charged with importing without — without paying the duty, to be charge without registering and —

Ralph S. Spritzer:

And the stamp, yes.

Earl Warren:

And the stamps and so forth, several things.

Ralph S. Spritzer:

Quite right.

Earl Warren:

But now let — let me ask you this.

Suppose — suppose that he was tried on the sale and was not indicted for these other things at the time, and he was either convicted or acquitted on the — on the simple sale charge, could the government then indict him and try him on his trial?

Ralph S. Spritzer:

That was I would say in altogether different case because that’s —

Earl Warren:

No — no, I didn’t ask you that.

I — all I asked you was whether they could do it or not.

Ralph S. Spritzer:

I would think that we could not bring repetitive charges based upon the same transaction after he had been acquitted or convicted of one even though we could have charged the multiple transactions under the Blockburger Harris rule at the same time.

Earl Warren:

Yes.

Ralph S. Spritzer:

I’d say this is an altogether different case because the wiping out of the first conviction at the behest of the defendant who brought the collateral attack leaves matters entirely as if no charge, no trial had ever taken place.

And I think we can bring an indictment on the second occasion for any offenses relating to the transaction at least so long as the course of proceeding followed does not result in any oppression or harassment as could conceivably result if US attorneys or prosecutors were to follow a general practice of piling on charges in the event that somebody has successfully appealed.

That I think would present a problem.

That is a problem that is said to have arisen.

I don’t know the facts in the wake of this Court’s Gideon decision in articles written not too long ago in Yale Law Journal suggesting that in some jurisdictions after prisoners invoked the rule of Gideon and got a retrial, it had been seeming — become seemingly the invariable practice to give them the same sentence all over again with no credit for time already served even if it was five or 10 years.

Now if Your Honors had a situation where a prosecutor or a court or the two combined were utilizing the judicial power in a way which Your Honors concluded was calculated to deter people from invoking their legal remedies, I think that would present a due process question.

I don’t see anything comparable in the situation that Your Honors have here.

Earl Warren:

What case in this Court would most nearly support your — your argument on this point?

Ralph S. Spritzer:

I would rely on the line of cases such as Ball and Tateo which indicate that if one invokes a collateral remedy he maybe retried.

I don’t think that the fact that the government is here proceeding against the same transaction under a different statute alters the principle that the prior conviction does not operate as a bar.

It’s a nullity under the cases and the government can proceed as it initially could have proceeded I rely upon those cases.

Earl Warren:

Suppose the man was charged originally with — with manslaughter and he was convicted and the case was reversed and remanded —

Ralph S. Spritzer:

He was convicted?

Earl Warren:

He was convicted, yes, as this – as this man was and it went back and he was then charged with murder.

Would — would that charge lie?

Ralph S. Spritzer:

I don’t know of any of Your Honors’ decisions on that question.

Earl Warren:

What would be the difference between that case and this?

Ralph S. Spritzer:

Well one of the differences Your Honor is that none of the offenses here charged carries a different penalty, a heavier penalty.

Earl Warren:

Well my —

Ralph S. Spritzer:

And the charge originally made —

Earl Warren:

It might be that and he would give him 20 years for — for manslaughter, voluntary manslaughter and — on a second trial with he is convicted to second through murder he might only give him 15 years.

Ralph S. Spritzer:

That’s perfectly true with the statutes.

Earl Warren:

But could he be — could he be tried for it, that’s the question not to what the judge might give him but could he be tried for it?

Ralph S. Spritzer:

I don’t know.

I think that would present perhaps a — a due process question if it were thought that the consequences of saying he could be would be to deter defendants from exercising their appellate remedies.

The closest case that I know of that Your Honors had to the one Your Honor just posed was the situation where in the Green case.

And there I think Your Honors found that the conviction of manslaughter on a charge where the charge had been murder carried with it an implied finding at least of the first jury that the elements of murder weren’t present and in that situation Your Honors held that he could not be tried again for murder.

Hugo L. Black:

On the double jeopardy.

Ralph S. Spritzer:

Yes.

Hugo L. Black:

Not in such.

Ralph S. Spritzer:

That’s right.

Hugo L. Black:

That’s right.

Ralph S. Spritzer:

That’s the nearest case I know of one Your Honors —

Earl Warren:

Thank you.

Mr. Lockton.

David B. Lockton:

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

I would like to briefly go back over what I think are the salient facts here because as the District Court found it was on the basis of looking at all of these facts that the — he found the denial of these two constitutional rights.

Now, in the original proceeding as Mr. Chief Justice Warren has pointed out, the government had the right and the ability to indict Mr. Ewell on three counts.

This would — had not been prohibited by Gore.

I mean it was permis — made permissible by the Gore decision and for some reason, unknown of record they did not and then he relied on the Lauer decision and set his conviction aside, the government instead of appealing that case to the Seventh Circuit reprosecuted him this time with two additional counts.

And I think the outstanding fact in this whole case is found on page 25 of the record and I’m quoting from the District Court’s opinion, “the government then from — for some unknown reason of record other than the express concern of the prospective liberation of a number of similarly convicted narcotic felons calls a grand jury to indicting on the two extra counts.

Now this point in the — in the District Court’s opinion has not been controverted in any brief or argument in any stage of this proceeding and remains unchallenged.

Hugo L. Black:

What page is that?

David B. Lockton:

Pardon.

Hugo L. Black:

What page is that?

David B. Lockton:

Pardon me, page 25 of the record, Mr. Justice Black.

David B. Lockton:

We think this is a bad reason for adding these counts on and they possibly be unconstitutional in its own right.

Now the government has limited its appeal to the dismissal of just count two on this indictment.

And have done so as — because of the problems that they recognize of crediting time served under the mandatory sentencing provisions which apply to counts one and three.

William O. Douglas:

Is this a double jeopardy argument?

David B. Lockton:

Pardon Your Honor, the argument I’m making now?

I’m merely going through the facts.

I’m not — I do argue double jeopardy in the brief but I’ll — I’ll get to that later.

Now on page 35 of the record, government’s petition for rehearing, the government sets forth their reason for not appealing to this Court the dismissal of the counts one and two under the mandatory sentencing provisions because the problem that they recognize of crediting time under — under these two particular counts.

I’d like to briefly touch on the subject of prejudice under these two counts and under the count under appeal.

It was argued in the District Court on — and this is seen on page 11 of the record in our brief in support the motion to dismiss that the defendant was prejudiced in the defense of the charges and by the harassment of the successive prosecution and it was further argued that because of the time served in — on his prior indictment, the prejudice was particularly oppressive in this case because of the problems that the sentencing provisions rise as far as crediting time.

Now the government did not at any time and I repeat did not at any time denied the existence of any of this prejudice or make any argument concerning the existence of prejudice and did not even argue that the government did not bare the burden of showing prejudice.

On the contrary, they gave recognition to the existence of a prejudice under these counts and offered to dismiss counts one and two upon a plea or a finding of guilty on — on count two and it’s probably on counts one and three.

Now the government comes before this Court and asks this Court to reverse the District Court on the mere unsupported assertion that it — it does not appear that there’s been any prejudice in this case.

They further spend approximately 20% of their brief arguing that there’s been no prejudice under counts one and three controverting their original position taken into petition for rehearing and in the jurisdictional statement and in their brief when they have not in fact appealed these two counts.

Now we think that — that we have made a showing and that there’s a definite possibility of prejudice and I’d like to point out to the Court that it is not prejudice in fact that this Court must find or that the District Court must find but it’s the possibility of prejudice, and decisions of this Court have so held.

Now as far as the speedy trial issue and I’m addressing myself to count two alone because this was the count that the government has appealed to this Court, you have the — the bare facts of a alleged crime on October 31, an arrest on December 12 and the defendant was not charged with the violation of count two until March 26, 1964 delayed some 17 months, all this time he’s in jail.

Now it’s clear that the defendant has a right to a speedy trial even though he’s in jail and the reas — the reason for this is obvious.

The right to a speedy trial is intended to protect the defendant from harm that may arise in defending himself due to the passage of time and this of course applies equally well to a defendant who has to be in jail and one who is — is out on his own recognizance.

As a matter of fact, I think it’s more important for a defendant who’s in jail to have his rights speedily prosecuted.

Now the government argues in its brief that the defendant’s right to a speedy trial on count two begins with the filing of the second indictment.

We think this is clearly wrong.

In the recent case, Henry Hahn case in the District Court of Appeals for the District of Columbia, the Court of Appeals for the District of Columbia, this is a — a very same argument was rejected as one of the exalts form over substance.

And to hold otherwise that actually give the government the power to evade the responsibility to bring the defendant to trial on these charges by filing successive indictments, charging different crimes arising from the same act.

Now it further say that — that the delay should be excused because it was brought about by the defendants setting aside of his original conviction.

Well, as the District Court found the reason that they added these two charges on was in effect a collateral attack on the Lauer decision and this is a bad reason in itself.

In the recent opinion in the Second Circuit, the then Justice Marshall but now Honorable Solicitor General in speaking of — of this situation in an appeal context, said by placing this on consumable premium upon a successful appeal by an accused a vital suicidal interest is threatened assuring that liberty shall not be deprived without a trial free from legal error prejudicing the accused’s substantial rights.

Well, this same reasoning we think —

Abe Fortas:

I beg your pardon.

David B. Lockton:

— Mr. Justice Fortas —

Abe Fortas:

I beg your pardon, sir.

Abe Fortas:

Do I take it then that your point is that the right to a speedy trial was denied here with respect to the two counts that were not in the initial indictment?

Are you making the same point with respect to the 4705 count?

As an analytical matter.

I realize that the government has presented to us only the 4704 issue but as an analytical matter do you distinguish between those two?

That is to say the new counts are read in the second indictment as against the count that was in the first indictment and repeated in the second indictment.

David B. Lockton:

Mr. Justice Fortas, I would distinguish them only in the matter of the prejudice arising under the two counts, under the two counts — under the 4705(a) and the original count.

Under the one that the government has appealed, there is a prejudice concerning the failure to inform the defendant of the charge under 4705(a), in fact that the time began running when the original indictment was filed.

Now, the prejudice resulting from the delay under 4705(a) is of course the prejudice that this Court is recognizing in the mandatory sentencing provisions.

Now, I did not argue the mandatory sentence provisions in my brief because it was not presented by this appeal, but nevertheless we still maintain that under counts one and three, the situation is exactly the same.

The honorable counsel from the Solicitor General’s office made a statement that if this delay could be found to be oppressive or purposeful, then he would concede that the — there had been a denial of a speedy trial.

And we think in either one of these cases whether it be the oppressive resulting from the delay in charging the defendant under count two and therefore, searching him and hampering him in his ability to defend this charge or the prejudice and oppressiveness of this prejudice under count one which deals with the mandatory sentencing provisions makes no difference.

Abe Fortas:

What — what is count two?

David B. Lockton:

Count two is the stamped package violation 4704(a) which makes it a crime to sell narcotics neither from nor any stamped package.

Abe Fortas:

Alright.

Is it your point, part of your point that the addition of these two counts to the second indictment does come within the definition of the — of purpose collection by the government in this purpose?

David B. Lockton:

Yes, we do, Your Honor.

We think it’s purposeful in a sense that these charges could have been brought at any time.

There’s no case in this Court or any other court which — which would now prohibit the — the filing of these charges at — at a subsequent time within the statute of limitations.

And certainly the cases have recognized that where the government has the right to bring charges and they do not that the delay of bringing them is purposeful in the speedy trial context.

Earl Warren:

Mr. Lockton, may I ask you this.

If this case had been reversed as it was originally and went back to the trial court, and the case was presented for trial on the identical indictment, would you be here either on your — your once in jeopardy or your one of a speedy trial?

David B. Lockton:

Others — Mr. Chief Justice Warren, there’s absolutely no question that we would not be here on the double jeopardy.

Earl Warren:

Yes.

David B. Lockton:

Question in Tateo I think, the defendant who puts doubts on this matter to one side.

On the speedy trial question I think we would be here and just strongly because of the mandatory sentencing provisions that apply to the count one.

Now I’m — I’m arguing about other prejudice under count two because there is the possibility and I say — and I underline possibility that he might receive credit.

However, he — there’s a possibility that he may receive 20 years on count two.

Earl Warren:

But you do concede that — you would concede I suppose that — that if the case was reversed and sent back for a retrial on the original indictment and the government did not delay it unconsciously that there would be no speedy trial issue involved?

David B. Lockton:

On the original indictment?

Earl Warren:

Original indictment.

David B. Lockton:

I would say in — in the general case, yes, but I wouldn’t concede that in this case because when a delay results in prejudice, there is a denial of a speedy trial and the prejudice in this particular case would be the inability to credit time under the mandatory sentencing provision.

Earl Warren:

But it wouldn’t — wouldn’t that have been in the case no matter how speedily the government had — had handled the case?

David B. Lockton:

This is true Your Honor, but in this — if you assume that there is no delay then I will concede that there would be no denial on the right to a speedy trial.

I think there is a delay in this case.

Earl Warren:

Yes.

Well I’d say if there — if there is no unnecessary delay and that it had merely gone through the routine of going to the Court of Appeals and being reversed in going back for a new trial in the absence of conduct on — on the part of the government delay.

In the normal case, it would not be a speedy trial issue.

David B. Lockton:

I would concede that on — on the basis of the facts as you post them.

I think that under speedy trial you have to look at the specific facts.

William J. Brennan, Jr.:

Well I know but I gather this means on the Chief Justice’s hypothesis, there had been a second trial brought promptly by the governor even though it was held at this time in a sentence of 20 years the defendant would have no basis to come here, would he?

David B. Lockton:

No.

If there would — Mr. Justice Brennan, if there was no delay and we could not honestly say there is no delay —

William J. Brennan, Jr.:

Now, what was the delay here?

David B. Lockton:

The — the delay was approximately fifteen and a half months from the date of the offense until the date of the charge on the second indictment in fifteen and a half months from the date of arrest until the date of the second indictment.

Tom C. Clark:

[Inaudible]

David B. Lockton:

I beg your pardon, Mr. Justice Clark.

Tom C. Clark:

[Inaudible]

David B. Lockton:

December 18th 1962.

Open — I beg your — I beg your pardon.

That was January 13th 1964.

Tom C. Clark:

When was the new indictment?

David B. Lockton:

March 26, 1964.

Tom C. Clark:

That was two months.

David B. Lockton:

That’s right.

We — we concede that there was not an inordinate delay in bringing the second prosecution but under the facts of this case, the prejudice — the defendant was put in by the addition of these counts is what really we think the case is about.

Earl Warren:

And what — what prejudice by the original count was it?

David B. Lockton:

Merely the prejudice under the mandatory sentencing provisions on count — on first — on count one under 4705(a).

We think that he has been prejudiced, we are now again into Fifth Amendment argument.

Earl Warren:

Well that’s — that’s what I’m talking about where –

David B. Lockton:

Well, I would rely on the Downum case.

David B. Lockton:

I disagree with the — with Tateo but if we’re going to talk about the harassment of the successive prosecution, this is another prejudice that results you have a successive prosecution.

Earl Warren:

Well, I was only talking about either — either once in jeopardy or a speedy trial, the only two issues I thought were here.

David B. Lockton:

Oh, we raised the additional issue of the right to be informed and the nature and the cause of the accusation.

Earl Warren:

Yes I — I recall it.

David B. Lockton:

Well that —

Abe Fortas:

Mr. Lockton —

David B. Lockton:

Your Honor —

Abe Fortas:

— doesn’t the Court below with respect to the questions asked a little while ago, then the court below would indicate some discomfort to say the least with the period between July 17, 1963 rehearing was denied by the Court of Appeals in Lauer and the time that the second indictment was returned namely March 26, 1964 and as I recall, the court below points out that the government made no effort to vacate the previous conviction after Lauer came down that the Dennis — that Lauer, that the respondent here took the initiative and it wasn’t entailed March of 1964 that second indictment was returned.

Is my recollection is correct that the Court does —

David B. Lockton:

You are correct, Mr. Justice Fortas.

He does note this time and — and finds this as one of the many things.

I think the fact as he said of the — of the prosecution and we argue this point in our brief in opposition to the petition for rehearing which is — which is found on page 36 of the record.

However, we have not brought that argument in our brief on the merits.

We think that it’s a definite prejudice but we think there are a lot of other things in the case, even more prejudicial than the delay in the government in — in some way notified him at least that he was now being held on a — a judge — a judgment of conviction which under the law the seve — the Seventh Circuit was the indictment failed to charge a crime.

Now under the Fifth Amendment that — we feel that there is no case from this Court which would preclude reindictment on count 4705(a) and we think that was decided by the Tateo case.

However, in this case, you have a successive prosecutions and then in Mr. Justice Brennan’s separate opinion in the Abbate case, we — he indicates that successive prosecutions for the same act are barred by the Fifth Amendment and we definitely agree with this opinion.

However, in this case, you have the additional fact that there was a successful collateral attack setting aside the original conviction.

Now, certainly the reasoning under this case would apply to this situation, but we think that the right to a speedy trial and the right to be informed of the nature and cause of the accusation is more importantly applied in this situation because under these particular constitutional acts under the Sixth Amendment, the — the reason behind the delay is completely irrelevant that the acts are designed to protect the defendant and if the prejudice resulting from the passage of time is the result of the collateral attack or anything else, we definitely think that provisions of these Acts protect the — the defendant under the Sixth Amendment in there are cases supporting.

I’d like to briefly reply to Mr. Spritzer’s argument that there has been no showing of prejudice in the record on this account under 4705(a).

Now under the Narcotics Act, the case is recognized that even the slightest delay, the District of Columbia Court of Appeals recently held in the Rochelle case that a delay of seven months from the date of the commission of the crime until the date of the charge was alleged was a denial of due process and the reason was because of the particular area we’re dealing in the Narcotics Act.

Now under this area the slightest amount of prejudice or slightest amount of delay can — can result in an extreme prejudice.

And this is because of the presumptions of guilt contained in these statutes and the methods used in enforcing the statutes.

Now for instance, under 4705(a), a crime is charged only for the sale of narcotics to a person who does not possess the proper written order form.

Under this count the presence or absence of the tax stamp package referred to in count two of this indictment, the count before this Court is completely irrelevant.

Now you have a high hypothetical case of a man charged with 4705(a), count one.

He pleads guilty and that after he’s been incarcerated in prison for 15 months for the first time he’s charged for the violation of 4704(a), the stamped package charge.

Under Mr. Justice Clark’s opinion in the Harris case, the narcotics could be introduced in the evidence and the presumption then was presume the absence of a tax stamped package.

The defendant being in jail and informed that he has to — rebut this charge lodged for the first time after a considerable delay, might find it impossible because of the presumptions here to prove his innocence.

So I think that there is inherent in the situation here in these two particular statutes the possibility of extreme prejudice that might result from even the slightest delay.

I’d like briefly to turn to —

William J. Brennan, Jr.:

I expect this has already been [Inaudible] but I just want to be clear about this.

As I — originally he got 10 years and that was mandatory.

David B. Lockton:

Correct, Your Honor.

William J. Brennan, Jr.:

Now in the posture in which the case comes to us, it’s only under the 4704(a) account, isn’t it?

David B. Lockton:

That’s correct, Mr. Justice Brennan.

William J. Brennan, Jr.:

So he served two years under 4705(a) count but he’s — he’s no longer subsequently prosecuted for that.

David B. Lockton:

That is correct.

William J. Brennan, Jr.:

In other words for the last one, the 174 account, is now that matters.

David B. Lockton:

Because they have not appealed that.

William J. Brennan, Jr.:

That’s right.

So we’re only here then on the 4704(a) and the consequences of this is that if the government prevails, he has to be tried on that count, doesn’t it?

David B. Lockton:

That’s correct.

William J. Brennan, Jr.:

And this will be on the same evidence I take it with these — at the trial on the original — of the original trial.

David B. Lockton:

The identical.

William J. Brennan, Jr.:

But all he can get now is five years though that’s mandatory.

David B. Lockton:

He could get 20 years and I —

William J. Brennan, Jr.:

Can he get 20 and that’s what I don’t understand.

How does he get 20?

David B. Lockton:

Because — because the sentencing provisions provide that before a second offender under 4705(a), the — this is on the — the sheet of the counts that the solicitor general gave you.

I think of a second offense, that’s —

William J. Brennan, Jr.:

[Inaudible]

David B. Lockton:

It’s five to 20 years so there’s the possibility that he can get 20 years and there’s nothing in the law that will require the judge to give him five to 10 or anything, in the way of credit.

Tom C. Clark:

No mandatory?

David B. Lockton:

It’s mandatory.

Tom C. Clark:

What [Inaudible]

David B. Lockton:

It’s mandatory in the sense that there has to be at least five years sentence.

There could be no probation.

William J. Brennan, Jr.:

Yeah, yeah.

Tom C. Clark:

Well let’s say again in 10 to four, with the second offense but he hadn’t get it, did he not?

David B. Lockton:

That was the minimum here.

Tom C. Clark:

So if you thought of the same effect of this time and gave you a minimum that he did before, [Inaudible]

David B. Lockton:

If he did it but he’s not required to.

Tom C. Clark:

I understand that.

David B. Lockton:

And to further more, he’s pleaded not guilty to this charge and — and he — as I point it out —

Tom C. Clark:

These are all [Inaudible]

David B. Lockton:

We think he has the right to prove his innocence on — on the second account because he’s never been charged with it before.

And as I pointed out the passage of time here is —

Tom C. Clark:

You get a trial of the Court [Inaudible]

David B. Lockton:

This is correct.

But I think that as I’ve pointed out in my hypothetical under these two statutes and the presumptions involved, defending the statute would be very difficult to say defending this count, count two would be very difficult to say the least.

Tom C. Clark:

The defendant carried them [Inaudible]

David B. Lockton:

On what location?

Tom C. Clark:

What the judge think about this [Inaudible]

David B. Lockton:

This was in the Southern District of Indiana at the Indianapolis division.

Judge Hoer was the judge all the way through and Judge Decker was the — on the Ewell case pardon me and Dennis, it was Judge Decker.

Abe Fortas:

Has the government dismissed the counts on the 4705 and 174?

David B. Lockton:

They have not, Your Honor.

Abe Fortas:

Well [Inaudible] saying that they’re appealing only from 4704 here.

David B. Lockton:

This is correct and it seemed they’re arguing these two counts but they are not appealing.

Potter Stewart:

The government hasn’t dismiss the counts but there are those that were dead now because the action of the District Court is not —

David B. Lockton:

Correct.

The — and the government’s failure to appeal —

Potter Stewart:

And the government’s failure to appeal.

David B. Lockton:

Correct, Your Honor.

Potter Stewart:

That’s the end of that.

David B. Lockton:

That’s right.

Potter Stewart:

They’re gone.

There’s only one count now.

David B. Lockton:

And I don’t even cover these counts in my brief.

I’d like to point out what we feel would be the consequences of a reversal in this suit.

David B. Lockton:

The government has framed its argument in broad terms stating that the decision below stands for the proposition that persons who spend time in prison under avoidable conviction may not be tried again on the successive indictment after a collateral attack.

But we don’t see on the complicated facts in this case and the — and the many issues of Lauer raised by these facts as it can possibly be read by this decision.

On the other hand, we think that a reversal of this decision might stem from the following propositions.

That the government has the right to add charges on to a successive second indictment which it was held from the first for the purposes of discouraging other defendants from collaterally attacking their appeals as the District Court notes in page 26 of the record.

It might further stem for the proposition that the right to a speedy trial does not arise from the date of the offense or even — even from the date of the first indictment but rather that the government can in effect stop the time running by filing the second indictment and — and have a time and run from the date of the second indictment till the date of the prosecution just contrary to — to many decisions.

Further more, I think it would search the question the holding of — of this Court in the Ponzi case that the defendant has the right to a speedy trial always in jail and on another charge.

In filing we think that the record before this Court which does not present the evidence against the defendant and which it contains notes denial of prejudice on the part — on the part of the government is inadequate so that this Court inadequate so inadequate that this Court cannot find that there was no possibility of prejudice existing before the District Court when it made its decision and therefore confined that the District Court was clearly wrong.

Now on the other hand, we have argued on the merits that the record can only support some finding of the failure to inform which is part two in our brief and the right to a speedy trial, and the double jeopardy argument which we think is also raised by this.

Furthermore, we have raised the jurisdictional point of case or controversy.

Now the government in their jurisdictional statement appealed merely defining that the — the defendant have been denied its right to a speedy trial.

The District Court however found that there was a denial of two separate rights.

But we think this can be read and supported by the record below in the basis of his particular concern that the addition of these charges after a delay of time solely for the purpose of discouraging others similarly situated narcotic felons and also in his express statement that the — the following rights of the Sixth Amendment were denied by the prosecutions below and in quoting “the right to a speedy trial and the right to be informed for the nature and cause of the accusation”.

Rule — under the rules of this Court, the government is precluded from raising points which are not properly presented in the jurisdictional statement and the government has not argued the right to be informed of the nature and cause of the accusation anywhere in its brief.

We think the record clearly supports this position and therefore any opinion of the Court might present on the right to a speedy trial would leave this independent ground standing below and therefore would not affect the defendant’s freedom and would be an advisory opinion.

We therefore feel that the appeal does not present the proper case or controversy required to give the Court jurisdiction and we think that the case can be disposed off in this way.

Thank you.