LOCATION: Bellmawr, New Jersey Police Department
DOCKET NO.: 176
DECIDED BY: Warren Court (1965-1967)
CITATION: 385 US 475 (1967)
ARGUED: Nov 16, 1966
DECIDED: Jan 10, 1967
Facts of the case
Media for United States v. Laub
Audio Transcription for Oral Argument - November 16, 1966 in United States v. Laub
Do you proceed first --
Leonard B. Boudin:
No, I --
-- in this one Mr. Boudin?
Leonard B. Boudin:
Oh, my apologies Your Honor.
I'm sorry, I'm so custom to being the appellant here.
Mr. Lewin, if -- you may proceed.
Mr. Chief Justice, may it please --
Could you answer -- could you respond to what Mr. McTernan just said?
So far as the stipulation is concern Mr. Chief Justice or the reference in the --
Well, you might --
-- in the -- both?
Take both of them.
Well, let --
Its clear there's a -- it wouldn't depart very far from this case, wouldn't it?
No, it wouldn't.
Well, the stipulation would, I'd been hoping to address myself to it and I just didn't have the time.
So far as the stipulation is concern, I think we plainly concede that the statement in the stipulation that Mr. Travis did not "bear" a valid United States passport specifically endorsed to travel to Cuba could not or just standing there alone sustain a conviction if this Court were to conclude that the only way that you could violate Section 1185 would be if you had no passport at all when you left the United States.
In other words, if Section -- if this Court would conclude that Section 1185 applied only to departures with either a revoked or expired or no passport whatever.
In other words, we think that the statement in this stipulation prevents her conviction on that theory so that if we are wrong on our major argument here this Court would hold that we're wrong then we don't urge that her conviction could be affirmed.
We do however urge that if the Court were so to hold we should be free to retry the petitioner on that ground and we think that that's plainly within Bryan versus United States.
Well, in other words, we think what that would be is that would be a failure, a really quite and accidental, I think failure of proof because of the construction of the -- because of the ambiguity of a stipulation as to a particular element of the offense which the Government did not believe it had to establish at the time this trial was conducted.
Now, we think that's what Bryan versus United States in 338 U.S. held when it construed 28 U.S.C. 2106 to authorize a remand for a retrial and that's in effect what this Court did as to a substantial number of the petitioners in the Yates case in 354 U.S. so that so far as the stipulation is concern as I say, we would -- we concede that her conviction could not just simply be affirmed if our major position is rejected.
On the other hand, we do think that we should be permitted to a retrial on this indictment which simply charges a violation of 1185 pretty much in its terms and to prove at such a retrial that she in fact had only a revoked passport and therefore if she did have only a revoked passport we submit she's no better off for having travelled to Cuba then if she had gone with the revoked passport to Paris or to London or any place else.
The statute on its face plainly we think, prohibits that if it prohibits any.
And do that mean that the Government because the -- of the ambiguity of a statute, I mean, interpretation of it thought that it didn't this one necessary to be proved and didn't undertake to do it that we should let the Government retry this person and supply that?
Yes, we think that exactly what this Court did as I say --
Well, if that -- there is that ambiguity so far as the Government is concerned don't you think that there might be like ambiguity so far as the responsibility of the defendant is concern?